Keely, Annie --- "The Hindmarsh Island Bridge Case: Breaches of Australia's Human Rights Treaty Obligations" [1996] HRightsDef 27; (1996) Human Rights Defender

The Hindmarsh Island Bridge Case: Breaches of Australia's Human Rights Treaty Obligations

By Annie Keely

"...Australia's shining armour as a guardian of international human rights standards looks decidedly tarnished."

The dispute over whether a bridge should be built from the small South Australian town of Goolwa to Hindmarsh Island has caused much grief to many people: federal and state politicians, developers, businesspeople, bankers, residents, environmentalists, unionists. For the Ngarrindjeri traditional owners of that country, particularly Ngarrindjeri women, the protection from desecration and destruction of that very significant area is a matter of upholding their Law, culture and religion. The area is significant to Ngarrindjeri women and men, but the women are the custodians of information about the great significance of the area which under their Law is restricted and only known by certain women.

In order to gain planning approval for a marina development in Hindmarsh Island, the developers were required by the SA state government to agree to construct a bridge to the island to replace the existing ferry. After construction commenced in 1994 it was halted by Robert Tickner, the Federal Minister for Aboriginal and Torres Strait Islander Affairs at the time, who made a temporary declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth. As required by the Act he then appointed a person to prepare a report for him on various matters including the particular significance of the area to Aboriginals and the likely effect of making a declaration preventing construction of the bridge on the property and financial interests of other people.

After receiving a report from Prof Cheryl Saunders he made a declaration to protect the area for 25 years which prevented construction of the bridge. His decision was challenged in the courts and was overturned in two Federal Court decisions that criticised the process used. The court found that the Minister was wrong in failing to read all the material provided to Prof Saunders even though it included information which under Aboriginal customary law was restricted to certain women only. The Minister had declined to read it himself in order not to offend Aboriginal customary law. For the Ngarrindjeri women revealing restricted information to Prof Saunders in confidence was very difficult, but revealing it to a man would be another matter.

After the Minister's declaration was set aside Ngarrindjeri people made a second application. The then Prime Minister appointed a female Minister for the purposes of the application. She appointed Justice Jane Mathews to prepare a report for her, but before the report was completed, a general election resulted in a change of federal government. The new male Minister for Aboriginal and Torres Strait Islander Affairs refused to have a female Minister appointed to deal with the application. The Ngarrindjeri women knew that whatever they told Justice Mathews would be passed on and read by the male Minister. They were then in the invidious position of having to break their Law in order to protect it. Justice Matthews has now presented her report to the Minister who is waiting on a High Court decision on another aspect of the matter before proceeding to make his decision on the application.

The Ngarrindjeri people have been trying to protect their Law, culture and religious beliefs all of which are meant to be protected by human rights treaties which Australia has ratified. Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination and introduced the Racial Discrimination Act in 1975. That Convention and Act permit the taking of special measures to assist disadvantaged racial groups. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is meant to be a beneficial law for Aboriginal people to protect areas of particular significance to them. However the processes in the Act have required the Ngarrindjeri women to face failing in their application unless they are prepared to break their own Law.

The male dominated legal and political system in Australia have discriminated against the Ngarrindjeri women who would not have been in the same position if they were men, or if the Minister had been prepared to appoint a female Minister to determine the application. This is despite the fact that Australia ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1983 and has implemented the treaty in part through the Sex Discrimination Act 1984.

The International Covenant on Civil and Political Rights protects the right of ethnic, religious or linguistic minorities to enjoy their own culture and to profess and practice their own religion. This covenant is implemented in part in Australia by the Human Rights and Equal Opportunity Commission Act 1986. The International Covenant on Economic, Social and Cultural Rights protects cultural rights. Australia has ratified these two covenants too.

In June 1995 the South Australian government established the Hindmarsh Island Bridge Royal Commission to enquire into "whether the [Ngarrindjeri] `women's business', or any aspect of the `women's business', was a fabrication" and if so the circumstances, extent and purpose of such fabrication.[1] This took place in the first year of the International Decade of the World's Indigenous People and during the International Year of Tolerance. In relation the Royal Commission Michael Dodson wrote:

"...[this Royal Commission] is nothing short of state sanctioned racism...

Religious and spiritual beliefs are not appropriate subjects for judicial scrutiny and faith cannot be proved in the dock of a courtroom.

And this I say to you: For those of you who have faith, no proof is required. For those who must doubt and destroy, no proof is sufficient."[2]

The Ngarrindjeri have been denied their fundamental human rights in a way that flies in the face of Australia's ratification of the major international treaties and its demands that other countries improve their human rights records. The only conclusion you can come to is that Australia's treatment of its indigenous people leaves a lot to be desired.

[1] Report of the Hindmarsh Island Bridge Royal Commission, Terms of Reference, p 3, Dec 1995.

[2] Statement from the Aboriginal and Torres Strait islander Social Justice Commissioner, Michael Dodson, 26/8/95.