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Law's Anthropology

Law's Anthropology: From ethnography to expert testimony in native title OPEN ACCESS

Paul Burke
Copyright Date: 2011
Published by: ANU Press
Stable URL: http://www.jstor.org/stable/j.ctt24hdxr
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  • Book Info
    Law's Anthropology
    Book Description:

    Anthropologists have been appearing as key expert witnesses in native title claims for over 20 years. Until now, however, there has been no theoretically-informed, detailed investigation of how the expert testimony of anthropologists is formed and how it is received by judges. This book examines the structure and habitus of both the field of anthropology and the juridical field and how they have interacted in four cases, including the original hearing in the Mabo case. The analysis of background material has been supplemented by interviews with the key protagonists in each case. This allows the reader a unique, insider's perspective of the courtroom drama that unfolds in each case. The book asks, given the available ethnographic research, how will the anthropologist reconstruct it in a way that is relevant to the legal doctrine of native title when that doctrine gives a wide leeway for interpretation on the critical questions: what is the relevant grouping, what can be counted as a traditional law and when has there been too much change of tradition? How will such evidence be received by judges who are becoming increasingly sceptical about experts tailoring their evidence to suit the party which called them? This book answers these questions by assuming that there is more at stake here than the mere performance of roles. Rather, there is a complex interaction of distinct social fields each with its own habitus, and individual actors are engaged in an active and constructive agency, however subtle, which the painstaking research for this book uncovers.

    eISBN: 978-1-921862-43-4
    Subjects: Anthropology, Law
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Table of Contents

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  1. The bodies of anthropologists, bruised from their encounter with native title, are to be found recuperating all around Australia. Some, still wounded from humiliating cross-examination, swear, yet again, never to be involved in another native title claim. While they lament their lack of influence, others warn of native title completely engulfing anthropology and ruining it (see, for example, Morris 2004). One Aboriginal leader has made the opposite claim—that anthropology has engulfed native title law—blaming anthropology for the High Courtʹs poor legal conceptualisation of native title.¹ After almost two decades of the native title era,² it is time to...

  2. The role of anthropology in the original Mabo decision has been obscured by a number of contradictory contemporary trends. The first is the lionisation of Eddie Mabo as the hero of the case, and that tends to overshadow the role of the other plaintiffs and the anthropologists. Despite the very negative reception of Eddie Maboʹs evidence by Justice Moynihan in the Queensland Supreme Court, the case is associated in the public arena with Eddie Mabo. No doubt this flows from the naming of the case and the wide appeal of the heroic/tragic story of his dogged persistence in pursuing the...

  3. In order to understand the significance of Beckettʹs testimony in the hearing of the facts in the Mabo case, it is necessary to briefly outline how the claim to the Murray Islands was framed and what Justice Moynihanʹs role was within the High Courtʹs adjudication of the case.¹

    The two key documents formulating the claim were the Statement of Claim As Amended June 1989² and the proposed statement of facts that the plaintiffs wanted Justice Moynihan to adopt. A statement of claim becomes the cardinal point of reference in any civil litigation. Around its assertions are marshalled evidence, counterevidence and...

  4. By the time of the Rubibi claim hearing in 2000, the Aboriginal people of the region had suffered approximately 150 years of colonisation in various forms. The intrusion on the traditional life of the people started brutally in the 1860s–1870s with the recruitment of Aboriginal people to work on pearling luggers, and, in the hinterland, the direct competition with pastoralists over the resources of the land, sheep and cattle spearing and reprisal-killing expeditions. The 1880s saw the establishment of the Port of Broome as the centre of the pearling industry and the continued rise of pastoralism amid a legal...

  5. Patrick Sullivan was a convert to anthropology from modern history and Asian studies. During 1983–84 he did fieldwork at Halls Creek in Western Australia while working as the coordinator of an outstation resource agency. This high-pressure job allowed him to observe at close quarters some of the irrational and counterproductive interventions by government agencies in the traumatised lives of Aboriginal people in Halls Creek (Sullivan 1986). It also provided him with a privileged vantage point for the subject of his thesis: the interface between Aboriginal and non-Aboriginal culture in the Kimberley region, both in administration and in less formal...

  6. This case study examines the formulation and reception of anthropological expert testimony in the De Rose Hill native title claim that was heard in 2001–02. It was a claim to De Rose Hill Station, which abuts the eastern boundary of a large block of Aboriginal land in the north-western corner of South Australia, known as the Pitjantjatjara Lands (see Map 6.1).¹ The controversial judgment of the High Court in the Wik case in 1996 allowed native title claims to residual native title rights on pastoral leases on the basis that those leases did not grant exclusive possession and, therefore,...

  7. The significance of the early events, outlined in the previous chapter, for the anthropologists when they eventually began to research the claim was that they were presented with a fait accompli. Any doubts they might have had about this area becoming the test case for native title in South Australia were not relevant because the case was proceeding. Also, because it was ALRMʹs first claim hearing, the case was destined to become one in which ALRM would be learning the pitfalls of claim hearings as they were going along.

    The anthropological research for the claim was largely organised by Susan...

  8. Joining the bruised anthropologists mentioned in the beginning of this book was a battered Peter Sutton, one of the most senior applied anthropologists working in Australia. He was the principal expert witness for the Western Desert applicants in the Yulara case and the focus of particularly unrelenting criticism by the trial judge, Justice Sackville.¹ In effect, Sackville blamed Sutton and the applicantsʹ lawyers for what he found to be an unsustainable formulation of the case. To the surprise of many who assumed the applicants to be among the most traditionally orientated Aboriginal people in Australia, the judge decided that the...

  9. 9. Conclusion (pp. 263-280)

    The essence of this book, and its major claim to originality, is the move to step outside the professional discourse of both law and anthropology so that a more comprehensive account of their interaction in native title might be provided. In other words, it tries to take a genuinely sociological view of the native title encounter. To do otherwise would risk becoming captive of those very professional discourses that need to be seen as part of a bigger picture. The professional discourse of law would tend to collapse the whole of this book into categorical judgments about establishing expertise, the...