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

Introduction

Since the early 1970s, the discipline of anthropology in Australia has been responding to opportunities and requests for involvement in legal cases concerning Indigenous claims to land and related aspects of customary law. As well as statutory land claims, cultural heritage, and customary defence matters in certain criminal proceedings, from the early 1990s it has been ‘native title’ matters that have provided a major context for the discipline’s applied research practitioners. The Commonwealth Native Title Act of 1993 enables Indigenous groups to claim rights in ‘country’ according to their traditional ‘law and custom’ shown to have continued in some form since the establishment of British sovereignty (Brennan et al. 2015; Sutton 2003). In conjunction with the testimony of Indigenous claimants, anthropological expertise is called on for professional opinions about change and adaptation over time in inherited cultural traditions to address connections to land and waters.

Over the decades, one approach has been a focused application of anthropological concepts, adjusting to legal requirements arising from both trial decisions and court determinations based on mediation and the consent of relevant parties (Trigger et al. 2013). There has developed a considerable legal commitment to engaging the services of anthropologists seeking expertise in cross-cultural studies. The legal approach tends to expect a forensic role for the expert similar to the involvement in court proceedings of a range of other professional disciplines. The term ‘forensic’ seems apt in that an expert anthropologist is expected to consider and inspect evidence relevant to the matter to be decided through the legal process.

However, just how anthropology’s qualitative methodology and its subjective forms of interpretation may fit with the legal focus on establishing ‘facts’ and ‘opinion’ has remained somewhat ambiguous from the perspective of anthropologist practitioners (Burke 2011, 1–39; Glaskin 2017, 84–89). This is an issue arising in a range of countries where expertise regarding culture and society is central to legal cases (Holden 2023; Miller 2021). Hence, another response from the discipline in Australia has been scholars’ avoidance of legal involvement, often together with academic critique, suggesting that expert witness work and related efforts are unacceptably complicit with both positivist assumptions unsuited to social science and an underwriting of the power of the post-colonial state in a ‘settler’ society. Tensions concerning methods, theory, and discipline identity have been evident in these debates (Austin-Broos et al. 2012; Trigger 2011).

Anthropologists who have engaged with the legal system have experienced both energising involvements with practical outcomes for interested parties, particularly but not solely Indigenous claimants, and what can be a paralysing frustration arising from the law’s forensic approach to social relationships and cultural change – societal processes that are commonly much more fluid and flexible than many legal interpretations of ‘traditional law and custom’ allow.

The public and internal politics of whether the discipline of anthropology should be involved in applied research, report writing, and giving of expert evidence have been influenced considerably by the rise of widespread disciplinary commitment to Indigenous rights that has developed over the past 50 years. While there have been many graduates working in the area anthropology’s professional practice has not been universally celebrated. Indigenous authors have proclaimed the importance of ‘decolonising’ research methodologies (Nakata 2007; Smith 2012), and there is a view that anthropology in Indigenous Australian studies continues to have a ‘neo-colonial’ dilemma because its practice is perceived as remaining connected with ‘colonial violence, secret stealing and spying’ (Hinkson 2021, 12). In this context, where does the pragmatic application of sociocultural anthropology amidst the constraints of legal discourses find a moral place? To what extent are students encouraged to build on the proud successes of the discipline’s achievements in cross-cultural translation? More specifically, can academic anthropology qualify the imperative of skilled analytical critiques of settler colonialism, and commit to preparing graduates for practical professional work that addresses actual legal cases concerning Indigenous cultural and economic interests in land and its associated assets?

Cross-Cultural Relationships

For some 50 years, the closeness of working cross-cultural relationships across many regional and remote Aboriginal communities has provided sustained positive feedback to encourage practitioners as to the ethical and practical value of applied research. There is no shortage of expressions of deeply felt appreciation when anthropologists have stayed committed to the research tasks in particular settings. ‘Without his work with our old people, it would have been much harder to get our land back’, is how Wayne Butcher writing as mayor of Lockhart River community council wrote of the late Athol Chase’s long career in north Queensland. The anthropologist was described as ‘a warrior for us all and a proper strong friend and countryman’.¹, ² And, in a nearby location, in 2015, the Lamalama Indigenous community named a significant building after anthropologist Bruce Rigsby, in part to honour his research on land claims and related mapping of cultural landscapes. Several community members sent a complimentary video message shown on the occasion of a celebratory launch of a festschrift volume about the anthropologist’s long career as a researcher and teacher. Elaine Liddy, the Cultural Officer for the Lamalama/Yitjingga Corporation, says on the video that she is continuing the ‘cultural work’ of the anthropologist and that the building is named after him. This, she said, was ‘in honour of you and the work you have done for us and for our country’.³

