Native Title Archaeology: A Synopsis of the Role of Archaeology in Litigated Native Title Determinations in Australia

Article excerpt

Abstract: The archaeological evidence used in litigated determinations has the ability to provide valuable data upon which archaeological practitioners can draw. Equally, the limitations of archaeology in native title to address issues of continuity, and the discipline-embedded limitations in being able to establish ethnicity and "boundaries' in the archaeological record as required by the courts, must also be recognised. My research establishes the unique, but limited, role of archaeology in providing evidence for the requirements of native title, with specific reference to the length of occupation of a territory in question and continuing traditional customs and laws concerning it. My critique attempts to illustrate what the most relevant uses of archaeology to the requirements of native title might be, within the limits of the rules of evidence and the duty of the expert witnesses. This research, undertaken as a recently completed BA (Honours) thesis, establishes the need for revised methodology for native title archaeology.

Introduction

Archaeology has been asked to address requirements for native title that are seemingly beyond the current scope of 'normal' archaeological practice (McCarron-Benson 2004). To participate to their full potential, archaeologists need to be able to meet the requirements of this legal framework. This may be accessed through an understanding of the legislation and case law, and includes the need to be aware of the categories of archaeological evidence most relevant to native title. It is therefore vital for the discipline to acknowledge the role that it could have in the process of native title claims, what evidence is likely to be relevant, and how this evidence can be presented optimally to the courts in a convincing and authoritative manner. For example, the use of oral testimony and ethnography to contextualise the archaeological 'landscape' in native title claims is one area where an extra-disciplinary approach is mobilised.

Archaeological practitioners would benefit from a better understanding of the role of archaeology in native title. Foremost, there is a need to know the types of evidence that have been successful in meeting native title requirements. Contact evidence, especially glass artefacts and rock-art motifs, play an important role, allowing archaeologists to address issues of chronological resolution for the time of sovereignty specific to the claim area and 'ethnicity' in the archaeological record. Excavated sites, their assemblages and other categories of evidence described in the cases examined here are also considered vital for providing a better archaeological understanding in native title. The particular knowledge needed for native title litigation, including legislation, the rules of evidence and the role of the expert witness, together with the distinct aims and limitations of this field of research, necessitates a specialised practice for native title archaeology.

This practice requires a body of knowledge which archaeologists can draw on for the presentation, validation and verification of their results. There is a need to better identify a methodology for use in native title claims which can be adopted in both field and analysis situations. The recent honours dissertation by the author (McCarron-Benson 2004) addressed the following key questions:

* What are the strengths and limitations of archaeology for native title research?

* What sorts of evidence have been relevant to native title?

* What methodology has been employed by archaeologists?

* How is the evidence interpreted to meet the requirements of native title?

The following is a synopsis of research from the dissertation. The research questions were answered based on an analysis of the following litigated native title cases:

* Daniel v State of Western Australia (2003)

* De Rose v State of South Australia (2002)

* Hayes v Northern Territory (1999) Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors (1998)

* Neowarra v State of Western Australia (2003)

* Ngalakan People v Northern Territory of Australia (2001)

* Rubini Community v State of Western Australia (2001)

* Ben Ward & Ors v State of Western Australia & Ors (1998)

* Yarmirr v Northern Territory (1998). …