Social scientists and native title cases in Australia

Abstract

Recent legal developments in Australia have led the courts to reject the doctrine of terra nullius, which denied pre-existing Aboriginal rights to land ownership, and Aboriginal prior occupation and ownership of land are now acknowledged. However, in the absence of consent determinations the courts have to evaluate the justification for legally recognizing native title based on specific local evidence for continuities in the traditional customs and laws of Aboriginal claimants since British sovereignty. Much of the evidence for such continuities can come from the Aboriginal claimants themselves. However, proving the time, depth and relevance of these continuities and presenting them in a form that is considered acceptable by the courts has drawn upon the 'expertise' of academics. This paper considers the types of evidence that anthropologists, linguists, historians and archaeologists are able to present and makes some suggestions as to how this could be improved in the future.