“Which Way?” Difficult Options for Vulnerable Witnesses in Australian Aboriginal Land Claim and Native Title Cases

For thirty years, Australian Aboriginal witnesses have been subjected to varying degrees of oppression in land claim and native title cases. Each legal arena requires Aboriginal witnesses to demonstrate their traditional connections to Aboriginal land. Some witnesses appear reticent or even inarticulate, despite their actual, considerable knowledge of Aboriginal traditions. However, there are also highly acculturated Aboriginal witnesses; ironically, such witnesses may be criticized by opposing counsel essentially for their Anglo-Australian cultural literacy, so that such witnesses will be depicted as not, or less, “traditional” than their less acculturated counterparts and, therefore, have their status as Aboriginal traditional owners of land discounted—or at least questioned. For these vulnerable witnesses, there is a Catch-22 cleavage: if you are articulate, you appear less traditional; if you are inarticulate, you may appear traditional, but it is difficult for the tribunal to assess your claim to traditional ownership of land.