Not by Discovery but by Conquest: The Use of History and the Meaning of ‘Justice’ in Australian Native Title Cases

Abstract

This article provides a critical assessment of Australian appellate courts' handling of historical evidence, at various levels and in various jurisdictions, over recent years in litigated Aboriginal land title disputes. Consideration is given to the courts' posture towards the evidence of historians, anthropologists and ethnographers, the extent to which such specialists have been considered ‘experts' or not, and the ways in which their evidence and accounts have been weighed and assessed. The article also examines the experience and contributions of the members of these professional groups who have been called to give evidence, and the challenges to their professional integrity that such appearances have sometimes involved. The paper concludes with an assessment of the extent to which the courts' interpretations of history in this important area of contemporary litigation have assisted or under***cut attempts to secure legal recognition of Aboriginal land rights.