The forms and rituals of the court come as second nature to those who are expert practitioners, but they are as exotic and potentially impenetrable to Yolngu claimants in a native title case as Yolngu ritual forms are to non-Yolngu.

The performance space—the courtroom—is a constructed ritual space. This much was obvious to Yolngu because the court was held in a building at Yirrkala to which everyone normally has access—the adult education centre. Fig. 2.1 shows how the main teaching/meeting room became a courtroom. The space was transformed symbolically by the placing of the symbol of the court—the Australian coat of arms bearing the figure of the kangaroo and the emu—at the front of the room, and then this symbolic space was divided into clear zones.^[5] In front of the kangaroo and emu stood a table—the ‘bench’—at which sat the judge and his associate. The court recorders sat to one side and the witness and the interpreter sat opposite them, to the other side of the judge.

The space between these two flanking tables was empty. Facing the judge across this space were two lines of tables and chairs. The first row was occupied by the teams for the applicants and the most active respondents (the Northern Territory and Commonwealth governments), including the expert witnesses, and the second by the less active respondents and me (an expert witness with a non-speaking part). This completed the arena in which action took place. In the back half of the room, again separated by an empty space from the actors in the proceedings, was the space for the ‘public’ to sit.

Adjoining the public court there was a restricted space to which only the judge and the court officials had access.^[6] The entry of the judge from the restricted space into the public space took place through a door at the front of the court. Everyone else entered through the door at the rear of the court.^[7]

The Australian court system has an elaborate set of rules for proper discourse, in which different actors have different roles according to their status and function. Certain categories of persons can speak publicly; others—solicitors and expert witnesses who are not on the stand—can give written advice to their colleagues with speaking parts, but may not themselves speak. The discourse rules are well understood and are manipulated (with varying degrees of subtlety) by the actors in the court who have legal training, but they are not transparent to, nor are they explicitly laid out for, the ‘lay’ actors—the witnesses—who must attempt to learn the rules as they go along. The system is also hierarchical, and that hierarchy is made manifest in the degree of constraint to which different actors must submit themselves. At the top of the hierarchy is the judge, who is the least constrained. It would appear that he or she can speak at any time, freely interrupting the speech of others.

The hierarchy of constraints is ostensibly designed to control the flow of information into the official record of the court, in such a way as to maximise the production of objective ‘facts’ that are relevant in law to the particular case, according to a particular set of ‘rules of evidence’. It is a highly positivist enterprise. In native title cases it has a paradoxical effect, when viewed from the perspective of the applicants—the purported ‘native title holders’. They, who are the most knowledgeable about their own system of ‘laws and customs’, have the most severely curtailed rights to speak in the body of the court. They may only speak when spoken to. Their barrister, who has spent time with them preparing the case and is likely to have more knowledge of their ‘laws and customs’ than any of the other counsel present, is bound by the rules of evidence to act ‘as if’ he knew nothing, because he may not ask leading questions—that is, he may not ask questions that contain knowledge that he and the applicants know that they all hold in common.^[8]

Prior to the court hearing, a set of detailed witness statements had been prepared. The witnesses had understood that these were to form the basis of questioning that they would be facing in the court hearing. There had been some discussion at the directions hearings preceding the court hearing about how these statements were to be used. The respondents had wanted full statements in writing, and to have the portions to which they raised no objections accepted as the witnesses’ evidence in chief. In the case of objections, the relevant paragraphs were to be lead orally from the witnesses. Counsel for the applicants had objected to this process. He favoured providing summaries of the evidence and otherwise leading evidence orally. The judge noted his objection to the process advocated by the respondents.

The judge was concerned to make the proceedings as short as possible. Accordingly, at the beginning of the court proceedings large portions of the witness statements were indeed accepted into evidence, with no objection from the respondents. But there remained certain paragraphs or sentences that the respondents did not allow into evidence, and insisted should be the subject of oral examination in the court. Although the counsel for the applicants was not explicitly confined to leading only the evidence in these excised portions of the witness statements, in practice the timetable set by the judge made it impracticable to do anything else.^[9] As a result, the witnesses found themselves being asked a very narrow range of questions.^[10] Towards the end, the last witness (X) obliquely voiced his frustration with this state of affairs:

The counsel acting for the respondents are free to ask leading questions if they so wish, and are not confined to leading evidence from the witness statements. They may even, as a tactic, pose questions that are deliberately founded on ignorance or wilful misunderstanding of the facts. The latter were sometimes deliberately deployed to attempt to confuse the witness, or to lead them towards a conclusion that they would not freely subscribe to.

