Paul Burke

Before crossing over to anthropology, Dr. Paul Burke had a career as a legal aid and land council lawyer in central Australia in the 1980s. There he began to take a particular interest in Aboriginal languages and culture. His work on land claims brought him into close contact with anthropologists and perhaps planted the seed of his book, Law’s Anthropology. While in Canberra working in the administration of land rights and heritage protection legislation he commenced his formal study of anthropology at The Australian National University. He was awarded his PhD in anthropology in 2006. Since then he has worked as a consultant anthropologist on native title claims in southern Queensland and the Pilbara region of Western Australia. He is currently an AOC funded research fellow at the school of archaeology and anthropology at ANU where he is researching the Warlpiri diaspora. He is uniquely well-placed to provide this account of the formulation and legal reception of the expert testimony of anthropologists.

Law's Anthropology »

From ethnography to expert testimony in native title

Authored by: Paul Burke

Publication date: November 2011

Anthropologists have been appearing as key expert witnesses in native title claims for over 20 years. Until now, however, there has been no theoretically-informed, detailed investigation of how the expert testimony of anthropologists is formed and how it is received by judges. This book examines the structure and habitus of both the field of anthropology and the juridical field and how they have interacted in four cases, including the original hearing in the Mabo case. The analysis of background material has been supplemented by interviews with the key protagonists in each case. This allows the reader a unique, insider’s perspective of the courtroom drama that unfolds in each case. The book asks, given the available ethnographic research, how will the anthropologist reconstruct it in a way that is relevant to the legal doctrine of native title when that doctrine gives a wide leeway for interpretation on the critical questions: what is the relevant grouping, what can be counted as a traditional law and when has there been too much change of tradition? How will such evidence be received by judges who are becoming increasingly sceptical about experts tailoring their evidence to suit the party which called them? This book answers these questions by assuming that there is more at stake here than the mere performance of roles. Rather, there is a complex interaction of distinct social fields each with its own habitus, and individual actors are engaged in an active and constructive agency, however subtle, which the painstaking research for this book uncovers.

Download for free