Indigenous Law Bulletin
By Greg Ogle
The long legal struggle by Ngarrindjeri people to stop the building of a bridge to Hindmarsh Island has been well documented. Less well known are the associated legal battles resulting from defamation actions brought by developers Tom and Wendy Chapman, whose plans to expand the Hindmarsh Island marina first lead to the proposal for a bridge. This article attempts to document those legal battles and consider their significance for Indigenous politics and for campaigns in support of Indigenous people.
In what the Chapmans’ lawyer, Steve Palyga, has called a `defamation fireball' the Chapmans have brought five defamation actions against fourteen individuals and organisations opposing the bridge, and a further nine actions against media organisations. The defendants are being sued over a range of statements which can not be repeated here, but Palyga has characterised one of the most significant issues causing hurt to the Chapmans as 'the repeated allegation that they failed to properly consult Aboriginal people in the planning and approval processes of the bridge' .
The first four cases against the commercial media have been settled out of court, while a judgment in the Victor Harbor Times case was handed down in late December 1999. Judge Kitchen ruled against the newspaper's defences of fair comment and qualified privilege in finding six of the 11 publications in question to be defamatory. The Chapmans were awarded a total of $166,000 in damages. The case against South Australian Minister for Transport Di Laidlaw was dismissed for want of prosecution. After two years, the case against the Conservation Council in the District Court has also been discontinued. The Conservation Council has consistently claimed it was not involved in publishing the leaflet which was the basis of the case. The cases against the other defendants remain. The only other defamation action which has so far been decided is the one against Green Left Weekly journalist Margaret Allan and archaeologist Neale Draper. Allan did not defend the action, and in November 1999 the SA Supreme Court overturned an earlier District Court damages finding against Draper.
Although this article focuses on the effects of defamation cases, it should be noted that there is something of a pre-history to this litigation. In March 1994, as anti-bridge protests were taking place in both Goolwa and Adelaide, the developers made a successful application to the Federal Court against 10 individuals and groups involved in the anti-bridge campaign. The application sought injunctions and damages under s 45D of the Trade Practices Act 1974 (Cth), and for the common law tort of unlawful interference with contractual relations.
Newspapers reported that the injunctions would prohibit ‘anything which could hinder or stop the construction of the $6.4m bridge’. These reports caused great concern among anti-bridge campaigners. This concern was heightened by media reports that picket lines, meetings and a rally had been photographed or recorded. On 22 April, 35 local residents received a letter from the developers' lawyers claiming that they were responsible for the developers' financial losses and that they could be sued for debts and total profit losses of $47m. No subsequent litigation ensued, and all injunctions were lifted over the next six months.
In 1997, the Chapmans also brought a major civil action in the Federal Court against key figures involved in placing the ban on bridge construction in 1995: the then Minister for Aboriginal Affairs, Robert Tickner, and the reporter (Professor Cheryl Saunders) and the anthropological consultant (Luminis Pry Ltd) who had worked on the application under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) to stop the bridge. The hearing for this extraordinarily complicated case finally began late in 1999, and is scheduled to last for some months. While opponents of the bridge and Ngarrindjeri people are not being sued in this case, the litigation has meant that Deane Fergie, the anthropologist who reported the existence of Aboriginal ‘women's business’ on the island has, on legal advice, been unable to contribute to the continuing public debate about the bridge for over two years.
Alongside this litigation, there have been a string of official complaints made by various people claiming that people associated with the anti-bridge campaign have broken the law, acted improperly or breached the standards of their profession. The Chapmans' lawyers have also written to various individuals and groups alleging that these people have defamed the Chapmans and seeking apologies.
Responding to these letters and complaints has drained activist time and emotional energy. For instance, the Kumarangk Legal Defence Fund (KLDF), an organisation set up to support individuals and groups being sued, spent about four days re-establishing its website after the original site was taken down following a complaint to the KLDF's internet service provider alleging that the material on the site defamed the Chapmans. Having set up the site at a new address, the KLDF received letters from the Chapmans' lawyer stating that material on the site defamed their clients. After legal advice, and after writing some four letters to the Chapmans requesting further details, the KLDF is still none the wiser as to which words gave rise to the Chapmans' concerns.
The effect of this litigation process has been to create a climate of fear and confusion among anti-bridge campaigners and others. Confusion over what is defamatory is a hallmark of defamation law, and this has added to the fear of litigation. Many people simply do not have the skills or time necessary to redraft statements repeatedly to ensure that no possible adverse meaning could be taken from them. They are effectively silenced. Even seeking legal advice has been no guarantee against being sued.
