Reconciliation and Social Justice Library
[RSJ Home] [Global AustLII Search] [RSJ Database Search][Table of Contents]
The terms of reference ask the Review to consider how secret/sacred information should be dealt with under the Act.[159]
This chapter discusses the restrictions which Aboriginal custom and tradition impose on the holding and dissemination of information and the importance of these restrictions in the cultural life of communities. Standards for dealing with confidential or restricted information are proposed.
4.1 Restrictions on access to certain kinds of information are a central feature of traditional Aboriginal life. This aspect of Aboriginal traditional life has long been an issue for Aboriginal people in their interactions with non-Aboriginal people. Accommodating these restrictions in non-Aboriginal laws and procedures is not new either. It has been acknowledged and provided for in some laws and in practice, for example, in Northern Territory land rights legislation and procedures. Despite this, there continues to be a lack of understanding in the non-Aboriginal community about the importance to Aboriginal people of this element of their culture, particularly where protection of heritage is concerned. Customary law restrictions are discussed in this chapter in terms that are most likely to apply to Aboriginal people living in remote areas where they have been less disturbed in their relationship with land. However, in recognition of the fact that Aboriginal culture is a living and evolving culture it would be wrong to assume that, because some Aboriginal people have been moved away from their original country and their life styles may have dramatically changed, this element of Aboriginal culture no longer has any force.
4.2 It is clear to the Review that there is widespread ignorance among non-Aboriginal people about the importance to Aboriginal people of protecting information and knowledge that is subject to customary law restrictions. Non-Aboriginal people often do not understand a:
... social world where the point of social life, its rationale ... [is] not to reveal, assemble and collate knowledge and information [as is the case in western societies] ... but to prevent its spread, to restrict its transmission and to fashion a system of social statuses out of this variable distribution and restriction of knowledge.[160]
4.3 Wootten notes that because of this `cultural gulf' between European and Aboriginal attitudes to the acquisition and spreading of knowledge, Europeans find it difficult to appreciate why Aboriginal people appear loath to discuss a site until a development proposal appears to be well under way:
Aborigines, working under long inherited laws of protection through secrecy, prefer not to mention the existence of a sacred site, let alone its significance, until it is almost on the point of being destroyed. Europeans find this approach to be very frustrating, and, because they do not understand it, will claim that Aboriginal people find sites only after development proposals have been announced.[161]
4.4 Another consequence of this failure to understand has been that laws and procedures designed to protect heritage have failed to provide adequate measures to protect information about that heritage. By failing to protect restricted information, or by requiring Aboriginal people to divulge information against their traditions, heritage laws have contributed to the desecration of what they were specifically designed to protect. The Australian Law Reform Commission noted in 1994 that:[162]
The lack of understanding of the significance of women's and men's business has hindered the communication of cultural information between indigenous and non-indigenous people ... The division between women's and men's business has often resulted in the legal system only getting half the story when it comes to issues involving women.[163]
4.5 The law should recognise and respect customary law requirements and restrictions on information about areas, sites and objects to the greatest extent possible because doing so is important to Aboriginal people. Submissions and consultations show that it is a major issue for Aboriginal people that their customary law in this area is respected.[164]
Aboriginal people are frequently caught by the most distressing dilemma of being required to demonstrate the significance of part of our Law when those very explanations are, by our Law, restricted. It amounts to being forced to break our Law to prove to Europeans that our Law still exists. It is blackmail of the worst sort because it threatens our culture, not just one or two individuals.[165]
Customary law requirements about the classes of persons allowed access to information should be respected to the greatest extent possible at all stages of the process from application to declaration. In what ever model is adopted for protection of Aboriginal cultural heritage, the utmost respect should be given to this principle.[166]
4.6 Aboriginal people are concerned that the inappropriate use or release of knowledge is dangerous.
One of the most difficult principles of Anangu Law to get Europeans to understand or, often, to believe, is that some places are dangerous if not treated properly, some activities are dangerous if not engaged in properly, and some knowledge is dangerous if it is made public or it if is used in any context by the inappropriate people.[167]
Knowledge of a site or ceremony is part of the substance of the tjukurpa and inappropriate use of that knowledge in itself threatens to unleash the powers of which it is a part.[168]
4.7 Maintaining the restrictions on knowledge associated with sacred areas, sites and objects is critical to ensure that Aboriginal people are able to enjoy their fundamental right to maintain and practice their religion.[169] Requiring Aboriginal people to divulge restricted information, and failing to protect it if it is revealed undermines Aboriginal religious beliefs and practices.[170]
4.8 Sites, areas and objects derive part of their power from the secrecy surrounding them.[171] Requiring Aboriginal people to reveal restricted knowledge may detract from that power and undermine their significance.
