No: (P)VID433/2010
Federal Court of Australia
District Registry: Victoria
Division: General

MARK LANE JANGALA and others named in the schedule
Applicant

COMMONWEALTH OF AUSTRALIA and others named in the schedule
Respondent

ORDER

JUDGE:

Justice North
DATE OF ORDER:

9 May 2013
WHERE MADE:

Melbourne

THE COURT ORDERS BY CONSENT THAT:

1.
The venue for examination of the witnesses set out in Order 4 of the Orders of His Honour dated 9 April 2013 be the Federal Court in Darwin.
2.
There be liberty to apply on two days’ notice.

Date that entry is stamped: 13 May 2013

(for) Deputy District Registrar

Schedule
No: (P)VID433/2010
Federal Court of Australia
District Registry: Victoria
Division: General

Second Applicant:LORNA FEJO NANGALA
Third Applicant:DICK FOSTER
Fourth Applicant:RONALD BROWN

Second Respondent:NORTHERN LAND COUNCIL
Third Respondent:THE MINISTER FOR RESOURCES AND ENERGY
Fourth Respondent:MUCKATY ABORIGINAL LAND TRUST

‘Together we hold our future and we are standing strong’:
Community rally marks six years of opposition to Muckaty nuclear dump.

A community rally and concert will be held in Tennant Creek on Saturday May 25 to oppose the Northern Land Council’s and federal government’s continuing push for a radioactive waste dump at Muckaty in the Northern Territory.

The date marks exactly six years since the Northern Land Council voted to nominate an area of Muckaty, 120km north of Tennant Creek to be assessed as the site for a national dump. The nomination remains strongly contested by many Traditional Owners, who are actively challenging the plan in the Federal Court, as well as by many people across the Barkly region. Despite ongoing contest, the Northern Land Council has recently indicated it may nominate a second site on Muckaty.

“It has been a six year struggle but our voice has still not been heard by the government”, said Muckaty Traditional Owner Dianne Stokes. “We are trying our best to let everyone know that we are standing strong to fight for our spiritual ancestors and our land.”

“Together we hold our future and we are standing strong to show the world that we will never back down. We have a strong heart forever to say no to the nuclear dump anywhere on Muckaty.”

Beyond Nuclear Initiative coordinator Natalie Wasley said; “Representatives from nearby communities, trade unions, national environment groups and public health organisations are joining the local community for this rally, bringing messages of support from across the NT and country. We are committed to working together until the Muckaty proposal is dropped.”

“We are calling on the new Resources Minister Gary Gray to step away from the deeply flawed Muckaty plan in favour of a comprehensive public commission that considers all options of radioactive waste management. We need a mature process based on science, not politics, that is transparent and includes all stakeholders.”


A community rally has been held every year in Tennant Creek since 2007. The upcoming event also incorporates a concert with performers including: Sandridge Band (Borroloola); Winanjjikari All Stars (Tennant Creek); Kylie Sambo (Tennant Creek) and Perfect Cult (Borroloola).



The rally will commence outside the Northern Land Council office in Tennant Creek at 12pm and march to Civic Hall for the concert starting 2pm.

More information about the federal radioactive waste dump proposal and campaign can be found at: www.beyondnuclearinitiative.com

May 25 event Facebook page: http://www.facebook.com/events/326459734149343/?ref=ts&fref=ts

The denial of a form of sovereignty of Australia’s First Peoples by British colonial powers seeking to solve their own pressing social problems may prove to be a key factor in why Australian anthropology was dominated, during the 20th century, by simple-minded conceptions of First Peoples realities.

…

“Local descent groups”, in relation to Australia’s original peoples, are the creation of modern Western minds. These modern anthropological models and their statutory cousin have no objective correlate in the lived practices of those original peoples.

…

Full article (21 pages) at:
https://docs.google.com/file/d/0BzqzKCXVv8moX0Qtc2NrMDFVVzQ/edit?usp=sharing

United Nations Declaration on the Rights of Indigenous Peoples
A Business Reference Guide

Exposure Draft
10 December 2012
Comments to be sent by 1 June 2013 to undrip@unglobalcompact.org

Two fundamental elements of indigenous peoples’ rights, on which the ability to exercise and enjoy a number of other rights rest, are the right to self-determination (discussed on page 36) and free, prior and informed consent (discussed on page 24) which, among other things, require that business fully and meaningfully engage indigenous peoples in, and in many cases obtain their free, prior and informed consent for, business activities that will affect them or their rights.

