![Goolwa-Hindmarsh Island causeway](https://upload.wikimedia.org/wikipedia/commons/4/4c/Goolwa-Hindmarsh_Island_causeway.jpg)
The Hindmarsh Island bridge controversy was a 1990s Australian legal and political controversy that involved the clash of local
Aboriginal Australian
Aboriginal Australians are the various Indigenous peoples of the Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchinbrook Island, the Tiwi Islands, and Groote Eylandt, but excluding the Torres Strait Islands ...
sacred culture and
property rights
The right to property, or the right to own property (cf. ownership) is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically ...
. A proposed bridge to
Hindmarsh Island
Hindmarsh Island (Ngarrindjeri: Kumerangk) is an inland river island located in the lower Murray River near the town of Goolwa, South Australia, Goolwa, South Australia.
The island is a tourist destination, which has increased in popularity si ...
, near
Goolwa, South Australia
Goolwa is a historic river port on the Murray River near the Murray Mouth in South Australia, and joined by a bridge to Hindmarsh Island. The name "Goolwa" means "elbow" in Ngarrindjeri, the local Aboriginal language, and the area was known as ...
(intended to replace the existing
cable ferry
A cable ferry (including the terms chain ferry, swing ferry, floating bridge, or punt) is a ferry that is guided (and in many cases propelled) across a river or large body of water by cables connected to both shores. Early cable ferries often ...
and service a proposed
marina
A marina (from Spanish , Portuguese and Italian : ''marina'', "coast" or "shore") is a dock or basin with moorings and supplies for yachts and small boats.
A marina differs from a port in that a marina does not handle large passenger ships o ...
development) attracted opposition from many local residents, environmental groups and indigenous leaders. In 1994, a group of
Ngarrindjeri
The Ngarrindjeri people are the traditional Aboriginal Australian people of the lower Murray River, eastern Fleurieu Peninsula, and the Coorong of the southern-central area of the state of South Australia. The term ''Ngarrindjeri'' means "belo ...
women elders claimed the site was sacred to them for reasons that could not be revealed. The case attracted much controversy because the issue intersected with broader concerns about
Indigenous rights
Indigenous rights are those rights that exist in recognition of the specific condition of the Indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the rights over their land (includ ...
, specifically
Aboriginal land rights
Indigenous land rights are the rights of Indigenous peoples to land and natural resources therein, either individually or collectively, mostly in colonised countries. Land and resource-related rights are of fundamental importance to Indigenou ...
, in the Australian community at the time, and coincided with the
Mabo and
Wik High Court cases regarding
Native title in Australia
Native title is the designation given to the common law doctrine of Aboriginal title in Australia, which is the recognition by Australian law that Indigenous Australians (both Aboriginal Australian and Torres Strait Islander people) have rights ...
.
"Secret women's business", as the group's claims became known, became the subject of intense legal battles. Some Ngarrindjeri women came forward to dispute the veracity of the claims. The
Hindmarsh Island Royal Commission
The Hindmarsh Island Royal Commission was a Royal Commission into the nature of female Aboriginal religious beliefs relating to Goolwa and Hindmarsh Island in South Australia that was triggered by the Hindmarsh Island bridge controversy.
Ba ...
found that "secret women's business" had been fabricated. Subsequently, the
Howard Government passed the ''Hindmarsh Island Bridge Act (1997)'', which allowed construction to go ahead. The bridge was completed in March 2001.
In August 2001, a civil case in the
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...
re-ignited the debate. In rejecting claims for damages by the developers, Justice
John von Doussa
John William von Doussa (born 17 September 1940) is a former Australian judge and public servant. He was a judge of the Federal Court of Australia from 1988 to 2003, president of the Human Rights and Equal Opportunity Commission from 2003 to 20 ...
stated that he was not satisfied that the claims of "secret women's business" had been fabricated, although never explicitly stating them to be true. The Ngarrindjeri and their supporters took the decision as a vindication, and many organisations subsequently apologised. Opinion remains divided over the issue to the present day.
[
.]
