Three weeks back I went to Adelaide for work. As is my wont when in Adelaide I headed for the Central Markets just off Victoria Square, always my first stop for good food I can’t get in Darwin. I was also looking for bookshops, a haircut and any other fun a fella can find in the big city.

Having grabbed a wondrous variety of stinky cheeses at Say Cheese and sweet delights at The Turkish Delight I wandered around to a local bookshop and spotted a copy of C P Mountford’s Nomads of the Australian Desert (pictured above) with a $500 price tag.

I pointed out to staff in the shop that Nomads is a very dangerous book to have on display and for sale, particularly in Adelaide and because the subject matter of much of the book – the secret and sacred knowledge of the Pitjantjara people given to Mountford in confidence during fieldwork in the 1940s – was the subject not only of a strongly worded caveat by the author, but also a 1976 judgement by Justice Muirhead of the Supreme Court of the Northern Territory that restrained the sale, display or distribution of Nomads in the Northern Territory.

I’ll return to the bookshop and Justice Muirhead’s judgement shortly but note that his judgement was and remains effective only within the Northern Territory, having no effect (other than persuasive) outside of that jurisdiction, including the expansive traditional lands of the Pitjantjara and their affiliates – with whom they share much secret and sacred knowledge – in the states of South and Western Australia.

Mountford – who didn’t take any formal anthropological training until after his retirement from a long career as a public servant – was for some a giant of Australian ethnology, but by others he was damned with the faintest of praise.

Professor A P Elkin, who held the first Australian chair of anthropology at Sydney University, described Mountford as an “amateur ethnographer” and a “good photographer, particularly of still subjects.”¬† Elkin’s student Catherine Berndt, wrote to Elkin saying that Mountford knew “just enough to prevent him from realising his ignorance.”

The Adelaide establishment – then and later – held Mountford in higher esteem, crediting him with bringing Aboriginal art and culture to the attention of a wide national and international audience.

Mountford was undoubtedly a gifted ethnographer, and he travelled widely across Aboriginal Australia and produced a number of books and films of varying degrees of scientific accuracy and utility.

Mountford’s entry in the Australian Dictionary of Biography notes that towards the end of his life Mountford:

Concentrat[ed] his efforts on an illustrated analysis of Central Australian Aboriginal art and mythology, he worked from his office in the [South Australian] museum and, at the age of 86, completed his magnum opus, Nomads of the Australian Desert (1976). The book contained images of restricted Aboriginal subjects and was withdrawn from sale soon after publication.

Mountford died the same year that his magnum opus was published and subsequently withdrawn.

Mountford wasn’t alone in believing that he was documenting dying cultures that would soon disappear for ever. In that we now know he couldn’t have been more wrong and, while much knowledge is no longer available, across much of central and northern Australia ceremonies that maintain traditional knowledge of and relationships with the land flourish to this day.

Mountford included the following caveat in Nomads of the Australian Desert:

Where Australian Aborigines are concerned, and in areas where traditional Aboriginal religion is still significant, this book should be used only after consultation with local male religious leaders.

The restriction is important, it is imposed because of the concept of what is secret or may not be revealed to the uninitiated in Aboriginal religious belief and action, varies considerably throughout the Australian Continent and because  the varying views of Aborigines in this respect must on all occasions be observed.

Shortly after Nomads was published and notwithstanding Mountford’s caveat, Justice Muirhead saw fit to impose an injunction on the sale and distribution of Nomads in the Northern Territory.

Foster and Others v Mountford and Rigby Ltd 14 ALR 71 (1976) was an unusual case in a number of respects. Firstly, the plaintiffs were members of an unincorporated association (the Pitjantjara Council) that represented the Pitjantjara people, who live on large tracts of land that spans the south-western corner of the Northern Territory, the north-west of South Australia and the far central east of Western Australia.

The respondents were Mountford as author and his publishers, Rigby Ltd and neither were represented before Justice Muirhead, as the application for an injunction was bought ex parte and was heard in chambers, i.e. with only one side, the Pitjantjara people, appearing before and providing evidence to the Court and not heard in open Court.

The application was also unusual in that it sought to protect gender-specific confidential information of the Pitjantjara people published in Nomads that they claimed was provided to Mountford in confidence more than 35 years earlier.

The Pitjantjara also claimed that Mountford was obliged to protect their confidences and had breached that duty by publishing Nomads. Few, if any, of those who provided the information to Mountford were alive at the time the application to the Court was made.

While the equitable doctrine associated with confidential information has not historically been a popular or uncontroversial cause of action, courts have been asked to protect various kinds of confidence including that attached to the private etchings of Queen Victoria and Prince Albert, matrimonial secrets and confidential sources of a parliamentary lobbyist and, in an Australian context, restraining the publication by the Centralian Advocate of certain information about Aboriginal customary laws and the publication of photographic slides taken Mountford containing secret or sacred material*.

Christop Antons provides a useful analysis of the importance and relevance of Foster v Mountford in a chapter published in Landmarks in Australian Intellectual Property Law published in 2009.

