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Neate, Graeme --- "Legal Protection for Secret/Sacred Items of Aboriginal Culture: Keeping Secrets Secret" [1982] AboriginalLawB 41; (1982) 1(5) Aboriginal Law Bulletin 1


Legal Protection for Secret/Sacred Items of Aboriginal Culture:

Keeping Secrets Secret

Graeme Neate

In recent years, Aboriginals have attempted to use the processes of the law to prevent the publication of, or damage to, secret and significant items of their culture. To some extent the attempts have succeeded in preserving the secrecy which is an integral part of the value of certain ceremonies, designs and objects. As well as the immediate results, including settlements out-of-court, judicial recognition has been given to the value to Aboriginals of the secret and significant aspects of their culture. Three cases illustrate the point.

Foster v Mountford and Rigby Ltd.

In his reasons for decision on an ex parte application for an injunction prohibiting the publication within the Northern Territory of Dr Charles Mountford's book, Nomads of the Australian Desert, Muirhead J found that:

a number of photographs drawings and descriptions of persons, places and ceremonies have deep religious and cultural significance to the . plaintiffs. I find that some of the matters hitherto secret are revealed in the book, and that this has caused dismay, concern and anger.[1]

He noted that the plaintiffs' concern

goes basically to the fact that the revelation of the secrets to their women, children and uninitiated men may undermine the social and religious stability of their hard-pressed community.[2]

His Honour found that the plaintiffs had made out a prima facie case that the continuing publication of the book

may cause damage of a serious nature, damage of a type to which monetary damages are irrelevant .... and, perhaps, there can be no greater threat to any of us than a threat to one's family and social structure .[3]

Pitjantjatjara Council and Nganingu v Lowe and Bender In another action concerning photographs taken by the late Dr Mountford, interlocutory orders were made in March 1982 by Crockett J of the Victorian Supreme Court requiring the defendants to deliver certain slides to the Supreme Court Prothonotary and restraining the sale or display of the slides by the defendants. These slides were inspected by representatives of the Pitjantjatjara Council who selected those dealing with secret/sacred material. Property in and ownership of the selected slides were vested in the Council for and on behalf of the Pitjantjatjara, Yankuntjatjara and Ngaanyatjara peoples.[4]

In his affidavit one of the plaintiffs, Peter Nganingu, stated that the Pitjantjatjara people revealed their traditions to Dr Mountford and

permitted him to view and acquire a knowledge of their secret traditions only upon the basis that he would not make public the information or knowledge that he acquired which was of a secret nature.

Nganingu agreed with anthropologist Daniel Vachon who, in his affidavit, referred to objects, sites and processes as 'sacred and secret', meaning

that they can only be taught, observed and known by initiated adults or those who are undergoing a course of initiation . The consequence ... is that particular objects sites and processes are only taught observed and known by persons who have attained appropriate knowledge.

The discolosure of these in public, particularly to uninitiated persons would

undermine and be -a significant step in the disintegration of the social and religious stability developed and endeavoured to be maintained by the three peoples. The peoples have a fundamental desire and need to preserve the traditions ...and to maintain as part of that preservation the secrecy.

Onus v Alcoa of Australia Ltd.

Some recognition of the value of particular objects to Aboriginals was given by members of the High Court in Onus v Alcoa of Australia Ltd.[5] The appellants, members of the Gournditch jmara people, sought to protect relics on land in Portland, Victoria, on which Alcoa plans to build a smelter. The issue before the Court was whether the appellants had standing to bring such an action in the Victorian Supreme Court. Stephan J said that the relics possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance.[6] Mason J referred to the ‘great cultural and spiritual significance for the Gournditch-jmara community’[7] of the relics and Murphy J of their 'special significance'.[8]

In July 1982 an application was made in the Supreme Court of South Australia for access to be given to elders of the Pitjantjatjara and Aranda tribes to objects held by the Strehlow Research Foundation in Adelaide. The artifacts were collected by the late Professor T.G.H. Strehlow in the 1930s and 1940s.[9] The action was taken under South Australian legislation giving Aborigines access to the relics of their forebears.[10] At the date of writing this article, the outcome of that action was not known.