4.9 In general terms, customary law restrictions on information and knowledge about an area, site or object underpin and define social relationships.[172] Social relationships:
... are made between people by creating and stipulating the gaps and discontinuities between them. By assuming an uneven distribution of sacred knowledge, people create functional relationships of ritual specialization. People with specialized secret knowledge must be called in to perform ceremonies necessary for other persons who lack such knowledge. Obligations are created between people based on their differences, rather than their similarities.[173]
4.10 Weiner makes the point that among the different clans and lineages that constitute local territorial groups, knowledge of mythical journeys and linked dreaming sites may be discontinuous, fragmented and selectively distributed. In this context the point of social communication is "to release the evidence of knowledge in a controlled and allusive way, to show the proof that it exists rather than the knowledge itself".[174] He also makes the point that in a context where social relationships take this form:
[W]e would then find the clearest evidence for the intactness of Aboriginal society, whether it be in South Australia or northeast Arnhem Land, in the surfacing of disputes over the possession of secret knowledge and restricted access to territorial and cosmological mythopoeia.[175]
Bell also makes the point that sites do not exist in isolation from other sites in the area; "indeed their significance lies partly in the web of interrelations with other sites and the way in which men, women and children are drawn together in their use and maintenance".[176]
4.11 Against this background, requiring Aboriginal people to make restricted knowledge public, either to non-Aboriginal people or to other Aboriginal people, undermines the complex web of traditional social relationships. Submissions support this view:
Adequate notification of sites/areas locations and issues surrounding individual areas may go against customary law and cause serious problems with the community.[177]
Because restrictions on knowledge play such a key role in sustaining the continuity of social, kin, and country relations in time and space, Rose states that "this nation cannot afford to deal inappropriately with this issue".[178]
4.12 Aboriginal people will be reluctant to seek protection for their cultural heritage or put information before a reporter if the customary law restrictions on that information are not respected.[179] A number of submissions commented on the damage to Aboriginal confidence in heritage protection laws caused by the failure to respect restricted information in the Hindmarsh Island (Kumarangk) case. Without respect and security for information relating to the significance of sites, Aboriginal people may let their sites be destroyed. This is one reason why requiring restricted information to be produced in court is not in the public interest.[180] In other cases, Aboriginal people will only decide to give information at the last minute when there appears to be no other way to secure protection. It is not in the interests of Aboriginal people or the Australian community generally that important Aboriginal sites are damaged or destroyed because of the failings of the legal system. It is not in the interests of miners or developers that they are not informed about the existence of a site or area of significance which needs protection until the project is well advanced and changes are difficult and expensive to make.
4.13 Secrecy and significance are inextricably linked. Information and knowledge about important or sacred Aboriginal sites is by its nature restricted. The restricted knowledge is part of the substance of the site and its traditions. A key obligation of a person who is responsible for caring for and protecting the site is to protect and keep restricted knowledge about it.
One of the major difficulties that Anangu face when attempting to convince Europeans of the seriousness of these areas of the Law is that the entire body of information concerning why some things and some actions are `dangerous' is restricted, in other words secret. Those things, those actions, together with the knowledge of what they mean is, to us, miilmiilpa, in English `sacred'. One of the responsibilities of nguraritja for country is to safeguard knowledge about it and ensure that it remains restricted.[181]
4.14 An anthropologist working with Arrernte people at Alice Springs discussed the reasons why in the case of a planned development in the area Aboriginal people did not reveal information about their sites until the bulldozers were moving in. She says that Aboriginal people prefer to protect their sites themselves. Although Aboriginal people made a steady stream of statements concerning the existence of sacred sites in the area it was not complete. She says:
... custodians of sites only divulged as much as they thought necessary to impress the outsider with the importance of the area ... It was not that they had set out to thwart development by withholding information in a capricious fashion but rather that, in accordance with their law, they were protecting sites by not disclosing their whereabouts because no direct threat was perceived.[182]
4.15 From the Aboriginal point of view then, the key to protecting their significant sites and areas is maintaining the customary laws about information and knowledge about the site. This Aboriginal view of protection therefore must be the starting point for any law which aims to protect areas, sites and objects significant to Aboriginal people according to their traditions.