From the point of view of the non-initiate—Indigenous or non-Indigenous—the structure of the discourse imposed by the court seemed designed, whether intentionally or not, to emphasise the power of the European law by systematically constraining the ability of the knowledgeable practitioners of rom to express rom clearly in its own terms and in its fullness.

This was a paradoxical effect, because the judge’s intention had been quite different. He was proceeding from the premise that he only needed to know from the witnesses that which was relevant to native title law—it was not his role, as he said, to become an anthropologist or an expert in Yolngu law. He was also clearly concerned to minimise the adversarial aspects of the judiciary process on the witnesses: he enjoined the respondents not to attack their credit, and he clearly wished to set limits on the number of witnesses, and on the length of their appearances on the stand, not simply to expedite the hearing and confine proceedings to what he saw as the relevant facts, but also to minimise the potential for adverse impacts on the Yolngu claimants.

To some extent, then, the judge and the claimants were at cross purposes. While the judge was concerned to minimise the impact of the proceedings on the claimants, the claimants were concerned to produce as much of an impact on the court as they could. They saw the court as a platform for demonstrating the power of rom and the depth of their knowledge about it—as a site for persuasion.^[12] This is in continuity with earlier Yolngu views of the court in the Gove case, as described by Nancy Williams:

During the proofing stage of the Gove land rights case W. E. H. Stanner and the claimants’ solicitor Frank Purcell were taken to a place where they were shown sacred objects. Stanner recalled: ‘One of the men said to me: “Now you understand”. He meant that I had seen the holy rangga which in a sense is the clan’s title deeds to its land, and heard what they stood for: so I could not but “understand”’(1979: 278).

In the Blue Mud Bay case, the claimants were more conversant with the conventions of court hearings than their forebears had been, having had more direct or indirect experience of the adversarial system in the intervening years. However the connections between explanation, demonstration and understanding, as detailed by Williams and Stanner, hold equally strongly for Yolngu today.

From a sociolinguistic point of view, the ‘witness statement’ is an interesting and problematic document. The judge in this case considered it to be a valuable tool. In his judgment (Selway J 2005) he said in part:

I would not quarrel with his Honour’s concluding sentence, in this particular case. However, I want to pick up on the phrase that has been italicised. For the process involved in the construction of a witness statement is much more complex than this, and it is not, strictly speaking, translation (Fig. 2.2).

If it were possible to translate word for word between Yolngu-matha and English, and if we were only dealing with ‘layman’s’ English, then maybe the process would be straightforward. Once the lawyers had written up the statements in English, it would simply be a matter of reading the statement back to the witness (or translating it word for word into Yolngu-matha and reading it back), or getting the witness to read the statement over for themselves. The Yolngu witness might find the formal style of the statement unfamiliar, but that would not be a barrier to comprehension. However, neither of these ‘ifs’ hold.

Firstly, there are very few words that can be translated literally from one language to the other. There is, for example, no English equivalent of the word gurrutu, and no Yolngu-matha equivalent of the English word ‘permission’. For an English speaker to understand what gurrutu means, it is necessary for them to be familiar with the operation of the Yolngu kinship system, and for a Yolngu person to understand what ‘permission’ means (in the context of native title) it is necessary for them to be familiar with Anglo-Australian notions of property.