Secrecy and the Aboriginal Land Rights (NT) Act 1976

The significance of, and secrecy attaching to many objects, designs, stories, ceremonies, names and sites have been recognised and respected in the course of hearing traditional land claims under the Aboriginal Land Rights (Northern Territory) Act 1976. In performing his functions, the Aboriginal Land Commissioner has to ascertain whether the claimants or any other Aboriginals are the traditional Aboriginal owners of the land claimed.[11] The term `traditional Aboriginal owners' is defined, in part, to mean Aboriginals

who have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land. (s. 3(1) )

The Commissioner when reporting on a land claim is obliged to

have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed. (s.50(3))

To establish their traditional ownership of the land and the strength of their attachment to it, Aboriginals have given oral evidence, displayed objects of ceremonial significance, performed ceremonies and shown sites to the Commissioner. Some of this evidence has been of a secret nature and has been received on a restricted basis. The forms of restriction have included:

1. evidence which was tape-recorded and transcribed but tendered as a restricted exhibit, available only to those present when the evidence, was given;

2. evidence which was not recorded verbatim but of which a summary was prepared (e.g. by an anthropologist) and tendered as a restricted exhibit, available only to those present when the evidence was given;

3. written notes of evidence made available to those present when the evidence was given, on condition that it not be marked as an exhibit and that it be returned to the claimants before the conclusion of the hearing;

4. evidence given in secret session, not recorded in any way and only referred to (if at all) in the most general terms by counsel in the course of final addresses and by the Commissioner in his report; and

5, in exceptional circumstances, evidence given to the Commissioner alone.

The decision to disclose cultural secrets was clearly a significant one for the Aboriginal witnesses to make, even if the full importance of the evidence was not always clear to counsel. As the former Commissioner, Mr Justice Toohey, noted in the course of a conference to deal with the disposal of restricted exhibits, these had

been tendered on the basis that the material in many cases would not have been produced except for the land claim itself and broadly speaking in order to give the Land Commissioner a better understanding of some matters that go to traditional ownership.[12]

He recognised also that the responsibility that went with the acquisition of that knowledge was not merely an official one.

There have been occasions when... claimants have produced material... performed ceremonies or shown objects of a sacred nature... Where that has been done almost on a personal basis, clearly it has been done because of my position as Land Commissioner but it has had certain personal overtones attached to it which make me conscious of the need to meet any obligations that ought to be met with regard to that material.[13]

Evidence of this nature was tendered in fourteen of the fifteen land claims heard by Toohey J and in an application for the closure of seas in the Milingimbi, Clyde River, Crocodile Islands area under the Aboriginal Land Act 1978 (NT). It may be that there was no claim which succeeded in part or in whole in gaining a recommendation for a grant of land solely, or even primarily, on the basis of information given on a restricted basis. But the importance of such evidence can be gleaned from references in the reports of Toohey J. Two land claims illustrate this. In the report on the claim to Willowra pastoral lease, he wrote of 'a strong flame of traditional life' which emerged, in part, in the visit made to Wirliyajarrayi. That place was described as `the most important site on Willowra' at which there was `a very considerable store of sacred objects'.[14] Details of a visit to that site were contained in Exhibit 67, which was restricted to those male counsel and their advisers who attended the meeting and witnessed the display of objects. In the Finniss River land claim report, Toohey J referred in a number of places to evidence given in restricted sessions about named sites, how sites were named, their importance, and details of ceremonies.[15]

That the disclosure of such secret information could not automatically guarantee that the Commissioner would recommend a grant of the land claimed was made clear in the third report of Toohey J.

Witnessing ceremonies, visiting sites and seeing sacred objects undoubtedly played an important role in identifying traditional country and in assessing the strength of traditional attachment. No doubt it will do so in some future claims. The privilege of being present on such occasions cannot carry with it any commitment on the part of the Commissioner to the outcome of a hearing. I hope those advising and acting for claimants will make that clear to them.[16]

For the most part the reception of evidence on a restricted basis has posed no practical problems. As counsel involved in land claim hearings have tended to be male and much of the restricted evidence has been given by Aboriginal men, interested parties have been represented at restricted sessions and where permitted by the Aboriginals, have been able to ask questions. Where women have given evidence, they have sometimes relaxed their usual rules and revealed certain information to those men to whom, for the purpose of making out the claim, it was deemed necessary. There have been occasions where witnesses have declined to divulge details of particular sites or ceremonies, preferring to maintain the usual secrecy, even if as a consequence, their case might not be as strong.

