Churches, Steven --- "Aboriginal Heritage in the Wild West -- Robert Bropho and the Swan Brewery Site" [1992] AboriginalLawB 27; (1992) 1(56) Aboriginal Law Bulletin 9

• Aboriginal Heritage In The Wild West – Robert Bropho And The Swan Brewery Site
• As For Race Relations In Wa

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Aboriginal Heritage in the Wild West – Robert Bropho and the Swan Brewery Site

by Dr Steven Churches

Robert Bropho has now been struggling for nearly four years to stop the Western Australian Government's plans for redeveloping the Old Swan Brewery Site (Goonininup, also known as the Waugyl Dreaming Track) because of the site's particular importance to local Aboriginal culture and heritage. Bropho won the first round with the WA Government when the High Court found against a presumption of Government immunity from the operation of statutes, and held that the WA Government should obey the terms of the WA Aboriginal Heritage Act 1972 when it came to developing the Brewery Site, owned by the Government. (Bropho v WA [1990] HCA 24; (1990) 171 CLR 1, AboriginalLB 47/6-9).

That decision came down in June 1990, and in accordance with the terms of the Aboriginal Heritage Act, the Aboriginal Cultural Material Committee set about assessing the site, and reported to the then Minister for Aboriginal Affairs, Carmen Lawrence, on 19 October 1990 that the site was of significance to Aborigines and that the proposed use of the site (the rebuilding of the old Brewery buildings as an Aboriginal cultural centre) should not be consented to. The Minister, Carmen Lawrence, responded on 25 November 1990 with a media release that said:-

"As Minister for Aboriginal Affairs I have decided, in the interests of the whole community, to exercise my right under the Aboriginal Heritage Act to reject the recommendation of the Aboriginal Materials Committee against work on the site. The Government respects the Aboriginal significance of the area but it is equally important to recognise arguments for the preservation of buildings that are national heritage assets."

Bropho went back to the Supreme Court to challenge the validity of this Ministerial exercise of power. He claimed that the Minister should have heard his views as a Speaker for the site, and that the Minister had been influenced by irrelevant considerations in weighing up the public interest. Rowland J found for Bropho on 19 December 1990 on the ground that he should have been granted natural justice before the Minister made a decision to develop the site, that decision being contrary to Bropho's interest. No decision was taken on the irrelevant consideration claim. Rowland J found (without any anguished exploration of the matter: Bropho v WA (1990) 21 Administrative Law Decisions 730 at p.735.) that Bropho was specially affected by this discretionary decision, and consequently had a right to be heard by the Minister. Rowland J buttressed this assertion (at pp 736 to 737) and found that the functions of the Committee and the Minister were different, which is the touchstone for an affected person having a right to be heard at Ministerial level.

The WA Government appealed to the Full Court of the Supreme Court, which found against Bropho on 14 October 1991 by 3 - 0 (WA v Bropho (1991) 5 WAR). The majority judgment was that of Anderson J, with whom Franklyn J concurred. Malcolm CJ gave a separate judgment disagreeing importantly with the majority on a key issue, but finding against Bropho on the facts. Page numbers that follow are to the unreported decision of the Judges.

The thrust of the majority judgment was that because Bropho had not made representations to the Aboriginal Cultural Material Committee, he lost any possible right he might have had to make representations to the minister. But the Judgment went on to doubt, at length, whether Bropho had a right to be heard, even by the Committee. In the context of construing an Aboriginal Heritage Act, these twin knockouts reflect the Government's argument that the Aboriginal Heritage Act is not about preserving Aboriginal heritage for Aborigines, but preserving it (optionally) for the entire community of WA (Anderson J, pp.12, 27). The first, factual finding, shows a strict constructionist approach to Aboriginal claims, while the second 'doubt' is potentially lethal to Aboriginal claims to heritage issues in the future.

The fact that Bropho did not make representations to the Committee regarding the importance of the site was four times referred to by Anderson J (pp.5, 28-29). The upshot was that Bropho lost any 'interest' that would attract a duty in the Minister to hear him. The Chief Justice agreed in this finding of fact on four occasions, which enabled him to come to the similar conclusion that, as he assumed that the Committee and Minister were deciding the same issues, the applicants only had one chance to be heard and that was at the Committee stage. As the Chief justice fulsomely put it:-

"They cannot now be heard to complain that they were not given an opportunity to be heard by the Minister."
(p.1 3 and similarly at p.11. See also pp.5 and 8.)