Background
In 1977,
Adelaide
Adelaide ( ) is the capital city of South Australia, the state's largest city and the fifth-most populous city in Australia. "Adelaide" may refer to either Greater Adelaide (including the Adelaide Hills) or the Adelaide city centre. The dem ...
developers Tom and Wendy Chapman, trading as Binalong Pty Ltd, purchased of land on
Hindmarsh Island
Hindmarsh Island (Ngarrindjeri: Kumerangk) is an inland river island located in the lower Murray River near the town of Goolwa, South Australia, Goolwa, South Australia.
The island is a tourist destination, which has increased in popularity si ...
in the
Murray River
The Murray River (in South Australia: River Murray) (Ngarrindjeri: ''Millewa'', Yorta Yorta: ''Tongala'') is a river in Southeastern Australia. It is Australia's longest river at extent. Its tributaries include five of the next six longest r ...
estuary
An estuary is a partially enclosed coastal body of brackish water with one or more rivers or streams flowing into it, and with a free connection to the open sea. Estuaries form a transition zone between river environments and maritime environment ...
and later received planning permission for their company to build a 560-berth
marina
A marina (from Spanish , Portuguese and Italian : ''marina'', "coast" or "shore") is a dock or basin with moorings and supplies for yachts and small boats.
A marina differs from a port in that a marina does not handle large passenger ships o ...
, car parking, residential development, conference centre, golf course and associated buildings.
Wendy Chapman
Wendy Jennifer Chapman (born 3 June 1942) is a former Australian politician. She served on the Adelaide City Council as an alderwoman between 1981 and 1983 before becoming the first woman Lord Mayor of Adelaide in 1983. Chapman held her mayora ...
was a former
Lord Mayor of
Adelaide
Adelaide ( ) is the capital city of South Australia, the state's largest city and the fifth-most populous city in Australia. "Adelaide" may refer to either Greater Adelaide (including the Adelaide Hills) or the Adelaide city centre. The dem ...
from 1983 to 1985.
With the marina only partially completed, in 1988 the Chapmans applied for permission to increase the size of the project as the original project was found to be financially unviable. The Planning Assessment Commission rejected the proposal, stating that the development couldn't expand unless a bridge was built from
Goolwa to Hindmarsh Island as the existing
Cable ferry
A cable ferry (including the terms chain ferry, swing ferry, floating bridge, or punt) is a ferry that is guided (and in many cases propelled) across a river or large body of water by cables connected to both shores. Early cable ferries often ...
would not be able to handle the increased traffic. In October 1989, approval was granted for a bridge, to be financed by the Chapmans, subject to an
Environmental Impact Study
Environmental Impact assessment (EIA) is the assessment of the environmental consequences of a plan, policy, program, or actual projects prior to the decision to move forward with the proposed action. In this context, the term "environmental imp ...
(EIS). The EIS (the Edmonds Report) was completed within two weeks and identified the need for an anthropological study. The Chapmans funded a study by Rod Lucas who reported in January 1990 that existing written records did not record mythological sites, but cautioned that consultation with Indigenous groups would be required.
Indigenous heritage
The
Ngarrindjeri
The Ngarrindjeri people are the traditional Aboriginal Australian people of the lower Murray River, eastern Fleurieu Peninsula, and the Coorong of the southern-central area of the state of South Australia. The term ''Ngarrindjeri'' means "belo ...
are one of the 30–40 clan-groups (''lakinyeri'') that inhabited
South Australia
South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
at the time of white settlement. Originally numbering around 6,000 members they are the only tribe in Australia whose land lay within of a capital city to have survived as a distinct people as recognised in the 2002 ''Kungun Ngarrindjeri Yunnan'' Agreement.
In April 1990, the State Minister for Environment and Planning wrote to the Chapmans granting them planning permission for the bridge to Hindmarsh Island and the extensions to their marina. The estimated cost of the bridge was around $6 million which was considerably more than the estimated value of the marina once completed. The planning permission was subject to a number of conditions, including the requirements for consultation with "relevant Aboriginal representative bodies" such as Ngarrendjeri Elders, the Raukkan Community Council, the Ngarrendjeri Lands and Progress Association, and the Lower Murray Heritage Committee.