However, in the context of broader Australian Indigenous Studies, there has also been considerable criticism of both anthropology’s academic and applied research. Coexistent with the period of anthropology’s initial growing involvement in Indigenous legal cases, expanding from the 1970s, have been some ‘simmering discontents among urban Aboriginal activists and their supporters’ (Peterson 2006, 32). Given the centrality of traditional cultural landscapes to successful claims, there developed from the 1970s a feeling that the discipline’s focus on ‘tribal’ people was to the detriment of the identities and culture of those with a longer history of colonisation, including people who could not speak the Indigenous languages of their forebears and who lived in towns and cities (Tatz and Lambert 2006, 20–21). Hence, amidst anthropology’s successful contributions to land justice for Aboriginal people, there has been at times an Indigenous challenge as to the ethical basis of research and the breadth and significance of its outcomes. The critique has focused more on academic research and its level of collaboration with Aboriginal communities than on studies commissioned by Indigenous organisations for legal cases (Trudgett and Page 2014; cf. Trigger 2014).

Illustrative of the mix of lengthy Indigenous engagements with anthropology is a statement in 1995, again in the Queensland context, from Neville Bonner who had not long retired from his significant role as Australia’s first Aboriginal parliamentarian. The following quote is drawn from a transcription of an audio recording of his seminar presentation to staff and students in anthropology and archaeology at The University of Queensland not long after the passing of the Commonwealth Native Title Act.

‘It is here then under Law, and with Aboriginal resurgence, that you, anthropologists and archaeologists must serve my race. Never before in the ancient history of our culture have you been so urgently needed but I warn, you carry a moral obligation to my injured people filled with memories and pain, to get it right, tread carefully, very carefully. There are those of us, leaders who have toiled, warned, and coaxed, bringing our race into a somewhat united front the better to fight our cause. Do not, I beg of you, attempt to divide us, we have been there before, it was negative, it was painful.’⁴

Part of the context for this address was Neville Bonner’s concerns at the time that a particular anthropologist had concluded from research, though the matter had not been determined in any final way, that a rival Indigenous group’s claim to rights in country in southeast Queensland had merit. Hence, we see from the earliest periods of research in native title, the difficult position in which anthropologist investigators can find themselves. While not advocates in the ways of lawyers, anthropologists nevertheless can find it difficult to avoid being drawn into disputation among Indigenous parties. Anecdotally, we find that this results in the applied or forensic anthropology arena emerging as not one where potential researchers necessarily want to work. While opportunities to claim legal rights in land can hardly be blamed for creating intra-Indigenous disputes over country, the land rights, cultural heritage, and native title legislation have provided a particular vehicle for contestation to occur. Some studies suggest considerable consequences of disputation that result directly from engagements with the legal process, its evidentiary demands and the imperative to investigate which individuals, families, and groups according to traditional law hold rights in country (Behrendt and Kelly 2008; Kearney 2018; Palmer 2018, 185–200; Trigger 2015).

The politics can be vigorous and confronting for anthropologists subject to strongly pressed differing versions of who are ‘the right people’ for particular areas and when seeking to clarify the mix of customary and other drivers evident in opposing positions taken by different individuals, families and groups. Furthermore, anthropological fieldwork and general applied research take place in settings where there can be a risk of verbal abuse and physical violence in the course of interpersonal and intergroup disputation (Finlayson 2022; Handley 2022; Rubinich 2019). A report on gender issues among native title practitioners has documented a range of concerns among women anthropologists in particular. Female anthropologist interviewees described being made to feel unsafe or uncomfortable in their workplace ‘including instances of verbal abuse and the presence or threat of physical violence’ across meetings involving Indigenous claimants and during fieldwork generally (Dalley and Romano 2021, 55). If such abuse and threats spill over from conflict among Aboriginal people to encompass risks for anthropologists and others involved in the research this is often in part because the anthropologist’s findings become embroiled in disagreements about social and territorial boundaries across contesting Indigenous parties.

