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Editors --- "Unfinished Business: A History of Flawed Decision - Making" [1999] IndigLawB 95; (1999) 4(25) Indigenous Law Bulletin 19


Unfinished Business: A History of Flawed Decision-Making

Despite a six-year campaign by the Ngarrindjeri people of the Lower Murray area, as this ILB Women's issue goes to press, construction of the Hindmarsh Island Bridge has been in progress since 28 October. The latest legal measures have failed to halt desecration of Kumarangk/Hindmarsh Island, an area of special spiritual significance for local Aboriginal people, and particularly Aboriginal women. Despite this, many of the Ngarrindjeri people and their supporters are determined to continue the fight to save Hindmarsh Island. This chronology of the Hindmarsh Island Bridge story is based on a chronology in Unfinished Business: Kumarangk Hindmarsh Island, printed by the Kumarangk Coalition in 1998. For legal reasons, the authors of this article prefer not to be identified.

1993

Environment, Resources and Development Committee Inquiry

The Environment, Resources and Development Committee of the South Australian Parliament reported on an Inquiry into the Hindmarsh Island Bridge Project in 1993. The committee comprising representatives of all political parties unanimously recommended protecting the island and opposing the bridge. However, the State Labor Government ignored these recommendations.

1994

Jacobs Inquiry

During the 1993 State election campaign, the Liberal Party opposed the bridge. After winning the election, the incoming Liberal Government appointed retired Supreme Court judge Sam Jacobs QC to investigate the State Government's legal and financial obligations under the bridge contract. His report has never been released. The Government refused to consider Aboriginal heritage issues, and decided on the basis of this secret report that likely litigation and compensation costs would be too great if they reneged on building the bridge. In May 1994, the Liberal Government approved commencement of construction.

1994

Litigation

In March 1994, the developers filed writs in the Federal Court against various individuals and groups for damages under s 45D of the Trade Practices Act 1974 (Cth) and for the common law ton of interference with contractual relations. They sought interim injunctions stopping the respondents from hindering or attempting to hinder construction of the bridge. From 22 April 1994, 35 protesters were hand-delivered a letter from the developers' lawyers claiming that they could be sued for debts and lost profit amounting to $47 million. These actions had the effect of deterring many of those opposing the bridge from expressing their views publicly.[1]

1994

Saunders Inquiry

The State Minister for Aboriginal Affairs used his powers under s 23 of the Aboriginal Heritage Act 1988 (SA) to approve damage to sites of significance so as to allow bridge construction. The Lower Murray Aboriginal Heritage Committee applied for protection under s 9 and s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('Federal Heritage Act') to prevent the desecration of Aboriginal heritage sites on Hindmarsh Island and the bridge approaches.

Federal Minister for Aboriginal and Tories Strait Islander Affairs, Robert Tickner, appointed Melbourne University Professor of Constitutional Law Cheryl Saunders to investigate the matter and report. Saunders found that there was considerable evidence the area was significant to Ngarrindjeri women. Some of the evidence provided was confidential, to be read by women only. The Federal Labor Government accepted the findings of the Saunders Inquiry and on 10 July 1994 banned construction of the bridge for 25 years. This decision was overturned in February 1995 in the Federal Court on technical legal grounds.[2]

1995

Stevens Royal Commission

A Royal Commission was established by the Liberal Government on 16 June 1995 to investigate whether the 'women's business' which was the basis for the original Federal Heritage application was fabricated. The Royal Commission had no power to prevent the building of the bridge. The Ngarrindjeri women seeking heritage protection believed that the Royal Commission was an inquiry into their spiritual beliefs, and refused to participate.[3]

The SA Supreme Court forced the Government to go back and consult appropriately with Aboriginal people after finding that the Government had given Commissioner Iris Stevens powers to hear sensitive cultural information without appropriate consultation.[4] The renewed consultation showed that 85% of the Ngarrindjeri people were opposed to the continuation of the Royal Commission and to the Commission being granted powers to hear sensitive cultural information. Widespread public opposition to the Royal Commission came from Aboriginal groups, women's groups, churches, unions, human rights organisations and environmentalism across the nation.

