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Monday, 5 June 1989
Page: 3375


Senator ZAKHAROV(10.42) — I wish to place a document before the Senate. To save time, I seek leave to table it and I will then speak briefly to it.

Leave granted.


Senator ZAKHAROV —The document I have tabled is entitled On Shaky Ground-a critique of the dissenting minority report of the Senate Standing Committee on Environment, Recreation and the Arts on The Potential of the Kakadu National Park Region. It should be of great concern to the Senate because it details how Aboriginal custodians of the Coronation Hill area in Kakadu stage 3 have been misrepresented and how three senators, helped by the procedures and Standing Orders in place at the time, have facilitated and contributed to injustice to the Jawoyn people. Honourable senators would be aware of an anomaly in procedures in the past which was interpreted as allowing a dissenting report to disclose, and even to quote, in camera evidence, while denying the same right to the authors of the majority report and, importantly in this case, to those who sought to defend allegations made about them by the dissenters.

The Procedure Committee has now recommended changes to right this obvious injustice. Of course, this cannot be retrospective and one group of people was treated in this way prior to my reference of the question to the Procedure Committee. I refer to the case of the dissent attached to the recent report of the Senate Standing Committee on Environment, Recreation and the Arts entitled The Potential of the Kakadu National Park Region. At the time of the tabling of that report I remarked on the parallels between the content of the dissenting report and the views expressed by the mining lobby. I also pointed then to what I believed to be the unethical and selective disclosure of in camera evidence in that dissent. I draw the attention of honourable senators to the conclusion of the document entitled On Shaky Ground which points to the need to revise procedures to ensure that those who have given evidence in camera or who have been the subject of such evidence are not denied natural justice.

As I said, the Procedure Committee has now taken action, but there is a need to set the record straight in this case. Contrary to Senator Crichton-Browne's statement in the debate on the tabling of the report last year that all the relevant evidence was presented in the dissent, the dissent ignored a considerable body of evidence which contradicted or refuted his views. The section of the dissenting report relating to Aboriginal beliefs concerning the Coronation Hill area in what Aboriginals call the `sickness country' is a dishonest attempt to discredit the concerns both of the Aboriginal custodians and those whose responsibility it is to help custodians protect their cultural heritage. On Shaky Ground places at least part of the dissenting report of Senator Crichton-Browne, Senator McGauran and Senator Panizza in its proper perspective, that is, a rehash of discredited allegations backed up by the selective use of Aboriginal custodians', actual or alleged comments and the actual comments often taken out of context to change their meaning.

When Coronation Hill was registered in October 1985 as part of a large sacred site complex by the Aboriginal Sacred Sites Protection Authority at the request of the Jawoyn people, controversy soon followed. As a result of the registration, exploration work was suspended while Broken Hill Proprietary Co. Ltd (BHP) engaged in consultation with Aboriginal custodians, as is required under the provisions of the Sacred Sites Act. By April 1986 the custodians had considered proposed exploration work by BHP and had refused permission. In the public hearings of the then Standing Committee on National Resources in May 1986 and subsequently in the local media, mining consultant Joe Fisher claimed on the basis of his involvement in exploration and mining in the South Alligator River Valley in the 1950s and 1960s that Coronation Hill was not a sacred Bula site, but that the real Bula site was located at Sleisbeck, nearly 30 kilometres away. I should explain at this point that in Jawoyn belief the Bula is the being whose presence in the area was central to the creation of what is known to them as the `sickness country' and thus gives it sacred significance.

During June 1986 a very one-sided controversy developed in the media on the theme of an el dorado being blocked by a `bogus' sacred site. On 25 June 1986 Mr Bob Ellis, Director of the Aboriginal Sacred Sites Protection Authority, received a complaint from a Jawoyn custodian about the activities of Mr Steven Davis who, it transpired, had been commissioned by the Northern Territory Minister for Mines and Energy, Mr Barry Coulter, to investigate the registration of Coronation Hill. On 27 June Mr Ellis received a phone call from a senior BHP employee who complained that Mr Coulter had threatened that, if he had not yet arranged for consent of Aboriginal custodians to exploration of Coronation Hill, then the Northern Territory Government would intervene. Mr Ellis gave this information in evidence to the Committee. BHP appeared to accede to Mr Coulter's ultimatum and hastily organised a meeting of Jawoyn people the next week, on 1 July, which gave approval for the drilling of six exploration holes, on the basis that the area proposed for drilling had already been desecrated by uranium mining in the 1950s, and that no explosives would be used.