4.16 The customary law restrictions on information can take a range of forms:
Under traditional law, custodians are obliged not to disclose certain categories of information to certain categories of people, and in other cases, custodians are obliged to refuse to divulge details of their ownership of sites and information pertaining to them.[183]
4.17 A number of writers and submissions point out that not every person with traditional links to land can speak with equal knowledge and authority concerning his or her country.[184] Neate makes the point that local rules govern who can speak and what they can speak about. He also says that there are reasons why people who do have knowledge may not wish to speak about it. Willingness to speak may depend on the context. For example, a person may feel unable to speak in the presence of other people who stand in certain kinship relationships or may be subject to a `speech ban' following a related person's death. They may wish to leave the talking to another who is more senior in the hierarchy of knowledge, or who is of the other gender, and so is the proper person to ask.[185] Neate warns of the danger of falling into the trap of asking for information from younger people who are likely to be the most articulate in English and appear to be the most relaxed in proceedings. He says:
While this may be the most convenient approach ... it may give rise to embarrassment for the witness and result in incomplete or inaccurate answers being given. Younger men and women do not know the content of the secret law and it is extremely inappropriate to ask questions bearing on it. Their perceptions of the operation of that law differ from those of the senior people whose understanding is based on fuller knowledge.[186]
4.18 Increasing attention is being given to the separate spiritual life of women, and to the important role that women play with men in jointly observing the law that has come from the Dreamtime. Although they may share knowledge, men and women may have distinct and separate responsibilities for the ritual maintenance of this heritage.[187] Although women and men know much of each other's ritual business it is not for public discussion or acknowledgment. Constraints on communicating information in a public setting may vary from women's feelings of inhibition about speaking about the care of sites in front of a large number of men to more formal restrictions where information is particularly secret or sacred.[188]
Men and women's business must be kept separate. No man should be able to view any information pertaining to women's business and have no rights to determine issues relating to protection or management of women's sites. The same can be stated for men's sacred business, no women should be allowed any information on these places or objects or have the authority to determine management. ... If information is written down it must not be seen by the opposite gender.[189]
4.19 Wootten comments that since Aboriginal women can, under traditional law, discuss some issues only with women, just as Aboriginal men are gender- bound in respect to certain kinds of information, non-Aboriginal people who wish to discuss matters with Aboriginal people must ensure that consultants of the appropriate gender are engaged.[190] The reliability of a report from a female departmental representative about the significance of an area in a male initiation ritual was an issue in the Broome Crocodile Farm Case.[191]
4.20 Aboriginal communities may impose serious punishments on a person who breaches customary law restrictions on secret or sacred information. This may include total social isolation.[192]
4.21 If heritage protection laws are to meet the needs and expectations of Aboriginal people, they should respect and recognise customary law restrictions on information which are an essential part of the culture which they aim to protect. There should be standards for this. Both State and Territory law and Commonwealth laws should comply with them. The way the Commonwealth complies may not be exactly the same as State and Territory law because the Commonwealth law operates as a last resort.
Heritage protection laws should respect Aboriginal customary law restrictions on the disclosure and use of information about Aboriginal heritage.
4.22 The law should not require Aboriginal people to break customary law in order to protect their sites. On the contrary, the starting point of laws protecting heritage should be respect for the customary law restrictions on the knowledge and information that underpins the significance of the heritage site. The Native Title Act 1993 (Cth) includes provisions to this effect.[193] Without that respect, laws aiming to protect heritage are more likely to destroy than protect. Part of the traditional significance of an area, site or object may depend on the restrictions on knowledge and information about it. If it is a condition of protection that people must reveal secret knowledge in these circumstances, this may reduce or destroy the significance of the area or object and thereby destroy its value as cultural heritage. In addition, the requirement to reveal information undermines Aboriginal social relationships and the credibility of customary law. It may expose Aboriginal beliefs to public trivialisation or accusations of fabrication by people who do not understand them and who cannot recognise that there may be value systems other than their own. Aboriginal people will be reluctant to seek protection of the law in some circumstances.