This was to become an issue in 1994 as the Chapmans had clearly not met these requirements.
[Hindmarsh Island Royal Commission](_blank)
Background Briefing ABC
ABC are the first three letters of the Latin script known as the alphabet.
ABC or abc may also refer to:
Arts, entertainment, and media Broadcasting
* American Broadcasting Company, a commercial U.S. TV broadcaster
** Disney–ABC Television ...
17 September 1995 Although the Chapmans had done several environmental impact studies, submitted plans that included the bridge to the Raukkan Community Council and had also consulted with Henry Rankin, a senior Ngarrendjeri Elder, in November 1989 this was prior to the planning permission for the bridge being granted on condition of additional consultation. In the Federal Court hearing in 1994, Wendy Chapman gave evidence that the page of the letter setting out these additional consultation requirements was missing from the Minister's letter she had received (the same recommendations were also included in an assessment sent to the Chapmans by the Department of Environment and Planning). She also stated her belief that as no skeletal remains had been found, no further consultation was required.
Government assistance
The Hindmarsh Island marina was at this time losing money and the Chapmans were in financial difficulties due to the failure of another marina project they had built at
Wellington
Wellington ( mi, Te Whanganui-a-Tara or ) is the capital city of New Zealand. It is located at the south-western tip of the North Island, between Cook Strait and the Remutaka Range. Wellington is the second-largest city in New Zealand by me ...
. They could not afford to construct the bridge themselves so they approached the
State Government
A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or ...
for assistance.
Beneficial Finance, a subsidiary of the state owned
State Bank of South Australia
The State Bank of South Australia was a bank created in 1896 and owned by the Government of South Australia. The bank became the subject of a two-year South Australian Royal Commission upon collapse in 1991. The surviving part of the bank now ...
, had supplied the financing for the marina development. By 1990 it was obvious that the State Bank was having financial difficulties and The State
Labor
Labour or labor may refer to:
* Childbirth, the delivery of a baby
* Labour (human activity), or work
** Manual labour, physical work
** Wage labour, a socioeconomic relationship between a worker and an employer
** Organized labour and the labour ...
government led by Premier
John Bannon
John Charles Bannon (7 May 1943 – 13 December 2015) was an Australian politician and academic. He was the 39th Premier of South Australia, leading the South Australian Branch of the Australian Labor Party from a single term in opposition ba ...
was anxious to protect Beneficial's large investment in the Chapman's projects. The government was also under pressure for a series of major projects it had promised that had never eventuated so the bridge project was also seen as likely to be the only major success Labor would be able to claim for the next election.
The State government made a deal with the Chapmans. Binalong would pay up front for the bridge to be built. Then the State government would reimburse Binalong for half of the cost of construction, up to a limit of $3 million.
Legal liability
In September 1990 Beneficial Finance decided to withdraw funding and the Chapmans approached Partnership Pacific, a subsidiary of
Westpac
Westpac Banking Corporation, known simply as Westpac, is an Australian multinational banking and financial services company headquartered at Westpac Place in Sydney, New South Wales.
Established in 1817 as the Bank of New South Wales, it ...
, to take over the financing. Partnership Pacific agreed but only with the condition that the State Government paid the entire cost of the bridge. A secret meeting was arranged between the Chapmans, Westpac and the government at which it was accepted that the government would pay the whole cost of the bridge while the Chapmans would pay back half at a later date, but only after Binalong had paid off all its debts to Westpac. Binalong owed so much money to the State Bank through Beneficial Finance that Bannon apparently had no choice but to prop the company up. The State Bank collapsed not long after with debts of $3 billion.
On 22 November 1990, Premier Bannon wrote a personal letter to the Managing Director of Westpac, Stewart Fowler, guaranteeing government financing of the bridge and in February 1991, Cabinet approved the funding agreement as outlined in the Premier's letter. Initially the government had no liability beyond paying half the cost of the bridge. Unfortunately, Premier Bannon's letter had created an unintended liability for the State government. Not only was the government liable for Westpac's losses if it did not build the bridge but even if the bridge was built and Westpac suffered any losses from stages two, three and four of the marina project, the government was now also liable to cover those losses which could run to hundreds of millions of dollars.
