¹ See infra p. 194, where the definition is set out.

² Wurm, “Aboriginal Languages and the Law” (1963) 6 University of Western Australia Law Review 1, 2.

³ D. Zorc, Personal correspondence.

⁴ Whorf, in Carroll (ed.), Language, Thought and Reality (1956) TechnoloS)' Press of M.I.T., Cambridge, Mass., cited by Wurm, op. cit. 4.

⁵ Quoted in Australian Law Reform Commission, Report No. 2, Criminal Investigation (1975) 119; see also the decision of Forster J. in R. v. Anunga (1976) 11 A.L.R. 412.

⁶ Kriewaldt, , “The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia” (1960) 5 University of Western Australia Law Review 1, 23Google Scholar; see also the comments of Starke J. in Tuckiar v. The King (1934) 52

⁷ Kriewaldt J. saw “no solution. If the criminal law is to be applied at all to aborigines, it must simply be accepted that, for some years yet, many aborigines.will nqt understand, even to a limited extent, the method whereby it is decided whether they be guilty or not”: id. 23.

⁸ Ngatayi v. R. (1980) 30 A.L.R. 27 (Murphy J. dissenting); see also Smith v.Grieve [1974] W.A.R. 193 and R. v. Grant [1975] W.A.R. 163.

⁹ Wurm, op. cit. 6, 8.

¹⁰ Cited in Brennan, “The . Need for Interpreting and Translation Services for Australian Aboriginals, with Special Reference to the Northern Territory-A Research Report” (1979) R.E.S.: 7, Department of Aboriginal Affairs, 30.

¹¹ Wurm, op. cit. 5.

¹² Williams, “Law, Laws, and 'The Law': Aborigines and the Administration of Criminal Justice, with particular reference to the Northern Territory”, a Paper delivered at the Australian Institute of Criminology, Canberra, 1 November 1977.

¹³ Rev. J. Downing in R. v. Buller, S.C. (N.T.) No. 170 of 1975, transcript 162-163.

¹⁴ Linguists currently refer to “Aboriginal English” as a dialect with an English vocabulary but having a structure, grammar and intonation that relate to a superseded form of speech: Makin, “The teaching of Aboriginal Children” in Berndt (ed.), Aborigines and Change (1977, Australian Institute of Aboriginal Studies) 224-225.

¹⁵ Kriewaldt, op. cit. 22.

¹⁶ Ngatayi v; R .(1980) 30 A.L.R. 27 is an example of the type of case where this argument may have been put.

¹⁷ In the Warlpiri language junga means “true” and jungarni means “straight”, but as early as 1947 Professor A. P. Elkin noted the use of the exhortation “to talk straight-fellow” in courts. For a discussion of the relevance of the oath, especially to people from non-English cultures, see generally Radevsky, “Is the Oath Out of Date?” (1980) 130 New Law Journal 397.

¹⁸ Examples in Brennan, op. cit. 22-23.

¹⁹ Strehlow, “Notes on Native Evidence and its Value” (1936) 6 Oceania 323; Elkin, “Aboriginal Evidence and Justice in North Australia” (1947) 17 Oceania 173; Newton, “Aborigines and the Criminal Justice System”, in Biles (ed.), Crime and Justice in Australia (1977) 135-137; Coldrey and Vincent, ''Tales from the Frontier: White Laws-Black People” (1980) 5 Legal Service Bulletin 221; Daunton-Fear and Freiberg, “'Gum-tree' justice: Aborigines and the Courts”, in Chappell and Wilson (eds), The Australian Criminal Justice System (2nd ed., 1977) 45-100; Cranston, “The Aborigines and the Law” (1973) 8 University of Queensland Law Journal 60.

²⁰ Stanner, “After the Dreaming”, reprinted in Stanner (ed.), White Man Got No Dreaming (1979) 230.

²¹ Ibid.

²² Id. 49.

²³ (1971) 17 F.L.R. 141.

²⁴ Id. 272.

²⁵ Ibid.

²⁶ Id. 271.

²⁷ Id. 273.

²⁸ Mr Justice J. L. Toohey at the time of writing: since April 1982 Mr Justice W. J. F. Kearney.

²⁹ s. 3(1).

³⁰ Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 F.L.R. 141, 161-165.

³¹ The discussion by the Aboriginal Land Commissioner in Anmatjirra and Alyawarra Land Claim to Utopia Pastoral Lease (1980) paras 89, 105-108; Lander Warlpiri Anmatjirra Land Claim to Willowra Pastoral Lease (1980) paras 87-91.

³² J. and P. Wafer, The Lander Warlpiril Anmatjirra Land Claim to Willowra Pastoral Lease (1980) 5, 6 (Exhibit 32).

