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Nettheim, Garth --- "Women's Business and Law" [1996] AboriginalLawB 30; (1996) 3(81) Aboriginal Law Bulletin 24

Women's Business and Law

by Garth Nettheim

The notion of `women's business' came to wide public notice in the context of the several inquiries and court cases concerning the Hindmarsh Island (Kumarangk) Bridge project in South Australia.

In the laws of Aboriginal peoples, one of the most important assets in a particular society is ritual knowledge--knowledge of the stories, ceremonies and so on connecting the people to particular areas of land or waters, and to the creation sagas of the `Dreamtime'.

Frequently, such knowledge is imparted to limited numbers of people according to position in society (through descent, kinship etc), age, seniority, and sometimes, gender. Some knowledge is to be held only by men; some is to be known only by women and is loosely described as `women's business'.

`Women's business' may be such that it is confined to particular women.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) provides a federal `safety net' to protect significant Aboriginal areas from threat of injury or desecration. Most States and Territories have their own laws to protect Aboriginal places, objects and so on. The range and effectiveness of these laws varies considerably from one jurisdiction to another. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs is empowered to make a declaration to protect an area only if it appears that the operation of the State law will be ineffective to protect it.

The former Minister, Robert Tickner, made a section 10 declaration under the Act to prohibit construction of a bridge between Goolwa and Hindmarsh Island (Kumarangk) near the mouth of the Murray River. He did so on the basis of a report prepared under the Act by Professor Cheryl Saunders, who visited the area and took submissions.

The developers successfully challenged the declaration in the Federal Court. The full Court, in essence, found two procedural failings. One was that the public notice of Professor Saunders' inquiry was insufficiently specific. The other was that the Minister, in making his decision, failed personally to `consider' all the material put to Professor Saunders, particularly material in sealed envelopes which were marked as not to be read by men.

The Federal Court did not question the factual basis for the decision, merely the process.

The sealed envelopes contained material relating to the significance of the area as `women's business'. Some Ngarrindjeri women insisted that construction of the bridge would threaten injury or desecration in terms of beliefs which they were not entitled to impart to men. Other Ngarrindjeri women said that they had never heard of such beliefs. The division among Ngarrindjeri was exacerbated by those who favoured the bridge project, and by the media.

The State Government appointed a Royal Commission to report as to whether the `women's business' had been fabricated. In December 1995, Commissioner Iris Stevens reported that there had been fabrication. However, the Ngarrindjeri women who asserted that the bridge would threaten injury or desecration declined to testify before the Commission.

In the meantime, after the Federal Court had overturned the Minister's section 10 declaration, Ngarrindjerri women, and men, lodged a fresh application with Mr Tickner. He appointed Justice Jane Mathews to prepare a fresh report.

The Government also adopted a suggestion from Justice Burchett in the Federal Court designed to overcome the problem about the submission of evidence about `women's business' for consideration by a Minister who happened to be male. The Government appointed a female minister specifically to exercise the Minister's functions in relation to the inquiry.

The inquiry before Justice Mathews, in mid-March, reached the point where the Ngarrindjeri applicants were to present oral submissions. Their legal representative wrote to the new Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, asking him, as a matter of urgency, to accord with the applicants' original request that a female Minister be appointed to consider Justice Mathews' report and to make a decision. The Minister has, apparently, declined to adopt this course of action.

So the applicants face a grave dilemma. Insofar as their concern about the bridge project relates to women's beliefs, they need to specify those beliefs in order to have any chance of gaining the protection of the Act. But if they specify those beliefs in circumstances where they must be read by a man, they violate the very laws and beliefs which they are so concerned to protect.

Regrettably, the Hindmarsh Island (Kumarangk) Bridge controversy became a matter of heated political party dispute during 1995, involving the resignation of Mr Ian McLachlan from his shadow Indigenous Affairs portfolio, and angry exchanges in Federal Parliament and between the South Australian State and Federal Governments.

To his credit, Senator Herron rejected calls to terminate the second inquiry after the Coalition parties came to government. But to allow it to proceed in circumstances where those seeking the Act's protection are, effectively, unable to support their case, is to render the inquiry largely futile.

The solution of appointing a female Minister for the purpose represents a simple solution to the dilemma. Whatever the final decision might be, at least the applicants would have been given a fair opportunity to present their case. It is to be hoped that the Government will reconsider the suggestion.


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