4.23 It has been suggested that protection is a `gift' from the broader community, in exchange for which Aboriginal people must reveal secret information.[194] However, there is no doubt that all Australians benefit from Aboriginal culture in terms of identity and also economically, for example, from tourism. Our national airline uses Aboriginal motifs on its aircraft to promote itself and our country. The Northern Territory relies substantially on Aboriginal culture to attract tourists. Protection is not a gift to Aboriginal people; it recognises and respects their right to enjoy their own culture and religion. It is unfair if society widely uses Aboriginal culture when it suits commercial goals of business and tourism (including, for example, the promotion of the Olympics) but is unwilling to protect Aboriginal culture when it appears to conflict with these interests.
Procedures under heritage protection laws should minimise the amount of information Aboriginal people need to give about significant areas or sites to ensure protection and avoid injury or desecration.
4.24 The best way to respect customary law and to avoid the need for stringent protection is to minimise the amount of information Aboriginal people need to provide to achieve protection, for example by using work clearance, rather than site identification.
4.25 Some cases[195] and submissions[196] have suggested that revealing restricted information about a site or area is essential if Aboriginal people want the protection of the general law. Comparisons have been drawn with land rights claims and the way restricted information is handled there.[197] In the case of land rights and native title these claims are "intimately concerned with the verification of sacred sites" and the claims may have to be tested by inquiry.[198] In these cases title to land is at stake. Heritage protection, however, does not directly affect ownership rights. It may result in protection for a site or object or, more likely in the case of a site or area, negotiated development. Different procedures than those applying to land rights, or native title cases, are justified, provided the rules of procedural fairness are respected.
4.26 If significance of a site, area or object is to be assessed, the emphasis should be on establishing the existence of sacred knowledge and restrictions which may in themselves be relevant to the issue of significance, rather than on extracting all the relevant details about why the site or object is significant.[199] Revealing the details of a sacred story associated with a site does little to help non-Aboriginal people, or even Aboriginal people not from the area, assess the significance of the a site.
The laws and related procedures must ensure that customary law restrictions on information received for the purpose of administering heritage protection laws or received in related proceedings are respected and observed.
4.27 Where Aboriginal people provide information about their areas, sites or objects which is secret and subject to customary law restrictions such as age, gender or more general restrictions, legislation and related legal and administrative procedures should provide as much protection as possible to ensure that those restrictions are observed and the wishes of the Aboriginal people about what should happen to the information are observed. This principle should underlie all aspects of heritage law, and also apply to other laws that have an impact on Aboriginal heritage. A discussion paper on Evidence of Aboriginal Gender-based secret material in land rights claims sets out one approach to this issue.[200] Restricted information should not be publicly available. For example, it should not be available for release under Freedom of Information legislation.[201] Before Aboriginal people provide restricted information, they should be informed about the circumstances in which the receiver of that information may be required to disclose the information to any other person. That is, they should be informed of the extent to which customary restrictions will be able to be maintained in future and the uses to which such information might be put. The law should limit to the minimum possible the circumstances in which such information may be required to be disclosed.[202] There should be offences for unauthorised disclosure. Information of this sort provided in the course of mediation or negotiation should also be protected. Legislation should ensure respect for customary law restrictions on information provided during legal proceedings related to heritage protection.
Heritage protection legislation should specifically provide that a claim for public interest immunity may be made for restricted information.
