Keely, Annie --- "Women and Land: the Problems Aboriginal Women Face in Providing Gender Restricted Evidence" [1996] AboriginalLawB 89; (1996) 3(87) Aboriginal Law Bulletin 4

Women and Land: The Problems Aboriginal Women Face in Providing Gender Restricted Evidence

By Annie Keely

This article is an edited version of a paper presented to the Land Rights: Past Present and Future Conference in Canberra in August 1996.

The manner in which the Australian legal and political systems are dominated by males causes particular problems for Aboriginal women wanting to exercise their rights and carry out their responsibilities with respect to their land. This is because the gender segregated nature of aspects of Aboriginal culture prevents certain matters from being discussed and certain activities from being engaged in while in the presence of members of the other gender. Whilst the legal system is dominated by males, Aboriginal women are discriminated against in providing such evidence where they see it as central to their claims for land.

In the almost twenty years that claims have been heard under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (`the ALRA'), most lawyers representing claimants or other parties have been male, as have most anthropologists. All five Aboriginal Land Commissioners have been male. This has placed female claimants in a position where they have to decide whether to present certain restricted evidence, and thereby compromise Aboriginal customary law by telling the Commissioner restricted stories, or by showing him women-only sacred sites or ceremonies. They and their communities must live with the consequences of these decisions.

This issue of legal protection for gender restricted evidence under Aboriginal customary law has arisen repeatedly, and has been the subject of writings since the early 1980s.[1] It has arisen again recently in the Palm Valley and Tempe Downs land claim hearings under the the ALRA. It is also an issue that arises in applications under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and under the Native Title Act 1993 (Cth) (`the NTA'). This is why it is important that lessons be learned from the ALRA experience, and we resolve how restricted women-only evidence and transcripts are handled. In doing so, we must consider the need for Aboriginal women to feel sufficiently secure that they will be prepared to give restricted evidence which they see as central to their claim.

At the same time, we must also accommodate the rules of natural justice for all participants in the inquiry. It has often been said that restrictions prohibiting persons of inappropriate gender from being present during sessions of evidence, and from accessing the transcript, are a denial of natural justice, since they mean that the parties are unable to have the representative of choice present at all stages of the hearing. Gray J has described the problem as follows:

`There is a problem of a natural justice kind when counsel for any party cannot make a submission on the whole of the evidence, because he or she is unable to be present when evidence restricted to the other sex is heard, or to read the transcript of it. Even the engagement of two counsel, one of each sex, may result in each being able to read only parts of the transcript and neither being able to discuss with the other those portions which are restricted to one sex. The Commissioner will be the only person able to hear the whole of the evidence and to read the whole of the transcript'.[2]

But there is of course also an issue of natural justice for the claimants, as Gray J has recognised. Female claimants must have opportunities to give their evidence fully and freely.[3] If an effective mechanism is not used, and seen to be used, to hear and protect this evidence, the consequences will be felt in future claims as similar gender restricted evidence will not be forthcoming. This would deny Aboriginal people a real opportunity to present their best evidence in support of a claim, and could result in land not being recommended for grant. It could also affect findingd as to who are the traditional owners of the land. In turn, those not found to be traditional oooowners might bbe excluded form consultations such as those concerning exploration and mininng ppproposals on the land after it has become Aboriginal land. This could then affect decisions regarding such proposals as well as the potential distirbution of any royalties. The consequences of women not being able to `fully and freely give their evidence' may thus have long term legal and social consequences.

In this paper, while I am focussing on claims involving women's restricted evidence, the issue of the extent of legal protection clearly applies to both men's and women's restricted evidence.

The Commissioner's powers and functions under the Land Rights Act

As explained in the Preamble to the Act, the ALRA is explicitly beneficial legislation for Aboriginal people with the primary purpose being to enable the granting of traditional Aboriginal land in the Northern Territory. In Part V of the Act, the position of the Aboriginal Land Commissioner is established and his functions and powers are set out.

