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Piety, Fact and the Oral Account in Native Title Claims

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In native title claims, accounts provided by claimants have played a key role in determining outcomes. Claimants provide the principal data upon which an expert bases his or her view, set out in an expert or connection report. Typically, claimant affidavits are filed in support of a claim and, if the matter goes to trial, claimant testimony has usually been considered by the courts to be the principal component of the evidence considered. Sansom (2006) has questioned the validity of the claimant testimony when applied to a process that seeks to prove native title before a court. He does this on anthropological grounds, arguing that such testimony is unreliable as a result of ‘trends of cultural practice’ (Sansom 2006, 150–1). He suggests that reliance should only be placed on archival records and expert opinion. In this paper, I examine some of Sansom's arguments that support these conclusions. I then seek to evaluate the role of an Aboriginal oral tradition in a native title matter. Through this, I suggest how some of the difficulties identified may be better understood and how others can be mitigated by processes that do not require throwing the baby out with the bath water.
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Keywords: Australia; Indigenous; Law; Native Title; Oral evidence

Document Type: Research Article

Publication date: November 1, 2011

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