4.28 In some cases the courts have accepted the argument that the production of secret and confidential information about Aboriginal heritage is not in the public interest.[203] In another case, while it was recognised that it should be open to the heritage authority (in that case, the NT Aboriginal Sacred Sites Protection Authority) to claim public interest immunity in resisting an order for production of documents concerning sacred sites, that claim had to be weighed against other public interest issues and would not necessarily prevail.[204] Justice Woodward said that:
In my opinion, the proper protection of minority rights is very much in the public interest, as is respect for deeply held spiritual beliefs. In particular, the rights and beliefs of the Aboriginal people of Australia should be accorded a special degree of protection and respect in Australian courts. Thus I can well imagine a court finding on balance, for example, that the outrage in the Aboriginal community caused by forced disclosure of information about a sacred site, would outweigh the importance in that particular criminal or civil trial of precisely identifying the place or explaining why it was sacred.[205]
4.29 This is known as the `public interest immunity' argument. In the case in question the Full Court upheld the Commissioner's finding that the detriment of disclosure was in the circumstances outweighed by the detriment to the public interest of non-disclosure and that disclosure on a restricted basis should be permitted. The law should provide that, if courts are considering requiring the disclosure of information contrary to customary law restrictions, the holders of such information should be able to argue that it is contrary to the public interest to disclose that information. The onus should be on the person seeking to have the information produced to establish that the public interest in disclosure outweighs the public interest in protecting the confidential information.
State, Territory and Commonwealth heritage protection laws should meet standards for protecting restricted information:
4.1 Heritage protection laws should respect Aboriginal customary law restrictions on the disclosure and use of information about Aboriginal heritage.
4.2 Procedures under heritage protection laws should minimise the amount of information Aboriginal people need to give about significant areas or sites to ensure protection and avoid injury or desecration.
4.3 The laws and related procedures must ensure that customary law restrictions on information received for the purpose of administering heritage protection law or received in related legal proceedings are respected and observed.
4.4 Heritage protection legislation should specifically provide that a claim for public interest immunity may be made for restricted information.
[158] Female custodian: reported in Wootten Junction Waterhole (Niltye/Tnyere-Akerte) s 10 report, p 74.
[159] Term of reference (vi).
[160] Weiner, J F "Anthropologists, historians and the secret of social knowledge" in Anthropology Today Vol 11 No 5, October 1995, p 5.
[161] Wootten Junction Waterhole (Niltye/Tnyere-Akerte) s 10 report, p 31, quoting a report of the Aboriginal Sacred Sites authority, 1984.
[162] Australian Law Reform Commission, Equality before the law: justice for women (ALRC 69) 1994, Pt I, para 5.29.
[163] See also Bell, D "Sacred Sites: The Politics of Protection" in Aborigines, Land and Land Rights Peterson, N and Langton, M (eds) Australian Institute of Aboriginal Studies 1983, p 281.
[164] Consultations in South Australia with PWYRC; ATSIC, sub 54; NSWALC, sub 43; White, sub 22; Nayutah, sub 20.
[165] NPYWCAC, sub 29.
[166] CL C, sub 47.
[167] NPYWCAC, sub 29.
[168] NPYWCAC, sub 29.
[169] International human rights are discussed in Chapter 3.
[170] See, for example, Baldwin Jones, sub 18.
[171] See for example H Morphy " `Now you understand': An analysis of the way Yolngu have used sacred knowledge to retain their autonomy" in Aborigines, Land and Land Rights Peterson, N and Langton, M (eds) Australian Institute of Aboriginal Studies 1983, p 111.
[172] See for example Rose, sub 36.
[173] Weiner, J F "Anthropologists, historians and the secret of social knowledge" in Anthropology Today Vol 11 No 5, October 1995, p 5.
[174] Weiner, J F "Anthropologists, historians and the secret of social knowledge" in Anthropology Today Vol 11 No 5, October 1995, p 6.
[175] Weiner, J F "Anthropologists, historians and the secret of social knowledge" in Anthropology Today Vol 11 No 5, October 1995, p 6, citing Keen, I Knowledge and Secrecy in an Aboriginal Religion Oxford UP 1994.
[176] Bell, D "Sacred Sites: The Politics of Protection" in Aborigines, Land and Land Rights Peterson, N and Langton, M (eds) Australian Institute of Aboriginal Studies 1983, p 287.
[177] Nayutah, sub 20; CL C, sub 47.
[178] Rose, sub 36.
[179] See for example, KLC, sub 57, p 6.