In the course of hearing the claim by the Malak Malak to land near to and under the Daly River, some two hundred kilometres south of Darwin, the claimant women sought to have written evidence of two ceremonies brought before the Commissioner. The ceremonies were strictly confined to women and these claimants did not wish the document in which an anthropologist (Dr D. Bell) described the ceremonies, made available to any men other than the Commissioner. They were willing to tender the report on the basis that it could be read by the Commissioner, female counsel and female anthropologists. It was said to be descriptive and expressive of no opinions.

Objection to the reception of the material was taken by some counsel. The Commissioner reserved his decision. In his written reasons, Toohey J accepted that the condition sought to be attached to the report was a reasonable one. His discussion of the issues merits quoting at length:

There are certain things that should be made clear at the outset. It must be assumed that the claimants are anxious to present Dr Bell's report. Their counsel argued strongly for its reception and resisted any suggestion that a report couched in general terms might do adeqate justice to the claimants and not place other parties under any difficulty.Secondly it should be clearly understood that if I receive the material it will not necessarily be denied to other parties. As it happens, all counsel participating are male but there are a number of female legal practitioners in Darwin and elsewhere whose services could be enlisted for the purpose of reading the report, just as there are female anthropologists who could be engaged for the same purpose. This may present some practical difficulties, largely because final addresses are due to commence fairly soon. But they are not insuperable. If any of the parties wish to comment on the report, it will have to be done through the mouth of female counsel or anthropologist or alternatively in some written submission.

In the Commissioner's view the matter was not one of admissibility in the sense that is ordinarily understood.

On the assumption that the report contains only a description of ceremonies witnessed by an anthropologist, it is not hearsay. It is original evidence of something observed and heard, where what was heard serves to explain what was seen. It is not a matter of deposing to what was said in order to prove the truth of those remarks. See Gabriel v Williamson (1979) 1 NTR 6 at p. 13.

The matter was debated primarily in terms of principles extracted from judicial decisions in the field of administrative law concerning the use of material not disclosed to parties and the denial of opportunity to contravert adverse testimony.[17] ...Since the condition on which the report is tendered does not in absolute terms preclude its availability to the parties nor prevent them from commenting upon it, the principles referred to by counsel do not necessarily determine the matter. But the issue has wider implications and I think I should discuss it on a reasonably broad basis.

Under the Aboriginal Land Rights (NT) Act 1976, the primary function of the Aboriginal Land Commissioner is to deal with applications made by or on behalf of Aboriginals claiming to have a traditional land claim. Section 50 of the Act requires the Commissioner to ascertain whether the claimants or any other Aboriginals are the traditional Aboriginal owners of the land, to make recommendations for a grant of land where appropriate and to comment upon a range of matters set out in that section. The Act does not prescribe the way in which the Commissioner is to go about performing that function. Section 51 reads: ‘The Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his functions’.

The Commissioner's functions are those of inquiring, reporting, recommending and commenting. As a general proposition the rules of natural justice, as they have developed in regard to administrative enquiries, should operate. As a general rule the Commissioner ought not to receive material which has not been made available to those participating in the inquiry which he is carrying out. And as a general rule those participating should be given the opportunity to dispute testimony and to make comments upon it. But there are other principles which call out for recognition.

Some remarks of Lord Devlin, in a quite different context are apt.

"But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve thee ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded." (In re K. (Infants) (1965 J AC 201 at p.238.)

Although no very clear foundation was established by the evidence to support the conditions attached to the reception of the report, my experience of land claims leaves me in no doubt that there are aspects of Aboriginal ceremonial and ritual life that are denied to men or to women and to the uninitiated. The writings of anthropologists attest to this.

