Comment on G. Edmond, 'Thick Decisions'.

Comment on G. Edmond, 'Thick Decisions'. In a recent review of a book (2002) on native title corporationsthat was jointly authored by an anthropologist and a legal scholar Iended by observing 'how easy it is for lawyers and anthropologiststo talk past each other, and how resiliently different disciplinesimpose limits to their own mode of theorization'. Edmond'slegal analysis of the opinions of anthropological expertise proffered inthe post-Royal Commission Hindmarsh Island Hindmarsh Island (Kumarangk in Ngarrindjeri dialect, coordinates Coordinates: ) is an island in the lower Murray River near the town of Goolwa, South Australia. Bridge litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.When a person begins a civil lawsuit, the person enters into a process called litigation. gives me noreason to alter that opinion. I read Edmond's article very shortly after I had written acommentary on the recent Federal Court decision Jango v NorthernTerritory (No. 2), (1) and my opinion is that Edmond's articleilluminates the same problems I identified in Sackville J'sjudgement. In this comment, I am going to continue pointing out howanthropological and legal perspectives continue to travel past eachother. Let me start with Edmond's invocation invocation,n a prayer requesting and inviting the presence of God. of the case of Voli as acomment on how the anthropologist's task should be construed.Edmond notes that in that case, 'the High Court made no attempt todistinguish the expert's extra curial cu��ri��a?n. pl. cu��ri��ae1. a. One of the ten primitive subdivisions of a tribe in early Rome, consisting of ten gentes.b. The assembly place of such a subdivision.2. a. activities from the provisionof evidence in court' (Edmond p. 204). I think one of theanthropological problems here is the qualifier 'specialized'in the quasi-legal term 'specialized' or 'specialistknowledge'. For it is one of anthropology's singularcharacteristics (at least to me) that it is a generalistic inquiry. Inidentifying, investigating and describing the social and cultural worldof any given community, the anthropologist considers information that ishistorical, geographical, biological, botanical, zoological, ecological,meteorological me��te��or��ol��o��gy?n.The science that deals with the phenomena of the atmosphere, especially weather and weather conditions.[French m��t��orologie, from Greek , and so on--in fact, all phenomena, broadly speaking Adv. 1. broadly speaking - without regard to specific details or exceptions; "he interprets the law broadly"broadly, generally, loosely ,that affect and contribute to the conduct of human life in thatparticular setting. Since I began commenting on the Hindmarsh Island Bridge case in1995, I have continued to argue that in post-Woodward CommissionAustralia, the Australian Courts are one of the primary 'elicitorytriggers' for the articulation of Aboriginal 'tradition'.Aboriginal communities engaged in such acts of articulation have for along time been actors within a complex culture of differentiation thatcharacterizes component identity groups in the late 20th century nationstate. In Anthropology's particular view of this complex'intercultural' (2) arena, the institutions of Australian laware culturally constituted themselves. The closest Edmond gets toacknowledging this is when he observes that 'images of expertiseinvoked by the various protagonists--parties, lawyers, judge andanthropologists--are highly strategic, sensitive to cultural resonancesas well as legal categories and possible causes of action, includinganticipated appeals' (Edmond p. 216). In the terms of the Voli judgement cited approvingly by Edmond, howmight we then construe construev. to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal meanings. the 'specific type of specialised knowledgeor skill' that an anthropologist may have been required to bring tothe task? Edmond admits that the plaintiffs in Chapman v Luminis arguedfor a more 'radical continuity in performance across contexts'(Edmond p. 209) on the part of the consultant. This could be taken tomean that there should be no differential in standards of expertisedeployed 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--isthat an anthropologist engaging in consultancy must at some stageapproach the social nexus of, for example, developer-government-legaledifice-indigenous community as itself a legitimate social field ofinquiry, every bit as authentically culturally-constituted as any'conventional' anthropological 'village' or'camp'. Should we have expected the