The Royal Commission found that the whole of the `women's business' was a deliberate fabrication for the purpose of obtaining protection under the Federal Heritage Act. The Adelaide Advertiser announced the findings under the banner 'Lies Lies Lies'[5] The Royal Commission did not specify how or when the fabrication had occurred, or who the fabricators were. Despite the State Liberal Government's acceptance of the Royal Commission's Report, its legitimacy has been questioned on the grounds that its terms of reference were inappropriate and denied human rights of religious freedom. An attempt to have the Royal Commission's conduct and findings subjected to judicial review foundered on the grounds that South Australia's Royal Commission Act 1917 (SA) expressly disallows any review.

1996

The Mathews Inquiry

After the Saunders Inquiry was quashed on technical grounds[6], the Ngarrindjeri people again applied for protection under the Federal Heritage Act. Justice Jane Mathews was appointed by the Federal Minister on 16 January 1996 to investigate and report to Senator Rosemary Crowley, as a female Minister in place of Robert Tickner. At the March Federal election, the Coalition won government. The new Federal Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, refused the Ngarrindjeri people's request that he appoint a female Minister to read the report.

Following the Federal Court decision in Tickner v Western Australia (28 May 1996) that culturally sensitive material cannot be kept confidential from those whose economic interests would be affected by a s 10 declaration under the Federal Heritage Act, Ngarrindjeri women withdrew sensitive evidence given to the Mathews Inquiry.[7] This evidence therefore could not be considered for her report.

Justice Mathews rejected a number of the Royal Commissions findings. Commissioner Stevens had found that the Seven Sisters Dreaming Story was 'part of Western Desert mythology likely to have been introduced [into Ngarrindjeri culture] by Doreen Kartinyeri[8]. Mathews found that:

There is considerable material, much of it unearthed for the purposes of this report, which directly refutes the Royal Commissioner's finding on this matter. References to the Seven Sisters Dreaming Story in Ngarrindjeri culture can be found in several sources, some of which go back a long time.[9]

Justice Mathews also had scientific tests conducted on note -books containing notes about the significance of Hindmarsh Island and surrounding waters for Ngarrindjeri people, allegedly compiled in the 1960s by amateur historian Betty Fisher. The testing supported Fisher's claims, whereas the Royal Commission had refused to accept the authenticity of her notes. In conclusion, Mathews accepted that the Ngarrindjeri people's opposition to the bridge was based on a genuine belief that the area was of great traditional significance to the Ngarrindjeri people. After the report was completed, the Federal Court ruled (6 September 1996) that as a judge, Mathews was ineligible to have carried out a Ministerial Inquiry and her Report was ruled ineffective.[10] Senator Herron later tabled thereport despite the objections of Ngarrindjeri people.

1996

Evatt Report

Justice Elizabeth Evan was appointed by Minister Tickner to report on the effectiveness of the Federal and State heritage legislation. Again, her report was completed after the change in Government. Evatt reported that:

The [present] Act does not protect confidential information or respect Aboriginal spirituality or beliefs which require that confidentiality be maintained. Aboriginal people want the Act to be maintained and strengthened ... The Act should recognise and respect Aboriginal customary law restrictions on holding, disclosing and using information about significant areas and objects.[11]

Significantly, the 1998 Aboriginal and Torres Strait Islander Heritage Protection Bill, currently in Federal Parliament departs significantly from Evart's recommendations, and provides little protection for confidential beliefs.