…

Free, prior and informed consent
Action: Obtain (and maintain) free, prior and informed consent from indigenous peoples where appropriate

…

The concept of free, prior and informed consent (“FPIC”) is fundamental to the UNDRIP as a measure to ensure that indigenous peoples’ rights are protected.

FPIC is required whenever there is a risk of impact to any right that is essential to the relevant indigenous peoples’ survival.23 This includes any of the following actions, in relation to which the UNDRIP expressly refers to FPIC:

…

 storage or disposal of hazardous materials on indigenous peoples’ lands or territories (Article 29); and
 projects affecting indigenous peoples’ lands, territories or other resources, particularly in connection with the development, use or exploitation of mineral, water or other resources (Article 32).

…

Consent – the relevant indigenous peoples must agree to the activity (which also means that they have the right to say no). Engagement or consultation, even when meaningful, does not constitute consent.

…

 The relevant indigenous peoples are entitled to decide whether or not to provide consent, in accordance with their own decision-making processes and through their own representative institutions. Businesses must not attempt to impose their own decision-making processes on indigenous communities. Businesses must also not seek to create division within communities in relation to a proposed activity.

Emphasis added – songlines

Full text:
http://www.unglobalcompact.org/docs/issues_doc/human_rights/UNDRIP_Business_Reference_Guide.pdf

Anyone interested in following the Muckaty case in the Federal Court in any detail will fine it very hard to do so.

It is a case of major importance as it involves an attempt to solve a problem of national proportions by using the living country of severely disadvantaged FIrst Peoples to store radioactive waste.

It is also a very complex matter and not something which can be easily explained in a few words.

In addition to purely legal issues the Muckaty case may raise other important issues. Such as how First Peoples realities are represented in these proceedings, both in a general sense and in terms of how anthropologists fashion models of those lived realities.

There are some very fine points about statutory definitions of “traditional Aboriginal owners” involved in the identification of groups vis-a-vis country as well as some much wider issues about the adequacy of such statutory definitions in relation to First Peoples lived realities.

And it looks like being able to follow those aspect of the Muckaty case will prove extremely difficult due to lack of information which can be accessed in a straight-forward manner by interested members of the public.

LACK OF GOOD MEDIA COVERAGE

There has been very little reporting of this case in the mainstream media, and what reporting there has been is rarely of any analytical depth. There has been very little by way of media releases from the parties which would keep interested members of public in the loop and up-to-date.

Maurice Blackburn lawyers, acting pro bono for the Applicants, has done the best job by way of providing media releases and liaison with the media.

Non-party sources, such as the Australian Greens and Beyond Nuclear Initiative, have provided some good information regarding different aspects of the situation, but not necessarily about the details of the court case.

Added to the social and legal complexities, the Court proceedings are not easy to access if you do not live in Melbourne (The case is before the Victorian Federal Court, probably due to the role being played by Maurice Blackburn lawyers acting pro bono for the applicant party). Transcripts of proceedings are far too expensive for anyone not on an expense account or using public funds.

Additionally, much of the information involved in the matter is handed up in written form. While copies of some documents can be purchased, some key documents cannot be obtained.

And there is also a process at work in this whole matter which involves excessive secrecy regarding the role being played by anthropological experts.

This was first encountered (prior to the legal challenge) in relation to the names of the authors of a report prepared by the Northern Land Council in relation to land ownership at Muckaty for the nominated radioactive waste facility.

GOVERNMENT TO USE ANTHROPOLOGICAL EVIDENCE

Last year Pia Ackerman reported, in The Australian (28 March 2012)

“Anthropologists called in for nuke land ownership dispute in court

THE federal government will use evidence from anthropologists to fight claims that traditional owners of a site at Muckaty Station in the Northern Territory have not been consulted about a planned nuclear waste dump.

Lawyers for the commonwealth told a Federal Court hearing yesterday that Mark Lane Jangala, a Ngapa man who opposes the proposed dump site, was not a traditional owner of the land.

Stephen Donaghue SC said anthropological material supported the government’s case against Mr Lane Jangala and his allies within the Ngapa group.

“They may have traditional ownership rights in relation to other parts of Muckaty Station, but not in relation to the nominated area,” he said.

Dr Donaghue said it would be an “inefficient use of court resources” to embark on a trial to identify the real traditional owners of the land, and the Northern Land Council had been entrusted to make that decision.”

http://www.theaustralian.com.au/national-affairs/indigenous/anthropologists-called-in-for-nuke-land-ownership-dispute-in-court/story-fn9hm1pm-1226311804345

Anthropologists are not covert agents of the State or any other organisation and, generally speaking, knowledge of their identity is not something which can pose a threat either to themselves, their work or to the interests of others.