Toohey J then referred to the judgment of Muirhead J in Foster v Mountford and Rigby Ltd. (discussed earlier[18]) and the Australian Law Reform Commission's Discussion Paper No. 17, 'Aboriginal Customary Law - Recognition?' and continued:

There have been many occasions during the hearing of land claims when I have been asked to go with Aboriginal men to witness ceremonies, to look at sacred objects and to hear them speak of ceremonial and ritual matters, where no woman has been permitted to attend. Fortuitously counsel have generally been male and ordinarily there has been no difficulty in them being present. If fortuitously counsel had been female, no doubt the sort of problem that has arisen here would have arisen in regard to that evidence. It would be unfortunate if my capacity to receive evidence thought to be relevant should depend upon the gender of the legal representatives appearing before me and those advising them. As it happens there have been occasions when, with the consent of all appearing at the hearing, I have heard from Aboriginal women and witnessed their ritual activity in the absence of male counsel and their male advisers.

The question of material of a secret and sacred nature should be seen in perspective. For the most part claimants, men and women, are content to present the evidence in support of their claims without seeking to impose any restrictions upon it. Where they feel obliged to take this course they should be permitted to do so so long as it does not unduly prejudice others participating in the inquiry. There are competing interests to be weighed. I do not think that claimants should feel obliged to speak of matters they regard as secret. On the other hand it would be unreal to deny the impact that witnessing aspects of ritual and ceremonial life has in establishing traditional ownership and traditional attachment to land. Where, as in the present case, evidence takes the form of someone else's observations, it may well be that a general description will be adequate and present no problems for the claimants or for others. These are matters calling for a decision by the, claimants and their advisers.

In conclusion he referred to an aspect causing him some personal concern.

In a quite legitimate sense Aboriginal people may feel that to allow others to witness ceremonies and objects of a secret and sacred nature carries with it some corresponding obligation.[19]

Toohey J then quoted the paragraph from the third land claim report, already quoted in this article. In ruling that the report should be only available to female counsel and their female advisers, he did not formally admit the document into evidence, although it was later to become Exhibit 65 (restricted).

This decision, while primarily relevant to land claim hearings, shows a sensitive and sensible approach to matters of a secret/sacred nature to Aboriginals and could provide useful guidelines for those who deal with such matters.


[1] Foster v Mountford and Rigby Ltd (1976) 14 ALR 71 at p. 73.

[2] Ibid.

[3] Id., at pp. 74, 75.

[4] Pitjantjatjara Council Inc. and Peter Nganingu v John Lowe and Lyn Bender, (1982) 4 Aboriginal Law Bulletin 11.

[5] [1981] HCA 50; (1981) 55 ALJR 631.

[6] . Id., at p. 637

[7] Id., at p. 637.

[8] Id., at p. 638; see also the comments of Wilson J at p. 645 and Brennan J at p. 651.

[9] The Advertiser, 8-7-1982 at p. 8; The Age, 9-7-1982 at p. 6; The Examiner, 10-7-1982 at p. 13.

[10] Aboriginal and Historical Relics Act (SA) 1965; see The Age 9-7-1982 at p.6.

[11] s 50 (1) (a) (i).

[12] .Transcript of proceedings, 1 April 1982, p. 2.

[13] Ibid.

[14] Lander Wadpiri Anmat/irra Land Claim to Willowra Pastoral Lease Report, 1980, AGPS, Canberra, paragraphs 121, 122.

[15]Finniss River Land Claim, 1981, AGPS, Canberra, paragraphs 202, 205, 222, 223, 229,231,232,259.

[16] Land Claim by Alyawarra and Kaitit/a, 1979, AGPS, Canberra, paragraph l08

[17] He cited the discussion of these principles in Flick ,Natural Justice, pp. 4142; Whitmore, Principles of Australian Administrative Law (5th Ed.) 126-128; and Whitmore and Aronson, Review of Administrative Action pp. 114-120.

[18] see footnote 1.

[19] The decision on the reception of a restricted report on women's ceremonies in the Daly River (Malak Malak) Land Claim was handed down on 30 October 1981.


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