1997

Ongoing litigation

In 1997, a number of defamation actions on behalf of the developers were brought against individuals and organisations involved in efforts to stop the building of the bridge. Other defamation cases were brought against media companies over their reporting of comments made in interviews with Ngarrindjeri women or as a result of their reporting of other issues related to the bridge controversy. Supporters of the Ngarrindjeri opposing the bridge, conservation groups and the media have been significantly hampered in their activities by continuing litigation. The Australian[12] recently reported that the developers' lawyer, Steve Palyga, had fought some 53 legal actions, and launched 15 defamation cases.[13]

The Kumarangk Legal Defence Fund Inc was set up to assist in the organisation of financial and legal support for the opponents of the Hindmarsh Island bridge who are being sued in connection with the campaign to stop the bridge.[14]

1997

Hindmarsh Island Bridge Act 1997 (Cth)

With two applications for heritage protection stymied because of legal technicalities, the Ngarrindjeri people again requested that the Minister appoint someone to investigate and report as required under s 9 and s 10 of the Federal Heritage Act. Instead, Senator Herron introduced a Hindmarsh Island Bridge Bill 1997, which had the effect of prohibiting the Minister from making any declarations under the Federal Heritage Act relating to the building of a bridge in the Hindmarsh Island area.[15] This Bill was passed with Labor support in Federal Parliament on 12 May 1997.

Since 1993, Ngarrindjeri people had been seeking heritage protection under the Federal Heritage Act. Through no fault of their own, previous attempts to apply the Act had failed.[16] In 1997, the law was changed specifically to deny them protection under that law. The Ngarrindjeri challenged the Hindmarsh Island Bridge Act 1997 (Cth) in the High Court under s 51(xxvi) of the Constitution (the `race' power). It was a case given even higher profile because of its relevance to John Howard's '10 Point Plan'. The Ngarrindjeri plaintiffs lost the challenge because the Court ruled that the Hindmarsh Island Bridge Act was an amendment to the existing 1984 Federal Heritage Act, and that if Parliament had the power to make a law, it also followed that Parliament had the power to unmake it.[17]

In 1998, anthropologist Diane Bell published Ngarrindjeri Wurruwarrin: A World That Is, Was and Will Be[18] is which provides a compelling argument against specific findings of the Royal Commission concerning the Ngarrindjeri women's beliefs.[19]

1999

Native title claim

During 1998 and 1999, Ngarrindjeri people met to prepare for registration of a native title claim for the Lower Murray, the Lakes and the Coorong under the amended Native Title Amendment Act 1998 (Cth)(the 'NTAA').[20] The claim is expected to be registered soon.

The implications of the native title claim on the Hindmarsh Island Bridge development and vice versa, will be very complex. What aspects of the bridge construction will constitute past, intermediate and future acts under the NTAA? While the media are now declaring that legal avenues to prevent construction of the bridge have now been exhausted, the possibility of compensation claims to native title holders remains.

1999

Supreme Court cases

In a last-ditch effort to halt construction of the bridge, Ngarrindjeri man Daryl Sumner applied to the SA Supreme Court for an injunction on the grounds that construction of the bridge constituted an act of genocide. On 27 October 1999, Justice Nyland rejected the application.[21] The Full Bench upheld that decision on appeal on 1 November.[22] Justice Gummow declined on 15 November to expedite leave to appeal to the High Court. While international options are being considered, the construction work continues.

1999

Hindmarsh Island Bridge Act 1999 (SA)

In November 1999, the State Liberal Government successfully introduced legislation to facilitate the bridge construction. It has been claimed that this legislation will make the 1993 tripartite agreement between the State Government, Goolwa Local Council and the developers immune from further legal challenge.[23] The legislation also contains proposals to raise monies to offset the unanticipated costs of the Bridge by imposing a levy on all allotments on the island subdivided or created since 28 September 1993.

On the weekend of 20-21 November, hundreds of Ngarrindjeri and their supporters gathered at Goolwa to denounce the failings of the judicial and administrative structures charged with the protection of Indigenous heritage. They reclaimed the island for Ngarrindjeri people, raising a new flag especially designed to reflect the continuing association with the area by the 18 lakalinyerar [clan groups] of the Ngarrindjeri Nation. Ngarrindjeri Elder Matt Rigney read out a proclamation of Ngarrindjeri dominium calling on the Crown to recognise Ngarrindjeri sovereignty as evidenced by their native tide right, and also calling on the South Australian Government to meet with the Ngarrindjeri leaders and Elders to negotiate a Treaty between both Governments.[24]

The struggle will continue.