Neville Bonner’s presentation canvassed both the desire to engage the services of anthropologists and a wariness about outcomes from the kinds of social science inquiries that are required by the legislation to be carried out. Some of his comments mirrored how commentators can find reasons why the research is highly valued but can also at times be unwelcome. Of relevance is his playful, yet only half-joking, mention of a belief ‘that any Aborigine had as many anthropologists as a dog had fleas’. Although the broader tenor of the seminar was to acknowledge the great potential for both anthropology and archaeology to directly address the interests of Indigenous people, including in the region of southeast Queensland, with a lengthier history of cultural change than those populations commonly characterised as more ‘traditional’. Neville Bonner was, at the time, a Member of the Queensland Land Tribunal which heard claims under Queensland land rights legislation. In relation to the Cape Melville claim on east Cape York Peninsula, on which he had sat as a Tribunal Member, he commented on being ‘most impressed with the work of the anthropologist concerned’.⁵ As with much forensic anthropological work, the studies drew on previous academic cultural mapping in the region to produce the particular expert opinion relevant to the legal provisions of the legislation.⁶

Academic Attitudes

Academic attitudes have been situated between an acknowledgement of significant societal demand for anthropological expertise and ambivalence, at times disapproval, about supposed intellectual constraints fundamental to the work. When there is dismissal of forensic research applied in legal settings, it is commonly articulated together with political scepticism about the legal process, in that the Australian court system is part of the apparatus of government on behalf of the broad society whose majority membership includes the interests of descendants of early settlers and waves of subsequent migrants. The negative view commonly coexists, however, with recognition of anthropology’s corpus of academic and applied research that is necessarily regarded as valuable and relevant to the interests of Indigenous people.

The case of the Northern Territory jurisdiction in Australia is indicative of the contradiction with which a substantial amount of applied social anthropology research and related work has operated over several decades. In the Northern Territory, while the overall population is very small compared to other States, the Indigenous proportion is 26% hence much higher than in other States of the Commonwealth.⁷ Since the mid-1970s, anthropologists have worked for Indigenous land councils, a government statutory body tasked with implementing legislation designed to protect ‘sacred sites’, and a range of private sector and other parties. The mix of employees and consultants has amounted to a substantial number of practitioners in most years. Anthropologists have worked on land claims, related negotiations, community development, and native title matters including mediations and agreements concerning large-scale development projects. Yet they have almost exclusively come from other parts of Australia, a major reason being that it is not possible to study anthropology at Charles Darwin University in the Northern Territory.

Subjects available in the humanities and social sciences are described as including ‘culture’, ‘history’, and ‘Indigenous perspectives’ but not a discipline of anthropology (or archaeology).⁸ Charles Darwin University has a ‘College of Indigenous Futures’ that aims to ensure ‘the advancement, transmission and preservation of Indigenous knowledge systems’, but seemingly no engagement with applied anthropology expertise as it is sought in legal cases. The reason appears to be, as with a number of other universities, a mistaken embrace of a political position linking the dismissal of anthropology to the idea of ‘decolonising’ studies involving any aspects of Aboriginal culture, or indeed, of broad patterns of intercultural relations involving Indigenous people. The approach is linked to the politicised context in which students choose whether to embrace the discipline, a setting where university colleagues can struggle to defend anthropology’s intellectual and political integrity.

An example of my own direct experience of this politics was when, with colleagues, we established the first formal qualification explicitly focused on native title anthropology at The University of Western Australia in 2005. The initiative was opposed, unsuccessfully, by a senior person in the School of Indigenous Studies at that university because of a general dislike of the discipline and seemingly because the course was to involve staff who did not personally identify with any Indigenous ancestry. Leaving aside that one staff member supervising the administering of the new program was an Indigenous person with a four-year qualification in anthropology, the ideological opposition was that only individuals who assert descent from at least one Indigenous forebear should be involved in teaching of this kind. This approach has since been critiqued as involving too often a form of ‘myth-making’, ‘politicized narratives’ and a ‘marginalising’ of scholarly knowledge (Moore and Pybus 2022). The policy of ‘Indigenisation’ in Australian universities stresses strategic symbolic and substantive celebration of knowledge asserted as arising exclusively from Aboriginal cultural traditions, regardless of the history of intercultural relations in settings from which the knowledge is drawn. In some cases, the knowledge is asserted to be transmitted in a material and/or spiritual form through a ‘bloodline’, whether or not an individual’s socialisation encompassed any awareness of customary traditions or a deceased Indigenous forebear. Particularly in southeast Australia this increasingly involves individuals with recently discovered and symbolically recuperated Aboriginal ancestry asserting a cultural identity that is more ‘native’ than those without any Indigenous forebear(s).⁹