Traditional land claims are made to the Commissioner under s50, after which he is required to ascertain whether the claimants or any other Aborigines are the traditional Aboriginal owners of the land claimed. He then makes recommendations to the Minister for Aboriginal and Torres Strait Islander Affairs (`the Minister') for the granting of the land, and reports his findings to the Minister and to the Administrator of the Northern Territory. Where the Minister is satisfied that the land or part of the land should be granted, he establishes a Land Trust (or Trusts) to hold title to the land, and recommends to the Governor General that a grant of fee simple be made to the Land Trust (s11(1)).

The Commissioner conducts an administrative inquiry, not a judicial proceeding, and is not bound by the rules of evidence. Hearings are generally conducted in an informal way. Group evidence is common, as is evidence given during visits to sacred sites on the land under claim.

The Commissioner has power to do all things necessary or convenient to the performance of his functions (s51) including the power to require attendance of witnesses (s54). Under the Act, the Commissioner has a specific power to make orders prohibiting or restricting access to or publication of evidence, and to prohibit attendance to a person or class of persons during the giving of evidence (s54AA). This section was introduced in 1987 and enables the Commissioner, inter alia, to restrict members of one gender from being present during the giving of certain evidence, or from access to the transcript or other documents. Similar provisions are contained in the NTA (see ss82, 92(1), 109 and 155). Despite the natural justice argument, Commissioners have been prepared to make such orders on the basis that parties can seek the services of another lawyer or anthropologist of the appropriate gender to assist in the presentation of their claim.[4] Nevertheless, although some Commissioners have attempted, within the constraints of the Act, to provide a process for women claimants to give their restricted evidence, the case studies outlined in the next section demonstrate that a problem still exists. In both cases, women were forced to reveal restricted evidence to men. This situation rarely, if ever, arises in the reverse, and the Northern Territory Government continues to object to women-only sessions of evidence and transcript.

The Palm Valley land claim

During the hearing of the Palm Valley land claim in March 1994, the Commissioner was asked to hear women-only evidence in the absence of all other men. The male counsel appearing for the Attorney General of the Northern Territory objected to this course of action but was overruled, and the Commissioner heard the evidence. A female solicitor represented the NT at the sessions and the Commissioner's anthropologist assisting, Dr Deborah Bird Rose, was also present. The women's evidence was led by a female anthropologist as there was not a female lawyer representing the claimants. The evidence was recorded for transcript by the Commissioner's female associate. The Commissioner subsequently heard two other sessions of women-only evidence on this claim, during the latter of which the women's evidence was led by another female anthropologist. The women claimants apparently did not object to male counsel reading the transcript of the session for the purposes of preparing submissions, and directions restricting the transcript were made accordingly. Nevertheless, the fact remains that, in breach of Aboriginal customary law, men had access to women's gender restricted evidence.

The Tempe Downs land claim

The Tempe Downs and Middleton Ponds/Luritja land claim (`the Tempe Downs land claim') was heard in November 1994, and again the Commissioner was requested to hear women-only evidence. Notice of the claimant's intention to call women-only evidence was given prior to the commencement of the hearing. The Northern Territory Government objected to the evidence being heard in the absence of all men other than the Commissioner. Its objection was overruled.

There were three women-only sessions of evidence during this claim at which the NT was represented by a female lawyer. The Commissioner's female associate recorded the transcript, and his anthropologist assisting, Dr Deborah Bird Rose, was also present. The women's evidence was led by a female anthropologist who also has a law degree. The Commissioner directed that the transcript be restricted to all adult females, and only for the purpose of this claim. He reserved the question of any further direction in relation to the transcript.