The courts have added to this confusion. While the Chapmans claim a wide range of statements are defamatory, the courts have struck out as unarguable five of their 18 original claims in their second case against the Conservation Council and five of their original twenty-two claims against the ABC. However it is unclear to the lay observer why some claims have been struck out while other claims which appear very similar were not. Moreover, there were four claims common to both these cases, since they related to Conservation Council comments broadcast by the ABC. Two of the common claims were struck out of the ABC case as being unarguable yet remain in the case against the Conservation Council, while a different one of the four claims was struck out of the Conservation Council case as being unarguable but retained in the ABC case. The bottom line in defamation law is that nothing can prevent an action being brought over any alleged statement. There is thus no way to guarantee that any statement is 'safe'- a situation which adds to people's hesitation about making public statements.
All of these legal actions have disrupted what was a strong campaign in support of Ngarrindjeri people in their opposition to the bridge. In November 1996, over 1,000 people packed Adelaide's Maughan Church to hear the Ngarrindjeri story, and days later hundreds of people participated in 'The Long Walk' from Adelaide to Goolwa in which Indigenous and non-indigenous people walked 90 km together in six days of sharing and learning. Three years later when bridge construction began, crowds at protests were considerably smaller and the organising group had changed markedly.
Of course the decline in the campaign was not purely the result of legal pressures. Activist energy was also eroded during the eighteen months it took the High Court to consider the validity of the Hindmarsh Island Bridge Act 1997 (Cth). During that period, other major issues like native title and the Stolen Generations 'apology' took precedence for many Aboriginal activists and their supporters.
The Chapmans do have a right to protect their reputation. Their lawyer, Steve Palyga has described claims that litigation frightens people into silence as simply a tactic used by anti-bridge campaigners to paint their opponents 'as some kind of local version of Idi Amin'. However, academic research in other contexts has showed that litigation against community activists have a ‘chilling effect’ on public debate, and several jurisdictions in the United States have introduced laws to circumvent such litigation where it might violate first amendment rights to free speech. There are no such laws in Australia.
One remarkable thing about the Hindmarsh Island defamation cases has been the fact that none of them have been directed at Ngarrindjeri people or organisations. This may reflect the developers' view of the political processes at work. Wendy Chapman told the Financial Review in 1995 that white protesters had:
tried every which way to stop the bridge for their own benefit. And when that failed, they brought Aborigines into their meetings... [Tlhe Aborigines are totally pawns in this whole thing. 
When journalist Debra Jepson asked why they had not sued any Ngarrindjeri people, Tom Chapman answered that they still might do so, while Wendy Chapman said ‘I don't want to have this conversation’. 
However, while Ngarrindjeri people themselves have not been sued, the pattern of litigation still affects them. Obviously the decline in the campaign has affected the possibility of stopping the bridge. Furthermore, litigation against their supporters is unlikely to repair Ngarrindjeri faith in a white legal system which has labeled them as fabricators, denied them a right of reply 2l and ultimately withdrawn the heritage protection it claimed to offer.
But other issues arise precisely because Ngarrindjeri people are not parties to the case. Channel Ten and The Canberra Times were both sued for reporting the comments of Ngarrindjeri women, while other individuals and media organisations are being sued for repeating Ngarrindjeri claims. Large media organisations often decide to settle cases and/or issue formal apologies simply on the grounds of legal or commercial convenience. But these kind of settlements do influence the public's perception of the nature of the original statements published, and the reliability of the people who made such statements. Indeed, Palyga has used these media settlements to argue that his clients’ claims were generally ‘on the right track’, implying that the original statements were defamatory and indefensible. Since the Ngarrindjeri women were not parties to these cases, they were not in a position to either defend or explain their statements, or to have any influence over the legal settlement.
This problem is even more marked when the issues come to trial. The SA District Court in the Draper case found that the Chapmans ‘did all in their power to concern themselves with issues of aboriginal [sic] heritage and preservation’.  No Ngarrindjeri witnesses gave evidence in this case; the judge simply noted Wendy Chapman’s evidence about Ngarrindjeri concerns about a lack of consultation.  While this judgment refers only to evidence before the court (and in this case the defence did not offer evidence), in the public arena the Court's finding of ‘fact’ clearly undermines the validity of Ngarrindjeri concerns. Wendy Chapman subsequently highlighted the judge's finding that the defendants’ ‘claims of non-consultation [were] grossly defamatory’ and Palyga claimed that the judgement showed how free speech had been abused.
In other words, a white court was pronouncing on matters significant to the Ngarrindjeri, without actually hearing from Ngarrindjeri people themselves, precisely because the issue at trial was whether the Chapmans had been defamed, not whether Ngarrindjeri claims were true. As in a number of these cases, the legal structure dictated that although the allegedly defamatory claims had been made about dealings with Ngarrindjeri people, their interests were not represented.
