The article by Andrew Chalk (link below) provides a good account of the role of an expert in a Federal court case – but presumes that the duty of the modern anthropologist is solely to the Anglo-Australian State and introduced systems of law.
The modern presumption is that a professional anthropologist in Australia has an overriding duty to the Anglo-Australian State and is not free to acknowledge the co-existing sovereignty of Australia’s First Peoples.
The Big Cheese Question is – can modern anthropologists in Australia also recognise the unextinquished sovereignty of Australia’s First Peoples?
When cross-cultural expert anthropologists take an oath to tell the whole truth and nothing but does that not include the question of the sovereignty of Australia’s First Peoples?
And if not, how are their professional careers advanced by the acts of judgement and personal choices they are then required to make – and at what cost to the well-being and vital interests of the indigenous people they claim to be able to represent by modern anthropological means?
Some indigenous lawmen have long argued for “Two Laws” – that is, as an indigenous Australian solution, an inclusive both-and approach with dual sovereigns – co-existing sovereignty – rather than an exclusive either-or choice.
We may yet see elements of this emerge in the Muckaty court case.
Meanwhile by way of some background reading (extract only, emphasis added):
Anthropologists and Violins – A lawyer’s view of expert evidence in native title cases
by Andrew Chalk
Paper delivered to the Native Title Conference: Expert Evidence in Native Title Court Cases: Issues of truth objectivity and expertise
6-7 July 2001
The purpose of this paper is to set out the legal obligations of experts appearing in native title cases and to offer some suggestions as to steps which expert witnesses can take to ensure that they give their best evidence, irrespective of on whose behalf they are called.
The burden carried by anthropologists in native title matters, irrespective of whether they are being called on behalf of claimants or respondents, is heavy. It is not only their professional reputations which are at stake.
Anthropologists are acutely aware of the significance of the proceedings to claimants and often feel an overwhelming sense of responsibility to do justice to the claimants’ case. Unlike expert witnesses in many other types of cases, such as a doctor in a worker’s compensation claim or an engineer in a product liability case, the nature of anthropological evidence is generally not limited to a discrete issue. It does not involve a routine
scientific test carried out in a laboratory.
Commonly it will encompass an examination of a whole society, the
relationship of the people in that society to one another, their relationship as a group to surrounding peoples and to their colonisers and, of course, their relationship to their land. It is a field of expertise which necessarily involves personal relationships between the anthropologist and the subjects of their inquiry, often over many years.
The expert’s duty to the court
The common law has long laid down rules regarding the duty of an expert in giving evidence to a court.8 The Federal Court has given its own practice directions in relation to the giving of expert evidence in that court.
These directions are titled Guidelines for Expert Witnesses in proceedings in the Federal Court of Australia.9
Lawyers are obliged to give a copy of the Guidelines to an expert at the time the expert is retained for the purpose of giving evidence in the proceedings. The Guidelines cover both the expert’s duty to the court and the form in which their evidence must be presented.
See also CM7 at: http://www.fedcourt.gov.au/how/practice_notes.html#cm7