The concerns about the information contained in the restricted women-only transcript was dealt with by the claimants' female anthropologist, who prepared a report of that evidence, on instructions from the women claimants. This report was provided to the male lawyers and anthropologist working on the claim. It summarised the evidence without including details that were gender restricted. As Dr Rose points out `to the best of my knowledge there have never been similar provisions giving women access to appropriate portions of evidence given in men-only sessions'.[5] After the conclusion of the hearing of the Aboriginal evidence, the Commissioner received a letter from the Crown Counsel for the Northern Territory which he chose to treat as a request for findings of material facts and reasons for his decision pursuant to s13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (`the AD(JR) Act'). On 3 February 1995, he published a statement in writing identifying the five decisions made, outlining the material questions of fact upon which they were based and giving the reasons for those decisions (`Reasons for Decision'). The decisions allowed three sessions of women-only evidence with no men other than the Commissioner to be present, and the restriction of the transcript of those sessions to adult women only, except for the Commissioner. He reserved on the question of whether to make an exemption to that restriction. The Commissioner pointed out in his Reasons for Decision that, in each of the ten land claims he has heard as Commissioner, there has been restricted men-only evidence given in relation to which he has made the same directions and restrictions without objection from the Northern Territory.

The Commissioner also found that the NT had not been denied representation during the women-only sessions, since their female solicitor was present. While acknowledging that she may not have had previous land claim experience, he had no reason to believe that she was anything other than a competent solicitor.

The reasons for the Commissioner's decisions to allow the women-only evidence with the restrictions set out above were:

1. The NT was not opposing a recommendation that the claim area be granted, but was rather concerned to assist the Commissioner in establishing who are the traditional owners of that land.
2. The NT received advance notice of the claimants' representatives intention to call women-only evidence during the claim which, while not as long as required by the Practice Directions, was sufficient to enable the NT to come to the hearing prepared to hear such evidence.[6]
3. The Commissioner regarded it as proper to pay regard to what he was told about Aboriginal law in determining who should be allowed to hear evidence and see the transcript. He acknowledged the compromise Aboriginal people make in relation to the secrecy of certain matters in giving such evidence, and that it would be both wrong and ineffective if he tried to force the women claimants to grant a wider dispensation than they were prepared to grant:

`It would be wrong because it is a matter for Aboriginal law to determine who may hear knowledge, and it is no part of my function to seek to change Aboriginal law. It would be ineffective because the claimants would be likely to opt not to give the evidence, rather than to grant further dispensations'.

4. Finally, the Commissioner took the view that if he refused to hear evidence from women in the absence of men, but continued to hear evidence from men in the absence of women, he would be in breach of his obligations under ss5 and 26 of the Sex Discrimination Act 1984 (Cth).

No review of the Commissioner's rulings was sought, and so a new approach has been implemented which attempts to minimise the compromises made by women claimants in land claim hearings. However, the NT may well decide to oppose the next land claim in which it is proposed to call women-only evidence, and any rulings similar to these may yet be reviewed by the Federal Court under the AD(JR) Act.

Some possibilities for reform

`It is not the women who should be forced to compromise, but rather the hearing should be structured in such a way that women feel comfortable to discuss a wide range of matters and to demonstrate their competence and knowledge'.[7]

The ALRA has provided an effective process for the granting of substantial areas of land to its traditional Aboriginal owners over the last almost 20 years. However, as we have seen, the process has been at some considerable cost to claimants in terms of their responsibilities and obligations under Aboriginal law, particularly for Aboriginal women. Toohey J went some distance in addressing their wishes in the Finniss River[8] and Daly River[9] claims, and the current Commissioner has been prepared to be innovative in his approach of allowing restricted women-only evidence to be heard with no other men present, and no access to the transcript by other men. It remains to be seen whether he can establish further practical reforms, and whether the NT will seek a review of rulings such as those made in the Tempe Downs claim.

The exemption allowing male lawyers and anthropologists access to restricted women-only evidence must be stopped. Each and every breach of Aboriginal customary law is a serious matter; it is not, as some non-Aboriginal people assume, that further breaches are less serious than the initial one. Below I make some suggestions about the kinds of reform which might be used.

