Expert witnesses are not confined to evidence relating to what they themselves have directly observed but are also entitled to give evidence as to their opinions on matters relating to their area of expertise.
Seven expert witnesses were called: two by the plaintiffs (Dr Jeremy Beckett, an anthropologist with considerable fieldwork experience in the Torres Strait and Dr Robert Johannes, a marine biologist with an interest in Murray Island customs relevant to the conservation and management of marine resources) and five by the defendant (Mr Patrick Killoran, Mr Colin Sheehan, Mrs Margaret Lawrie, Mr Donald Worner and Dr Ruth Kerr).
Justice Moynihan's determination provides an overview of the areas of expertise of these witnesses: EXCERPT pp453-48 as follows:
In addition to Murray Islanders a number of witnesses of various background gave evidence directed to various issues. Some of these were equipped, by experience or study, or a combination of both to deal with a specific field of knowledge and to provide opinions relevant to issues. These witnesses were Dr. Jeremy Rex Beckett, Mrs. Margaret Elizabeth Lawrie, Dr. Robert Johannes, Mr Patrick James Killoran, Mr. Colin Gordon Sheehan, Dr Ruth Sadie Kerr and Mr. Donald James Worner.
Doctor Beckett is an anthropologist who first visited Murray Island in 1958 when he spent some time there, being adopted in to a Murray Island family in order to effectively pursue his studies. He revisited the Islands on a number of subsequent occasions. His book "Torres Strait Islanders - Customs and Colonialism" was admitted into evidence as Exhibit 213. I shall refer to it as "Torres Strait Islanders.' (Exhibit 213). Other writings by Dr. Beckett became Exhibits 215, 216, 217 and 218.
Doctor Beckett was called by the plaintiff and his expertise as such was not challenged by the defendant.
Doctor Beckett's specific concern was not so much the tribal or pre-contact stage of Torres Strait Islanders as with the way in which their social systems have responded to and were transformed by contact with the modern world. That is not to suggest that the former concern was altogether irrelevant to his interest. It is however a statement of the primary focus of his work. His work may be accepted, for the moment if not totally, as showing that Murray Island society is resilient and adaptive to change. It is however, given the focus of his concern, less useful in founding conclusions as to the position prior to the development of the responses and transformations which are his particular concern.
In fact there was not a great deal of contemporary expert evidence directed to drawing a picture of Murray Island society, from for example the myths and legends or the present shape of the society, as it was before European influences had their effect.
Mrs. Margaret Lawrie was originally a teacher whose contact with the people of the Torres Strait commenced while ascertaining the attitudes of women there to alcohol being available on reserves. This contact stimulated her to determine to record the myths and legends of the people before they passed from memory. This she achieved admirably in her book "Myths and Legends of the Torres Strait which was admitted into evidence as Exhibit 255 (I will refer to it as "Myths and Legends" (Exhibit 255)). In order to achieve the collection she spent the equivalent of two years in the Torres Strait including some six months on Murray Island in 1967/1968 as well as speaking to informants on Thursday Island, Brisbane and Cape York. With the assistance of a number of the older Islanders, notably George Passi, she learnt the Meriam language and painstakingly collected the stories.
There was no challenge to Mrs. Lawrie's expertise as a recorder of myths and legends. She impressed me as having a great feeling for the ethos of the Meriam people and for Murray Island and an ability to convey that ethos.
Mrs. Lawrie's evidence related in only a relatively slight degree to the anthropological or sociological significance of what she recounted. Her concerns were directed to the recording of the stories rather than to their interpretation. Indeed as I have said there was little or no evidence which did.
The "Myths and Legends" (Exhibit 255) is in fact a mixture of stories bearing on the origins of the people of Murray Island and of stories of events in the history of the people of the Island. Some are of events within the experience or memory of the storyteller, others relate to specific events beyond any living memory, other of events distorted by being lost in the distant or mythical past.
Doctor Robert Johannes was a marine biologist with a particular interest in the study of native customs from the point of view of their operation in the conservation of and management of marine resources. He has manifest an interest in the Murray Islands. There was an issue as to the appropriateness of his expertise to equip him to offer certain of the opinions contained in his evidence and I am inclined to think that some of his opinions, for example as to land tenure, may have gone beyond his established expertise.
Mr. Patrick James Killoran was a retired public servant who in 1947 commenced duty in the Office of the Protector of Islanders at Thursday Island. He held the office of Deputy Protector of Islanders from early 1949. In the following year he became a member of the Island Industries Board constituted pursuant to the Torres Strait Islanders Act of 1939. In 1964 Mr. Killoran came to Brisbane as Director of the Sub-Department of Native Affairs and continued, under various designations, to have administrative responsibilities for the Islands of the Torres Strait and their inhabitants up to the date of his retirement in 1955 From 1947 to 1964 Mr. Killoran and his family lived on Thursday Island.
During the course of his service Mr. Killoran had considerable contact with Torres Strait Islanders (including those from Murray), their society and culture. He visited the Islands, including the Murray Islands on numerous occasions and, it might be said that all in all he had both considerable opportunity and the interest to make observations of them and their people.
Mr. Colin Gordon Sheehan was an historian and archivist whose major contribution to the proceedings was the preparation of the genealogies of Murray Islanders which in their final form became Exhibit 237 access to which is achieved through an index, Exhibit 236. Consideration of the significance of his work relates to a consideration of the genealogies collected in Haddon (Exhibit 117) which are dealt with later under the heading Documentary Evidence.
It is relevant to remark that there seems no issue concerning Mr. Sheehan's expertise. Subject to some qualifications which emerged in his evidence the genealogies compiled by Mr. Sheehan may be accepted as reflecting the best information currently available from the resources which he identifies.