The affidavits clearly showed that Bropho did front the Committee, although not to make submissions regarding the site. He attended with other Aborigines to complain about the composition of the Committee: predominantly White, with some Aboriginal members under suspicion of having White interests at the forefront of their thinking. Furthermore, the evidence showed that other Aborigines in Bropho's Fringedwellers group did make representations to the Committee. Rowland J alluded to this in his judgement at first instance (p. 12, not reported) and then dealt with Bropho as a person "having already received a favourable recommendation from the committee ... (21 ALD at p.737).

In short, the Full Court sought refuge in Bropho not having 'played the game' by attending cap in hand on a Committee of which he strongly disapproved. As a matter of logic, submissions to the Committee are only relevant if the Committee and the Minister are covering the same ground, so that the Minister is not deciding on the use of a site in the light of factors the Committee did not decide on. The Chief justice took the view (at p.13) that the Committee could hear representations as to public interest (the matter vested by the Act in the Minister, not the Committee). That being the case, since Bropho made no representation to the Committee, he could have no further opportunities.

On the other hand, Anderson J seemed most unclear on this issue, saying that the legislation did not "show that the Minister is confined to the same body of fact that may be presented to the Committee" to carry out its statutory function. (p.30, and see the doubts of the judge at pp.25 and 26 as to whether the Committee and Minister were performing the same function). Then the judge said that the Committee's recommending function as to whether to consent to the land use or not, "seems ... inevitably, to bring in considerations of public interest as relevant for the Committee to consider" (p.31). But then changing tack again the judgment reads "... weighing the public interest is plainly for the Minister, and for good reason. It is a political function." The reasoning seems to be that the Committee could recommend by reference to the public interest, and so take on evidence going to public interest, even though the Act provided for the Minister to act in that respect, not the Committee.

But the key interest in the Full Court decision lies in whether Bropho had any right to a hearing at all in respect of decisions going to Aboriginal heritage. Malcolm CJ differed from the majority judgment in implicitly recognising the similarity of standing to sue, and the special position that would attract a necessity for procedural fairness, i.e. a hearing. In both cases, the issue boils down to an applicant being different from the remainder of the community because he has a' special grievance or his special interest requires protection (pp.6-8). The Chief justice related Bropho's position back to that of the Aboriginal applicants for standing to sue in respect of breaches of Victoria's Aboriginal heritage legislation in Onus v Alcoa [1981] HCA 50; (1981) 149 CLR 27.

On the other hand, Anderson J's decision is strung through with views that can only provide a formidable barrier to Aborigines attempting to speak for their heritage in the future. The judge's denial of Standing for Bropho with respect to his own culture must be seen in light of Onus, in which a seven judge bench of the High Court found that the Aboriginal applicants did not just have an emotional or intellectual interest in preventing breaches of heritage law, because they actually used the land and artefacts.

Anderson J reviewed the affidavit evidence of Bropho, Bishop Challen of the Anglican Church, and Mr Hulbert, Moderator of the Uniting Church "to the effect that cultural attachment of these people to this site is longstanding and real. There is, therefore, no reason to doubt the sincerity of [Bropho's] claim." The judge then concluded that:-

" ... the interest of [Bropho] in the land is in the nature of a spiritual interest or, to echo Gibbs CJ in Onus ... 149 CLR ... at 36, 'an emotional and intellectual interest.' The important question presented for consideration in this appeal is whether that interest is sufficient to give rise to a common law duty in the trustees [the Committee stood in their place] at recommendation level or in the Minister at decision level to afford to [Bropho] an opportunity to be heard on the subject of the development ..."(p.15).

Anderson J went on to say (at p21) that for a person to be able to demand procedural fairness, he would have to show that the proposed governmental act impinges on him directly and "the impact upon him must be more than spiritual, emotional or intellectual." The judge asserted that it would be "hopeless to contend" that a person with a deep "religious" commitment should be afforded natural justice.