consultants in the earlystages of the Hindmarsh Island sacred site claim to have been aware ofthe political and historical factors that impelled the various partiesto assume the positions and articulate the opinions they did prior to1995? Given the latitude that the Commissioner Iris Stevens permittedthe witnesses, could not these dimensions have been re-inserted into theunfolding narrative of the Royal Commission? Yet on page 5342 of the transcript of the Hindmarsh Island BridgeRoyal Commission, Fergie stated in response to questions from Mr. Smiththat because she and her husband were not South Australians, they didnot learn that the proposed Hindmarsh Island bridge had long been acontentious issue in the Adelaide area and as she remarked, didn'teven know where Hindmarsh Island was. Was Fergie admitting that she wasignorant of this broader intercultural nexus which, in my view, iscritical in assessing the meaning of indigenous discursive articulationsof place, sacrality and attachment to land? And, from the perspective ofVoli, would Edmond then admit she was not qualified to assess the fullimport of the proponent Ngarrindjeri women's actions in 1994-1995? Edmond chides me and other anthropologists (p. 214-215) forevincing frustration with the Courts' inability to understand whatsociety, culture and social action are in anthropological terms, andthen admonishes us not to allow ourselves to be 'colonised' bythe legal establishment. But I was not expecting the Royal Commission tounderstand complex anthropological argument any more than the FederalCourt did in Jango v Northern Territory. As Pottage observes, 'Lawproduces objectivity by knowing as little as possible about the object' (2004: 23). Instead, I was taking the Royal Commission to taskfor the same reasons I've criticised the anthropology that wasevinced in the Hindmarsh Island case--its resolute refusal toreflexively place itself in the landscape of social and symbolic actorsand forces that were engendering--'fabricating'--the culturalcontext of the Ngarrindjeri sacred site claim. I wonder whether Edmond would still maintain this position afterexamining Sackville J's decision in Jango referred to above.Because although anthropologists are well aware of the social life ofcolonisation, legal analysis is singularly unresponsive to the politicalimplications of many of its decisions, and disinclined to comment on itsown discrepant dis��crep��ant?adj.Marked by discrepancy; disagreeing.[Middle English discrepaunt, from Latin discrep judgements from case to case (but see for example Lavery2003). Edmond therefore asks us to be reflexive, but only 'alittle', since it appears that the legal profession must evidentlyinsulate itself from the effects of 'too much' reflexivity.But it is too late--anthropology has already constituted itself from thestart as a regime of reflexive analysis, from which our culture'slegal practice is not immune. ACKNOWLEDGEMENTS My thanks to Peter Sutton, Daniel Lavery, Katie Glaskin, ToniBauman and Jane Anderson. NOTES (1.) FCA 1004 (3 August 2004). The commentary referred to is listedin the bibliography as Weiner 2004. (2.) See Merlan 1998. (3.) (www.murdoch.edu.au/elaw/issues/v 10n4/lavery 104.html). REFERENCES LAVERY, D. (2003). 'A Greater Sense of Tradition: TheImplications of The Normative System Principles in Yorta Yorta Yorta Yorta may refer to: The Yorta Yorta language The Yorta Yorta people, Indigenous Australians from the junction of the Goulburn and Murray Rivers in North East Victoria. forNative Title Determination Applications'. E-Law (Murdoch UniversityElectronic Journal of Law) 10:4. (3) MERLAN, F. (1998). Caging the Rainbow. Honolulu: University ofHawai'i Press. POTTAGE, A. (2004). 'Introduction: The Fabrication fabrication (fab´rikā´shn),n the construction or making of a restoration. of Personsand Things'. In Law, Anthropology, and the Constitution of theSocial. Cambridge University Press Cambridge University Press (known colloquially as CUP) is a publisher given a Royal Charter by Henry VIII in 1534, and one of the two privileged presses (the other being Oxford University Press). . WEINER, J. (2002). 'The Law of the Land' (reviewarticle). The Australian Journal of Anthropology 14(1): 97-110. WEINER, J. (2004). 'Jango & ors v the Northern Territory& ors: An Anthropologist's Comment'. Native TitleNewsletter 4/2004: 8-10. James F. Weiner Australian Institute of Aboriginal and Torres Strait Torres Strait(tŏr`ĭz, –rĭs), channel, c.95 mi (153 km) wide, between New Guinea and Cape York Peninsula of Australia. It connects the Arafura and Coral seas. IslanderStudies