Towards good-faith futures – regional decision-making vs local descent groups at Muckaty

PART ONE – GOOD FAITH AND BAD FAITH REPRESENTATIONS

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

Pondering the Muckaty case 2012 Part 3 – 1930s imperial anthropology vs relating

On the surface the present struggle at Muckaty involves (in part) a conflict regarding how two groups of Warlmanpa people are defined as statutory “traditional owners”.

Beyond this is another issue – that of two different paradigms – ‘descent’ on the one hand, and ‘relating’ on the other.

“Descent” can be seen as being part of a form of early modern and imperial anthropology which informed the definition of ‘traditional owners’ in the 1976 Aboriginal Land Rights (NT) Act.

“Relating” is more in keeping with recent ‘web of life’ thinking.(See link in main body of text).

Unexplored in this piece of writing is the larger issue of how Anglo-Australia needs to move away from the old imperial paradigm and into the new ‘relating’ mode vis-a-vis First Peoples.

Please take that as read.

Google doc:

https://docs.google.com/open?id=0B5L1WtKuhKjEQzFHSThuY1ZhNGM

A modern anthropologist’s dilemma – one or two Australian sovereigns?

The article by Andrew Chalk (link below) provides a good account of the role of an expert in a Federal court case – but presumes that the duty of the modern anthropologist is solely to the Anglo-Australian State and introduced systems of law.

The modern presumption is that a professional anthropologist in Australia has an overriding duty to the Anglo-Australian State and is not free to acknowledge the co-existing sovereignty of Australia’s First Peoples.

The Big Cheese Question is – can modern anthropologists in Australia also recognise the unextinquished sovereignty of Australia’s First Peoples?

When cross-cultural expert anthropologists take an oath to tell the whole truth and nothing but does that not include the question of the sovereignty of Australia’s First Peoples?

And if not, how are their professional careers advanced by the acts of judgement and personal choices they are then required to make – and at what cost to the well-being and vital interests of the indigenous people they claim to be able to represent by modern anthropological means?

Some indigenous lawmen have long argued for “Two Laws” – that is, as an indigenous Australian solution, an inclusive both-and approach with dual sovereigns – co-existing sovereignty – rather than an exclusive either-or choice.

We may yet see elements of this emerge in the Muckaty court case.

Meanwhile by way of some background reading (extract only, emphasis added):

Anthropologists and Violins – A lawyer’s view of expert evidence in native title cases

by Andrew Chalk

Paper delivered to the Native Title Conference: Expert Evidence in Native Title Court Cases: Issues of truth objectivity and expertise
6-7 July 2001
Adelaide University

The purpose of this paper is to set out the legal obligations of experts appearing in native title cases and to offer some suggestions as to steps which expert witnesses can take to ensure that they give their best evidence, irrespective of on whose behalf they are called.

The burden carried by anthropologists in native title matters, irrespective of whether they are being called on behalf of claimants or respondents, is heavy. It is not only their professional reputations which are at stake.

Anthropologists are acutely aware of the significance of the proceedings to claimants and often feel an overwhelming sense of responsibility to do justice to the claimants’ case. Unlike expert witnesses in many other types of cases, such as a doctor in a worker’s compensation claim or an engineer in a product liability case, the nature of anthropological evidence is generally not limited to a discrete issue. It does not involve a routine
scientific test carried out in a laboratory.

Commonly it will encompass an examination of a whole society, the
relationship of the people in that society to one another, their relationship as a group to surrounding peoples and to their colonisers and, of course, their relationship to their land. It is a field of expertise which necessarily involves personal relationships between the anthropologist and the subjects of their inquiry, often over many years.

The expert’s duty to the court

The common law has long laid down rules regarding the duty of an expert in giving evidence to a court.8 The Federal Court has given its own practice directions in relation to the giving of expert evidence in that court.

These directions are titled Guidelines for Expert Witnesses in proceedings in the Federal Court of Australia.9

Lawyers are obliged to give a copy of the Guidelines to an expert at the time the expert is retained for the purpose of giving evidence in the proceedings. The Guidelines cover both the expert’s duty to the court and the form in which their evidence must be presented.

Full article:

http://www.aas.asn.au/publications/Conference%202001/Chalk.pdf

See also CM7 at: http://www.fedcourt.gov.au/how/practice_notes.html#cm7

The Wire – Muckaty story

The Wire – MP3 Download

The new waste dump about to be dumped
Friday, 30 March 2012

Produced by Eduardo Jordan
Featured in story
Elizabeth O’Shea – Head of the Social Justice practice at Maurice Blackburn lawyers

http://www.thewire.org.au/storyDetail.aspx?ID=8982

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
————-

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

Federal Government to use anthropologists in Muckaty case

Anthropologists called in for nuke land ownership dispute in court

by: Pia Akerman
From: The Australian
March 28, 2012 12:00AM

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.

The council nominated the site on Muckaty Station, 110km north of Tennant Creek in 2007, supported by one of five clan groups making up the Muckaty Land Trust. The nomination was approved by the Howard government but has not yet been declared under the Labor government.

Resources Minister Martin Ferguson has previously said he will not declare the site until the legal proceedings finish.

Dr Donaghue yesterday told judge Tony North the case should be stopped on the basis of four questions of law.

Full story:

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