This vigorously asserted politics of ‘indigenism’, encompassing celebration of a ‘native’ identity that has survived colonialism, can have little interest in forms of anthropological analysis oriented to legal cases about custom-based rights in land. The organisational politics of the issue, embraced in the universities and a range of other settings, can also encompass a narrative stressing self-effacement on the part of non-Indigenous professionals. Accounts available in the case of medical and allied health workers (Kowal 2015) and education specialists (Aveling 2013; Moore and Pybus 2022) indicate that when this occurs it appears based on a belief that diminishing the importance of disciplinary expertise is central to an antiracist political position. Aboriginal agency is foregrounded as a matter of political principle despite the significance of professional expertise. In anthropological practice this expertise is central to the successful achievement of traditional rights in country. Again, the Northern Territory provides a particularly indicative case (Peterson 2022).

Hence, while many anthropology graduates get jobs in the sector, it is clear that working as a native title anthropologist, and/or on related applied work, is inevitably embedded in a particular politics, and those of us who do so have to find ways to respond and ultimately to decide whether it is an ethically and practically viable career. Despite what has been at times an awkward politics of critique, my own judgement for 30 years has been that this arena of applied social anthropology is a productive and politically progressive area of work in moral terms, as well as in regard to practical outcomes.

Sociocultural Anthropology and the Law in Australia

In this context, we have witnessed in Australia over a period of some 50 years an extraordinary engagement between a social science discipline with underlying aspirations to address historical injustice experienced by Aboriginal and Torres Strait Islander people, and a legal profession with the responsibilities of working through legislation. In my view, both anthropology and the law have had responsibilities as well to the interests of the broader post-settler society of Australia, with all of its diverse groups of long-time settler descendants, migrants and refugees. This broader responsibility to the wider society in the land claims context can be lost in the wash of the advocacy politics of indigenism that anthropologists and lawyers deal with and are swept into as part of their work. This is a key question for those involved professionally in Indigenous land negotiations. The sector is not for the faint-hearted.

In this challenging setting, what then is it that the law requires of anthropology, producing both intellectual stimulation and frustration for practitioners? Anthropologists are engaged to work with the specific wording of the various legislation to best fit complex social processes into terms like ‘law and custom’, ‘tradition’ and ‘society’. For much of the continent, this challenge emerges in the context of great historical impacts of colonialism on traditional customary knowledge, practices and connections to country. For some regions, the anthropologist’s task is aptly likened to collecting jumbled pieces from a puzzle according to terms of reference prepared by lawyers who know little about the content of the puzzle itself, as Indigenous barrister Joshua Creamer has put it. Legal jurisprudence in the native title sector defines a society as ‘a body of persons united in and by its acknowledgement and observance of a body of laws and customs’, while for anthropology a society is made up of ‘a set of relationships changing through time, defying reification and certainty’.¹⁰

Joshua Creamer notes that the anthropological detail has enabled recognition of ‘subtle distinctions’ otherwise ignored in legal proceedings. He also comments on the high relevance of expert anthropologists’ findings to judges’ decisions regarding native title rights and interests. His acknowledgement of his personal indebtedness to the corpus of knowledge assembled about the cultural traditions of some of his own ancestors indicates the emotional significance of this work implicated as it is within what can appear to be arcane legal discourses.

Anthropologists are engaged to document creative responses to diverse histories of colonial and postcolonial relationships, forms of creativity on the part of Aboriginal people that social scientists expect to find in all human groups. Yet the law requires us to be cautious and scholarly in explaining how and why the concept of ‘creativity’ can be commensurate with adaptations of continuing traditions and customary inheritance of rights in country. If an adapted belief or practice exhibits ‘creativity’, in what ways is it derived from what the ‘law and custom’ once was? Experience in the sector suggests that it is typically easier for anthropologists to accommodate ‘creativity’ in their conclusions about cultural continuities than it is for lawyers and judges to do so.

Anthropologists are engaged to work conscientiously as independent experts to assist the court in litigation and mediated consent outcomes while deeply cognizant of the interests of Indigenous parties, whether that be a group claiming rights in land, negotiations over heritage values in places subject to potential development projects, or individuals seeking a ‘cultural defence’ in criminal cases such as prosecutions for taking protected bush species (Trigger 2023, 251). Anthropologists may also be engaged by a party such as a State Government responding to an Indigenous land claim, a proponent of a development project, or a prosecutor in a criminal case. Reviews of the reports and testimony of anthropologist peers then become the major focus of the expert’s role.

