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Comment on G. Edmond, 'Thick Decisions'.

In a recent review of a book (2002) on native title corporations that was jointly authored by an anthropologist and a legal scholar I ended by observing 'how easy it is for lawyers and anthropologists to talk past each other, and how resiliently different disciplines impose limits to their own mode of theorization'. Edmond's legal analysis of the opinions of anthropological expertise proffered in the post-Royal Commission Hindmarsh Island Bridge litigation gives me no reason to alter that opinion.

I read Edmond's article very shortly after I had written a commentary on the recent Federal Court decision Jango v Northern Territory (No. 2), (1) and my opinion is that Edmond's article illuminates the same problems I identified in Sackville J's judgement. In this comment, I am going to continue pointing out how anthropological and legal perspectives continue to travel past each other.

Let me start with Edmond's invocation of the case of Voli as a comment on how the anthropologist's task should be construed. Edmond notes that in that case, 'the High Court made no attempt to distinguish the expert's extra curial activities from the provision of evidence in court' (Edmond p. 204). I think one of the anthropological problems here is the qualifier 'specialized' in the quasi-legal term 'specialized' or 'specialist knowledge'. For it is one of anthropology's singular characteristics (at least to me) that it is a generalistic inquiry. In identifying, investigating and describing the social and cultural world of any given community, the anthropologist considers information that is historical, geographical, biological, botanical, zoological, ecological, meteorological, and so on--in fact, all phenomena, broadly speaking, that affect and contribute to the conduct of human life in that particular setting.

Since I began commenting on the Hindmarsh Island Bridge case in 1995, I have continued to argue that in post-Woodward Commission Australia, the Australian Courts are one of the primary 'elicitory triggers' for the articulation of Aboriginal 'tradition'. Aboriginal communities engaged in such acts of articulation have for a long time been actors within a complex culture of differentiation that characterizes component identity groups in the late 20th century nation state. In Anthropology's particular view of this complex 'intercultural' (2) arena, the institutions of Australian law are culturally constituted themselves. The closest Edmond gets to acknowledging this is when he observes that 'images of expertise invoked by the various protagonists--parties, lawyers, judge and anthropologists--are highly strategic, sensitive to cultural resonances as well as legal categories and possible causes of action, including anticipated appeals' (Edmond p. 216).

In the terms of the Voli judgement cited approvingly by Edmond, how might we then construe the 'specific type of specialised knowledge or skill' that an anthropologist may have been required to bring to the task? Edmond admits that the plaintiffs in Chapman v Luminis argued for a more 'radical continuity in performance across contexts' (Edmond p. 209) on the part of the consultant. This could be taken to mean that there should be no differential in standards of expertise deployed by the anthropologist, whether they are engaged in 'applied' anthropology or 'scholarly' anthropology. One reading of this in the present case--the reading I would endorse--is that an anthropologist engaging in consultancy must at some stage approach the social nexus of, for example, developer-government-legal edifice-indigenous community as itself a legitimate social field of inquiry, every bit as authentically culturally-constituted as any 'conventional' anthropological 'village' or 'camp'. Should we have expected the consultants in the early stages of the Hindmarsh Island sacred site claim to have been aware of the political and historical factors that impelled the various parties to assume the positions and articulate the opinions they did prior to 1995? Given the latitude that the Commissioner Iris Stevens permitted the witnesses, could not these dimensions have been re-inserted into the unfolding narrative of the Royal Commission?

Yet on page 5342 of the transcript of the Hindmarsh Island Bridge Royal Commission, Fergie stated in response to questions from Mr. Smith that because she and her husband were not South Australians, they did not learn that the proposed Hindmarsh Island bridge had long been a contentious issue in the Adelaide area and as she remarked, didn't even know where Hindmarsh Island was. Was Fergie admitting that she was ignorant of this broader intercultural nexus which, in my view, is critical in assessing the meaning of indigenous discursive articulations of place, sacrality and attachment to land? And, from the perspective of Voli, would Edmond then admit she was not qualified to assess the full import of the proponent Ngarrindjeri women's actions in 1994-1995?

Edmond chides me and other anthropologists (p. 214-215) for evincing frustration with the Courts' inability to understand what society, culture and social action are in anthropological terms, and then admonishes us not to allow ourselves to be 'colonised' by the legal establishment. But I was not expecting the Royal Commission to understand complex anthropological argument any more than the Federal Court did in Jango v Northern Territory. As Pottage observes, 'Law produces objectivity by knowing as little as possible about the object ' (2004: 23). Instead, I was taking the Royal Commission to task for the same reasons I've criticised the anthropology that was evinced in the Hindmarsh Island case--its resolute refusal to reflexively place itself in the landscape of social and symbolic actors and forces that were engendering--'fabricating'--the cultural context of the Ngarrindjeri sacred site claim.

I wonder whether Edmond would still maintain this position after examining Sackville J's decision in Jango referred to above. Because although anthropologists are well aware of the social life of colonisation, legal analysis is singularly unresponsive to the political implications of many of its decisions, and disinclined to comment on its own discrepant judgements from case to case (but see for example Lavery 2003). Edmond therefore asks us to be reflexive, but only 'a little', since it appears that the legal profession must evidently insulate itself from the effects of 'too much' reflexivity. But it is too late--anthropology has already constituted itself from the start as a regime of reflexive analysis, from which our culture's legal practice is not immune.


My thanks to Peter Sutton, Daniel Lavery, Katie Glaskin, Toni Bauman and Jane Anderson.


(1.) FCA 1004 (3 August 2004). The commentary referred to is listed in the bibliography as Weiner 2004.

(2.) See Merlan 1998.

(3.) ( 10n4/lavery 104.html).


LAVERY, D. (2003). 'A Greater Sense of Tradition: The Implications of The Normative System Principles in Yorta Yorta for Native Title Determination Applications'. E-Law (Murdoch University Electronic Journal of Law) 10:4. (3)

MERLAN, F. (1998). Caging the Rainbow. Honolulu: University of Hawai'i Press.

POTTAGE, A. (2004). 'Introduction: The Fabrication of Persons and Things'. In Law, Anthropology, and the Constitution of the Social. Cambridge University Press.

WEINER, J. (2002). 'The Law of the Land' (review article). The Australian Journal of Anthropology 14(1): 97-110.

WEINER, J. (2004). 'Jango & ors v the Northern Territory & ors: An Anthropologist's Comment'. Native Title Newsletter 4/2004: 8-10.

James F. Weiner

Australian Institute of Aboriginal and Torres Strait Islander Studies
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Title Annotation:Response and reply: Edmond's 'Thick decisions' Oceania 74(3)
Author:Weiner, James F.
Geographic Code:8AUST
Date:Sep 1, 2004
Previous Article:What judges really do: comprehensive explanation and the limits of agency.
Next Article:Law and the uncooked--a reply.

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