88. What is Evidence, Part 1: Balanda Perspective

In this podcast series, Richard Trudgen is asked by Maratja Dhamarrandji, “what is the meaning of evidence from a Balanda (mainstream) perspective?”  There is little understanding between Yolngu and Balanda systems of law and Maratja wants to find out – what does the Balanda court see as ‘real evidence’?

From a Yolngu perspective, Maratja says, we understand what evidence should be. Yolngu can see who the land and estate owners are. We know the names of all the corporate clans and who belongs to each family group and all the associated ‘ringgitj’, alliances. But how does Balanda law look at these facts of evidence which we hold in our hands? Sadly there has been no recognition of what we see as true points of evidence.

Yolngu have a system of evidence that reflects their kinship system across all their lands. Yolngu citizens, says Maratja, are related to different estates like we are related to each other. So we clearly know who the estate and landowners are, and other people have different rights in relation to these estates.

Maratja and Richard Trudgen discuss what is ‘real truth’, or the real evidence. The real truth of the situation is the critical evidence that is needed, says Richard. Maratja continues, “Yolngu law has the checks and balances in it so that the truth comes out. People who speak for others should speak according to the rule of Yolngu law, not as dictators manipulating the process for their own good. When the information becomes truly public information, all the people know that it is the correct information. Evidence should be the true information consistent with the source law that came from its creation.

In Story No. 2, Richard opens up the conversation by stating that a lot of Yolngu do not feel as though they have a real security of tenure over their homelands and estates.  Maratja agrees, saying it’s because when it comes to dialogue between Yolngu and Balanda, everything goes in line with Balanda law, and they take over too much. Balanda think that only their law is important. Even some Yolngu support the Balanda modus operandi. But Balanda modus operandi and language is very confusing, says Maratja, and it never gets unpacked. What’s the real meaning inside what they are saying?

From a Yolngu perspective, they should have security of tenure over their lands and estates. From a young age, they grow up learning this. It’s not some sort of funny joke, it’s real information.

At this point, their discussion turns to the meaning of birthright. A lot of Yolngu people are misusing their birthright claims over Yolngu land. Maratja states that the law should come first over people’s own desires and ambit claims should not be made.

In Story No. 3 Richard and Maratja talk about the Yolngu word ‘mägaya’, meaning peace, tranquillity, harmony, completeness, health, prosperity, fullness, perfectness, rest, safety and absence of agitation or trouble; true protection for all. The state of mägaya is created by the law being followed. So, where does this lawlessness that is now seen in Yolngu communities today, come from?

Richard questions whether it due to the ignorance of the dominant culture. Are Balanda supporting the wrong people and wrong actions? Maratja agrees. Mägaya law is something that Yolngu understand from birth, and it is consistent right through all of their education. They also learn the relationship terms for each other, and these same relationship terms also express themselves across different lands and estates. This information is combined with all of their ringgitj alliances. So, every time Yolngu meet someone, they are not just meeting them in a way that they understand their relationship to them, but they also understand that person’s relationship with the land.

Therefore, Richard and Maratja make the point that, in terms of what Balanda accept as evidence in court, there is not just one or two Yolngu people with evidence, but the whole population who know the truth. They know it in relation to the correct estates and landowners because all Yolngu know it according to everyone’s relationship with each other.

For a long time Balanda have been saying, “you do, and we will decide for you,” says Maratja. Straight away they come to the assumption that they are better and their law is better for Yolngu. But it doesn’t work like that. Yolngu are not to be treated as children, when we have grown up in our bush universities and through our traditional parliaments to create mägaya, peace. The first laws we learn are do not steal or covet other people’s land, country, women or anything.  We come from a different perspective and our law is different. And Balanda law is different. That’s the truth of the matter. Neither is wrong, but where the laws overlap or contradict each other, we need to find a way to work together to produce mägaya for all. How can these two (systems of law) work together?

In Story No. 4, Richard and Maratja wonder what has gone wrong in Arnhem Land. Yolngu communities have always had small problems but now they are massive. It’s important to have conversations about this. Australia is a democratic society so it is the basic right of all its citizens to ask questions as to why things are the way they are and to offer opinions. But Yolngu are still confused as to whether they can ask questions of the government.  Yolngu need to better understand the meaning of a democratic society, says Maratja. How does it show its rights and privileges to us? How can we be allowed to talk in this space?  For us, Yolngu law overrides everything, it dictates and speaks to us, instructing us. And it should be the same as Balanda law, says Richard, a law that speaks to us all, not individuals.

Richard points out that it says in the Land Rights Act, the Lands Council and the Lands Council workers should be following Madayin law, which is the original Australian law. When the Balanda government in Canberra were looking for ways to return the authority to Yolngu hands around land rights, they were confused because they didn’t understand Yolngu law. So, they made an independent Yolngu Council, to make sure that the Lands Council followed traditional Madayin law. The Yolngu Council (the Lands Council) have been given the authority to make sure that anything the Lands Council agrees to, is consistent with traditional law. The problem is nobody understands that.

In summary, Richard states that the evidence Balanda law is looking for, is not the ḻiya-gäna, or lawless self-interested information that comes from some Yolngu. The evidence the courts are looking for is the true foundational information that is consistent with the foundation law from the djalkiri, beginning of creation time. Because that’s the original Australian law, the law that was here before the Balanda came. When the court looks at that they can see that law comes from the land. And where did the Balanda law come from? Back in Greece, back in England, back in other overseas places. So, the Yolngu law is the original Australian law. And the courts, the government and lots of Balanda want that law to be predominant, to speak to all of us and to have authority.

 

There are 4 Stories in this podcast. Please see time stamps below –

  • Story No. 1 Meaning of evidence from Balanda Perspective  0:00
  • Story No. 2  Security of tenure and rule of law            11:00
  • Story No. 3  Two laws causing anarchy                     21:05
  • Story No. 4  Balanda want the real Australian Law     32:30