A deed was signed in March 1993 binding the government to this commitment. Public outrage at government funding of a project for the sole benefit of private developers, led
South Australian Legislative Council
The Legislative Council, or upper house, is one of the two chambers of the Parliament of South Australia. Its central purpose is to act as a house of review for legislation passed through the lower house, the House of Assembly. It sits in Parli ...
member and leader of the
Australian Democrats
The Australian Democrats is a centrist political party in Australia. Founded in 1977 from a merger of the Australia Party and the New Liberal Movement, both of which were descended from Liberal Party dissenting splinter groups, it was Australia ...
,
Mike Elliott, to call for a Parliamentary inquiry into the bridge and the financial arrangements between the government and Westpac. One of its terms of reference dealt specifically with the propriety of the government's decision in conferring private benefits at taxpayers' expense. The inquiries’ findings criticised the financial arrangements between the government, the Chapmans and Westpac, and recommended that the government reconsider the bridge and examine whether the bridge could be replaced by a second ferry.
In early October, the Lower Murray Heritage Committee wrote to the Aboriginal Affairs Minister asking him to protect Aboriginal sites on Hindmarsh Island however, work on the bridge began on 27 October 1993 though it quickly ceased due to industrial action.
1993 election
Largely due to the financial disaster of the State Bank collapse leaving the state essentially bankrupt, Labor was routed in the December
1993 election and the Liberals came to power with Dean Brown as Premier. When in opposition the Liberals had campaigned against the Hindmarsh Island Bridge and stopping it was a campaign promise during the election. Further up the Murray, the local community in
Berri was campaigning for a much-needed bridge to replace their ferry and the government had agreed to build it. Seeking a way out of the Hindmarsh Island contract, Premier Brown hired Samuel Jacobs
QC, to carry out an investigation into the legal responsibilities of the contract.
Shortly before the 1993 elections the Labor government had instructed archaeologist, Dr Neil Draper, to survey Hindmarsh Island and the mainland foreshore for Aboriginal sites. Justice Jacobs, unaware of Draper's survey, finished his report in early 1994, concluding there was no way out of building the bridge without significant financial liabilities. On 29 April 1994, Draper presented his report to the new Liberal government. The report mentioned that the area had spiritual significance to Aboriginal women, identified a number of significant sites and argued that they should be protected under the
State Aboriginal Heritage Act. On 3 May the State Minister for Aboriginal Affairs, Dr
Michael Armitage, now used his powers under the act to authorise damage to the identified sites if required for the bridge to proceed. Work recommenced and a number of protestors were arrested. It has since been pointed out that Justice Jacobs and the government had missed an opportunity to cancel the bridge contract. They had overlooked that Aboriginal Heritage legislation overrides all contractual obligations.
Opposition
Many people, including a majority of the islands inhabitants, variously opposed the government funding of a project for the benefit of private developers, the urbanisation of Hindmarsh Island and/or the effects it would have on the natural environment had also voiced their opposition. Initiating legal action in April 1994 they applied to the
federal government
A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
for an order prohibiting construction.
On 12 May, shortly before construction began, at the request of the Ngarrindjeri, the Federal Minister for Aboriginal Affairs,
Robert Tickner
Robert Edward Tickner (born 24 December 1951) is a former Australian Labor Party cabinet minister. He was Chief Executive Officer of the Australian Red Cross from February 2005 to July 2015.
Born in Sydney, Tickner was adopted. He later sear ...
issued an emergency declaration blocking work on the bridge, and then appointed a lawyer, Professor
Cheryl Saunders
Cheryl Anne Saunders (born 28 August 1944) is Laureate Professor Emeritus at the University of Melbourne.
Career
Saunders was the first woman to be appointed as a professor in the Law Faculty at University of Melbourne. She was also a foundi ...