When working for a statutory authority such as the Northern Land Council anthropologists are subject to additional constraints such as those which relate to commercial matters. Additional consideration apply when anthropologists are retained as experts in a court case.

Professional anthropologists are subject, in some sense, to Codes of Ethics the spirit of which is that anthropology is an open, accountable and highly ethical discipline.

One version of the Australian Anthropological Society Code of Ethics says, for example:

“5.5 Anthropologists should not agree to clandestine employment by sponsors.” ( from http://www.aas.asn.au/docs/AAS_Code_of_Ethics.pdf accessed 24 April 2012)

“Clandestine” is too strong a term in this situation, but the general thrust of anthropological codes of ethics is that anthropology is an open and transparent discipline subject to the full light of public scrutiny.

In my brief career as a modern anthropologist i was in charge of anthropological research for land claims at the Central Land Council for a couple of years in the early 1980s. During that time we had to handle many sensitive matters, including secret/sacred information vis-a-vis the courts. Certain information needed to be handled with great care as though it was as dangerous as radioactive material.

I cannot recall any situation in which the identity of an anthropologist or researcher involved in land claim research was something which needed to be withheld from public knowledge, even before the land claim was ready to be formally presented to the Aboriginal Land Commissioner.

Knowledge of the identity of an anthropologist or researcher was simply not an issue.

PROTECTING SENSITIVE INFORMATION

When working with First Peoples in Central Australia, at least, anthropologists may gain information about sensitive matters including aspects of a secret/sacred part of indigenous life which may only be revealed to others with the informed consent and approval of the relevant indigenous authorities.

This can cause headaches once an anthropologist and his or her materials become part of Anglo-Australian legal proceedings. I pity any anthropologist who has formed close relationships with First Peoples in Central Australia and then finds themselves caught up in bunfights between competing lawyers.

That aside, the Courts can employ a variety of means of protecting sensitive information.

In this present case, the Court has ordered (28 March 2012) the Northern Land Council to produce a wide range of materials regarding anthropological research at Muckaty.

Of the various “NLC” researchers involved in Muckaty over recent decades there have been:

1 three people who worked to produce, via the Northern Land Council, a report for the Aboriginal Land Commission as part of the Warlmanpa (Muckaty Pastoral Lease) Land Claim
2 three people who worked to produce, via the Northern Land Council, a 2007 report in connection with traditional ownership for the nominated radioactive waste facility.

There may have been others.

The Warlmanpa (Muckaty Pastoral Lease) land claim researchers’ report is called “Anthropologists’ report by Dr P Sutton, Dr D. Nash and Mrs P Morel” in the List of Exhibits in the land claim report of the Aboriginal Land Commissioner.

The authors of the 2007 NLC report regarding the site for a radioactive waste facility at Muckaty are, according to Parliamentary materials, Mr Robert Graham, Dr Brendan Corrigan and Mr Kim Barber.

Attempts by other traditional owners at Muckaty to obtain a copy of the 2007 report were frustrated by the Northern Land Council, invoking notions of confidentiality. Even when appearing before Senate Committees the NLC – rightly or wrongly i cannot say – kept a very tight control over what was known of that report.

Nevertheless, Justice North, 8 August 2012, has made the following order in regard to Second Respondent – Northern Land Council – anthropological materials:

“THE COURT ORDERS BY CONSENT THAT:

1. Where the Second Respondent produces a document (including a copy document) in this proceeding to the Court or to the parties and asserts that it or its contents are confidential on the basis that they record matters about Aboriginal knowledge or tradition (Confidential Traditional Material), then subject to any order of the Court or the written consent of the Second Respondent, the following restrictions shall apply to each such document:
(b) it must not be used or copied or its contents communicated to any person for any purpose other than use in the proceeding or any appeal;
(c) save for documents filed in Court, and any direction in relation to those, upon finalisation of the proceeding or any appeal, it must be returned to the Second Respondent or destroyed.
2. Where a party asserts that any document records Confidential Traditional Material it shall do so by means of attaching a coversheet to the document which states “Contains Confidential Traditional Material”.
3. The page numbered 5532 of Document 16 and the whole of Document 44 of the Second Respondent’s List of Documents verified by affidavit of Eden Robert Graham affirmed 2 July 2012 shall be marked on a coversheet “Restricted to Men”. These materials shall not be provided to, and their contents shall not be disclosed to, any person other than an adult male.”

There is no suggestion here that the names of anthropologists who have authored reports should be suppressed. Not surprisingly.