Another difficult legal and political problem for the Ngarrindjeri support campaign has been the question of how to respond to defamation suits initiated against non-indigenous people who had repeated claims made by Ngarrindjeri people. Given that the plaintiffs believe they have been defamed, an apology and a retraction might be sought as part of any settlement. In these cases, and in the various letters issued by the Chapmans' solicitors, the format has generally been that the defendant accepts that the particular claims are not true. To sign such a statement however is to imply that the Ngarrindjeri people whose statements the defendant has repeated are wrong or are liars. Given the stress of prolonged litigation and potential damages of up to $100,000, the legal interests of defendant within this situation may conflict strongly with the political views of either the defendant or the Ngarrindjeri themselves. While the nature and context of legal settlements, apologies or the admission of facts are well understood within the legal world, this context is not necessarily understood by the general public beyond the legal system. Thus, defendants acting in order to protect their personal legal interests, by apologizing or settling may in fact end up jeopardizing the very solidarity politics which they sought to advance.
Despite what has been said, Ngarrindjeri people will appear in some of the defamation cases, including the next one to go trial, the politically important Chapmans v Dean Whittaker case which is scheduled in the SA District Court in May. Defamation proceedings were launched after Whittaker published a letter to the editor in the local Strathalbyn newspaper, The Southern Argus, which dealt (in part) with issues of consultation with Ngarrindjeri people. Since a number of Ngarrindjeri people are willing to testify for the defence, this may be something of a test case, not only for the other defamation cases but, in the public eye, also for the claims of the Ngarrindjeri themselves.
If Whittaker were to win on a defence of truth  it would be the first time a white court had given credence to Ngarrindjeri views opposed to the bridge and might begin to redress some of the hurt inflicted by the Stevens' Royal Commission's fabrication findings. Of course, a win for the Chapmans would clearly be a blow to both Whittaker and to the Ngarrindjeri themselves, who may, regardless of the legal reasons, simply view it as another white court not listening to them. It is also possible that Whittaker could win on the basis of the defence of fair comment or qualified privilege, but not on truth. Here again, legal and political interests and interpretations might diverge as the defendant wins, but Ngarrindjeri claims remain suspect in the eyes of colonialist law.
Unfortunately, even a win which supported Ngarrindjeri claims in any of these cases would probably be too late to be of political use in stopping the bridge. However, any such win might be useful at other levels, most notably in getting some legal validation of the Ngarrindjeri experience in the bridge saga. And putting Hindmarsh Island issues aside, it might have wider ramifications. When other developers see the impact of civil litigation on environmental and Aboriginal campaigns, they may follow American strategies of litigation against opponents of other developments. But running these kind of cases can also be something of a high risk political strategy, as McDonald's found to their cost when they instigated legal action against political activists in the McLibel case. Although they obtained legal redress, the court process also focussed attention on aspects of business practice which would not otherwise have been the subject of public scrutiny. That may be of little comfort to the Ngarrindjeri people, but there is much to be learned from the Hindmarsh Island cases by green and indigenous groups protesting over 'developments' to which they object.
Greg Ogle is a postgraduate student in the Department of Social Inquiry, University ofAdelaide. He is also Public Officer of the Kumarangk Legal Defence Fund Inc.
Thomas Chapman, Wendy Chapman and Andrew Chapman v Dean Whittaker
[The Southern Argus joined by the defendant]
Thomas Chapman, Wendy Chapman and Andrew Chapman v Margaret Allan [Green Left Weekly] & Neale Draper*
Thomas Chapman, Wendy Chapman and Andrew Chapman v [Former Senator] John Coulter Australian Democrats (SA) & Australian Democrats (National)
Thomas Chapman,' Wendy Chapman and Andrew Chapman v Conservation Council of SA Inc, Friends of Goolwa Kumarangk Inc [a local residents' group] Kumarangk Coalition [an unincorporated group opposed to the bridge] Gregory and Chris Lundstrom [printers].
