Lyons, Greg --- "The Portland Case: Onus and another v Alcoa of Australia Ltd" [1981] AboriginalLawB 14; (1981) 1(1) Aboriginal Law Bulletin 9

• The Portland Case: Onus And Another V Alcoa Of Australia Ltd
• References

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The Portland Case: Onus and another v Alcoa of Australia Ltd

by Greg Lyons

Acting on behalf of Sandra Onus and Christina Frankland, two Gunditj-Mara people, the Victorian Aboriginal Legal Service has appealed to the High Court from a decision of Brooking J in the Supreme Court of Victoria. The plaintiffs had sought to restrain Alcoa from damaging or interfering with Aboriginal relics on the site of a proposed aluminium smelter at Point Danger, near Portland in south-western Victoria. Their argument before Brooking J relied on s.21 of the Archaelogical and Aboriginal Relics Preservation Act 1972 (Vic.) which makes it a criminal offence to wilfully or negligently deface, damage or interfere with a relic. Fearing Alcoa's construction works would contravene this section, the plaintiffs sought an interlocutory injunction. Their principal concern was to ensure continued access for Gunditj-Mara people to land which by tradition was their ancestors', and to preserve the relics and sacred sites on the land.

While Brooking J was prepared to assume that an injunction might be avail able to prevent a s.21 offence being committed, he first had to decide whether the plaintiffs had legal standing to obtain an injunction. On this point, Brooking J ruled against the plaintiffs, relying principally on the High Court's decision in Australian Conservation Foundation Inc. v Commonwealth of Australia and Others (1980) 28 ALR 257. In Brooking J's view, the plaintiffs had no private right of action by reason of the provisions of the Archaeological and Aboriginal Preservation Act 1972, nor did he think the plaintiffs would suffer any special damage if Alcoa contravened s.21 in relation to a relic on the proposed development site. Brooking J stated:

[T]he fact (which I am willing to assume for present purposes) that the plaintiffs will have highly disagreeable thoughts and feelings, that their susceptibilities will be grievously offended if the defendant contravenes s.21 in relation to some relic situated on that land gives them no standing to prevent that contravention.

The Full Bench of the High Court heard the appeal against Brooking J's decision in March 1981; judgment is now awaited. For the Aboriginal appellants it was argued that some comments made by judges in the Conservation Case would allow the High Court to grant standing to the appellants without the ratio of that case being disturbed. It was argued that standing may be based on a non-economic interest which in some circumstances can constitute a sufficient 'special interest.' It remains to be seen whether the High Court will be prepared to accept a cultural and spiritual interest as sufficient to constitute a special interest to allow standing to be established. While counsel for Alcoa acknowledged that there were pointers in some of the Conservation Case judgments that, in future, there may be cases where factors other than material interest were sufficient to establish standing, he argued that the present appeal was not one of them.

If the appeal fails, the reasons for decision will be largely irrelevant to Victorian Aborigines and to Aborigines elsewhere. For them, the law's reputation for furthering the material interests of sections of the dominant society will again be confirmed. If the appeal fails, a further answer will be given to the key question: to what extent can Aborigines hope to preserve, let alone further, their interests through established legal channels?

References

• 'Aboriginals seek standing to preserve relics (1981) 2 (3) The Legal Reporter 3.
• Churches, 'Hocus pocus, no locus stand: an initial attack on ACF v The Commonwealth' (1980) 2 LSB 68.
• Guthrie, 'Alcoa at Portland: a survey of the issues' (1981) 5 Bowyang 27.
• Moore & Belfrage, 'Aboriginal land rights in Victoria: the Framlingham Case' (1980) 5 LSB 314.
• Neville, ' "Never walk in front of a white man .. " Land rights in Victoria' (1981) 57 Arena 4.
• 'Portland: statement from the Gunditj-Mara at Portland,' (1981) 6 (1) Message Stick 1,8and10.
• Rutherford, 'Aboriginal rights give way to Alcoa at Portland' (1980) 5 LSB 316.