Things really started to unravel for Bropho then, because he did not have Onus style 'use' of the site. Anderson J said that Bropho "does not claim any direct physical association with this site. He does not, and the group which he represents does not, habitually camp there or hunt or fish there or take children there to teach them culture, or hold ceremonies there, or otherwise frequent the area." With exquisite irony, his Honour noted:

' ... it could hardly be otherwise in light of the small size and the location of the site and the use to which it has been put and the extent to which it has been developed since the first half of the last century."
(p.21 and see also p.3).

Bropho and his supporters had been arrested for trespassing on the site (owned by the Government) in the course of this litigation. For nearly half Bropho's lifetime, that is, up to 1954, Aborigines were not allowed in the Perth Metropolitan area pursuant to the Native Administration Act 1905 (WA) and its successors. They have, of course, not 'owned' the site since the 1830's when Governor Stirling temporarily granted it for use as a 'Native Institution'.

Anderson J then said that Bropho's "particular subjective concern to protect or preserve a particular site ... for its ... spiritual or cultural or heritage qualities" (pp.22-23) "seem[s]" not to have the Onus features that attract standing (i.e. 'use') and the judge "would have very considerable doubt about the standing" of Bropho to . bring action for contravention of the Aboriginal Heritage Act (p.22). The judge observed that the principles regarding standing, and that which attracted procedural fairness were not identical, but that 'standing' was probably wider: A grievance that gave one standing might not attract natural justice (p.24). It follows as a matter of logic that if Anderson J 'doubted' that Bropho had standing, he was less likely to be afforded natural justice.

Anderson J then explored Bropho's entitlement to a hearing and reiterated that Bropho's "spiritual or cultural attachment is not attended by a tradition of use or occupation of any kind ... "(p.27). In the formula that determines the application of natural justice:

"There is no suggestion that [Bropho] in an individual capacity will be deprived of any right, privilege, benefit, expectation, advantage or opportunity by the carrying out of these works." (p.28).

Referring not just to whether Bropho had a right to be heard by the Minister (the object of this litigation) Anderson J expressed "doubt" as to whether Bropho "had a right to be heard by the Committee" (p.29).

In summary, Bropho would not gain standing because he did not "use" the site (p.21); Bropho's "spiritual" attachment did not "seem" to attract Onus standing (pp.2223); entitlement to natural justice is harder to show than standing (p.24) (so we may infer even less likelihood of Bropho having a right to be heard); and Bropho was not being deprived of any "right" recognised by law as attracting natural justice so there was "doubt" as to whether Bropho had a right to be heard even by a recommending Committee (pp28-29).

Application was made for Special Leave to appeal to the High Court, which was heard on 8 May 1992. Counsel attempted to show a difference between the Full Court majority (Anderson J) decision, and that of the Full Federal Court in Ogle v Strickland [1986] FCA 266; (1987) 13 FCR 356, in which three Federal Court judges unanimously afforded standing to an Anglican Minister and a Roman Catholic Priest to take action in respect of alleged blasphemy. However, the Special Leave panel (Deane, Dawson and Gaudron JJ) quickly ruled that the question of Bropho's right to natural justice at any level was only a 'doubt' in the majority judgment, leaving as the only other limb for seeking Special Leave the question of whether, in the context of the existence of a recommending body, Bropho had a right to be heard by the Minister.

The High Court refused Leave, saying that it had examined two tiered decision making in Peko Wallsend (1986) 162 CLR 24; O'Shea (1987) 163 CLR 378 and Haoucher [1990] HCA 22; (1990) 169 CLR 648. The Court found that Bropho's appeal turned on the particular provisions of the Aboriginal Heritage Act and did not raise a question of general principle appropriate to attract a grant of Special Leave.

