Concerns about excessive secrecy in the Muckaty case

I shall refer to the Federal Court case VID433/2010 Lane and others versus the Commonwealth of Australia and others as the Muckaty Case.

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