Thomas Chapman, Wendy Chapman and Andrew Chapman v Conservation Council of SA Inc, Margaret Bolster, David Shearman.& Richard Owen
[The 3 individuals are officers and spokespeople for the CCSA]
Wendy Chapman v ACP Publishing [The Bulletin]
Thomas Chapman, Wendy Chapman and Andrew Chapman v Nationwide News [The Australian]
Wendy Chapman v Network Ten Ltd
Thomas Chapman and Wendy Chapman v Federal Capital Press [The Canberra Times]
Thomas Chapman and Wendy Chapman, v The Australian Broadcasting Corporation
Thomas Chapman and Wendy Chapman v Rural Press Ltd [Victor Harbor Times]
Thomas Chapman and Wendy Chapman v Festival City Broadcasters [Radio 5AA]
Thomas Chapman and Wendy Chapman v The Hon Diana Laidlaw
Thomas Chapman and Wendy Chapman. v John Fairfax Pty Ltd [Financial Review]
Thomas Chapman and, Wendy Chapman v Nationwide News Ltd [The Australian]
*  SASC .460 (Chief Justice, .Duggan, J,-,lander J) 4; .'November 1999. See (1999);4 (25) Indigenous Law Bulletin 2
|Unfinished Business: a History of Flawed Decision Making' (1999) 4 (25) ILB 19. See also S Kenny 'The Hindmarsh Island Bridge Case-Implications for Native Title' (paper presented at AIC Native Title Conference, April 1998).|
|Sydney Morning Herald 2 March 1999, 14.|
|See 'The Hindmarsh Island Defamation Cases' p 8 this issue.|
|Interview with Ashley Walsh, ABC Radio 5AN Drive Show, 8 December 1997.|
|Thomas Chapman and Wendy Chapman v Rural Press Ltd (1999) SADC 178 (Kitchen, J) 17 December 1999.|
|Chapmans vAllan &Draper  SASC 460 (Chief Justice, Duggan, J, Lander J) 4 November 1999. See also (1999) 4 (25) ILB 2.|
|The Advertiser, 20 April 1994.|
|See for instance, The Advertiser, 20 and 27 April, 1994.|
|For a more detailed summary of these events see, G Ogle, 'Tricky Legal Business: The Impact of Legal Processes on the Campaign Against the Hindmarsh Island Bridge' in Defending the Defenders: the National Environmental Defenders Office Network Conference Proceedings (1998). Reprinted at <http:llwww.grecn.necau/ hindmarsh>.|
|Thomas Chapman and Wendy Chapman v Luminis Pty Ltd Dean e Fergie, Cheryl Saunders, Robert Tickner and the Commonwealth.|
|See D Bell, Ngarrindjeri Wrurnwanin, a World that Is, Was and Will Be (1998).|
|G Ogle, above, n 9.|
|Some of this correspondence is available at ovww.green.net.au/hindmarsh>.|
|Thomas Chapman, Wendy Chapman and Andrea Chapman v Conservation Council of SA Inc, Margaret Bolster, David Shear ..an 6'Richad Oman, SA Supreme Court, SCCIV-98-81, (Kelly, J Unwritten judgement) 6 August 1998.|
|Ibid Thanes Chapman and Wendy Chapman p The Australian Broadcasting Corporation ('ABC case') (1999) SASC 29 (Williams, J) 8 February 1999.|
|Kartinyeri &Anor v The Commonwealth  HCA 22, 1 April 1998. (Full Bench). See G Nettheim, 'The Hindmarsh Island Bridge Act Case (1998) 4 (12) ILB 17.|
|Wendy Chapman and Steve Palyga both quoted by D Jopson A Bridge Writ Large Sydney Morning Herald, 2 March 1999, 14.|
|G Pring and P Canan, SLAPPs: Getting Sued for Speaking Out (1996).|
|The Australian Financial Review, 26 May 1995. 20. Above, n 18.|
|The Stevens' Royal Commission finding that the Ngarrindjeri women's business was a fabrication was challenged as a denial of natural justice by Ngarrindjeri elder, Tom Trevorrow. The application for leave to appeal was dismissed when the High Court ruled that Royal Commissions were effectively above challenge. Thomas Trevorrou' v the State of South Australia and Iris Stevens HCA A50/1996 (Toohey, J, Goudron, J, McHugh, J) 3 September, 1997.|
|The effect of the Hindmmrsh Island Bridge Act 1998 (Cth) was to exclude the bridge area from protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).|
|ABC Radio 5AN Drive Show, 8 December 1997.|
|Chapmas v Allan & Draper SADC, D 3915 (Lowrie, J) 26 November 1998, at 54, para 264.|
|Ibid at 63, 64.|
|1 make no comment on the substance of this issue [ie the consultation process], but simply note the difference between the political and legal interests at play for the Ngarrindjeri and anti-bridge campaign.|
|The Advertiser, 27 November 1998, 3. The appeal which overturned the decision against Draper received considerably less publicity:  SASC 460 (Chief Justice, Duggan, J, Lander J,) 4 November 1999. See (1999) 4 (25) ILB 2.|
|Again, as these cases and issues are still before the courts, the discussion here is fairly restricted, and in giving this broadest of summaries of the issues involved I make no comment as to the merits of either the plaintiffs' or defence's claims.|
|Truth is an absolute defence in South Australia, though defences of Fair comment or qualified privilege of communication on a political matter are easier defences to run and are the main ones relied upon, particularly in the cases involving the media.|
|J Vidal, McLihel: Burger Crdture on Trial (1997).|