[180] See Willheim, E "Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs" (Case Note) in Aboriginal Law Bulletin Vol 3 No 69 August 1994.
[181] NPYWCAC, sub 29.
[182] Bell, D "Sacred Sites: The Politics of Protection" in Aborigines, Land and Land Rights Peterson, N and Langton, M (eds) Australian Institute of Aboriginal Studies 1983, p 288-289.
[183] CLC, sub 47, p 17.
[184] See for example Neate, Graeme "Indigenous Land Law and Cultural Protection Law in Australia: Historical Overview and some Contemporary Issues" Paper delivered to ATSIC-AGS Legal Forum 18 May 1995, p 52.
[185] Neate, Graeme "Indigenous Land Law and Cultural Protection Law in Australia: Historical Overview and some Contemporary Issues" Paper delivered to ATSIC-AGS Legal Forum 18 May 1995, p 52.
[186] Neate, Graeme "Indigenous Land Law and Cultural Protection Law in Australia: Historical Overview and some Contemporary Issues" Paper delivered to ATSIC-AGS Legal Forum 18 May 1995, p 53.
[187] Bell, D Daughters of the Dreaming 1983, p 34.
[188] Neate, Graeme "Indigenous Land Law and Cultural Protection Law in Australia: Historical Overview and some Contemporary Issues" Paper delivered to ATSIC-AGS Legal Forum 18 May 1995, p 55.
[189] Nayutah, sub 20.
[190] Wootten Junction Waterhole (Niltye/Tnyere-Akerte) s 10 report, p 31.
[191] See Chaney Broome Crocodile Farm s 10 report, p 46.
[192] See for example Bell, D "Sacred Sites: The Politics of Protection" in Aborigines, Land and Land Rights Peterson, N and Langton, M (eds) Australian Institute of Aboriginal Studies 1983, p 282
[193] The Native Title Act 1993 (Cth) requires the Federal Court and the Tribunal, in conducting inquiries or proceedings to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, s 82(2), s 109 (2). It also provides that the Court and the Tribunal are not bound by technicalities, legal forms or rules of evidence, s 82(3), s 109(3).
[194] Eg, Palyga, subs 1 and 31; Burchett J in Tickner v Chapmen (1995) 57 FCR 451.
[195] See for example Tickner v Chapman (1995) 57 FCR 451 at 478-479; (1995) 133 ALR 226 at 254, per Burchett J.
[196] AMEC, sub 48, p 24-25; Palyga, sub 32, p 20.
[197] Palyga, sub 32 p 20.
[198] Woodward J in Aboriginal Sacred Sites Protection Authority v Maurice: Re the Warumungu Land Claim (1986) 10 FCR 104 at 115.
[199] See for example ALRM, sub 11; ATSIC, sub 54; Consultations in South Australia with PWYRC.
[200] Gray, Justice Peter (Aboriginal Land Commissioner) Evidence of Aboriginal Gender-based Secret Material in Land Rights Claims: Discussion Paper 1995. The Aboriginal Land Act 1991 (Qld) has provisions dealing with this issue.
[201] Freedom of Information Act 1992 (Qld) s 42(1)(j) provides for non-disclosure of information which could reasonable be expected to prejudice the well-being of a cultural resource.
[202] See for example, the Senior Report (pp 115-116): it recommends that in certain circumstances the Minister not be entitled to sacred or secret information. See also the Aboriginal Heritage Act 1988 (SA), which requires the Minister to consult before he or she authorises the disclosure of information contrary to Aboriginal tradition: s 35(2).
[203] The Western Australian Museum v The Information Commissioner (Supreme Court of WA, unreported, No 1478 of 1994 and SJA 1055 of 1994 delivered 28/1/94, per White J). See also ATSIC, sub 54; MNTU, sub 17; Baldwin Jones, sub 18.
[204] See for example Aboriginal Sacred Sites Protection Authority v Maurice: Re the Warumungu Land Claim (1986) 10 FCR 104.
[205] See eg Aboriginal Sacred Sites Protection Authority v Maurice: Re the Warumungu Land Claim (1986) 10 FCR 104 at 114.
| AustLII | RSJ Home | Back to Table of Contents |
Back to Table of Contents |