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Re: LAW AND FIELD NOTES?
Rod Hagen (rodhagen@insane.apana.org.au)
Sun, 04 Dec 1994 09:29:15 +1000
In article <3bio6q$qdu@usenet.srv.cis.pitt.edu>, jesst2@vms.cis.pitt.edu wrote:
> Rod Hagan writes, after lots of deleted stuff
>
> > The difficulty then is that the provision of secret / sacred information
> > is often fundamental to the establishment of Aboriginal cases for
> > recognition of their interests in land. Anthropologists are usually the
> > people required to obtain such information and furnish it to the courts.
> > Those involved in the process find themselves continually caught between a
> > desire to provide the best possible materials relevant to cases which have
> > real value for the Aborigines concerned and a desire to avoid breaching
> > traditional laws concerning confidentiallity etc., which in turn can have
> > serious negfative consequences.
> >
> > At present the problem is exacerbated by the fact that decisions about
> > what will happen to information which appears in the courts is made after
> > the event, by the courts.
> >
> > It seems to me that there is a real need for resolution of such problems,
> > probably through some formal proces of recognition of confidentiallity
> > requirements imposed by traditional law, to provide both Aboriginal people
> > and anthropologists with a measure of protection from the dangers of, on
> > the hand, imprisonment and, on the other, implication in socially and
> > physically destructive processes.
> >
> > Thoughts of others appreciated!
>
> I'd like to hear more about this before I comment too much, but a few
thoughts
> strike me.
>
> If the anthropologist is testifying on behalf of *and* at the request of
> indigenous people trying to claim their rights to land as a group, then
I'm not
> sure there really is a conflict. If they ask you to repeat their
secrets, then
> by all means do so.
>
> The cases in the USA that I've heard about fall into this category.
> Anthropologists are approached by representatives of the indigenous group and
> asked to testify in court on their behalf.
>
> I think, however, that we are talking here about a slightly more sticky
> issue. Who is asking/compelling the release of confidential
information? What
> (if any) relationship do these people have to the people who gave that
> information? Only by answering these questions can we come up with some
ideas
> about what ought to be done.
>
> More details, more details! Inquiring minds want to know!
>
> Julia Smith
> jesst2@vms.cis.pitt.edu
> University of Pittsburgh
The problem becomes even more difficult than your "sticky" version!
Firstly , whether the indigenous people concerned provide permission for
you to disclose becomes irrelevant in a court situation. In the course of
early land claims in the Northern Territory, people would frequently say
that information that they were providing was "just for you, not for the
court", and then go on to outline a more "public" level of things which
they were prepared for the court to hear (ususally with controls over
subsequent use). But the court has power to over-ride the wishes of
indigenous groups in such situations, and can require that all information
(even secret / sacred levels of myth etc., be provided). Indigenous groups
also have no guarantee that any requirements which they stipulate for use
of materials in or after court hearings will be subsequently accepted by
the courts. (For example, stipulations that certain myths be made known
only to women or men or adults, or that transcript of particular materials
be excluded from normal, publicly accessible records, archives etc.)
One therefore finds oneself in a situation where one is obliged to say to
people "don't tell me anything which you don't want to risk becoming fully
public knowledge, but tell me enough to substantiate your case. The two
may be mutually incompatable, particularly in the Australian land context
where, an understanding of traditional land interests (or at least, the
court's requirements for proof) may require an understanding of myth at
quite a deep level.
The problem then is not one which arises so much in situations where the
indigenous group concerned ask you to repeat their secrets. It arises when
they ask you to repeat only some of them, or when they ask that guarantees
about subsequent confidentiality be given, or when the court demands
information at a level which contravenes traditional laws etc., without
providing adequate future protection.
Looking forward to further discussion.
Rod
--
Rod Hagen
rodhagen@insanity.apana.org.au
Rod_Hagen@maccontent.apana.org.au
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