In Foster v Mountford: cultural confidentiality in a changing Australia* Antons discusses the significance of Foster v Mountford, which he says is a case:

… belonging to the period in which Australian courts were finding their identity in deciding intellectual property disputes. As the first decision in Australia taking into account Aboriginal customary rights to culturally defined notions of secrecy, it is a landmark case. It symbolises a shift from assimilation policies based on the notion of Australia as terra nullius at the time of discovery towards a growing understanding of Aboriginal customs and associated rights … The case also has significance beyond Australian borders. In an ongoing debate about violations of indigenous cultural secrecy and ‘rights to cultural privacy’, the case has been regarded as one of the few legal actions examining such violations.

Antons goes on to note the limited effect of Foster v Mountford with the increasing reach of the internet and other technologies into remote Aboriginal Australia but notes that it provides at least a framework for a broader consideration of traditional knowledge.

Established doctrines of equity such as confidential information, fiduciary obligations and unconscionability combined with protocols and other forms of contracts may not always offer ideal answers to the problems surrounding Aboriginal cultural secrecy. If used in a pragmatic manner, however, as in Foster v Mountford, these doctrines may lead to reasonably acceptable and practicable solutions.

One recent example of Antons’ “acceptable and practicable solutions” is the decision by Justice Nettle of the High Court of Australia in the matter of Northern Territory of Australia v Griffiths (deceased) [2019] HCA 19 (the Timber Creek native title compensation case) handed down on 19 June 2019.

Justice Nettle’s decision (the primary decision by the Full Court of the High Court in NT v Griffiths can be found here) concerned an application for consent orders to “suppress publication and disclosure” of a volume of anthropological material identified as “gender restricted.”

As in Foster v Mountford, the material the subject of the application in NT v Griffiths was:

… restricted men’s evidence given by senior male members of the claim group on country.

That, supported by uncontested affidavit evidence, including anthropological evidence establishing:

… the restricted transcripts and reports relate to matters that are restricted in their transmission or communication to ritually qualified men according to customary Aboriginal practices.

Justice Nettle observed that these practices are “a fundamental component of Aboriginal religious belief and practice” and that failure to comply with the rules established by that practice:

… is believed to result in exposure to harmful and potentially fatal spirituality. Those who break the rules for transmission may be objected to social opprobrium and spiritual reprisals that may be deadly … The men who gave the restricted men’s evidence … would not have been prepared to give evidence had they known that it might later be read in transcript by women. If that were to occur, the men concerned would be vulnerable to the social opprobrium, spiritual reprisals and other deeply held fears of the kind mentioned.

In considering the consent orders sought, Justice Nettle briefly examined several public policy issues, including that arising from a primary objective of the administration of justice, namely to safeguard the public interest in open justice (see s 77RD of the Judiciary Act) and the requirement in sections 77RI and 77RE of the same legislation that any order made operate for no longer than is necessary than to achieve its purpose. Justice Nettle’s orders will run for a period of 10 years.

It is instructive to observe the continuity between the approach by Justice Muirhead in Foster v Mountford and of Justice Nettle in NT v Griffiths.

In Foster v Mountford, Justice Muirhead found that:

… a number of the photographs, drawings and descriptions of person, places and ceremonies have deep religious and cultural significance to the plaintiff Foster, and to the other plaintiffs. I find that some of the matters hitherto secret are revealed in the book, and that this has caused dismay, concern and anger. The plaintiffs’ concern probably 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.

Like Justice Nettle in the High Court last month, 43 years earlier Justice Muirhead also considered the public policy impact of his decision, not least upon the “right to disseminate the results of scientific or anthropological research.”

Unchecked by the provisions of the Judiciary Act noted in NT v Griffiths, Justice Muirhead ordered that the defendants be restrained from:

… selling or displaying for sale, or otherwise distributing in the Northern Territory of Australia the book Nomads of the Australian Desert and further restraining the defendants from causing or authorising the further sale, distribution or display of the said book in the Northern Territory of Australia.

It is understood that Rigby Ltd withdrew Nomads from sale following Justice Muirhead’s decision and that around 2,000 copies were sold before the withdrawal and that several hundred more were destroyed in a warehouse fire, with the remaining copies purchased by the Aboriginal Arts Board*.

A search of the National Library of Australia’s Trove catalogue indicates that Nomads is available in at least 70 Australian libraries, including the Alice Springs Public Library, where I last saw it in a locked case 10 years ago.

A simple Google search of “Nomads of the Australian Desert” produces links to a number of Australian and international booksellers with Nomads for sale. Prices range from a low of $US388 ($AUD552) to $US1,027 ($AUD1,462).

Those numbers make the copy of Nomads for sale in Adelaide a bargain. When last I checked it was still for sale for $500, plus $20 postage.

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References

  • Ricketson, S. Confidential Information – A New Proprietary Interest? Part 1. 11 MULR 223 (1977) and Chapter 19, Aboriginal Customary Law Offences, in Recognition of Aboriginal Customary Laws, (ALRC Report 31) Australian Law Reform Commission. (1986).
  • Antons, C. Foster v Mountford: cultural confidentiality in a changing Australia, Chapter 7 in Landmarks in Australian Intellectual Property Law, Melbourne, Cambridge University Press. (2009)
  • Holcombe, S. Confidential Information and Anthropology. (in press) (2015)

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