Blayney goldmine: Clarity needed amid a veil of confusing ‘facts’

Former environment minister Tanya Plibersek. Picture: Martin Ollman / NewsWire

When my organisation published a poll in June that found low levels of confidence in the judiciary, I found it difficult to believe.

Australians, after all, are reasonable people. Those who read the reasons for contentious decisions might not agree with the decision, but at least they will understand it.

That builds confidence in the judiciary because we can follow the reasoning and see how judges make decisions based on facts. But this week’s incredible decision by the Federal Court to suppress key evidence in the Blayney goldmine case provides an unwelcome insight into those poll results.

James Stellios is an extremely accomplished judge. He holds multiple degrees from Australian and American Universities. He won the university medal in law from the Australian National University. His office deserves respect.

With that in mind, it’s difficult to see how anyone who reads his decision suppressing evidence in the Blayney case could be confident about the factual basis for the ruling.

And without confidence in the facts, there can be little confidence in anything that rests upon such a foundation.

Here’s the first problem: There is nothing in this concise ruling that gives any indication about whether assertions about secrecy rules governing Indigenous beliefs have been subjected to scrutiny and testing.

This might be due to the fact that parts of the judge’s chain of reasoning in support of his suppression orders have also been suppressed.

The word “REDACTED” appears in capital letters five times in the 14-page judgment.

One of the most egregious of those deletions is followed immediately by a section that begins, unbelievably, with the word “Consequently”.

This bigger problem is that this decision simply highlights the apparent vagueness of the Indigenous claim of secrecy about a belief system that is at the heart of the affair.

This is important because the existence of those beliefs, which concern a blue banded bee, is contested by other Aboriginal elders, yet it appears to be the reason this mine has not gone ahead.

One section of the judgment says that a representative from the group that supports the bee belief system told a government official of the necessity of keeping the information confidential “and for disclosure to be limited to decision-makers”.

Elsewhere, that official was told that “some knowledge is meant to be shared only to other Indigenous people”.

Another section blurs the picture further.

It says the representative had been taught that it is not appropriate to spread culturally sensitive information without “proper permissions”.

So here’s the issue: is the secret information at the heart of this affair covered by the requirement that it should be shared only with Indigenous people?

If it was possible to share that information with non-Indigenous decision-makers – with the goal of stopping the goldmine – why is it not possible to share it with others?

If secrecy and the Indigenous-only rules can be dispensed with in certain circumstances – which appears to be what happened here – it seems clear that the scope of those rules needs greater exploration.

We now have a worrying insight into the vague nature of the Indigenous secrecy rules that led to this suppression.

That needs to be pursued.

Consider this: decades ago, a royal commission was held into Indigenous “secret women’s business” that delayed the construction of South Australia’s Hindmarsh Island Bridge.

The commissioner’s role was not to expose those secrets but to determine when they first arose and whether their origins lay in opposition to the bridge.

Chris Merritt is vice-president of the Rule of Law Institute of Australia