Three days later, on 4 July, a further meeting was convened by the Jawoyn Association at which the decision to allow limited exploration was revoked. Senator Crichton-Browne stated in this chamber last year, without producing any evidence, that the Jawoyn present were `bullied and harassed' into revoking permission. There is no evidence for this allegation; indeed, the following quote from On Shaky Ground indicates that the opposite is true:

It is perhaps illustrative of the tension and confusion surrounding these meetings (of the 1st and 4th of July) that a rumour circulated amongst Aboriginal custodians that they would ``be shot'' if they did not give approval for BHP Gold to go ahead at Coronation Hill. This rumour, corroborated by a number of custodians, was voiced by senior custodian, Nipper Brown, during the meeting of 4th July . . .

The belief in the threat of shootings, however unfounded, was clearly a symptom of a more widespread pressure focused on custodians to agree to exploration. It is significant to note, I believe, that during the period of the problematical meetings of 1 and 4 July, Mr Davis was actively pursuing his commission from the Minister for Mines and Energy. In fact on 2 and 3 July Mr Davis took a party of custodians, including senior custodian Nipper Brown, to the important Bula sacred site at Sleisbeck.

At this location Davis recorded a video of his conversations with the custodians. The dissenting report reproduced extensive, though selective, portions of a transcript of an edited version of the video, which was presented as in camera evidence during the Committee hearing in Darwin. However, the document I have tabled points out that comparison of the portions of the transcript reproduced in the dissenting report with a full transcript made from the original video reveals that Mr Davis's version, that is, the transcript supplied as in camera evidence, was subject not only to editing, but also to incomplete and inaccurate transcription, which had the effect of emphasising the matters which Mr Davis sought to prove, while deleting portions which conflicted with Mr Davis's propositions.

We should also consider further the circumstances of this evidence. It should be noted, for instance, that the Aboriginal custodians whose conversations were taped and subsequently presented as in camera evidence have never had access to Mr Davis's original `transcript' to check its validity, because Mr Davis has refused to give it to them and the Standing Orders of this chamber prevent its release without such permission. The only parts they have seen have been those selective parts reproduced in the dissenting report. I believe this situation to be not only a denial of natural justice to those persons who are the subject of that evidence, but also an example of the unethical use of evidence. It is one of the important reasons that I have tabled the document here tonight.

Incidentally, I understand that the Aboriginal custodians concerned have initiated court action to retrieve the material Mr Davis recorded at the Sleisbeck Bula site-much of it restricted, some of which has found its way into various newspapers. I have, for instance, a copy of a letter sent to the Australian newspaper protesting about the publication, in a recent article, of a photograph of a restricted Bula painting believed to have originated from Mr Davis. I personally was also disturbed to discover that material in the video taken at the same site, which Mr Davis showed to the Committee as evidence when I was present, was restricted and should not have been shown to women.

Mr Davis's evidence and assertions, and consequently the same material contained in the dissenting report, reveal some major internal contradictions. For instance, both Mr Davis's report and the dissent suggest that senior custodians were misled into requesting registration of Coronation Hill because they were led to believe by the Aboriginal Sacred Sites Authority that Coronation Hill was the Sleisbeck Bula site. Yet, both documents also present evidence suggesting that these custodians never requested registration of Coronation Hill. If one statement were true, then clearly the other could not be true.

Similarly, in order to prove the former case, it was necessary to prove also that custodians who, I might add, had grown up, lived and worked throughout this area did not know the location of the Sleisbeck Bula site and had to be shown it by Mr Davis. This scenario ignores the facts that the Aboriginal Sacred Sites Authority had registered the Sleisbeck Bula site in 1980, years before, that custodians' knowledge of and visits to the site prior to 1985 had been documented, and that the two sites at Sleisbeck and Coronation Hill have separate Aboriginal names, Ngartluk and Guratba respectively, which have been documented for over a decade. In the words of On Shaky Ground, the version of events Mr Davis and the dissenting report ask us to believe is not only inconsistent but also preposterous. Nevertheless, misinformation continues to be spread-more recently by the Northern Territory Minister for Mines and Energy, Mr Coulter, who claimed in a radio interview in April this year that Mr Fisher, a non-Aboriginal, had been the custodian of the area for 40 years. I suppose it was this fact which allowed Mr Fisher to guide Mr Davis to the Sleisbeck Bula site which, incidentally, Mr Coulter acknowledges as `the most significant sacred site in the entire region', without the permission of senior custodians and the Aboriginal Sacred Sites Protection Authority as is required under the Aboriginal Sacred Sites Act.

