Keywords: Cultural Evidence; Native Title; Proof Theory; Epistemology; Law and Anthropology.
The present essay analyses a judicial phenomenon widespread in post-colonial societies and here called "cultural evidence". Cultural evidence is commonly referred as any evidence showing the defendant's cultural background. However, this study discusses a different meaning of "cultural evidence" as a specific kind of evidence aiming to prove the existence of a legal relationship (typically a collective property right) of an Indigenous population over a specific piece of land. The cultural evidence is usually produced by the exhibition of an artefact or a cultural performance (a song, a dance, a ceremony) before the Court. The present article tries to answer the following question: How can a cultural evidence prove the existence of a juridical relationship (in the context of Indigenous territorial claims)? The main aim of the essay, which examines the specific case of Yolngu population (Australia) is to show how this question can be answered in a three-fold way, depending on the context we are referring to: the Yolngu cosmology (§ 2), the Australian procedural law (§3), the intercultural negotiation setting (§ 4).