Paper short abstract:

Paul Burke's Law's Anthropology provides a model of anthropological agency in native title, but his case studies are weighted towards litigation. I look at his model in relation to claims where there is some expectation of State consent. Case material from Victoria and Queensland is discussed.

Paper long abstract:

In Paul Burke's view (Law's Anthropology, 2011), anthropologists' active production of knowledge in native title is a function of the interplay of two fields, one anthropological, the other juridical; but anthropological agency within this scheme has a basically triangular shape, with attention being given to: 1) an anthropological archive; 2) the evidence of contemporary claimants; and 3) legal doctrine embodied in legislation and case law. The cases Burke discusses (Mabo, Rubibi, De Rose Hill and, to a lesser extent, Yulara) were all concluded under adversarial conditions and largely reflect the pre-Yorta Yorta landscape, after which came a turn towards mediated outcomes by consent. In this paper, I reflect on the ways this post-Yorta Yorta environment altered the terms by which anthropologists can participate in native title, examining cases in Victoria and Queensland in which I have been involved (employed by both representative bodies and state governments). In relation to these cases (Gunditjmara, Gunai/Kurnai, Darumbal and Mandandanji) I draw particular attention to Burke's idea of a 'robust academic model' - one which admits to complexity and heterogeneity in both Aboriginal life-worlds and the anthropological modelling available to describe them, and does not pretend that 'there is always an easy fit between ethnography and legal doctrine' (p. 30). I discuss examples of both deployment and avoidance of such 'robust' modelling, which can be measured by degrees, and how these instances appear to have affected the outcomes of particular claims through effects upon 'the State'.