OA, to report on the significant Aboriginal sites. Saunders consulted with a range of interested parties, including a group of
Ngarrindjeri
The Ngarrindjeri people are the traditional Aboriginal Australian people of the lower Murray River, eastern Fleurieu Peninsula, and the Coorong of the southern-central area of the state of South Australia. The term ''Ngarrindjeri'' means "belo ...
women who claimed Hindmarsh Island was sacred to them as a fertility site, and for other reasons that could not be publicly revealed. An anthropologist, Dr Deane Fergie, prepared an assessment of the women's claims, which was then submitted to Saunders. As a part of this process some of these cultural secrets were written down and sealed in two envelopes marked ''Confidential: to be read by women only'' and forwarded to Tickner with the assessment. On 10 July 1994, Tickner placed a 25-year ban on the bridge construction putting the marina in doubt and bringing the Chapmans close to bankruptcy.
In February 1995 the Chapmans initiated a legal challenge of the ban in the Federal Court. Although the Judge praised Saunders report and criticized the Chapman's litigation, the Judge overturned the ban on a
legal technicality
The term legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in the law; it has no exact meaning, nor does it have a legal definition. It implies that strict adherence to the ...
. The media had heavily criticized the ban and focused on Tickner issuing it based on the contents of sealed envelopes that he had never read. In fact Saunders' assessment had stressed that the contents were not needed to reach a decision, as there was enough evidence supporting their contents in the assessment and public domain. In fact, Tickner is on record in the February court case as stating that his decision was not based on the envelopes' contents.
In March,
Shadow Minister for the Environment
Ian McLachlan
Ian Murray McLachlan (born 2 October 1936) is a former Australian politician who served as a member of the House of Representatives from 1990 to 1998, representing the Liberal Party. He was Minister for Defence in the Howard Government from ...
was forced to resign after tabling some of the secret documents in Parliament misrepresenting how he obtained them and falsely claiming they had not been marked "Confidential". The envelope had been delivered to McLachlan's office in error and despite being clearly marked "Confidential: to be read by women only" had been read, photocopied and circulated among both male and female staff.
In May 1995 the media and politicians aired the claims of five "dissident" Aboriginal women who stated that what had become known as "secret women's business" must have been "fabricated" by the "proponents" because they either had no knowledge of the secrets or did not believe them.
Secret women's business
![LowerLakes2004](https://upload.wikimedia.org/wikipedia/commons/b/be/LowerLakes2004.jpg)
The Royal Commission identified at least twelve separate aspects to the claim of "secret women's business" during the course of its inquiry. This knowledge was claimed to be of great antiquity, and passed only to a small number of properly initiated women, hence the ignorance of prior anthropologists to the myth.
[ The most prominent aspects of the claims are listed below:
*That the island was regarded as a fertility site, as its shape and that of the surrounding wetlands resembled female reproductive anatomy when viewed from the air. It was also suggested that the Ngarrindjeri name for the island, ''Kumarangk'', was similar to the word for pregnancy, or woman.]
*That the island had to remain separate from the mainland – creating a permanent link (such as a bridge) would be "as disastrous as if two bodily organs were connected together".
*That the proposed bridge might interfere with the "meeting of the waters", the mixing of salt and sea water in the Goolwa estuary, which was believed to be crucial for Ngarrindjeri fertility. Judge Stevens concluded that there was no distinction between the existing barrages (which do physically prevent water mixing) and building a bridge with respect to this aspect.
*That the waters of the Goolwa channel required uninterrupted views of the sky, particularly the Seven Sisters constellation, which features in several Aboriginal Dreaming stories. The existing barrages, built in the 1930s, were claimed to be acceptable because they did not create a barrier between water and sky.[
*That the island was a place where aboriginal women went to abort fetuses conceived with white men. This particular practice could not have dated from prior to around 1820, when British whalers began to frequent the area.][
*Although unrelated to secret women's business, the lower River Murray features prominently in the Ngarrindjeri creation myth. Many of the geographical features of the ]Fleurieu Peninsula
The Fleurieu Peninsula () is a peninsula in the Australian state of South Australia located south of the state capital of Adelaide.
