The Practice of an Expert

Anthropology in Native Title

Bibliographic Data

ID2144251
AuthorsH Morphy (0000-0001-6488-662X, corresponding author)
Year2006
Volume16
Issue2
Pages135-151
Publication date2006-07-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueAnthropological Forum (JOURNAL)
Journal identifiersISSN: 0066-4677 • E-ISSN: 1469-2902
PublisherInforma UK Limited (PUBLISHER • GB)
DOI10.1080/00664670600768342
OpenAlexW2145819899
LanguageEN
Citations received9
References cited3

This paper provides a perspective on the practice of anthropology as a discipline in the context of providing expert evidence in court cases. I consider the nature of anthropological expertise in relation to method, knowledge and theory. I evaluate the contribution that anthropological expertise can make, taking into account such factors as time pressures and the extent of the anthropologist's prior knowledge of a particular society-factors that often act as a constraint on what it is possible to know or find out in a given situation. Keywords: Anthropological MethodAustralian AboriginesExpert WitnessNative Title Notes 1. This paper was originally prepared for the 2005 Native Title Conference session, 'Experts and Evidence in Native Title Proceedings', sponsored by the Federal Court of Australia. In revising the paper, I have been helped by a number of people. I particularly wish to thank Caroline Edwards, who suggested I write the paper in the first place and provided much useful input. Peter Sutton, David Martin, David Trigger, Frances Morphy, Gregor Urbas and two readers for Anthropological Forum all provided useful critical input, which helped expand the paper. Karen Westmacott helped me with the research and provided invaluable feedback at all stages of the writing. I have followed many of their suggestions. The faults remain my own. 2. This is consistent with the definition implicit in the Evidence Act (Cth) s 80, where an expert is a person who has 'specialised knowledge based on a person's training, study or experience'. 3. 'Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia', 19 March 2004 Federal Court of Australia. 2004. Guidelines for expert witnesses in proceedings in the Federal Court of Australia, 19 March. Available from http://www.fedcourt.gov.au/how/pracdirection.html#current . [Google Scholar] (http://www.fedcourt.gov.au/how/pracdirection.html#current). See also the Evidence Act (Cth) s 79 and s 76(1) (available at: http://www.comlaw.gov.au), which provides the basis for the Federal Court guidelines on expert witnesses. s 79 Exception: opinions based on specialised knowledge. If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 4. The Guidelines require experts to state whether their opinion is 'not fully researched' (see 2.9 under the 'Form of the Expert Evidence'). It may mean that testimony based on such research is given less weight and would almost certainly be the subject of comment by opposing counsel. 5. Glaskin (2004 Glaskin, K. 2004. An anthropological perspective on writing for the court. Land, rights, laws: Issues of native title , Vol. 2, Issues Paper no. 29, September. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Research Unit. Available from http://ntru.aiatsis.gov.au/publications/issue_papers.html . [Google Scholar], 3-4) provides a useful summary of some of the different types of reports an anthropologist might be asked to provide for the Federal Court. 6. This qualification applies, of course, to any involvement of anthropologists as expert witnesses in court proceedings. The focus of this paper is on contested native title cases that are heard in the Federal Court. However, much of the discussion applies also to the role of anthropological expertise in cases where a determination by consent is initially sought. Connection reports are required in such cases, and will themselves be subject to review, including peer review and legal evaluation. While some legal advisors and some administrative bodies may demand connection reports that are equivalent to an expert report filed before the Federal Court, such a requirement may be both unnecessary (given that the determination can be reached by agreement between the parties concerned) and unrealistic (given limitations of time and available expertise). It may be more efficient in such cases to envisage a two-stage process: an initial connection report being submitted to the state government that is sufficient to establish connection and facilitate the consent process, followed up, if required, by an expanded version suitable for cross-examination in court. I am grateful to David Trigger for his input here. 7. Barker here is really setting the broad parameters of anthropological expertise, which encompass the theoretical knowledge and expertise an anthropologist has, and the variety of methods he or she applies to reach conclusions in a particular case. For example, in many instances anthropologists will engage in research that is a combination of limited fieldwork and archival research, which does not fit the ideal model of 'participant observation'. 8. The applicants may also engage additional anthropologists to peer-review reports and to provide specialist expertise if required. 9. Native Title Act (Cth). 10. As David Martin (2004 Martin, D. F. 2004. Capacity of anthropologists in native title practice., Canberra: Anthropos Consulting Services. Report to the National Native Title Tribunal [Google Scholar], 68) has written: 'it is of fundamental importance to differentiate between native title on the one hand and, on the other, the particular system of connections an Indigenous group may have to its traditional country. The character of these connections to country of a particular Indigenous group, which are established through and structured by traditional law and custom, may not be appropriately described in terms of rights and interests ... These relations, and the system of traditional law and custom through which they are ordered, are the subject of the recognition process. They are translated through the concept of native title in order to take effect as rights and interests that can be incorporated into the categories of Australian property law though they are not identical to those categories.' See also Glaskin (2004 Glaskin, K. 2004. An anthropological perspective on writing for the court. Land, rights, laws: Issues of native title , Vol. 2, Issues Paper no. 29, September. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Research Unit. Available from http://ntru.aiatsis.gov.au/publications/issue_papers.html . [Google Scholar], 2) for the question of cultural translation. 11. Neowarra v Western Australia [] FCA 1402, 120, [25] (8 December 2003). 12. Neowarra v Western Australia [] FCA 1402, 120, [26] (8 December 2003). 13. Neowarra v Western Australia [] FCA 1402, 398 (8 December 2003). 