Clarke, Jennifer --- "Chronology of the Kumarangk / Hindmarsh Island Affair" [1996] AboriginalLawB 64; (1996) 3(84) Aboriginal Law Bulletin 22

• Chronology Of The Kumarangk / Hindmarsh Island Affair

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Chronology of the Kumarangk / Hindmarsh Island Affair

by Jennifer Clarke

1977: Binalong Pty Ltd (owned by the Chapman family) purchases land for a marina development on Kumarangk (Hindmarsh Island). The SA government proposes a bridge (replacing a cable-drawn vehicle ferry) to connect the island with Goolwa on the mainland.

1988: Archaeological report prepared for the SA Aboriginal Heritage Branch records the existence of specific sites of importance to Ngarrindjeri people in the area.

October 1989: SA government approves construction of a bridge, financed and constructed by Binalong, as a condition of further approvals related to the marina development. Anthropological and archaeological reports prepared as a result of an Environmental Impact Statement for the bridge proposal record specific sites, but no wider mythological significance for the area.

March 1993: SA government signs a deed binding' it to build the bridge.

October 1993: Lower Murray Aboriginal Heritage Committee requests SA Aboriginal Affairs Minister to protect Aboriginal sites in the bridge vicinity under the Aboriginal Heritage Act 1988 (SA).

December 1993: Aboriginal Legal Rights Movement ('ALRM') writes to the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs asking for protection under s10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

6 April 1994: Newly-elected SA government announces its intention to proceed with the bridge's construction.

7 April 1994: ALRM writes to Commonwealth Minister seeking emergency protection under s9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

20 April 1994: ALRM writes to Commonwealth Minister disclosing that the area is of cosmological significance to Ngarrindjeri people; specifically, that the configuration of the landscape around Kumarangk contains meanings 'concerning the creation and renewal of life' and that the creation of a permanent connection between the mainland and the island 'would be both obscene and sacrilegious to Ngarrindjeri culture.

3 May 1994: SA Minister for Aboriginal Affairs issues an authority to damage sites in the area under the Aboriginal Heritage Act 1988 (SA) s23.

9 May 1994: Commonwealth Minister receives letter advising that the cosmological significance of the area is of a gender restricted nature, that is, it is 'women's business'.

12 May 1994: Commonwealth Minister makes an emergency declaration preventing bridge construction for 30 days under s9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). This declaration is subsequently extended for a further 30 days (the maximum period for an emergency declaration) to 10 July 1994.

26 May 1994: Commonwealth Minister nominates Professor Cheryl Saunders to prepare a report under s10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in relation to the area. Professor Saunders commences her inquiry by giving public notice as required by the Act. However, that notice makes no reference to specific areas or to 'women's business'.

8 July 1994: Professor Saunders reports to the Minister. Her report, based on more than 400 public representations, describes the significance of the area by reference to gender-restricted information in two sets of representations to her by Ngarrindjeri women and an ALRM anthropologist. The representations made to Professor Saunders are delivered with her report with the request that the gender-restricted material be read by women only. It is marked 'Confidential to be read by women only'.

10 July 1994: The Commonwealth Minister makes a declaration under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s10 preventing bridge construction for 25 years. In doing so, he does not read the gender-restricted representations, but relies for information about their contents on the advice of a female member of his staff.

8 August 1994: The Supreme Court of South Australia orders Binalong's winding up on an application by a Westpac Bank subsidiary: see Partnership Pacific Ltd v Binalong, unreported, per Boehm AJ.

15 February 1995: The Federal Court overturns Saunders s report on the basis that her public notice was deficient of particulars as to both the area and the 'threat'. O'Loughlin J also overturns the Minister's decision for failure to consider personally (as required by the Act) the representations as well as the report. See Chapman v Tickner (1995) 133 ALR 74.55 FCR 316.

March 1995: Federal Opposition MP Ian McLachlan resigns his front bench position, admitting that he inadvertently misled Parliament. He had told Parliament that gender-restricted representations related to the Saunders report had come into his possession in an unmarked envelope. His staff had also photocopied the representations (see The Sydney Morning Herald, 11 March 1995, page 1.)

May-June 1995: Claims by some Ngarrindjeri people that the 'women's business' was fabricated are aired in the media. Other Aboriginal people make statements which appear to support this point of view. Some of these statements are subsequently retracted.

16 June 1995: SA government appoints Justice Iris Stevens as Royal Commissioner to inquire into whether any aspect of the 'women s business' was a fabrication.

26 July 1995: Full Court of SA Supreme Court refuses to grant an interim injunction preventing the Royal Commission proceeding. See ALRM v SA & Stevens, unreported, per Doyle CJ, Bollen and Debelle JJ.

25 August 1995: The Full Court of SA Supreme Court refuses to invalidate the Royal Commission's establishment, after a challenge that it is an interference with common law freedom of religion, or discriminatory interference with freedom of religion under the Racial Discrimination Act 1975 (Cth) s9 (see ALRM v Stevens (No 1) [1995] SASC 5224; (1994) 64 SASR 551). The Supreme Court also holds invalid authorisations for the release to the Royal Commission of information held by the SA Aboriginal Heritage Branch. These authorisations, granted by the SA Minister under the Aboriginal Heritage Act 1988 (SA) s35, were invalid because of inadequate consultation with Ngarrindjeri people (see ALRM v Stevens (No 2) [1995] SASC 5225; (1994) 64 SASR 558, noted in Vol 3, 76 Aboriginal Law Bulletin 23).

7 September 1995: The SA Supreme Court (per Matheson J) found it lacked jurisdiction to injunct the Royal Commissioner from hearing evidence of Aboriginal tradition which had already been widely published in the media (see ALRM v Stevens (No 3) (1994) 64 SASR 566).

7 December 1995: The Full Federal Court upholds the decision of O'Loughlin J in Norvill & Milera v Chapman & Ors, Tickner v Chapman & Ors [1995] FCAFC 1726; (1995) 133 ALR 226 (noted in Vol 3, 78 Aboriginal Law Bulletin 24).

21 December 1995: Royal Commissioner Stevens hands down her report, concluding that the area's significance as a matter of 'women's business' had been fabricated by some Ngarrindjeri women opposed to construction of the bridge. The Royal Commission cost $2 million to conduct.

16 January 1996: The acting Commonwealth Minister (Senator Rosemary Crowley) nominates Justice Jane Mathews to prepare another report under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s10.

19 February 1996: Chapmans lodge a $12 million Federal Court compensation claim against the Commonwealth Minister.

6 September 1996: The High Court finds Justice Mathews' appointment invalid for breach of the doctrine of separation of powers in the Commonwealth Constitution: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (noted this edition).

17 September 1996: Justice Mathews' report tabled in the Senate by the Minister, Senator John Herron.