Certainly, the cynical use of the word `custodian' for the position of a non-Aboriginal in relation to a sacred site is consistent with the changes to sacred sites legislation which the Northern Territory Government is pursuing at the moment. It should be noted here that the serious allegations about the Aboriginal Sacred Sites Protection Authority contained in Mr Davis's report resulted in an inquiry on the Authority, the Sacred Sites Review Committee. However, the Review Committee did not even include the issue of Coronation Hill in its final report and found no impropriety on the part of the Authority in regard to any of the allegations put to it. This indicates the weight given to Mr Davis's allegations by an independent body examining the matter in detail. Yet these were the same allegations with which Senator Crichton-Browne and former Senator Townley confronted custodians during the taking of in camera evidence at Barunga on 9 March 1987.

This evidence, which was extensively quoted in the dissenting report, needs some background. It was taken at a time when at least two of the senior custodians held serious misconceptions about the proposed nature of mining at Coronation Hill. Evidence, which later was presented to the Committee, indicated that two of the senior custodians who gave evidence at Barunga had formed the impression, apparently from being shown gold in drill-core samples, that a new technology involving drilling the gold out of the ground was to be employed, thereby obviating the need for explosives. The use of explosives has been the main concern of custodians as it is believed likely to disturb Bula-a factor which I understand has resulted in custodians recently refusing to approve any further work at Coronation Hill. The confusion about the link between exploration and mining, between drilling and later use of explosives, was evident during many of our discussions with the Jawoyn people-that is, to those of us who were really listening.

The Barunga evidence was given in a context which created difficulties of a traditional nature in that men and women were questioned together about matters normally discussed in gender-restricted groups-a criticism which was raised both at Barunga and subsequently by custodians. During questioning, Senators Crichton-Browne and former Senator Townley subjected custodians to what could only be described as an inquisition of leading questions based on the allegations of Mr Fisher and Mr Davis. The answers from custodians were simply correct denials of the imputation that Coronation Hill is the Sleisbeck Bula site or that it contains a Bula site of a similar nature. In interpreting these answers, however, the authors of the dissenting report ignored other parts of the evidence which revealed the true distinction between the nature of Coronation Hill and the Sleisbeck Bula site. On Shaky Ground points to this omission, quoting a section of the Barunga evidence where senior custodian, Peter Jatbula, who regards Coronation Hill as a Bula site, answers to Senator Crichton-Browne that the Bula significance at Coronation Hill cannot be seen. I wonder whether Senator Crichton-Browne has seen his own god.

Moreover, in quoting custodians' answers which purportedly demonstrated that some custodians did not consider Coronation Hill to be a Bula site, the authors of the dissenting report edited out preceding questions which were clearly leading to elicit a particular answer. The dissenting report also claimed falsely that seven out of nine custodians who were present during evidence were of the view that Coronation Hill was not a Bula site. In fact, only four out of the nine expressed such a view and, as I have indicated, their answers were made in the context of correctly denying that Coronation Hill was the Sleisbeck Bula site.

On Shaky Ground exposes a number of other serious inconsistencies and points of error in the dissenting report which time does not permit me to outline tonight. I will just say that subsequent events have demonstrated the dissenting report to be a sham. Public statements from the Jawoyn community have consistently opposed exploration and mining within the Bula Sickness Country. The Jawoyn response to the Coronation Hill draft environmental impact statement forcefully rejected the proposal and since that document was produced the senior custodians have formally applied to have the entire area of the Sickness Country registered as a sacred site.

In addition to the distortions of Jawoyn belief used so cynically in the dissenting report, it also attacks, under privilege, the Aboriginal Sacred Sites Protection Authority and, in particular, one of its employees, Mr David Cooper. In so doing, the dissenting report has uncritically accepted and sought to spread allegations concerning the Authority and Mr Cooper while refusing to accept or even acknowledge their evidence and explanations about those same allegations given to the Committee. Such abuse of parliamentary procedures is not only unethical, but also a denial of natural justice. I hope that in tabling this document tonight, those whose integrity was attacked in the dissenting report-the Jawoyn people and those who sought to help them protect their heritage-will have had at least a degree of redress and that the record in relation to Coronation Hill and the Bula Sickness Country has been given some balance.