14. Even in cases where a form of English is the main language used by the Aboriginal people concerned, sensitivity to the nuances of Aboriginal English and knowledge of unique features of the local vocabulary or usage of terms are essential for communication. Aboriginal English may itself often reveal categories not expressed in standard English. 15. The applicants may in such case be expected to supply copies of publications to the respondents if required. 16. According to Justice Sackville: 'It is evident from the Yulara Anthropology Report that each author spent considerable time interviewing the applicants and other indigenous people who have given evidence in the proceedings. This appears to be the bulk of the "field work" undertaken by them. There is an obvious risk that much of this effort duplicated the work undertaken (so I infer from what I have been told) by lawyers in preparing written statements from Aboriginal witnesses to be tendered at the hearing. I do not dispute that there may be circumstances in which an anthropologist uses his or her special knowledge to express opinions based, in part, on information provided by people who are themselves to give evidence in the proceedings. Nonetheless, it is by no means clear to me why it was apparently thought necessary for the anthropologists to carry out such extensive interviews of witnesses and potential witnesses for the purpose of preparing their Report' (Jango v Northern Territory of Australia (No. 2) [] FCA 1004 [15] (3 August 2004)). 17. However it is clearly advisable, as Justice Sackville notes in agreement with Justice Lindgren, that lawyers should provide advice on the form of reports by experts without influencing their substance, in order to facilitate their admissability (Jango v Northern Territory of Australia (No. 2) [] FCA 1004 [9, 10] (3 August 2004)). 18. The nature of the evidence required will vary according to the basis of the applicant group's connection to the land, and the traditional laws and customs by which their native title is manifest; and in some cases detailed site mapping may not be relevant. 19. It is important to recognise that genealogical research is a methodological tool that can be used for many different purposes: establishing group membership, establishing the principles of group formation or establishing the basis of connection over time between people and an area of land or some other transmitted right. The nature of the research required will depend on the particular objective. The principles of group formation may be determined by analysing a large number of relatively short genealogies. Establishing connection in areas with a long colonial history and a history of disruption may require extensive genealogical research using documentary sources as a supplement to remembered relationships in order to establish continuities over time. It is important to differentiate genealogical relationships from the social relationships on which group membership may be based. While genealogical relationships are often relevant to understanding the criteria for group membership and the bases of group formation, membership of groups may be determined by multiple criteria, including factors such as residence or adoption, in addition to relationships of descent (an excellent discussion of the genealogical method is provided by Ward Goodenough [2001 Goodenough, W. H. 2001. "Conclusion: Muddles in Schneider's model.". In The cultural analysis of kinship: The legacy of David Schneider,, Edited by: Feinberg, R and Ottenheimer, M. 205-18. Urbana: University of Illinois Press. edited by [Google Scholar]]). In compiling genealogies, anthropologists need to be aware of the constructed nature of relationships over time and the nature of the biases that may be built into genealogical memory in particular cases, including factors such as the masking of 'wrong' marriages. Anthropologists also need to be sensitive to the cultural context of genealogy-for example, the avoidance in some areas of the name of the recently deceased-in order to compile genealogies that are as accurate as possible and that can be used for the purposes required. 20. Ward v Western Australia () 159 ALR 483 at 532; [1998] 1478 FCA, cited in Barker 2004 Barker, M. 2004. "Working as a barrister on the Miriuwung Gajerrong native title claim.". In Crossing boundaries: Cultural, legal, historical and practice issues in native title,, Edited by: Toussaint, S. 159-75. Carlton, Vic: Melbourne University Press. edited by [Google Scholar], 171. 21. Maps are simply one of the many ways of organising and representing data spatially, but one that has often proved useful in native title cases and other cases relating to rights in land. There are clearly going to be differences between maps that are drawn up on the basis of contemporary fieldwork, which can be used as an aid to the Court and tested against the applicants' evidence, and maps that represent an ordering of historical or earlier ethnographic data. In all cases, however, the anthropologist must make clear the basis upon which the maps are drawn, and clearly state the provisional or reconstructed nature of them when that is the case. Hagan's (2001 Hagen, R. 2001. Ethnographic information and anthropological interpretations in a native title claim: The Yorta Yorta experience.. Aboriginal History, 25: 217-27. [Google Scholar], 225) caution, with reference to maps, that 'tentative conclusions and working hypotheses can all too easily come to be seen as "facts" when given the patina of age and frequent repetition' is well made. 22. It is not possible to cover in a single paper all of the issues that an anthropologist may have to address in native title cases. I have been able to touch only briefly on the important issue of continuity in traditional laws and customs with respect to land, sea and waters. Such issues vary very much according to local historical circumstance: the gap between sovereignty, effective colonisation and the present. While the issue needs to be addressed in every case, it will require different methods to establish continuity according to the particularities of history. In the context of south-east Australia, it is vital to demonstrate the ways in which Aboriginal society has been transformed in the post-colonial context, in continuity with its past beliefs and practices, yet adapting to new contexts and demographic changes. In many cases, the particular trajectory can be shown to have developed directly out of 'the laws and customs' of previous generations, and not be something imposed from outside or created anew (see Macdonald 2001 Macdonald, G. 2001. Does 'culture' have 'history'? Thinking about continuity and change in central NSW.. Aboriginal History, 25: 176-99. [Google Scholar] for a relevant discussion of the issues concerned). 23. Neowarra v Western Australia [] FCA 1402, 120, [25, 26] (8 December 2003

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