One of the reasons for writing this note is to ensure that the WA Full Court judgment does not attain a credibility either in that State or elsewhere whereby the Court's 'doubts' as to Aboriginal rights to be heard in respect of their heritage are raised from mere dicta to become an entrenched view. I note the decision of Stein J in Worimi Local Aboriginal Land Council (1991) 72 LGRA 149 (AboriginalLB 53/14-15) in which the Court found a requirement of natural justice in favour of Aborigines under the Aboriginal Land Rights Act 1983 (NSW). But Ogle, referred to above, is very powerful. The men of the cloth were treated without demur as outside the run of the mill of the rest of the community in respect of blasphemy, thus ensuring standing. Wilcox J went further and thought standing in such a suit would vest in any committed Christians (13 FCR at p.324).

The Full Court majority decision in Bropho did recognise that abstract conditions sometimes attract a right to be heard. Amongst many examples Anderson J (at pp.17, 19 and 20) cited Heatley [1977] HCA 39; (1977) 137 CLR 487 and CSSU [198511 AC 374. In Heatley the "existence of a widely enjoyed privilege of gaining entry to a sporting spectacle [a horse race] on payment of the fee" and in CSSU "the longstanding and well established practice of consultation between government officials and a trade union about terms and conditions of employment" attracted the right to a hearing. How splendidly Australian: the right' to be at a race track attracts a hearing, but not spiritual attachment to .a sacred site (and surely there are all sorts of lovely parallels between Blacks and Whites as to what constitutes a 'sacred site': see in a natural justice and strict liability context Gill v Williams (1916) 12 Tas LR 67, prostitutes in a hotel public bar).

The implicit finding of a lack of congruity between 'racetrack rights' and 'spiritual interests' was followed by Anderson J's pronouncement, so important to his finding of no 'use' by Bropho of the site, that Bropho:

... does not claim that the land itself has a particular quality or characteristic that will or might be destroyed or damaged by the proposed works. ... There [is] an absence of that kind of information in the pleadings and affidavits..." (pp.21-22).

My set of papers from the litigation (I was counsel for Bropho) contains the following:

"The proposals for the development of the Old Swan Brewery Site as announced by the Minister for Aboriginal Affairs in the media statement (Annexure 'B') are totally offensive to Aboriginal concepts of the sacredness of that Site. The digging and construction work which must inevitably be performed to carry out the proposals of the Minister are completely offensive to Aboriginal concepts of sanctity regarding that Site. The references made by the Minister for Aboriginal Affairs in her media statement to the preservation of buildings because they are "National Heritage Assets" are irrelevant to the proper consideration of whether or not the Old Swan Brewery Site is a Sacred Site for the purposes of the Aboriginal Heritage Act." [Bropho affidavit para 171. " There is a complete misunderstanding on the part of the Minister that development of the site can be made compatible with its quality of sacredness to Aborigines. Any proposed building and construction on that site is completely contrary to the preservation of that site in its religious and sacred importance to Aborigines."
[Bropho affidavit para 18].


"The importance of the Brewery Site to the Fringe dwellers is of such weight that the onus ought to be on persons who dispute that attachment to show that the site is not of significance to Aborigines." [Bishop Challen affidavit para 17]. "The Waugyl, and consequently the Brewery site are regarded by Robert Bropho and the Fringe dwellers as critical and fundamental to their culture and heritage."
[Bishop Challen affidavit para 22].


"8. In attempting to understand the importance of particular sites to the Aborigines, I was affected by Old Testament concepts of land in which ancient Hebrews had a unique bond with the territory of Israel as part of their covenant with God. This covenant was part of the sense of Jewish cultural continuity, containing the promise of preservation for the people. I could see parallels for the Aboriginal sense of cultural continuity and desire for racial preservation.

9. I have observed that Aboriginal being is intimately involved with land, but not just any land; rather, in particular, sacred land.

10. I have talked to a number of Aborigines regarding the Brewery Site, including Trevor Holmes and Delphine Stanford.

11. It is my understanding that the Site is in the path of the Waugyl. I have seen anguish in the Aborigines when they are informed of possible building development on the Site. They have a feeling that no one will listen to them I have spoken to Robert Bropho and other Aborigines about this.

12. The Aborigines have a sense of awareness of being one with all the people who have gone before them, and the sacred land or sites are integral to their stories and their sense of continuity with the past. I have had similar feelings of kinship with communities that have gone before me when in very ancient British churches and cathedrals.