Hence, we note elements of frustration that can be experienced among anthropologists and other social science scholars, in addressing the complications involved in this kind of forensic social research. Anthropologists are typically deeply aware of the risks of reifying tradition such that elements of culture have to be reconstituted or reinscribed from the past in order to achieve legal rights.¹¹ This can mean an uncomfortable disjunct between the realities of everyday lives in Indigenous families and communities and the desire for recognition of ancestrally inherited rights to a distinctive sense of place and access to and benefit from those locations. As David Martin has eloquently put the matter, there is a risk that the legal proceedings become overdetermined by a need to demonstrate a symbolic entitlement to be ‘native’ (Martin 2015).

Custom and Creativity

Anthropologists are also aware of how customary bases for legal claims can be affected substantially by practical and financial concerns, recognising actual and potential conflicts of interest among some Indigenous stakeholders. Legal advocates may find it disconcerting to be confronted with personal material interests among clients driving internal politics across Indigenous groups yet this can be a major issue in the resolution and management of collective rights to country. A senior staff member of a native title organisation appeared shocked in 2022 by my proposed guideline for cultural heritage investigations designed to ensure adequate attention to local-level Indigenous politics. Was I suggesting, argued the response, that decisions about cultural landscapes can be based at times on material interests rather than cultural knowledge? Yes, was my answer, while aware this was a politically difficult proposition in the context of my personal commitment to Indigenous rights to negotiate over development projects in new legislation proposed in Western Australia.

However, the strategic use of a ‘cultural curtain’ among contesting Aboriginal parties seeking to maximise personal and family financial outcomes as much as the preservation of cultural landscapes, is hardly unusual in the experiences of anthropologists. As a long-term colleague and friend pointed out in an informal conversation in 2022, her experiences as a senior Aboriginal woman with years of involvement in land negotiations underlined her conviction that to ignore non-customary drivers of articulated land interests is naïve and counter-productive. Few benefit, she argued, from failing to address how personal and/or particular family interests are routinely situated behind a ‘cultural curtain’. My colleague’s terminology is intended to stress that such a ‘cultural curtain’ operates in some cases as a mask to obscure robust politicking over money and related resources, with the curtain being opened only strategically to suit individual rather than collective Indigenous interests.

However, the anthropologist will also likely know that Indigenous interests cannot realistically be expected to operate in a cultural bubble completely separate from people articulating their material and symbolic aspirations in contemporary society. Anthropological understanding is usually painfully aware that practical needs for a way out of poverty and greatly improved health and education outcomes sit at times uncomfortably with legal expectations that ‘traditional law and custom’ will be somehow completely independent from cultural politics and in some sense uninterrupted from the time of establishment of British sovereignty.

This concern is also apt when the law’s expectation is for cultural continuity above all despite forms of change. A well-known Central Australian native title compensation case demonstrated the risks when an anthropological archive from decades ago is found by a court to be the main arbiter of landed interests when both cultural change and new research findings present a different scenario. In the Jango case, the court found traditional connections to country had dissipated because an earlier documented model of ‘tribal’ patrilineal inheritance of rights appeared no longer operating, this finding despite anthropologists arguing for a more complex range of pathways to adapted traditional connections to country (Burke et al. 2007; Sansom 2007).

Conclusion: Sociocultural Anthropology and the Law, a Multidimensional Working Relationship

In this difficult arena of work, and with a view to celebrating the positives as well as the challenges of anthropology’s professional involvement with the legal system, we can address what I have learned from several decades of engagement with applied research and expert witnessing. Others will doubtless frame the implications of their working experiences differently. The following presents, in concise form, my particular perspective indicative of issues that I believe arise for practitioners.

• Forensic social anthropological work has focused my scholarly and applied research attention on both symbolic and practical outcomes for Indigenous groups and a contribution to the resolution of certain colonial legacies across the wider Australian society. I have found this to be a stimulating complement to academic anthropology’s aims in theorising culture and its transformations.

• I have learned that if anthropology, and social science inquiry more generally, is to be valued outside of academic discourse, we need to support interpretations, opinions, and conclusions with sound empirical data that are clearly depicted and explained. This is not always embraced in a discipline replete with political positions and advocacy commitments which can lead to a disinclination on the part of researchers to weigh up alternative and competing sets of findings before presenting the outcomes of studies. Without minimising the importance of theory and technical terminology I have learned that legal examination of our conclusions can help reinforce the need for robust evidentiary support for research findings.

