The sanctity of “secret men’s business” has been reinforced by the Federal Court in a novel application relating to evidence given by traditional owners in a native title trial.
This month in the Western Australian Registry, Chief Justice Debra Mortimer granted an application for a variation of suppression orders over the gender restricted (male only) evidence given by the Bardi and Jawi people from the Kimberley region.
In her judgment delivered on Monday, Chief Justice Mortimer made orders to allow the Bardi and Jawi Aboriginal Corporation, a registered native title body corporate, to access and control the evidence given about “ngulungul” during the trial, which resolved in 2010.
In 2001, the lead applicant in the native title proceeding, Mr P Sampi, had described ngulungul as knowledge that is “secret and important and belonging to initiated men”.
Various orders were made in 2001 and 2003 restricting how ngulungul evidence was obtained, who could be present, and how it should be preserved and handled.
In November last year, Mr Sampi’s grandson, Andrew, a senior initiated man under Bardi and Jawi Law, native title holder and Corporation director, made an application on behalf of the Bardi and Jawi people, for the return of control of this material to them, in accordance with traditional law and custom.
The application submitted that 15 years after the native title determination, the Bardi and Jawi, and their representative body Kimberley Land Council, were prevented from accessing or disclosing that evidence.
The application was so novel that the State of Western Australia and the Commonwealth were required to file submissions on whether the orders sought by the Corporation were within the power of the court and appropriate in the circumstances.
Chief Justice Mortimer pointed out that in his 2001 affidavit, Mr P Sampi wanted the “judge to understand that no women or children can know about this”.
“Bardi and Jawi Law says that some things can only be talked about by initiated men. These things are not open for just anybody to hear or talk about. It breaks our Law if that happens. We call these things ngulungul which means secret and important and belonging to initiated men,” the affidavit read.
“Because the judge is a big Law man, and other white Law men are talking about our country, we thin[k] we should talk to them about some of this ngulungul business
“We cannot talk about these things if women or children will hear them, see them, or read about them. If that happens, we could get sick and die because our Law is very dangerous. We cannot break our Law.”
The suppression orders allowed for the transcript of the evidence, and audio and electronic records of evidence, to be separated from the general transcript and records, and marked as restricted evidence.
Chief Justice Mortimer said the orders stemmed from a desire to manage the ethnographic and cultural materials collected during the proceeding.
She said the purpose of the orders was not to permanently prevent culturally appropriate access by the Bardi and Jawi, but rather to “recognise and preserve the effect of Bardi and Jawi traditional law and custom as much as practicable in the (foreign) circumstances of a trial in the Australian legal system”.
She said aspects of that purpose continued.
“The aspects which continue are the need to ensure that First Nations Peoples have confidence in the judicial system – especially, but not only, in the native title jurisdiction – and have confidence that, wherever practicable, their traditional law and custom will be respected and protected,” she said.
“In that way, they can be confident to engage freely and openly with the judicial system so as to advance their rights and interests and seek to have the Australian legal system protect them.
“They can have confidence that there is no need to exchange the solemn and vital aspects of their traditional law and custom as the price to be paid for, in this instance, seeking recognition of native title. No such unfair bargain need be struck.”
Chief Justice Mortimer said the court should encourage this kind of application because native title applications were in a category of their own in litigation.
“They are, truly, neither the product of public nor private law,” she said.
“They are the product of recognition of different, ongoing legal systems which the common law recognises and protects and which now, by statute, is also recognised and protected. Not a single legal system, it must be emphasised, but a series of legal systems, based in land and sea country, around Australia.
“The adducing of evidence of traditional law and custom in a native title claimant application is not for the purposes of the enforcement of rights and interests but is instead for the purposes of obtaining recognition of the way a legal system much older than the Australian legal system gives rise to, allocates and perpetuates rights and interest in land and in the sea.”
CJ Mortimer said “the natural and primary place for the continued collection and storage of this knowledge, even if not disclosed in traditional forms, is with the communities to which it belongs, and whose lives are regulated by it”.
“In this way, the Australian justice system can enhance the respect and protection of the systems of law and custom which colonisation sought to disrupt,” she said.
Her Honour set aside the suppression orders made or extended between April 2001 and December 2006. She made orders including to allow the Corporation to store, access, use and disclose the evidence; and to allow certain access to any male employee of Kimberley Land Council.
Read the decision here.
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