Preserving culture in federal court proceedings: Gender restrictions and anthropological experts

Gender-based secrecy within the religious domain is an integral feature of most Australian Aboriginal societies. Within the context of Native Title claims, gender restricted evidence is often important to establish and substantiate connections to country. For Aboriginal people, the presentation of such evidence is an exceptionally difficult compromise. The Federal Court has to consider the public interest in respecting the cultural concern of Native Title claimants, with other competing public interest presumptions, such as the right to representation by the legal representative of one's choice. Anthropologists have a professional obligation to informants to protect the confidentiality of gender-restricted material, however, as an expert witness, the first duty of an anthropologist is to the Court. 

This paper discusses the Federal Court's approach to these issues in respect to two recent Native Title cases.