History
Before British colonisation of South Australia, the western side of the peninsula was occupied by the K ...
are believed to be remnants of the bodies of creation hero, Ngurunderi, and his wives.[
*Archaeological evidence suggests that the site was probably used for ritual burials.][
]
Binalong fails
In 1994, Binalong went into liquidation owing Partnership Pacific $18.5 million with Westpac taking possession of the marina as mortgagee. The marina was at this time valued at up to $1.35 million. Following protracted negotiations, in September 1997 Westpac sold the marina to Kebaro Pty Ltd, a family trust belonging to the Chapmans for $50,000 with a further $1.3 million to follow at a later date. A further assessment of the marina now revised its value to $4.5 million. As part of the transaction, the liquidator of Binalong agreed to assign Binalong's causes of action
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...
to Mr and Mrs Chapman who would then pay a percentage of any damages recovered in court to the liquidators. In regards to the financial losses the Chapmans believed had resulted from the heritage applications, the Chapmans claimed financial losses of $16.58 million based on the difference between what the Chapmans paid Westpac and what they claimed the completed marina would have sold for had the bridge been built prior to 1994. In 2001 this court action failed.[
]
Royal Commission
In June 1995, the Hindmarsh Island Royal Commission
The Hindmarsh Island Royal Commission was a Royal Commission into the nature of female Aboriginal religious beliefs relating to Goolwa and Hindmarsh Island in South Australia that was triggered by the Hindmarsh Island bridge controversy.
Ba ...
was called by the South Australian government
The Government of South Australia, also referred to as the South Australian Government, SA Government or more formally, His Majesty’s Government, is the Australian state democratic administrative authority of South Australia. It is modelled o ...
, following South Australian media reports of five Ngarrindjeri women disputing the existence of "secret women's business" on the island. The Commission provoked significant and lasting controversy over its five month deliberation. The women who asserted the existence of "secret women's business" refused to give evidence to the Royal Commission on the basis that it was an unlawful inquiry into their spiritual beliefs.
The "dissident women" were diverse in age and cultural traditions or awareness, and were considered by the Commissioner to be 'credible' and their testimony was corroborated by support from two anthropologists from the South Australian Museum.
In December the Royal Commission found that the idea of Hindmarsh Island as being significant to the Ngarrindjerri women had come about at the meeting of the Lower Murray Aboriginal Heritage Committee. Despite evidence that the island had been mentioned as a fertility site in 1967, predating the meeting, the Royal Commission found that the secret women's business was a fabrication for the purpose of obtaining protection under the ''Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)''. They considered the "history of the events, the anthropological evidence and the evidence of the dissident women" to draw this conclusion.
Heritage applications
The first Section 10 application brought by the so-called "proponent women" in 1994 under the ''Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)'' succeeded. On the basis of the Report of Law Professor Cheryl Saunders (1994), Minister Robert Tickner declared a 25-year ban on the building of a bridge. That ban was overturned on a technicality. The veracity of the proponent's women story was not at issue. They had told their story and been believed but the Minister had erred in the manner in which he had dealt with the material.
The Ngarrindjeri brought another application under the federal heritage act in 1995–6. This time Senator Rosemary Crowley
Rosemary Anne Crowley (; born 30 July 1938) is a former Australian politician. She served as a Senator for South Australia from 1983 to 2002, representing the Australian Labor Party (ALP). In the Keating Government she held ministerial office ...
appointed a woman judge, Jane Mathews, to be the reporter and thus the proponent women would be able to include knowledge restricted to women without violating their cultural rules. However, the Mathews Report was not able to run its full course. In 1996 the Howard Liberal government came to power and Minister Herron refused to appoint a woman to receive the report. Then, following the Federal Court judgment in ''Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia'', Mathews (1996: 43–6) made it plain that the women could not rely on material that was not being made available to the other parties most closely affected by the application. Rather than have their stories read by a male minister and made available to other parties, the women withdrew their restricted material. They chose not to violate their religious law that women's knowledge was for women's eyes only. Although this knowledge was missing, the Mathews Report of June 1996 nonetheless acknowledges that the area of the proposed bridge was of significance.