Gender of the Commissioners and assistants

`At one level the relationship between women's secret/sacred Law and a male Land Commissioner or Judge poses an insoluble contradiction. If women's Law is violated by the presence of men, then a male judge is unlikely to be brought into its presence. Women claimants, unlike men, are thus required to consider an inherent contradiction between the Land Commissioner and the restrictions. Throughout the Northern Territory many women have kept their Law secret'.[10]

The gender of the Commissioner is a continuing problem for women claimants. Appointing a single female Commissioner would have obvious advantages for them, particularly in giving their gender restricted evidence, but it would create a major problem for male claimants. Most, if not all, land claims heard to date have involved some restricted men-only evidence. Just as female claimants should not be expected to give such evidence to a male Commissioner, neither should men be asked to give such evidence to a female Commissioner.

I think serious consideration should be given to developing a land claim process so that at least in claims where both men and women claimants want to give gender restricted evidence, there is a male and a female Commissioner to sit together to hear the claim. They could both hear all open sessions of evidence, whilst the male Commissioner would hear the men-only restricted evidence, and the female Commissioner the women-only restricted evidence.

This would offer significant advantages for the Aboriginal claimants over the method used by Toohey J in the Daly River claim or in Gray J in the Tempe Downs land claim. In the Daly River claim, the Commissioner did not see the ceremonies referred to, but received a report about them. In Tempe Downs, the women gave their gender restricted evidence to a male Commissioner, which almost certainly would have affected the amount of information provided. With a male and female Commissioner sitting together, there would be no need for such compromise.

In the event that the two Commissioners did not agree on the recommendation to the Minister, they could report separately and the Minister could make a decision based on both reports. Unless the land is recommended for grant, the Minister has no power to grant it, and in any event his decision is subject to review under the AD(JR) Act.

There would also be a need to have both a male and a female anthropologist assisting the Commissioners for similar reasons. The anthropologist could prepare a report summarising the gender restricted evidence in general terms without disclosing any restricted information. Such a report could include comment on whether the evidence supports the basis of claim, the extent of various estates held by different groups, and any other matters requested by the Commissioners. This report would be tendered in evidence for use by the other Commissioner and the lawyers and anthropologists working on the claim who had not been able to be present at that part of the evidence. It may be appropriate that the draft report is shown to the relevant claimants and witnesses first, to ensure that nothing restricted was disclosed.

Alternatively, the female anthropologist assisting the male Commissioner could hear evidence or observe ceremony which are restricted to women only, and provide a report to the Commissioner summarising the evidence, commenting on its strength and whether it is consistent with the basis of claim, without providing any of the restricted details of the stories. The report would be made available to male lawyers and anthropologists working on the claim for the purposes of submissions. The Commissioner would be empowered to take this into account in making his recommendations to the Minister. Of course, this evidence and any transcript of it would only be available to women lawyers and anthropologists working on the claim.

Judicial review--judges' gender

The issue of the gender of judges may arise in applications for judicial review of land claims or heritage protection applications under the AD(JR) Act. An appeal to a full bench of the Federal Court or to the High Court may also be a problem. While there are now several female Federal Court judges, the majority are still male and all but one of the High Court judges are male. Although in some cases it would be possible to hear an appeal without the judges needing to have access to gender restricted evidence, a female judge may need to read men-only gender restricted evidence, or a male judge to read women-only gender restricted evidence.

I think a procedure should be developed to enable an application based on Aboriginal customary law to be made to the Chief Justice, in a case where there is likely to be a need for the court to examine gender restricted evidence, requesting judge/s of the appropriate gender to be listed to hear the case. Such a request could be granted in the Federal Court in that there are female judges sitting there. In the High Court at the moment, it would only be possible to grant such an application if the case only required one judge to hear it. Further consideration needs to be given on how to deal with an appeal involving the need to examine both women's and men's gender restricted evidence. However this would be very unlikely to occur in practice.

Gender of the parties' lawyers and anthropologists

In many claims each of the parties have two lawyers representing them (a barrister and an instructing solicitor). It would be sensible to develop a practice of engaging one man and one woman. The major parties should also have male and female anthropologists working on a claim too. Whilst the shortage of female lawyers and anthropologists with experience in this field undoubtedly contributes to the problem of appropriately taking gender restricted evidence, until more female lawyers and anthropologists are given an opportunity to gain this experience, this shortage will continue.

