Lack of Basis
12 The Territory objected to some paragraphs of the Report on the ground that Professor Sutton had expressed the basis for his opinion in such general terms that the reasoning process was insufficiently clear. This was said to make the opinion evidence irrelevant or, alternatively, to render it inadmissible on the basis that it was impossible to discern whether the expression of opinion was the product of Professor Sutton's specialised knowledge, as required by s 79 of the Evidence Act.
13 Objection was taken on this ground to a portion of par 326 of the Report,which is in the following terms:
'I would add that in the eastern Western Desert a capacity to assert strong traditional connections is based on the ability to cite several of bases of claim. In other words, in this part of the Western Desert, the capacity to assert a relationship of belonging to an area is accretive - that is, a person with several bases of claim has a stronger case for asserting rights and interests, cumulatively speaking, than someone who has only a single basis of claim.'
In par 328, Professor Sutton states that his opinion on this issue is based on:
'my training, study and experience as an anthropologist … and in particular, on … my recollection and analysis of the aggregate of what my informants in this case have told me about the relationship of people with country in the eastern Western Desert. It is an inference I have drawn from the totality of the anthropologically relevant data available to me …'
14 If the opinion expressed in par 326 was unsupported by any reasoning process, other than a vague reference to Professor Sutton's training and experience, it might be rejected as irrelevant. This would be because the lack of any apparent basis for the opinion would make the opinion itself irrelevant to any issue in dispute in the proceedings: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354, at [14], per Branson J.
15 A fair reading of the Report indicates, however, that the opinion expressed in par 326 is supported by more than the bare assertion contained in par 328. Professor Sutton's detailed reasoning is set out in pars 329 to 396. That reasoning may or may not ultimately prove to be convincing. In my view, it is sufficient to show that Professor Sutton's opinion might rationally affect the assessment of the probability of the existence of a fact in issue, namely whether any of the applicants have an interest in the claim area under the traditional laws and customs of the eastern Western Desert. The opinion is therefore relevant to the issues. The reasoning also satisfies me on the balance of probabilities, at this stage of the litigation, that Professor Sutton has formed the opinion by reference to his specialised knowledge as an anthropologist: Sydneywide Distributors v Red Bull, at [16], per Branson J.
16 The Territory objected on the same grounds to par 50 of the Report. In this paragraph, Professor Sutton advances an hypothesis as follows:
'The old rules persist in the minds of older people and may be stated in a simple or conservative form that does not describe at all richly the various solutions younger people have been reaching in practice. Even if an older person may disagree with some such developments, and may even consider them less than lawful in the customary sense, the fact that these shifts occur mainly in a rather organised fashion and as an extension rather than a reversal of tradition, means that one can reduce them to systemic generalisations.'
In par 51, Professor Sutton says that his opinion is based on fieldwork with and data obtained from informants from different age groups and historical backgrounds, together with his study of earlier ethnographic records.
17 The opinion expressed in par 50 may be of some importance in the case. Professor Sutton appears to be suggesting that the different practices adopted by younger people can be regarded as an 'extension' of traditional laws and practices, rather than a departure from those laws and practices. It is, however, difficult to ascertain the basis for the opinion, except in the general terms expressed in par 51.
18 Nonetheless, the opinion is not entirely unsubstantiated. Professor Sutton refers in pars 50 and 51 to the work of Nancy D Munn, now Emeritus Professor of Anthropology at the University of Chicago. Professor Munn worked with Pitjantjatjara and Yankunytjatjara people at Areyonga in the Northern Territory in the mid-1960s and wrote accounts on her fieldwork which are cited in the Report. It may be that Professor Munn's research (although not admitted as proof of the truth of any assertions contained therein) supports or at least explains Professor Sutton's opinion expressed in par 50.
19 While Professor Sutton's reasoning in this part of his Report does not seem to be entirely clear, I think that his opinion may be relevant to an issue in the proceedings and can also be seen to be the product of his expertise as an anthropologist. I bear in mind, too, that in this Court it has been held that s 79 of the Evidence Act does not incorporate a 'basis rule': Neowarra v Western Australia, at 153 [22]-[23], per Sundberg J. Accordingly, I admitted pars 50 and 51 of Professor Sutton's Report.