The Wafers note that dreaming tracks consist of named sites which lie along the path taken by a mythological being. The country of a Warlpiri group will be seen as the area surrounding a number of tracks, and as different tracks often traverse the same. country it is possible for areas belonging to two or more groups to overlap. It is usual for each group to be most intimately associated with a particularly important site (which may be where the mythological creature stopped and which it created) which belongs to that group alone. In the Willowra claim, as in other claims, a map showing the approximate positions of sites was tendered (Exhibit 39). “Sacred site” is defined in the Land Rights Act to mean “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition … ” and the Commissioner 4as drawn attention to the danger of wrongly thinking of sites as particular features Qf the . landscape occupying relatively. little space and rendering as unimportant the country around them. See Land Claim by Warlpiri and Kartangarurru-Kurintji (1979) paras 68-71.

³³ See the following reports of the Aboriginal Land Commissioner: Borroloola Land Claim (1979) para. 36; Land Claim by Warlpiri and Kartangarurru-Kurintji (1979) paras 66, 67; Land Claim by Alyawarra and Kaititja (1979) paras 25, 43-45; Yingawunarri (Old Top Springs) Mudbura Land Claim (1980) paras 17-19, 24, 27-29; Uluru (Ayers Rock) National Park and Lake Amadeus/Luritja Land Claim (1980) paras 24-36; though in this Report the Commissioner stated that “there is nothing in the Act . requiring patrilineal descent” (para. 33) and accepted the principle of ambilineal descent.

³⁴ This is the Warlpiri spelling of the word. In other central Australian languages the same term is spelled differently. In some northern Australian languages the same group of people are called djunggaiyi.

³⁵ Another more general meaning given to kirda includes one whole patrimoiety, and kurdungurlu can mean everyone of the opposite patrimoiety. See J. and P. Wafer, op. cit. 6; transcript 374, 375 for the notion of secondary kurdungurlu.

³⁶ E.g., Professor Meggitt thought that it might be derived from the word meaning “arm blood” or alternatively “outside the ceremony”.

³⁷ J. and P. Wafer, op. cit. 6; D. Nash, “A note on Kurdungurlu” (1980) (Exhibit 48); transcript 320 K. Hale.

³⁸ Transcnpt 133, 134 Jimmy Jungarrayi.

³⁹ Id.420 J. Wafer; 460-465, 472 R. Hagen.

⁴⁰ As is often the case, the boundaries of the claim area did not correspond with the boundaries of the clan territories or the extent of dreaming tracks, the boundaries of the pastoral lease being totally artificial in Aboriginal eyes.

⁴¹ J. and P. Wafer, op. cit. 36.

⁴² Transcript 250 Engineer Jack Japaljarri.

⁴³ “The wishes of the Aboriginal claimants to have both kirda and kurdungurlu included as traditional Aboriginal owners” (Exhibit 72) a document containing extracts from the transcript in which these wishes were exp;essed. Also the comments of the Commissioner in The Utopia Land Claim Report, op. cit. paras 85, 88, 134, 135 and The Willowra Land Claim Report, op. cit. para. 95.

⁴⁴ The Utopia Land Claim Report, op. cit. paras 127-143 and The Willowra Land Claim Report, op. cit. paras 91, 102-107.

⁴⁵ The interpreter at the Willowra land claim hearing was Professor K. Hale, Professor of Linguistics at the Massachusetts Institute of Technology. He is currently working on a Warlpiri dictionary. He stated that the two Warlpiri words used by witnesses to convey this concept were jintangka (a colloquial term referring to joint efforts of all kinds) and palkarni (a more technical term meaning joint responsibility). Willowra Land Claim Transcript 296.

⁴⁶ Professor Hale gave evidence that when he had asked in Warlpiri “What would happen if kirda did this miirn-nyina-mi [the entire set of activities the kurdungurlu do] thing to himself?” he was told that it would be the equivalent of singing oneself, which he took to mean nearly killing oneself: Transcript 297.

⁴⁷ Transcript 90, 91. The names used by the witness refer to sub-sections, categories within the Warlpiri kinship system. These are allocated to people at birth in accordance with rules and determine, among other things, the categories from which marriage partners should be drawn. The Warlpiri at Willowra have these eight sub-sections: Jangala, Jampijinpa, Jupurrula, Jakamarra, Jungarrayi, Japaljarri, Japanangka and Japangardi. Women have the same sub-section names as men except that they begin with N rather than J.

⁴⁸ “Willowra Land Claim: Transcript Portion-22nd April, 1980” (Exhibit 46).

⁴⁹ Stumpy Martin Jampijinpa, kurdungurlu for that land.

⁵⁰ Exhibit 46 op. cit. 3.

⁵¹ Transcript 113.

⁵² Ibid.

⁵³ Id. 114.

⁵⁴ Ngarnalkurru men id. 150, Pawtf men id. 174, Ngarnka men id. 195, Yanginji men id. 204-205, Nguyu men id. 212, Mungakurlangu men id. 250, Patirlirri women id. 266, Ngarnalkurru women id. 272 (although the kirda nominated the kurdungurlu only), Pawu women id. 279. This evidence is summarised in Exhibit 72 supra p. 197 n.43.

