Law's anthropology: from ethnography to expert testimony in three native title claims
Creators: name: Burke, Paul
Publisher: name: The Australian National University
Year: 2005

description: At an intermediate level, between Aboriginal lifeworlds and the politics of statecraft, native title can be seen as the interaction of the social field of Australianist anthropology and the juridical field through the medium of actors: principally anthropologists,lawyers and judges. Viewing the interaction this way allows a more comprehensive explanation to be given that is not captive to requirements of the different disciplines involved and it can move beyond a simple advocate-independent expert dichotomy of roles. There are various ways of conceptualising the interaction of the two fields, ranging from the predatory swallowing and digestion of anthropology by law to the sharing of responsibility for contentious decisions. From the perspective of individual anthropologists, one way to consider the task is as a projection of expert independence by the skilful triangulation between the anthropological archive, the claimants' evidence and the legal doctrine of native title. The expert's task involves a process of deconstructing the existing anthropological archive and reconstructing it in a way that is relevant to the judge's task. One way to project independence and expertise would be to acknowledge the indeterminacy of the key concepts of native title and simply outline what evidence supports various alternative interpretations (the robust academic model). To explore the issue, a case study method is adopted because of the complexity of the interaction and the pragmatic resolution forced on the judge by the indeterminacy of the key elements of native title. Each case study consists of two chapters, one giving a critical account of the relevant part of the anthropological archive and the other outlining how that archive is used in formulating the expert opinion and its reception by the judge. The first case study is about the fact-finding hearing in the original Mabo decision. It represents an ideal of long-term fieldwork having been completed well before the court case was contemplated and a successful projection of professional independence. The next two case studies, about the Rubibi and De Rose Hill claims, represent the more typical situation of anthropological research for litigation. In Rubibi there were antagonistic interpretations of the anthropological archive taken by the two anthropologists involved in the case. The judge worked hard to resolve the two interpretations. In De Rose Hill the judge took a negative view of the case and aligned himself with the anthropologist who had the superior academic capital and against the claimants' anthropologist, whom he accused of bias. The testing, via the case studies, of the initial theorising about interaction law and anthropology suggested various modifications to proposed models. Gaps in the anthropological archive mean that in relation to the historical transformation of traditional land tenure practices,the imagined deconstruction-reconstruction process is more one of improvisation. Anthrologists are not only orientated towards legal doctrine itself,but towards the more amorphous expectations of the juridical field, principally the need for generality and systematicity of traditional land tenure principles and maintaining of the illusion of the scientific fact. For these reasons, the seemingly logical robust academic model of the expert report was generally avoided. The interaction of the field of Australianist anthropology and the juridical field has very little impact on the basic structures of the juridical field. In the field of Australianist anthropology, however, the encounter with native title has seen an intensification of differences within the field about the nature and the role of theory within anthropology and the relative merits of pure and applied anthropology.