Conclusion

There is a potential for this issue to arise under any Aboriginal heritage protection legislation or land claim process. The appaling injustice of the Kumarangk/ Hindmarsh Island case is a very good example of what happens when there is no effective process to ensure that only women have access to women-only information. In that case the Aboriginal applicants chose not to disclose all, and have been labelled `fabricators'. Legislative reform recognising Aboriginal customary law as I have proposed above is necessary if this kind of discrimination and injustice is not to continue.

Amending the ALRA to enable land claims to be conducted in one or other of these ways would be a major step forward in recognition of the importance of Aboriginal customary law. It would demonstrate to Aboriginal people that their law is treated seriously, and address some of the disadvantage suffered particularly by Aboriginal women claimants under the process currently used. It would truly become beneficial legislation that could be used without the need for so much compromise.

I appreciate that it may not be politically feasible to amend the ALRA in this way now, especially as the Act was amended in 1987 to prevent the Commissioner from hearing any land claims lodged after 5 June 1997. However, I hope that the lessons learned by practitioners in this field will not be wasted, and that other Aboriginal land claim and heritage protection processes can be improved accordingly.

It is not a sufficient excuse to say that the costs of these reforms are prohibitive. Resources must be distributed for the benefit of all Aboriginal people. It should be unacceptable that the involvement of Aboriginal women is rejected because of the `additional' expense. Government must find the resources to fund these reform proposals to ensure that justice is done.

Indigenous people must be consulted to find out what they believe to be acceptable processes in land claims and heritage protection legislation. Politicians, policy makers and those who draft legislation must become more creative or lateral in their thinking. While some improvements have been made, the Australian legal system still requires unacceptable compromises in which Aboriginal women are effectively asked to break their own Law. Aboriginal customary law must be recognised to ensure the protection of cultural, religious and spiritual beliefs. Male Ministers, Judges, Commissioners and Reporters should not be permitted to have access to information that under Aboriginal customary law is restricted to women only. Legislation should provide effective processes to ensure that this does not happen.

Finally, if we cannot develop processes that will effectively address this important issue, practitioners should advise their clients of the problems which have been encountered in practice in protecting such confidential information, and perhaps discourage them from providing it.

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[1] See Meredith Rowell, `Women and land claims in the Northern Territory' in Nicholas Peterson and Marcia Langton (eds) Aborigines, Land and Land Rights, AIAS, 1982; Diane Bell, Aboriginal Women and Land: Learning from the Northern Territory Experience, 1983 Paper prepared for the Perth Workshop on Aboriginal Land Rights, University of WA.

[2] Justice Peter Gray, Evidence of Aboriginal gender-based secret material in Land Rights claims 1995, p 6.

[3] Deborah Bird Rose, Women and Land Claims, AIATSIS Native Title Research Paper No. 6 1995, p 4.

[4] Toohey J, Daly River (Malak Malak) Land Claim Report, AGPS, Canberra, 1982; Gray J, Tempe Downs and Middleton Ponds/Luritja Land Claim No. 147 Statement of Findings, Evidence and Reasons pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), 3 February 1995.

[5] Deborah Bird Rose, Women and Land Claims, AIATSIS Native Title Research Paper No. 6 1995, p 4.

[6] See the Aboriginal Land Commissioner's Practice Directions 10(g).

[7] Diane Bell, Aboriginal Women and Land: Learning from the Northern Territory Experience, 1983 Paper prepared for the Perth Workshop on Aboriginal Land Rights, University of WA, p 11.

[8] Finniss River Land Claim Report, AGPS, Canberra, 1982.

[9] Daly River (Malak Malak) Land Claim Report, AGPS, Canberra, 1982.

[10] Deborah Bird Rose, Women and Land Claims, AIATSIS Native Title Research Paper No. 6 1995, p 4.