⁵⁵ Id. 274 Molly Napangardi.

⁵⁶ id. 309.

⁵⁷ Id. 394.

⁵⁸ Id. 523A.

⁵⁹ E.g. id. 468 R. Hagen.

⁶⁰ The Utopia Land Claim Report, op. cit. para. 33.

⁶¹ The Willowra Land Claim Report, op. cit. para. 74.

⁶² Id. para. 105.

⁶³ Transcript 90.

⁶⁴ Id. 205 Donovan Presley Japanangka, 255 Molly Nungarrayi.

⁶⁵ Id. 127 Stumpy Martin Jampijinpa.

⁶⁶ Id. 419 J. Wafer.

⁶⁷ Id. 365 Larry Tracker Japaljarri, Big Foot Jack Jangala.

⁶⁸ Id. 317 Professor Hale explained the term pirlirrpawise as follows. The Warlpiri language does not use the genetive construction used in English sentences, such as “This is my bullock” or 'This is my father's horse”. In the latter example a genetive case is used on the word “father”. In Warlpiri with things such as body parts,·spirits, languages and name the two expressions, the part and the whole, are put in apposition and expressed that way. So as people were saying “This is my father pirlirrpa” he translated pirlirrpawise.

⁶⁹ Id. 121-123 Jimmy Jungarrayi.

⁷⁰ Male and female. Some earlier writers had limited it to “patrispirit”.

⁷¹ Transcript 316-317 K. Hale.

⁷² The Willowra Land Claim Report, op. cit. para. 95; see also references inn. 43.

⁷³ Glossed as “native of”.

⁷⁴ Nyarrpara kungarduyunpa (Nyarrpara = where; kungarduyu = more or less having responsibility; npa you).

⁷⁵ Transcript 414 J. Wafer.

⁷⁶ id. 132.

⁷⁷ Id. 213 Larry Tracker Japaljarri.

⁷⁸ Ibid.

⁷⁹ Id. 113 Stumpy Martin Jampijinpa-see quotation from transcript, supra. p. 199, in which this gesture is described.

⁸⁰ Id. 147 Charlie Limbiari Jakamarra.

⁸¹ Id. 122.

⁸² Id. 271 Milly Nangala and Topsy Nangala.

⁸³ Id. 192 Bismarck Japaljarri.

⁸⁴ Id. 308 K. Hale.

⁸⁵ Id. 294-295.

⁸⁶ Professor Hale noted the use of the word ngajarnumpa, based on the verb ngaja-rni (to give birth to), which wasgiven in the context of kurdungurlu responsibility.

⁸⁷ Transcript 308 K. Hale.

⁸⁸ Id, 2631264, 271, 272, 279.

⁸⁹ Id. 113; also evidence of Sandy Woolla id. 365.

⁹⁰ Id. 115 Stumpy Martin Jampijinpa.

⁹¹ Id. 116 K. Hale.

⁹² Id. 121 Jimmy Jungarrayi.

⁹³ Id. 279 Topsy Nangala.

⁹⁴ Id. 306 K. Hale.

⁹⁵ Id. 139 Larry Tracker Japaljarri.

⁹⁶ Id. 443 Stumpy Martin Jampijinpa.

⁹⁷ Id. 175 Stumpy Martin Jampijinpa.

⁹⁸ Id. 443 P. Wafer. For a discussion of the contemporary role of Aboriginal women in this area see generally Bell and Ditton, Law: The Old and the New, Aboriginal Women in Central Australia Speak Out (1980).

⁹⁹ Id. 433, 434 P. Wafer.

¹ 1d. 136.

² Id. 365 Stumpy Martin Jampijinpa.

³ Id. 268.

⁴ Id. 254 R. Howie.

⁵ Id. 444 P. Wafer.

⁶ See supra p. 190.

⁷ For a discussion of translating European languages in court see generally Dixon, Hogan and Wierzbicka, “Interpreters: Some Basic Problems” (1980) S Legal Service Bulletin 162. The role of interpreters and the assistance they can give in Aboriginal land claim hearings is discussed in The Willowra Land Claim Report, op. cit. paras 94, 105, 106.

⁸ Baxi, “The Lost Dreamtime: Now Forever Lost. A Critique of the Gove Land Rights Decision” Mimeograph 12. a system of another culture can only lead to confusion and distortion. He distinguishes between “folk systems” the ideas of the people being studied

⁹ Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia (2nd ed., 1967) 381.

¹⁰ Id 404.

¹¹ Olivecrona, Law as Fact (2nd ed., 1971) 265.

¹² Keon-Cohen, “Aboriginal Land Rights in Australia: Beyond the Legislative Limits?” in Tomasic (ed.), Legislation and Society in Australia (1980) 383.