Aboriginal History, Volume 38, 2014
Law’s Anthropology: From Ethnography to Expert Testimony in Native Title by Paul Burke, x + 326 pp, ANU E Press, Canberra, 2011, ISBN 9781921862427 (pbk), $28.00.
This book began life as the author’s PhD thesis. It is an ambitious project structured around three main case studies of contested native title hearings: the groundbreaking Mabo matter in the Torres Strait Islands, the Rubibi case of the Broome area in Western Australia, and the De Rose Hill claim in the Western Desert part of South Australia. Each case study consists of a detailed discussion of the ethno-historical record for the area, which is then followed by a careful analysis of how this record was approached and strategically deployed by anthropologists and lawyers in the legal hearing. An additional chapter is devoted, I think as a kind of addendum to the original thesis, to the Yulara case, another significant Western Desert matter, this time relating to the area around Uluru/ Ayers Rock. These case studies are bookended on either side by theoretical considerations regarding the relationship between anthropology and the law.
Burke, who is both a lawyer and an anthropologist, set out to achieve two aims: to examine the two disciplines from a critical distance to expose their internal workings, and to examine their interaction both at the level of their different forms of practice and at that of individual agents in particular matters. I found him to be generally successful on both counts as he explores numerous issues that arise in this inter-disciplinary interface, a few of which I will outline here.
One of the issues explored is the tension that can arise when the legal process weighs up the evidence given by the expert anthropologist with long-term fieldwork experience in a given community on the one hand, and the anthropologist who is experienced within the profession but not the particular community of the native title claim. This issue receives particular attention in the context of the Rubibi case, where the anthropologist engaged by the claimants had the benefit of many years researching in the area, while the anthropologist engaged by the state government supported his claim to expertise through, what Burke calls, his ‘academic capital’ rather than on-ground experience among the community. The judge in that matter seemed happy to accept the expertise of both and adopted a mediating approach to their diverging ethnographic accounts, ultimately using aspects of both in forming his own views. The issue reemerges in De Rose Hill where the same dynamic between ‘claimant’ and ‘State’ anthropologist is mirrored, and in the Yulara case where the contrast is between two anthropologists engaged by the claimants. On the one hand there was Jon Willis, who had long-term and intimate involvement with the Western Desert people, on the other Peter Sutton, who is considered one of Australia’s most experienced anthropologists in matters of Aboriginal land tenure and social organisation. To the alarm of the anthropological community, or at least that part engaged in native title, the judge formed the view that Sutton was not qualified to be an expert in this matter because he had not conducted long-term fieldwork among Western Desert people. From the judge’s point of view, expertise derived from independent academic research that is then brought to bear in the native title context, as in Jon Willis’ case, was superior to research conducted specifically for a native title claim, which risked enmeshing the anthropologist in the self-interested agendas of the claimants. Surprisingly, on the basis of this one decision Burke raises the possibility that the courts might generally dismiss anthropological expertise. In fact, I am not aware of any other matter in which the anthropological expertise is not accepted. If the Yulara approach were applied universally, the native title system would grind to a halt for want of suitably qualified anthropologists. In practical terms, a large proportion of native title work is conducted by consultants who are not regional specialists in all the areas where they work. In my view, a reference to this systemic feature could have provided a useful contrast to the idiosyncratic nature of the Yulara decision.
Another issue Burke explores is the relationship between the legal team and their expert anthropologist. Was the anthropologist involved in formulating the case? Did he (all the experts considered in this book are male) give advice on ideal witnesses or lines of questioning? What emerges are four quite distinct scenarios. In the Mabo case, Jeremy Beckett was at a clear remove from the legal team, both in terms of his evidence, which did not entirely support their case, and interpersonally. In Rubibi, Patrick Sullivan had firm views on how the case should have been formulated at a more inclusive level to encompass the entirety of the local Aboriginal factions, but these views were not adopted by the legal team, causing him significant frustration. The research Craig Elliot conducted in preparation for De Rose Hill, would be the envy of many a consultant anthropologist who are commonly engaged on a 75-day contract to prepare a connection report: 110 days of fieldwork and 150 days of archival research. Yet he was not involved in developing the manner in which the claim would be advanced and was only ever intended as a junior player until he suddenly found himself thrust into the spotlight by the sudden ill-health of the main expert. At that stage his appreciation of the ethnographic reality was secondary to the brief he was given, which was determined by the legal focus of the claimants’ lawyers at that advanced stage of the hearing.
