: Land and Environment Court protects cultural knowledge

Land and Environment Court protects cultural knowledge

Elaine Johnson
New South Wales

On 26 June 2013, the NSW Land and Environment Court made special orders to protect culturally sensitive information in documents produced under subpoena in Hunter Environment Lobby v Minister for Planning and Ashton Coal.

The case is a merits appeal against approval of Ashton Coal’s proposed South East Open Cut coal mine in the Hunter Valley by the NSW Planning Assessment Commission.

One of the key issues for determination by the Court in this merits appeal is whether the open cut mine should be allowed to go ahead over an area that Ashton Coal’s own consultant says is of high Aboriginal cultural significance. The hearing is to be held in September 2013.

As part of the case, evidence was filed from a geo-archaeologist about the cultural values connected with the site.

Ashton Coal issued a subpoena on the expert for her research materials, which included documents containing sensitive information from traditional knowledge holders about their connection with country and stories passed on by Aboriginal elders. The documents also included personal information of Aboriginal people obtained from Births, Deaths and Marriages.

The documents were produced by the geo-archaeologist to the Court, and the issue before Registrar Walton was the conditions of access to the documents.

After adjourning the matter to consider the documents and submissions made by the parties, the Registrar found that documents did in fact contain material that was of a personal and culturally sensitive nature. The Registrar then made special orders limiting access to the documents to certain individuals, and importantly, ordered that no copies were to be made of any of the material.

The findings and orders of the Registrar are important, because the Land and Environment Court has recognised that traditional Aboriginal knowledge is of a sensitive nature and must be protected.

The orders provide a useful precedent for other cases where cultural information is used as evidence in the Land and Environment Court, and confirm that the wishes of the holders of Aboriginal customary knowledge must be respected.

ELAINE JOHNSON is a Solicitor with EDO NSW.

(2013) 38(3) AltLJ 194
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