It is extremely difficult to imagine a case where the identity of an anthropological researcher should be suppressed and even more difficult to imagine a sound argument which would justify such an action.

The Muckaty case involves an attempt by extremely powerful forces to impose a radioactive waste facility into the lives of highly disadvantaged First Peoples. It is a case which requires the maximum amount of public scrutiny to counterbalance a kind of centrapedal influence around non-indigenous norms which – in a bicultural context – works against First Peoples interests.

We have already seen, in the course of this nomination, how the Northern Land Council withheld the 2007 Anthropological report from other traditional owners of Muckaty who insisted they have rights in relation to the nominated site.

Even learning the names of the authors of that report was far from straightforward.

This trend towards excessive secrecy is to be discouraged – challenged even.

A degree of commonsense allowance has to be made as to when we learn the identity of anthropologists involved in the Muckaty case.

I understand the name(s) of the author(s) of the Applicants expert witness(es) will be made publicly available when their anthropological report is filed on 12 July.

But when will we learn the identity of the anthropologists Stephen Donaghue SC invoked in his comments to the Federal Court in March 2012. He may, of course, be referring to anthropological materials already collected by Northern Land Council researchers over their decades of work at Muckaty.

Will the Commonwealth of Australia, as the First Respondent, be calling anthropologists as expert witnesses?

If so, who?

Bruce Reyburn
Coledale NSW
April 2013

There is a mature Australian slowly forming who accepts that the methods by which this country was colonised were not only wrong but also caused enormous damage to the lives and well-being of this country’s First Peoples.

Without seeking to detract from the bravery of soldiers who put life and limb on the line fighting in the Imperial war, the mature Australia accepts that there has been – and continues to be – great suffering by Australia’s indigenous peoples as a consequence of a forcefully imposed colonisation.

And without having recourse to a dreadful calculus of human suffering, there can be no doubt that the suffering of First Peoples has been as great – if not much greater – than that caused to Australian soldiers and their families in World War One. It is not a competition.

This newly maturing Australian is learning to accept that a massive human ‘sacrifice’ of indigenous life underlay the foundations of what we now know as “Australia”.

And, in doing so, also acknowledging a great debt which is owed to contemporary First Peoples as the survivors of that founding act of ‘modern Australia’.

The fact that no Federal politicians talk about the need for reparations for First Peoples, and the need for a Truth and Reconciliation Commission of some kind, does not do away with these fundamentally truths.

Many politicians appear to regard the apology to the stolen generations as absolving them of the need for any further action. But the removal of generations of indigenous children from their parents – while of real importance – is one chapter in the much larger story.

We have a long way to go in terms of bringing this larger story to the surface and taking the necessary actions required to heal life as a result.

COMING TO TERMS WITH REALITY

By contrast to the mature Australian, there is an almost infantile Australian who seeks to cling to the comfort blanket of the 20th century mentality and doctrines of terra nullius.

They appear to yearn for a return to a fantasy structure which belongs to an earlier phase of development – a phase of false innocence which accompanies, and makes tolerable for those who benefit from, acts of imperial colonisation.

Despite the attempts of some to return to an imaginary Australia of the 20th century – and to enthrone it as a dominant ideology of some kind – life has a momentum of its own. We have already moved on from the conditions which made the that form of false consciousness possible, and there is no returning. It takes more energy to deny these truths than to accept them and take appropriate adult action.

Mature Australians are also in a process of adjusting to the fact that we are on this side of the planet, and no longer part of the British empire. There is a slowly growing awareness of the wisdom contained in – and the importance of – First Peoples Ways both in terms of caring for country and of other life values.

While those of us with connections to Great Britain treasure them, we also appreciate that we are situated in an Asian context. We cannot make a fetish of the mythical British homeland at the expense of making timely adjustments to our true surroundings.

The healing challenges which face us in Australia, as a result of the legacy we have inherited, will not be assisted by people in positions of authority who seek to deny the realities of First Peoples suffering – and who seek to denigrate the importance of days of significance for a mature Australia.

PYNE’S INFANTILE REGRESSION

Based on the following report of his remarks, Opposition education spokesperson Christopher Pyne clearly places himself in the infantile camp.

From the Sydney Morning Herald, 22 April 2013, reported by Mark Kenny and Josehine Tovey:

” … as opposition education spokesman Christopher Pyne appeared to re-open the so-called ”history wars” which raged during the Howard years, by attacking the school curriculum for putting Aboriginal and multicultural commemoration days on the same level as Anzac Day.

