Land and Environment Court makes special orders protecting cultural knowledge

ELAINE JOHNSON*

Last week, EDO NSW successfully gained special orders in the Land and Environment Court to protect culturally sensitive information.

EDO NSW is currently acting for a Hunter Valley environment group in a case challenging the decision of the NSW Planning Assessment Commission to approve Ashton Coal’s proposed South East Open Cut coal mine.

One of the issues in the case 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 cultural significance.

As part of the case, the Court will hear evidence from a cultural heritage expert about the cultural values connected with the site.

Ashton Coal sought access to the expert’s 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 cultural heritage expert to the Court. The question of whether access to the documents should be granted was heard by Registrar Walton on 26 June 2013. The Registrar found that documents did contain personal and culturally sensitive material .  The Registrar made special orders limiting access to the documents to certain individuals and, importantly, ordered that no copies are to be made of any of the material.

This is an important outcome; 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.

EDO NSW is grateful for the assistance of barrister Corrina Novak who acted as counsel for the cultural heritage expert in response to the subpoena.

*Elaine Johnson is a Solicitor at EDO NSW