Synergy or skirmish? The collaboration of law and anthropology

Synergy or skirmish? The collaboration of law and anthropology

This chapter begins with a brief review of the origins of this interdisciplinary conversation and its broad ongoing relevance in various fields of property law. The focus then turns to the way the collaboration works, academically and professionally, in the context of Aboriginal (or ‘native’) title. We will examine some of the history of the union in this context and illustrate its operation with respect to some key practical controversies. Examples are chiefly drawn from the Australian context, however, North-American and New Zealand comparisons will be added in particular places.
In the context of Indigenous issues, the value of productive collaboration between law and anthropology is self-evident. Few would deny the inherent limitations of traditional Western legal method, left to its own devices, in its contemplation of sophisticated pre-existing Indigenous cultures. Popular staging posts for critique here include the first instance decisions in Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 and Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606. However, a suitably simple starting point is a comment from the famous Maori lawyer, Sir E T Durie. He once famously decried the stubborn ‘monoculturalism’ of the courts when describing how a Maori elder’s song in a riverbed claim was interpreted: ‘The court noted that he sang a song but had nothing to say.’

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