During on-country hearings, Federal Court judge Tony North affects a curious titfer. For mine it looks part random collection of dead sticks that some aspirant bushie might have collected as kindling for the evening’s fire, part bizarre fascinator.
When I asked about this curious millinery the judge tells me that the feathers are a souvenir of “fifteen years of Native Title hearings.”
“Oh,” I remark and after identifying Emu, Bustard and Black Kite feathers I remark that maybe he needs some colour and should be on the look out for some Red-tailed Black Cockatoo feathers.
The judge asks if I might find him one but I regret to inform him that, in centralia at least, Red-tailed Black Cockatoos are birds of Arrernte country hundreds of kilometres to the south from where we are in Warlmanpa country north of Tennant Creek.
We are standing by the side of a haulage road for the massive Bootu Creek manganese mine, 100 or so kilometres north of Tennant Creek in the red dusty heart of the Northern Territory.
Huge trucks with push-me pull-you secondary motors rumble past on the narrow road as Justice North assembles his court for the first of two sittings for the day.
Justice North is hearing an application by a number of applicants seeking to overturn a nomination by the Northern Land Council* on behalf of the traditional owners of land within the Muckaty Aboriginal Land Trust for the establishment of a Commonwealth-controlled waste management facility for low-level radioactive waste.
Despite the road being closed to public traffic the court is accompanied by a small media contingent who mingle with applicants, Court staff, barristers and of course the judge and his curious hat as we conduct what is called a “view” of the nominated site.
The viewing consists of establishing firstly that we are within the nominated site area and secondly, a long look to the north towards the site, which will occupy just two of the 2,400 square kilometres that make up the Muckaty Aboriginal Land Trust.
After an hour or so at various points along the road we travel a few miles up the Stuart Highway to the abandoned Muckaty outstation, where the court will hear evidence from one of the applicant’s witnesses.
The Court assembles again at one end of the elevated verandah of an abandoned house and what follows is for mine one of the most remarkable hearings I’ve ever attended – and I’ve been to a few – both within the confines of various courthouses and “on-country.”
A general rule in the conduct of Australian court hearings is that the media is barred from recording court proceedings – apart from special circumstances like the delivery of high profile judgements and the like – but that rule wasn’t applied at Muckaty outstation on this year’s Queen’s Birthday holiday sitting of Justice North’s court.
For the whole of the hearing at Muckaty outstation the modest media contingent—perhaps ten video and still photographers and sound recorders—formed a tight scrum around the court. Beneath Justice North—perched in the open verandah corner—a still photographer sat for much of the afternoon, a mere few inches away from him, motor-drive clacking away merrily. Videographers perched their cameras over the shoulders of counsel and solicitors.
The subject of live-streaming or releasing videos of court proceedings is firmly within the discretion of the judge hearing each matter, and, as Justice North has noted, hearings “on-country” need to reflect the legitimate needs of Aboriginal people.
In a paper delivered to a Canadian legal conference in 2007, Justice North noted the work of a Federal Court committee established to address this issue.
The committee soon realised that the culturally appropriate way to conduct a trial of these issues was for the Court to go to the country of the people and listen to their evidence in their own environment. This approach was a radical departure from the way business had previously been done by the Court when hearings were held in modern courtrooms in the major cities.
In this setting a judge must be alert not only to the usual perils of the courtroom such as evasive witnesses and aggressive counsel, but also the dangers of wild camels intruding into the precincts of the court or unwelcome other guests visiting the courtroom.
But the attendance and behaviour of the media at the Muckaty outstation hearing was not the only concern about the conduct of this hearing.
Joe Morrison is CEO of the Northern Land Council and in a strongly worded statement issued soon after the on-country hearing he expressed his concerns at the media reporting of the Muckaty hearings.
He first addressed the processes involved in the nomination of Muckaty as a site for the waste management facility by local traditional owners.
I’d like to pay tribute to the late Ms A. Lauder who has now passed away. Ms A Lauder was a senior traditional owner who was a passionate advocate for the project. There was no doubt that she wanted the financial benefits from this project to benefit Aboriginal people in the region.
Like many people in this region, she understood poverty, and understood the importance of opportunity. It was this she was trying to create for the families of the region.
At stake here is the fundamental right of Aboriginal people to decide for themselves how their land is to be used. Aboriginal people should be able to arrive at those decisions without influence from outside groups who have their own agendas.
In the Northern Territory, because half the land is Aboriginal land under the Land Rights Act and because most of the rest is subject to Native Title, there are pressures on Aboriginal people, and particularly traditional owners, to make all sorts of decisions about how to use their land for economic development.
Aboriginal people are not opposed to development. But they should be left alone to make those decisions, having received the best available advice.
He then turned to the role of the media and their reporting of this case.
Overwhelmingly, the media have focused only on the case of the applicants as it was put to the court when this case opened in Melbourne last week.
There’s another side to all that, and that was laid out by the Commonwealth and NLC lawyers to the court in Melbourne towards the end of last week. But by then the media were not bothering to attend court and report that other side.
Rather than there being some sort of conspiracy, as has been bandied around, there are quite reasonable explanations and justifications for why things were done as they were in the lead up to the nomination.
* Bob Gosford was employed as a solicitor at the Northern Land Council at the time of the Muckaty hearings