• I have learned from engagement with the law that professionalism in communication in the public domain brings standing to a discipline, and that instant commentary so prevalent nowadays on social media has its disadvantages in this respect. Relatedly, surviving legal challenges can strengthen a sense of authority with which social science can articulate strong and factually supported opinions in a contested area like Indigenous affairs and associated claims to rights in lands and waters.

• Furthermore, I have learned that despite its ponderously slow pace, its often maddening formalities and repetition, and what can seem at times an enormous waste of money and resources, there can be substantial satisfaction in achieving closure in a case when claimants achieve legal rights in land that arise from their highly valued cultural traditions. My own experience is that such outcomes can be also satisfying for the anthropologist going some way to lessen concerns about unknown outcomes while aware of pressures on claimants during systematic examination and forensic inspection of the issues dealt with in Australian land claims, cultural heritage inquiries and native title.

We come then to what lawyers and the legal profession may have learned from me, or more instructively from anthropological expertise and knowledge in broad terms. Reflecting on years of conversations and collegial working relationships, as well as periods of formal cross-examination I have endured in court, my conclusions include the following.

• From anthropology, the legal profession can potentially understand that formal wording seeking to impose order on the irregularities and ambiguities surrounding changing cultural traditions needs to be aware that worldviews and everyday customary practices are not always consciously known and capable of systematic articulation. Relatedly, a concept like ‘law and custom’ requires recognition of how beliefs, practices, and senses of collective identity can continue as the basis for an inherited set of rights regardless of how much everyday lives have apparently changed.

• Anthropological approaches to the study of culture and societal processes, in this case in the context of a history of settler colonialism and intercultural relations, will pay attention to multiple ways of living with ‘tradition’. This is so for Aboriginal Australia just as elsewhere across the world. To be explicit, life circumstances driving choices about how much ‘culture’ to reproduce over generations, should be taken into account in forming conclusions about whether there have been particular continuities of inherited rights and interests over time.

• Anthropology has shown that, to return to Neville Bonner’s plea, from his perspective in a long-settled region in 1995, we need to proceed with caution in arriving at conclusions about the washing away of customary habitual worldviews by ‘the tide of history’ as it was expressed in the original Mabo judgement that gave rise to the Native Title Act of 1993. Women, for example, may over time be considerably less concerned about male ritual initiation, or may even come to oppose elements of it due to changing views across Australian society in regard to gender roles, and/or what they come to believe is best for children and adolescents. Our findings must be open to such change if and where it occurs so that tradition and custom are acknowledged as living convictions legitimately subject to adaptation.

• Anthropological research shows that collective and individual understandings of traditional connections to land will vary across a claim group and that the loudest voices will not be the only ones to which we need to listen. Moreover, it may not be possible to arrive at total agreement across an Indigenous party, just as that is so for others throughout the wider society. And hence compromises and best judgements can be hard but necessary challenges to be met both by anthropologists and the legal process.

• Anthropologists can, as with other experts providing opinions in legal proceedings, take ‘instructions’ in general terms. Terms of reference need to provide broad instructions to carry out the investigation of particular issues and questions and address relevant legal issues. However, it is important not to imply a methodology similar to the legal taking of instructions, as the process of an anthropologist forming conclusions will arise from different data. A particular contrast is that decisions among Indigenous clients arise as much from informal conversation and participant observation by the researcher as from formal meeting settings of the kind where lawyers commonly ‘take instructions’. Indeed, an anthropological methodology will commonly be cautious about apparent resolutions at particular meetings and about regarding such decisions as constituting a final decision on key matters of group membership or territorial boundaries. The anthropologist will or should be aware in such meeting contexts of who has remained silent, who was not at the meeting because of deliberate choice due to disagreement with others, and hence of outcomes that are not all that they seem – whether or not votes or hands are counted and noted by a lawyer present as a final decision. It will, for example, be the anthropologist who will witness later retractions or statements that the meeting resolutions were arrived at under pressure, whether through a majority presence because of one or more particular large families, or a perceived threat of emotional or physical intimidation.

All of this I acknowledge makes for a messy and difficult business of resolving ways forward and reaching firm conclusions in the professional arena of forensic and applied anthropology. However, it is indeed about messiness and difficulty in the reproduction over time of customary rights in land, that I think the lawyers I have worked with or been cross examined by have learned from the discipline of 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).