13. I liken the association of the Aborigines with particular sites of land which have communal and religious significance to them as being akin to the bond between the children of Israel and their land. The relationship is at the deepest possible emotional level for each individual. Therefore to carry out work developing the Brewery Site is not merely like knocking down a church, it is more like tearing a person apart."
[Moderator Hulbert affidavit paras 8-13].

The assertion by Anderson J that there is no claim to "a particular quality or characteristic" in the land that might be destroyed or damaged by the proposed works, and an absence of affidavit evidence of this subject, is interesting. In the 'Introduction' to Blood on the Wattle (1988), Bruce Elder drew an extended metaphor for White occupation of Australia with the arrival of technically superior intergalactic space travellers on Earth today. An obvious inference is the difficulty that the 'Earthlings and the Aliens will have in understanding the cultural assumptions of each other. This metaphor may help explain how the judge could say of this matter that there was no affidavit evidence. All the tenderness shown for the sensitivity of the Christian priests in Ogle, but an obtuse and impervious ignorance for Bropho. Read Murphy J in Onus at 149 CLR p.46:

"'Western European Judeo-Christian culture', if there is such a culture, has no privileged status in our courts. Aboriginal culture is entitled to just as much recognition."

Read and weep. I am reading para 21 of Bishop Challen's affidavit:

"Aboriginal society as I have experienced it in the Swan Valley strives for a sense of continuity, which is to be found in kinships and relationships, and which is not as concerned as is European society with the passage of time..."

My sorrow is that casual judicial ignorance has not only gone another step to dismembering Aboriginal cultural beliefs, but the best of my own culture has been subverted. It was Bropho and his people's timeless love which was just the issue apparently unrecognisable to the Supreme Court.

"Love", wrote Donne
"all alike, no season knows nor clymes, Nor houres, dayes, months, which are the rags of time."

With a poignancy, terrible in Bropho's plight, Shakespeare put it,
"Love's not Time's fool ...
Love alters not with his brief hours and weeks,
But hears it out ev'n to the edge of doom"

What happened to mainstream Western culture's 250 year struggle for consideration and tolerance of other human beings and their beliefs?

The Chief justice handed down his decision in Bropho less than three weeks after delivering a paper at the Aboriginal Legal Service Annual Conference, Indigenous People and the Law, full of warm views about how the justice system must respond to Aboriginal needs to have control over their lives and futures. Sadly, his Honour, while being able to recognise a spiritual interest as attracting legal consequences, still has problems with extending that recognition to acceptance. He fell back on using inverted commas around the "knowledge" invested in Bropho by the elders of his group (p.6). Such inverted commas indicate that this "knowledge" is probably less than full bottle. The Christian priests in Ogle did not have to put up with their beliefs being dissected and exposed to the inferential doubt of inverted commas.

As noted above, the Chief justice referred four times in a short judgment to Bropho not having made submissions to the Committee. As indicated above, this need by no means have been the end of the matter to an inquiring or open minded court, (did Committee and Minister have the same function, was the issue) but both judgments seem to reflect the comment made to me by another judge: "Pity your client is so unmeritorious." Bropho is perceived to be a stirrer (even an 'anarchist' in one weekend glossy. He must be the first anarchist in history to go to his nation's highest court twice in two years). If he was a tame Black he'd go through the Committee submission process (which Anderson J "doubts" he has any right to anyway) rather than challenge the Committee. As Murphy J said, "Mr Neal is entitled to be an agitator": (Neal v The Queen (1982) 149 CLR at 317). Read the rest of Murphy J in Neal and weep some more. Race relations in this country are so disgraceful, but they're really something else over here in the West. Then read, on the relationship of Aborigines to the land, Brennan J in Gerhardy v Brown (1985) 159 CLR at 136, Deane J in the same case at p.149 , and Brennan J in Meneling Station (1982) 158 CLR at 356-357.