[1] See Greg Ogle, 'Tricky Legal Business: The Impact of Legal Processes in the Campaign against the Hindmarsh Island Bridge'. Conference proceedings. National Environmental Defender's Office Network Conference. Sydney, 24 October 1998. Posted on the website <wwwgreen.net.au/hindmarsh>.

[2] O'Loughlin J in the Federal Court, Chapman v Tickner (1995) 37 ALD 1, found that the notice inviting submissions to the reporter was insufficiently specific and that the Minister had not personally examined sensitive material confidentially provided to Saunders on behalf of Ngarrindjeri women. The Full Bench of the Federal Court dismissed Tickner's appeal in December 1995, see Tickner v Chapman d Ors[1995] FCAFC 1726; , 57 FCR 451. See E Willheim,'Hindmarsh (Kumarangk) Island: Norvill &Miles v Chapman & On, Tickner v Chapman & Oil (1996) 3 (78) ALB 24.

[3] Ngarrindjeri elders and claimants, Veronica Brodie, Henry Rankine, Tom Trevorrow, and George Trevorrow gave evidence at the conclusion of the Royal Commission to counter what they saw as incorrect and scurrilous evidence previously presented.

[4] . ALRM v SA &Steven, SA Supreme Court, 28 August 1995. See 'Hindmarsh Island Bridge-The Latest Developments: Aboriginal Legal Rights Movement v SA d Steven (1995) 3 (76) ALB 23. Under s 35 of the Aboriginal Heritage Act 1988 (SA), the Minister can authorise disclosure of matters which should, in accordance with Aboriginal tradition, remain confidential.

[5] 20 December 1995.

[6] Above, n 3.

[7] See G Nettheim,'Womens Business and Law' (1996) 3 (80) ALB 24; A Keely 'Women and Land: The Problems Aboriginal Women Face in Providing Gender-Restricted Evidence', [1996] AboriginalLawB 89; (1996) 3 (87) ALB 4.

[8] Stevens, Report of the Hindmarsh Island Bridge Royal Commission (1995) 278. 9.

[9] Mathews, Commonwealth Hindmarsh Island Report (1996) 179.

[10] See J Clarke,'Was the Judge in a Political Role? Dorothy Ann Wilson v Minster for Aboriginal and Torres Strait Islander Affairs [1996] AboriginalLawB 65; (1996) 3 (84) ALB 19

[11] E Evatt Review of the Aboriginal and Tones Strait Islander Heritage Protection Act 1984 (1996) at xiv, xvi.

[12] (10 November 1999) 8.

[13] . See 'Hindmarsh Defamation Case Quashed' p 2 this issue of ILB.

[14] For more information on these cases and the KLDF, see their website at <www.green.net.au/hindmarsh>. The KLDF can be contacted at PO Box 3168, Rundle Mall, SA 5000, or email: <thekldf@yahoo.com>.

[15] See J Clarke, 'Should Parliament Enact the Hindmarsh Island Bill 1996?' [1997] AboriginalLawB 15; (1997) 3 (89) ALB 15; F Brennan, 'Building a Bridge on a Constitutional Sea Change' (1997) 4 (3) ILB 6.

[16] See R Goldflam, 'Between a Rock and a Hard Place: The Failure of Commonwealth Sacred Sites Protection Legislation' [1995] AboriginalLawB 39; (1995) 3 (74) ALB 13.

[17] Kartinyeri v Commonwealth [1998] HCA22, 1 April 1998. See G Nettheim,'The Hindmarsh Island Bridge Act Case.' (1998) 4 (12) ILB 17.

[18] Spinifex Press.

[19] Reviewed by D B Rose (1998) 4 (17) ILB 23.

[20] Ngarrindjeri and Others Native Title Claim 98/04. For summary, see <www.nntt.gov.au>

[21] (1999) SA Supreme Court 456. 22.

[22] (1999) SA Supreme Court 462

[23] South Australia, Hansard, SA Legislative Council, 16 November 1999 (Sandra Kangk MLC).

[24] Available at :<www.mail-archive.com/recoznet2%40paradigm4.com.au>


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