Anthropology in Australian Indigenous Legal Cases: What I've Learned from the Law and What Lawyers Have Learned from Me

ABSTRACT

Reflecting on several decades of my applied research, expert witness roles and a forensic methodology, this article addresses the application of anthropological studies in Australian legal cases concerned with various aspects of Indigenous customary law. In the context of traditional land claims, cultural heritage assessments and native title, both the achievements and challenges for anthropological inquiries are canvassed. Against arguments from some academics that applied work is intellectually inferior and politically compromised, the article reports my experiences in an arena of complex and enriching social science inquiry. The article engages with Indigenous land aspirations in a settler society while considering the implications of cultural change and adaptation, strategies of recuperation of customary knowledge, and the robustness required for successful anthropological studies of this kind.

KEYWORDS:

• Australia
• Indigenous
• legal cases
• cultural expertise
• applied anthropology

Disclosure Statement

No potential conflict of interest was reported by the authors.

Notes

1 An earlier version of this article was presented at a conference titled '25 Years of Native Title Anthropology', convened jointly by the National Native Title Tribunal, the Federal Court of Australia, and the Centre for Native Title Anthropology, Australian National University, held at Perth, 10 February 2017. Presenters and attendees included Native Title Representative Body staff, legal practitioners, Federal Court judges and registrars, and anthropologists. This article has benefitted from collegial discussion among anthropologists and legal practitioners with whom I have worked over the years. See: http://www.nntt.gov.au/Information%20Publications/25_YEARS_NATIVE_TITLE_ANTHROPOLOGY_PROGRAM.pdf; https://www.youtube.com/watch?v=08oveKt3atU.

2 Wayne Butcher, writing in Waanta, Lockhart River Shire newsletter, September 2020; p. 7. See Trigger 2021.

3 Professor Emeritus Bruce Rigsby festschrift launch, University of Queensland Anthropology Museum, 27 August 2015, see https://www.youtube.com/watch?v=vUBDshXrSw4. The building is named ‘The Professor Bruce Rigsby Multi-Purpose Building' but is locally called ‘the community building’ and is located at Port Stewart (Yintjingga) in traditional lands that have gradually been reoccupied following successful land claims recognising customary rights in Australian law. (Personal communication from Diana Romano 29 September 2022.)

4 The transcription was kindly provided by Professor Paul Memmott and is held in David Trigger’s files. I have deleted some ellipses as they appear in the transcription prepared by an unknown research assistant. I have used commas to better indicate pauses in the seminar comments which I understand the elipses to have represented.

5 Cited from the transcript of Neville Bonner’s seminar presentation.

6 The Cape Melville land claim research was carried out by Professor Peter Sutton and Dr Athol Chase both of whom drew on a great deal of previously completed academic studies in reaching professional expert opinions for the legal case. See Queensland Land Tribunal 1994. ‘Aboriginal land claims to Cape Melville National Park, Flinders Group National Park, Clack Island National Park and nearby islands : report of the Land Tribunal established under the Aboriginal Land Act 1991 to the Hon the Minister for Lands’. Brisbane.

7 This figure results from the 2021 national census, see: https://www.population.net.au/population-of-northern-territory/.

8 https://www.cdu.edu.au/study/humanities-social-sciences

9 Kowal (2017:, 21) notes such people are commonly ‘phenotypically white’. There is an increasing concern in parts of the Aboriginal population about so many choosing to become a ‘recent identifier’ (e.g. Ingram 2022; Grieves Williams 2023).

10 Creamer, J. Address to ‘25 Years of Native Title Anthropology: a tribute to the contribution of anthropologists to the development of Australian native title law’, 10 February 2017, Duxton Hotel, Perth, Western Australia. Transcript of Proceedings, pp.26-29 (video available at: 25 Years of Native Title Anthropology - YouTube).

11 Indicative case studies include Haviland (1996) and Trigger (2015).