The dissident Ngarrindjeri women sought a declaration from the High Court that the nomination of Justice Mathews as the reporter was incompatible with her commission as a judge of the Federal Court of Australia. On 6 September 1996, the majority of the court agreed that the appointment of Justice Mathews was invalid.
The Hindmarsh Island Bridge Act 1997
In part due to the furore over the bridge, Tickner lost his own seat in the 1996 election, at which Labor was heavily defeated by the Coalition
A coalition is a group formed when two or more people or groups temporarily work together to achieve a common goal. The term is most frequently used to denote a formation of power in political or economical spaces.
Formation
According to ''A Gui ...
under John Howard
John Winston Howard (born 26 July 1939) is an Australian former politician who served as the 25th prime minister of Australia from 1996 to 2007, holding office as leader of the Liberal Party. His eleven-year tenure as prime minister is the s ...
.
Soon after coming to power, the Howard Government legislated to allow the bridge to proceed. The ''Hindmarsh Island Bridge Act 1997'' (Cth) removed protections granted by the ''Heritage Protection Act'' to the construction of a bridge and related activities in the Hindmarsh Island bridge area.
Doreen Kartinyeri and Neville Gollan, speaking on behalf of the Ngarrindjeri people, challenged the legislation in the High Court. They argued that section 51(xxvi) of the Constitution as amended by the 1967 referendum only authorised laws for the benefit of the people of the Aboriginal race. Five judges held that the Bridge Act was valid, with Justice Kirby dissenting.
Judgments regarding the ambit of section 51(xxvi) noted that the actual wording of the amended section did not limit Parliament to the enactment of only beneficial laws. This controversial judgment did little to limit the scope of section 51(xxvi), and has been criticised for failing to create adequate protections against discriminatory legislation and disregarding the context of the 1967 amendment.
The von Doussa decision
Justice John von Doussa
John William von Doussa (born 17 September 1940) is a former Australian judge and public servant. He was a judge of the Federal Court of Australia from 1988 to 2003, president of the Human Rights and Equal Opportunity Commission from 2003 to 20 ...
of the Federal Court heard from all parties to the dispute in the course of the action brought by the Chapmans. In the summary of his Reasons for Decision, von Doussa stated
5. This action seeks damages for losses allegedly suffered by Binalong from five respondents. Mr Tickner is sued as the former Minister. Professor Cheryl Saunders
Cheryl Anne Saunders (born 28 August 1944) is Laureate Professor Emeritus at the University of Melbourne.
Career
Saunders was the first woman to be appointed as a professor in the Law Faculty at University of Melbourne. She was also a foundi ...
is sued as the person nominated by Mr Tickner under the Australian Heritage Protection Act
Australian(s) may refer to:
Australia
* Australia, a country
* Australians, citizens of the Commonwealth of Australia
** European Australians
** Anglo-Celtic Australians, Australians descended principally from British colonists
** Aboriginal Aus ...
to receive representations from interested members of the public and to prepare the report required by the Act concerning the application for protection. Luminis Pty Ltd (Luminis) and Dr Deane Fergie
Deane may refer to:
Places
* Deane, Greater Manchester, an area of Bolton and a former historic parish
* Deane, Hampshire, a village
* Deane, Kentucky
Ships
* USS Deane (1778), USS ''Deane'' (1778), US Navy frigate named after Silas Deane
* HMS ...
are sued in respect of their provision of consultancy services to the ALRM including the preparation of a report containing an anthropological evaluation of the significance of secret women's knowledge within Aboriginal tradition to the area where the bridge was to be constructed. The last respondent is the Commonwealth of Australia
Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
which is sued for compensation on the basis that the declaration under the Heritage Protection Act resulted in the acquisition of property belonging to Binalong.