Secondly, and this is something the Yolngu witnesses are not privy to, many of the words that appear in witness statements—words like ‘permission’, ‘speak for’, ‘resource’, ‘sing for’ and ‘connection’—have come to have particular meanings for lawyers who work in native title. Some are defined in the Native Title Act 1993 itself, which gives them status as legalese; others are quasi-legalese—terms that have commonly been used by lawyers in native title cases, and which are in the process of definition as legal terms, with very particular meanings. The trouble is that they sound like ordinary English words. So a phrase like ‘without first having to ask permission’ could conceivably mean something very different to the Yolngu witness to whom it is read from what it means to the lawyer who reads it to him—even if that witness has reflected at length on what ‘permission’ might be equivalent to in the Yolngu system (as at least one witness had done). To a Yolngu who has not reflected on the meaning of the word, the phrase is, quite possibly, meaningless.^[13]

With a moment’s reflection, it is possible to see that the ‘translation’ of a witness statement ‘back’ into Yolngu-matha so that it can be verified as his own by a Yolngu witness with poor English, is a near impossible task, and one that would be extremely time consuming. For such a document is a hybrid.^[14] It purports to be the statement by the witness about ‘laws and customs’ (rom), but it is to some degree actually a lawyer’s statement about native title. It belongs fully to neither of its authors, and its meaning is inherently indeterminate.

The witness statement is a particular instance of what Mantziaris and Martin have in mind when they write: that ‘native title involves a process of translation from indigenous “relations” defined by traditional law and custom to native title rights and interests enforceable within the Australian legal system. This process of translation becomes difficult, or impossible, when the terms of the translation are incommensurable’ (2000: 29). I do not take the strong position that incommensurability is inevitable and always uncircumventable. However, I do take the witness statement to be an instance of ‘enforced commensurability’ in the context of an unequal power relation.

These statements are long documents. The one being discussed in the extract below from the court record is 89 paragraphs long. This in itself makes it unlikely that the witness has a full recall of its contents. Does this matter? Yes, because these documents are treated, according to an unstated convention ‘as if’ they were the actual words of the witness, when everyone in the court knows they are not. Hence the programmatic nature of their adoption into evidence, where much less attention is paid to the witness’s response that the statement is ‘true and correct’—this is a formulaic ritual exchange—than to its status as a legal document: which ‘matter’ it relates to, and which bits have not been accepted ‘by consent’ into the evidence before the court:

The trouble is that the respondents can, as a tactical manoeuvre, when it suits them, violate the unspoken convention. They can do this because it has no official status in the court. They can question the witness minutely about the precise meaning of a word that ‘they’ have used in ‘paragraph n’ of their statement. In his determination Justice Selway (2005) drew attention to the one instance of this tactic that came to his notice where, in his opinion, misunderstanding was evident (emphasis added):

In this comment Justice Selway is treating paragraph 40 of the witness statement ‘as if’ Y had actually said or written the precise words quoted. However, ‘resources’ is one of those quasi-legal words that had been introduced in the writing up of the statement—a word that has a precise meaning for the lawyers in the court. It had been introduced to gloss what the witness had actually said originally, as a kind of shorthand, linking the statement efficiently to a particular point of native title law. The witness had no appreciation of this. In the context of the cross examination in which the contents of paragraph 40 were raised, the witness’s concern was to try and make sense of the word in that more immediate context. The context ‘paragraph 40 of a long document which is based on words I once spoke but was not written by me’ was basically inaccessible to him. Since the place being talked about in that exchange happened to be a major sacred site, his fixing on the abstract meaning of resource as ‘spiritual resource (‘stories’)’ was unsurprising. Discourse mediated through witness statements is full of such moments, although often this is only fully evident to the linguist sitting uncomfortably in the second row.

At the end of his cross-examination, counsel for one of the respondent parties attempted to cast doubt on the status of the witness statements by putting the ‘as if’ convention on the record. He questioned X as follows:

It is fair to say, bearing in mind the judge’s comments in his judgment, that this ploy was unsuccessful, and his Honour appreciated X’s sardonic response at the time. But it is by no means clear that the ploy ought to have been unsuccessful. In native title proceedings a great deal of time and thought has gone into the precise evidential status of expert reports—particularly anthropologist’s reports. But the evidential peculiarities of the witness statement have gone largely unexamined, and while they remain so they are potentially a source of disadvantage to the witness. They expose the witness to the possibility of hostile cross examination, in which they are asked to defend or reproduce statements—said to be theirs—that are not couched in the language nor in terms of concepts that they themselves would have used.^[17] Moreover, in this case of ‘enforced commensurability’ the witnesses, in acceding to the proposition that the witness statements are their statements, are also, perforce, acceding to this particular representation of ‘their’ laws and customs.