Doctor Ruth Sadie Kerr is an historian and archivist who was responsible for the compilation of Exhibit 80 which is 42 volumes of archival documents access to which is achieved by an index, Exhibit 79 and of Exhibit 299 which is essentially a collation of the documents relevant to the plaintiffs' statement of facts Exhibit 1. It is updated by Exhibit 300 and expanded by Exhibit 302. Again there seems no issue of consequence concerning Dr. Kerr's expertise.
The same comment applies to the evidence of Mr. Donald Worner. He was the Registrar of Dealings of the Lands Department of Queensland. He gave evidence about the administrative practices of the department with respect to land on Murray Island and otherwise relevant to the case and produced various documents.
I note at this stage that a number of the Murray Islander witnesses, notably the plaintiff Eddie Mabo and George Passi (called by the defendant Queensland), gave opinion evidence in respect of matters which they claimed to have been qualified by experience (and in Mr. Passi's case by study) to give. Considerations bearing on the evaluation of the evidence of such witnesses is dealt with later.
The plaintiffs' evidence was directed to establishing the existence and continuation of a traditional land tenure system, on which the particular claims of the plaintiffs were founded. Queensland vigorously contested the continuation of any such system. The issue was a fundamental area of dispute between the parties. The conflicting evidence of the expert testimony from Dr Beckett and Mr Killoran highlights the dispute:
Law in Context
Phase V: An indigenous Murray Island Law?
The Evidence (2)
Arguments for the Continuity of the Land Tenure System: An Overview
A major focus of this phase was the hearing of evidence on whether a traditional land tenure system exists today at the Murray Islands which 'is continuous with the system that previously existed before these islands were annexed (Plaintiffs; Submission 1989, Chapter 8: 2). Between May and September 1989 the Court heard the plaintiffs, and Murray Island witnesses were called (Eddie Mabo completed his evidence, James Rice and Reverend Dave Passi, who had withdrawn from the case in 1986, appeared as a witness for the plaintiffs). Expert and other witnesses were also called. Several Islanders gave evidence for the first defendant. Significantly, no Islander or expert witness for the defendant contested the existence of a continuing land tenure system at the Murray Islands.
In contrast, Patrick J. Killoran present evidence for the first defendant consistent with his Affidavit that outsiders had changed the way of life and customs of the Murray Islanders fundamentally (Affidavit 1982. Eighth sheet para 4). He handled questions on the continuity of a traditional land tenure system by expressions of lack of competence, or ignorance f whether decisions were made in the light of traditional rules and practice', claiming that Island councillors saw 'The total area as a reserve' (T.3084). he professed ignorance of a practice instituted by the Island Council in the 1970's when he was Director of the DAIA, imposing a rental upon Murray Island land-owners (T.3086-87); and although he admitted the existence of customs and practices regarding land inheritance (T.3092), he claimed that any practices of exclusion at Murray Island were just the normal social practices observed throughout Australian society (T.3093). The witness interpreted the idea of preserving 'many of the finer tribal laws and traditions' of the Torres Strait, which he had advocated in a report in 1958, now produced in court, as meaning the preservation of the integrity of the area against foreign control rather than as fostering traditional practices (T.3099).
The position adopted by witnesses for the plaintiffs rejected the idea 'that the system as it existed prior to contact has continued in its pristine state, untouched by the effects of European contact until the present time' (Plaintiffs' submission, 1989, Chapter 8: 1-2). Island witnesses saw themselves as fully acquainted with Western ways, and at the same time as traditional landholders socialised by Murray Island society into the ways of Malo's Law. Dr Jeremy Becket, an Contrasting Cultural Perspectives anthropologist who had first begun work in the Torres Strait in 1959, was called as an expert witness by the plaintiffs. He argued for the 'strong continuity' and persistence of the system in 'its essential form' (T.2237; c/f. Exhibit 214:6), and the absence of any radical restructuring of the land tenure system' (T.2227). Beckett's evidence, which confirmed that given by all Island witnesses (and which itself was reinforced by expert witnesses for the plaintiffs and the first defendant), went unchallenged. As the plaintiffs noted, 'The force of principles as between Murray Islander's known as Malo's Law, 'and the strength of their belief in the significance of rights in land inter se, were strongly reinforced by all Islander witnesses' (Plaintiff's Submission 1989, Chapter 8:11).
The meaning of 'essential continuity' in the land tenure system is summarised well by Becket: firstly, 'there is private property in Murray Island'; secondly, 'the proper way to acquire this is through inheritance from one's parents, or one's adoptive parents or close relatives (T2252). Modifications as a result of European intrusion, he went on 'are of a kind', which did not 'radically after the indigenous system' (Exhibit 214:12). On the one hand, the existence of written court records of land disputes and transactions are a new form of re-affirmation of the traditional system. Describing these records as 'a unique and remarkable written record of the traditional system, the plaintiffs drew attention to these records as a most unusual example of a contemporaneous written record of a traditional land system based on oral foundation, in its day to day operation' (Plaintiffs' Submission, 1989, Chapter 8:29). Far from having been extinguished, the system had 'expanded' to be inherited according to oral tradition, but disputes concerning ownership were required by Queensland to be recorded in writing.
Keywords: anthropology, Beckett, Jeremy, Killoran, Patrick, Meriam history, Sharp, Dr. Nonie, witnesses, 1990
Justice Moynihan's determination, pp 43-48; Extract from Nonie Sharp article 'Contrasting Cultural Perspectives', 'Law in Context' at 24-25 article.
Author: Kenna, Jonathan