https://orcid.org/0000-0003-2036-2319
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ABSTRACT
Translation, broadly defined as the articulation of the relationship between different cultural, social and legal systems, is at the heart of the anthropologist’s or linguist’s role as an expert witness in a native title hearing. It occurs at the level of individual lexemes, in categorising cultural concepts, and in the frame of the legal context. We exemplify the interrelationships between these by focussing on the quasi-legal use of the English word ‘permission’, a key concept in native title and land claim discourse. In the Blue Mud Bay case, Yolngu Matha was the first language of the witnesses, and there is no straightforward translation for this use of ‘permission’ in Yolngu Matha. As the ‘experts’ we needed to anticipate how Yolngu would understand the concept and its relevance to the court case. We first summarise our exploration of ‘permission’ with the claimants and show how a cross-cultural understanding of the ‘legal’ English concept emerged. We then focus on one of the court’s main artefacts of translation—the witness statement—which must be produced or be translated into English. In our experience the witness statement is a product of a dialogical process involving the close collaboration of applicant (witness), counsel and expert. We reflect on the complexity of this process and how it operated in the Blue Mud Bay case. We conclude that translation is both possible and necessary in the conduct of native title cases. But it is not straightforward, nor should it be an unexamined process.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 The initial determination of the Blue Mud Bay case can be found at Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425. The determination of the Full Federal Court hearing may be found at Gumana v Northern Territory of Australia [2007] FCAFC 23. The High Court's determination may be found at Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29.
2 See Holcombe (Citation2018) for discuusion of the difficulty of translating 'rights' across cultures and legal frameworks.
3 These ethical considerations are discussed in some detail by Livia Holden (Citation2022, 671) who concludes that ‘the consequences of nonengagement as expert witnesses in situations of conflict and litigation may sometimes outweigh the risks involved in engagement because anthropologists may be, in certain situations, the best suited to contribute to the protection of vulnerable groups and individuals.
4 As Rose (Citation2022, 28) writes ‘ -- a collaborative and inclusive orientation, where possible, tends to advance not only the interests of disadvantaged parties via legal processes, but also advances the ethical and intellectual integrity of both social anthropology and the law, opening up pathways to more inclusive and just precedent-setting judicial decisions, and furnishing legal practitioners with more inclusive and just concepts for contribution to law reform’.
5 Justice Blackburn’s commentary in the original Gove land rights case (Milirrpum and others v Nabalco Pty Ltd (1971) 17 FLR 141 (Milirrpum v Nabalco) alludes to the interesting relationship between evidence and opinion when he writes: ‘Expert evidence that provides no compelling connection between facts and opinion is broadly unhelpful to the law, no matter the field of expertise, and no matter which party seeks that expertise to advance its case, whether claimant, respondent, plaintiff or defendant’ (cited from Rose Citation2022, 32). Rose (ibid.) convincingly argues that Blackburn’s reasoning provided a precedent setting judgement for the relevance of the expert evidence provided by Australian forensic social anthropologists.
6 The concept of explication has not been given the attention in merits in native title anthropology (see Morphy Citation2007, Citation2009). As Palmer (Citation2018, 96) notes: ‘In my view, a proper explication of the complexity is a necessary part of advancing an expert view in relation to a customary system of rights to country’.
7 In the Djambarpuyṉgu legal dictionary (Aboriginal Resource and Development Services (ARDS) Citation2015), which is based on the translation of legal concepts couched in ‘plain English’, the idea of permission is rendered differently depending on whether permission is granted or withheld. The idea of granting permission is conveyed through the use of various forms of the verb yoram ‘to say yes, to agree’ while the idea of withheld permission is conveyed through the use of dhä-ngänhamiriw ‘mouth-hearing-without’. In both cases the translation is predicated on the idea that someone has to do the asking first, which is precisely, as we shall see, where the problem lies. This dictionary was not available at the time of the case in question, and we never heard these two terms used in discussions of permission.
8 Elsewhere we have discussed our role in the case and the nature of the evidence that we produced (Morphy Citation2006, Morphy and Morphy Citation2009).
9 This issue indeed came up in the original Yolngu land rights case, Milirrpum v. NABALCO.
10 For a discussion of the concept of cross-cultural metacategories see Morphy and Morphy (Citation2020).
11 Here Wakuthi is invoking a relationship between two clans of the same moiety that stand in a particular kin relationship to one another—MM(B) (märi) and (Z)DC gutharra—and as a consequence have particular responsibilities to each other’s clan estates. This relationship is projected, in effect, from the level of relationships between individuals to the level of inter-clan relations; for more detail see Morphy Citation1997.
12 We do not use the names of people from whom we have not obtained permission to reveal their identities, except in the case of Gawirriṉ Gumana and Wakuthi Marawili. It is impossible to conceal the identities of these two former regional leaders.
13 B was a senior woman of the Munyuku clan.
14 In Manggalili mythology, yambirrku (blue tusk fish) is the fish whose remains were buried in a yingapungapu—an oval depression in the sand—by the ancestral Nyapililngu women. Thus this fish species stands, metaphorically, for the body of a deceased person whose burial ceremony will feature the creation of a Yingapungapu sand sculpture (see Morphy Citation2006).
15 For a comparative discussion of the owner—manager relationship see Morphy and Morphy (Citation1984).
16 The Yolngu Matha Dictionary 2015 is available at yolngudictionary.cdu.edu.au.
17 This phenomenon, on which we have not yet published in detail, is a topic of research in an ARC-funded Discovery Project on which we are currently working: ‘Placenames and Personal Names in Yolngu Society and Country Through Time’ (DP200102773).
18 Which is why we have anonymised the clan concerned as well as the people involved.
19 This next section of the paper is a development of a topic first examined in two earlier publications (Morphy Citation2007, Citation2009).
20 Nor indeed might the expert witnesses be, unless they have had the opportunity to observe and analyse this process in advance of the case in point. This is, essentially, an informal process, a somewhat unexamined practice that has arisen in the context of native title hearings.
21 See also Eades, Fraser, and Heydon (Citation2023); Holcombe (Citation2018).
22 There are going to be cases in which Yolngu concepts such as gurruṯu are going to appear to contradict the conception of rights and permission under particular frameworks of Australian law. Mazzola (Citation2020: xx) in his analysis of witness statements in copyright cases shows ‘that the main outcome of Yolngu affidavits is a peculiar and paradoxical narrative, simultaneously constructing the ontological status of sacred artworks as an inalienable dimension of territorial cosmos and as original and individually created intellectually property objects. As seen (§ 1-2) the two conceptions are actually incompatible, since the property archetype unavoidably disrupts the cosmological connections linking artworks, people and land in Yolngu worldview.’ Mazzola’s article illustrates how this apparent incompatibility was reconciled in practice.
23 We have explored the concept of relative autonomy in a number of articles (Morphy and Morphy Citation2013 and Citation2017). The Federal Court in this context is operating as an intercultural space in which the relative autonomy of certain components of Yolngu law is being recognised.
24 We are grateful to the two anonymous referees who read this paper for the journal for their useful comments and suggestions, many of which we have adopted. Any remaining errors of fact or interpretation are the responsibility of the authors alone.