In some jurisdictions evidence of native custom and law is admitted notwithstanding the ordinary rules of evidence. Rejection of Special Rules for Proof of Aboriginal Customary Laws. If this assumption reflects the common law, clearly some change is needed.Ħ39.
Objections to the admissibility of their evidence had to be dismissed on other, special, grounds. In Milirrpum v Nabalco Pty Ltd it was assumed that the Aboriginal clan leaders who gave evidence were not experts. But to say that traditional Aborigines fully initiated into their laws are nonetheless not experts in the legal sense is difficult to justify. An outside expert may be able to provide a more comprehensive account, and an analytical framework within which the particular issue can be grasped. and there may be difficulties, for those who are, in speaking about aspects of the law which are not their particular responsibility. Not all traditional Aborigines are ‘learned in their law’. Admittedly there is value in the systematic study and evaluation which an established discipline can provide. It would be odd if the courts were to accept the opinions of outside experts, while declining to accept as expert the opinions of the Aborigines whose customs and traditions were at issue. Apart from restrictions as to the content of evidence (where non-experts are in no better position than experts ) there is the more basic question whether traditional Aborigines would, under a strict application of the rules of evidence, be permitted to give ‘opinion’ evidence about their customary laws at all.
But the rules of evidence, strictly applied, could preclude much Aboriginal evidence about their customary laws.
The importance of Aboriginal evidence of Aboriginal customary laws has been stressed already, and is shown both by cases in Australian courts and by the experience of the Aboriginal Land Commissioner. The Law of Evidence and Aboriginal Testimony about Customary Laws.
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