As for Race Relations in WA

Western Australian mainstream mores are of considerable concern at present. On 30 April 1992, O'Dea DJC asked counsel if there was any reason why sentence should not be passed on a blond, fair complexioned German, Heinz Gerhardt Christian Luik, and when counsel rose (to address on bias) his Honour said, "Why, is your client of aboriginal descent?" Some joke. On and on it goes. Howard Sattler on the radio: a sort of very poor man's John Laws. Cartoons in the News Chronicle of the 6 May 1992 depicting a drunken Robert Bropho (he hasn't touched alcohol since 1967) and a drunken Waugyl (Rainbow Serpent) drinking Swan Lager. How would I go putting up a picture of the Virgin Mary in sexual congress with a pig. Blasphemous? As the Americans say, you bet your ass.

Shocking!? Not half as shocking as the continued genocide waged in this State. On 4 January 1992 Louis Johnson, an Aboriginal youth, was deliberately run over by two teenage Whites, on his 19th birthday. Despite a second run in the car at Louis' body while he was still alive, the perpetrators were not charged with wilful murder. The West Australian reported the matter as a "hit and run" accident.

The death of John Pat at Roebourne in 1983 while being attended to by police makes the Rodney King affair look like a family picnic. Still the West slumbers on through the beatings and the killings and the hatred. Don't worry. No race riots in Perth a la Los Angeles. Aborigines are only about 2 to 3% of WA's population. They're marginalised, at least in the populous south-west. So marginalised, that this must be the only place in the Western world where children (I am talking about the under 16 age group) flee the State to escape the potential for being locked up indefinitely under the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA). This is a society bent on excising the 'undesirables' from its midst.

In the same emergency session of State Parliament in which youth (i.e. black) crime was addressed with draconian penalties, a quick Bill was whipped through to remove the application of the Aboriginal Heritage Act from the proposed Hamersley Iron (CRA) iron ore mining site at Marandoo in the Pilbara. This is in conformity with the views of those other arbiters of State power, the Crown Law and the Supreme Court, that the Aboriginal Heritage Act is just a law for conserving, if those in power feel like it, relics and artefacts that happen to be Aboriginal. How this relates, for example, to para 5(b) of the Act, defeats me. It provides for the Act to apply to "any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent." But never mind the powerlessness of Aborigines under the 20-year-old Act. The State Government has been concocting a new Aboriginal Heritage Bill for a year now. It certainly hasn't been shown to any Aborigines, but it has been discussed with the mining concerns. Well, I suppose it's a bit late in the day to be expressing some sort of proto-Marxian naivety as to how power is applied.

Western Australia reflects the same concerns as it did 105 years ago when Onslow CJ and Stone J dismissed the libel suit against the West Australian for calling the Rev. J.B. Gribble a "lying, canting humbug". Gribble had offended vested colonial interests by exposing the slavery and sexual degradation in which Aborigines in the north of the colony were kept by White graziers and pearling concerns in the 1880's. Gribble left the State. Anxious to obtain self-government like the other Australian colonies, the WA colonists solemnly promised the Imperial Government in 1889 that they would pay 1% of public revenue to Aboriginal welfare. This was the price for having their own Parliament, and was entrenched in s.70 of the Colonial Constitution. The 1% was

not paid after 1897, and was abolished, despite the entrenching provision, in 1905.

The ultimate commentary on the Supreme Court's position is that at the time of writing (14 May 1992) a private Member's Bill is progressing through State Parliament (the Government controls neither House) to order the Government to tear down the derelict Brewery buildings, with damages running for non-compliance. The Court has become irrelevant, which is something no Court can afford to become.

My own most vivid memory of this litigation remains the summer morning of the argument on natural justice for Bropho before Rowland J in December 1990. The Office Manager of the large law firm for which I worked inquired as to which case I was arguing that day, and on being informed that it was the Brewery Site, she fell into a terrible rage, screaming at me in front of another solicitor, "Fucking boongs, that's all your clients are, just fucking boongs." I have since left the firm Through the veil of hatred, fear and loathing the day will yet come when Bropho can see Black and White peaceably mingling in the park that will mark the sacred site of Goonininup.

P.S. The Private Member's Bill failed by one vote, the Government is allowing one month for public scrutiny of the Aboriginal Heritage Act amendments (standing is clumsily addressed) and the Government has started further furore by leasing the Brewery Site to a W.A. Inc. 'mate', Multiplex.

Stay tuned!