Finally, Peter Sutton substantially assisted the legal team in developing pleadings, questions for claimants and the presentation of the ethnographic evidence. This approach was entirely consistent with long-held practices in the context of Northern Territory Land Rights claims, but the Federal Court judge took a dim view of it, interpreting it as causing a conflict with Sutton’s role as unbiased court expert.
The charge of advocacy was leveled at both Elliot and Sutton and naturally Burke made it a focus of his analysis. The tension between the independence expected of a court expert and the advocacy of the legal team that engage the expert is ubiquitous in legal matters regardless of the expert’s discipline. It is standard practice for the advocate acting for one party to seek to impugn the independence of the expert engaged by the other. Even where the expert is completely unbiased in their analytical approach, defensive responses to hostile cross-examination can still project an air of bias, which the cross-examining party may well seek to exploit. According to Burke, this was the fate of Craig Elliott while in Sutton’s case the problem arose, in addition to his involvement in developing the case, from the fact that the judge did not appreciate the way in which he dismissed aspects of the ethno-historic record, despite Sutton backing it up with extensive data.
In his concluding discussion, Burke expresses the view that the pressure towards advocacy on expert anthropologists by the legal team that engages them is relentless. He refers to a ‘senior anthropologist’ who suggested that there was pressure towards advocacy at every step of the process, and Burke himself agrees from his own experience. My own experience, however, is quite different. In my engagement by both state governments and Native Title Representative Bodies I found the lawyers to be exemplary in seeking to ensure my independence and keeping me at arm’s length from their case development. So while the underlying tension between independence and advocacy is a structural feature of the adversarial (and often deeply cynical) legal process, particular pressure by the engaging party on the expert does not seem to be structural or universal. An inquiry focused on the individual agency of the lawyers and anthropologists in topic might have been an interesting approach in refining this analysis.
Overall this is a well-written and engaging book. The ethnographic summaries in themselves provide a useful starting point for anyone looking for an introduction to Australianist anthropology generally or an overview of the particular areas in question. Burke deliberately does not recap the old Radcliff-Brown/Hiatt/Stanner debate on local organisation, but nonetheless provides a thorough summary of the intellectual development of Australian Aboriginal land tenure models in the three regions discussed. There are without doubt other angles that could have been pursued in the analysis of the process by which the law subsequently ‘digested’ this ethnographic information, but the accounts as they stand are comprehensive and insightful. As I was personally involved in the De Rose Hill matter (as an in-house anthropologist engaged by the state) I can confirm that the significant level of detail into which Burke goes is largely correct, with minor exceptions being the misspelling of the name of one of the barristers and the mixing up of the names of the two pastoralists involved.
The weakest point for me was perhaps its opening chapter. I was surprised by the reference to US law on experts rather than the Australian Federal Court’s Practice Direction for Expert Witnesses and noticed that some of the references to general anthropological debates, that surely must be ongoing, were confined to the 1980s and 1990s. Burke asks a rhetorical question, ‘Will anthropological research for claims be rejected as “junk” anthropology?’, which is a theme that is again picked up in the Yulara case study. As I alluded to above, there does not seem to be any basis to this fear beyond isolated incidents and as an analytical starting point it did not seem overly meaningful.
I did, however, appreciate the fundamental imagery of ‘digestion’ of anthropology by the law. All other aspects of the process may vary: the anthropologist’s expertise or independence may be challenged or not; the process may involve gruelling and aggressive cross-examination, or it may involve a more recent Federal Court practice, which sees the judge asking most of the questions of all experts simultaneously. But whatever the details, the anthropologists and their ‘expert opinions’ are only there as instruments to the lawyers and judge, as sources of ‘raw data’. This raw data can then be digested together with all the other facts presented to the court and moulded to fit the needs of the legal process. In matters before the court the law always has the final say, thus the transformation of anthropology as an independent agent into ‘law’s anthropology’ is inevitable.
Over the years, various anthropologists have been shocked by this harsh reality of the legal process and baulked at it, at times decrying the lawyer’s lack of understanding of their discipline. This, however, misses the point that lawyers tend to only be interested in understanding to the extent that it suits their client’s case. This is not ignorance, but a fulfillment of their professional duty. Perhaps it is his own legal training, but Burke does not seem to share that shock. This means he is able to provide a level-headed and forensic perspective on an area that is often clouded by emotions and vested interests. As such this is a valuable resource for lawyers and anthropologists involved in any stage of the native title process and more broadly for those wishing to understand the relationship between anthropology and the law in the fraught but socially fascinating recognition space that is the native title jurisdiction.