Mr Pyne’s sentiment was similar to that expressed by former prime minister John Howard, who last year accused the government of purging British history from the curriculum.”

http://www.smh.com.au/opinion/political-news/libs-reignite-culture-wars-over-anzac-day-teaching-20130422-2iaro.html

VOTE FOR A HEALING AUSTRALIA

Hopefully more mature minds in the Liberal Party will prevail if they win office in the September election. A good part of the rest of the country has moved on – the Liberal Party needs to catch up if they are to lead.

Hundreds of thousands of people walked across the Sydney Harbour Bridge in the name of Reconciliation under a blue sunny sky with the word “Sorry” written in it – while LIberal Party Prime Minister Howard sulked – alone – in a frosty Canberra.

In seeking to return to the ideological approach of former PM Howard, the Liberal Party will merely demonstrate that it is not fit to handle this country’s education system.

For a healing Australia, for a mature and confident Australia which accepts both the reasons for regret and the causes for celebration, vote for those who policies place proper recognition of the suffering and achievements of us all.

That is life’s way forward.

24-Apr-2013 14:15 Case Management Conference Registrar Irving Chambers – NOT FOR PUBLICATION – ADMIN LISTINGS

18-Apr-2013 14:15 Case Management Conference Registrar Irving Chambers – NOT FOR PUBLICATION – ADMIN LISTINGS Adjourned – Pre-Hearing

No: (P)VID433/2010
Federal Court of Australia
District Registry: Victoria
Division: General

MARK LANE JANGALA and others named in the schedule
Applicant

COMMONWEALTH OF AUSTRALIA and others named in the schedule
Respondent

ORDER

JUDGE:

Justice North
DATE OF ORDER:

9 April 2013
WHERE MADE:

Melbourne

THE COURT ORDERS THAT:

1. The respondents complete discovery by 17 May 2013.

2. The time by which the Applicants are required to file and serve the report of any expert who is to give evidence at the trial as required by the orders dated 23 November 2012 be extended to 12 July 2013.

3. By 26 July 2013, the Applicants file and serve further particulars under paragraphs 18(a) – (b), (d), (h) – (i), (k) – (m) and 23(a) – (h) of the Further Amended Statement of Claim dated 23 April 2012 of the Applicants’ contentions as to the persons or groups said to be:

(a) the traditional Aboriginal owners of:
(i) the nominated land;
(ii) the relevant section of the access road;
(iii) the K site;

(b) the Aboriginal persons holding an interest in:
(i) the nominated land;
(ii) the relevant section of the access road;
(iii) the K site,

referred to in each of those paragraphs of the Further Amended Statement of Claim.

4. The examination of the following people on oath or affirmation take place before a Judge, or before such person appointed by the Court as examiner:

(a) Mark Brown;
(b) Bunny Nabarula;
(c) May Foster;
(d) William Graham;
(e) Ronald Brown;
(f) Dick Foster;
(g) Lorna Fejo.

5. The applicants file and serve:

(a) an outline of evidence of each witness which gives the respondents notice of the substance of the evidence that each witness will give;

(b) a copy of each photograph or other document (appropriately captioned or described) which the applicant proposes to tender or refer to in the evidence of each witness,

no later than six weeks prior to the date on which the examination is to commence.

6. The examination be set down for a 5 day period commencing on 23 September 2013.

7. A case management conference be conducted by a Registrar of the Court by 17 May 2013 to determine whether the parties may agree on the venue for the examination and other logistical issues.

8. The directions hearing listed for 17 June 2013 be vacated.

9. The matter be listed for further directions on 15 July 2013.

10. Costs reserved.

Date that entry is stamped: 11 April 2013

(for) Deputy District Registrar

Schedule
No: (P)VID433/2010
Federal Court of Australia
District Registry: Victoria
Division: General

Second Applicant: LORNA FEJO NANGALA
Third Applicant: DICK FOSTER
Fourth Applicant: RONALD BROWN

Second Respondent: NORTHERN LAND COUNCIL
Third Respondent: THE MINISTER FOR RESOURCES AND ENERGY
Fourth Respondent: MUCKATY ABORIGINAL LAND TRUST

Note by Songlines – some formatting and typeface details changed by copying process. Check Federal Court website for authoritative version

https://www.comcourts.gov.au/file/Federal/P/VID433/2010/3589351/event/27259671/document/330126

09-Apr-2013 10:15 Interlocutory Hearing Justice North COURT 8B (Level 8)

(Text as presently available from Parliament website – First reading?)

3 Recognition

(1)The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

See http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4943_first-reps/toc_pdf/12227b01.pdf;fileType=application%2Fpdf

Note two year sunset clause.