Anthropologists’ field notes ordered by Court in Muckaty court case

The present Muckaty Federal Court case is actually better called “Mark Lane Jangala and others v the Commonwealth of Australia and others”. It is case number VID433/2010 in the Victoria Registry of the Federal Court of Australia (for ‘others’ see footnote below).

In the latest court order (28 March 2012) Justice North has called for the production of both reports and field notes by various anthropologists:

THE COURT ORDERS THAT:

2. Pursuant to rule 20.21 of the Federal Court Rules 2011 (Cth), the second respondent make and file an affidavit within 28 days of the date of this order in respect of the documents in the schedule to these orders.

The schedule states:

Schedule

a. All drafts of the anthropological report (being document C-4 to the affidavit of Shanti Rama affairmed 15 December 2012), and all field notes relevant to the report;

b. The retainer, terms of reference, and instructions for any anthropologists retained for the purpose of drafting the 2007 NLC Anthropoligical Report;

c. All draft of the anthropologists’ report commissioned by the Second Respondent and submitted to Justice Gray in the Muckaty Lan Claim (the Sutton Report), and field notes relevent to the report;

d. The retainer, terms of reference, and instructions for any anthropologists retained for the purpose of drafting the Sutton Report.

The 2007 NLC report – carried out by the Northern Land Council anthropologists in connection with the nomination of a site on Muckaty for a radioactive waste facility – was (according to information provide to Parliament) prepared by Mr Robert Graham, Dr Brendan Corrigan and Mr Kim Barber. This contents of this report has been treated as highly confidential by the NLC.

The Sutton Report was exhibit NLC2 in the Warlmanpa (Muckaty Pastoral Lease) land claim No 135 heard by Aboriginal Land Commissioner Justice Grey (see his 1997 land claim report). The Sutton report was prepared by Dr P Sutton, Dr D Nash and Mrs P Morel.

It is not evident from the name of the document if the Sutton report was prepared by them three researchers for the Northern Land Council or for the claimants in the Warlmanpa land claim. It was tendered by counsel for the claimants, says Justice Grey’s land claim report.

It will be interesting to see how these anthropologists (one of those named is a linguist) respond the court order to produce their field materials as this has been contested in some past cases (on the grounds of confidentiality with the peoples concerned).

The question of confidentiality is one which appears from time to time in such matters as reporters protecting their sources; medical professionals protecting their patient’s information and lawyers protecting their client’s disclosures to them.

There is no legal basis for an anthropologist to believe that there is relationship of confidentiality with the people they work with. They may gain some degree of cover if the materials were primarily produced for a court case (legal professional privilege) and have not been previously disclosed or used for a secondary purpose (as I remember it from my tortuous days in the 1985 Warumungu land claim hearing).

However, there may well be strong moral and ethical reasons for seeking to respect the conditions under which information was collected, and these reasons may bring researchers into conflict with the State (and, in this case, a State which does not recognise First Peoples as First Peoples nor their body of law.).

Against this, there are a variety of mechanisms available to Courts to ensure that restricted information (for example, normally for the eyes of senior indigenous lawmen) is handled in a manner which may satisfy any reasonable senior indigenous lawman (or maybe not, as the particular details of the case may be).

See what happens by about the 26 April I suppose, when Justice North’s order requires the production of these documents and field notes.

The Muckaty matter is set down for a directions hearing on 25 June 2012.

Bruce Reyburn
Wollongong NSW
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Others as listed in Justice North’s Court Order:

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
Respondent: AUSTRALIAN GOVERNMENT SOLICITOR