Von Doussa found for the respondents. His findings took issue with those of the Royal Commission of 1996 finding that the main bases for the Royal Commission conclusion were not established. In particular, the late emergence of the knowledge did not provide proof of fabrication and is expected in the case of genuine sacred information, lack of recording in the literature was not inconsistent with the material, that it was inappropriate to assert that a particular spiritual belief was irrational, Wilson's testimony was not reliable and Milera's was a personal belief and not evidence of fabrication. Most significantly, the various accounts of the Seven Sisters story given were consistent. He wrote:
12. ... the evidence received by the Court on this topic is significantly different to that which was before the Royal Commission. Upon the evidence before this Court I am not satisfied that the restricted women's knowledge was fabricated or that it was not part of genuine Aboriginal tradition.
One of the two key independent expert witnesses from the South Australian Museum
The South Australian Museum is a natural history museum and research institution in Adelaide, South Australia, founded in 1856 and owned by the Government of South Australia. It occupies a complex of buildings on North Terrace in the cultu ...
, Philip Clarke, was found by the Federal Court at 73to have erred in terms of professional objectivity before the Royal Commission when it was discovered that he had been secretly helping the lawyers for the "dissident" Ngarrindjerri women. The court found against the developers and dismissed the claims of fabrication.
Aftermath
Developers Tom and Wendy Chapman and their son Andrew took defamation action against conservation groups, academics, politicians, media operators, printers and individuals who had spoken out against the Bridge. The Chapmans received court judgements of around $850,000 in their favour. The bulk of the damages related to claims by the defendants that the Chapmans had used SLAPP accusations to silence them.
During the defamation case the defendants relied heavily on the defence of "fair comment upon a matter of public interest" and the " Lange Defence" ( – the constitutional right to freedom of speech on political matters). However the court found that these defences did not apply because the defendants were motivated by malice which had been proven by the Defendants, being engaged in a "campaign" to stop the bridge, and the "targeting" of the Chapmans. The judgement was of concern to environmental activists because any form of direct action such as non-violent picketing, boycotting, or attempts to coerce changes of policy or behaviour, while not illegal, could be imputed as "malice" in any resulting defamation claim.
As a result of the Chapman defamation actions, the Environmental Defenders Office
Environmental Defenders Office (EDO) is an Australian law centre that encourages and enables litigation, law reform, and community engagement on environmental issues. EDO formed in late 2019 with the merger of eight separate state and territor ...
has called for the introduction of a "Protection of Public Participation Act" for South Australia. Based on North American legislation, the proposed Act would ensure that those engaged in non-violent public participation would be protected from threats or suits that infringe free speech.
In early 2002, Peter Sutton, a former head of Anthropology of the South Australian Museum, who had been unable to take a position on the claims, stated that additional evidence discovered since the von Doussa judgement had changed his view. "I still allow that aspects of these beliefs may have been embellished or given greater weight than before ... but the patterns and matches with earlier materials on some strands makes the overall fabrication theory insupportable."
In September 2002, redevelopment of the Goolwa wharf, which lay adjacent the Hindmarsh Island bridge, unearthed the remains of an Aboriginal woman and child. The site had been claimed to have been a burial ground by the proponent Ngarrindjeri women during the Royal Commission. However, the Alexandrina Council
Alexandrina Council is a local government area in the Fleurieu and Kangaroo Island region of South Australia. The Alexandrina Council was formed on 1 July 1997 by the amalgamation of the District Council of Port Elliot and Goolwa, the District ...
decided that as the wharf was South Australia's first inland port, colonial history should take precedence over Ngarrindjeri interests and construction went ahead. Legal action was contemplated but after negotiations, the Alexandrina Council formally apologised to the Ngarrindjeri and entered into a Kungun Ngarrindjeri Yunnan ("Listen to Ngarrindjeri Speaking") agreement where the Council acknowledged Ngarrindjeri rights as the traditional owners of the country and their existence as an identifiable group of people with their own laws, customs, beliefs and traditions, which must be taken into consideration for any developments within the council area where the Ngarrindjeri may have rights, interests or obligations.
On 7 July 2010, in a ceremony at the foot of the bridge, the Government of South Australia
The Government of South Australia, also referred to as the South Australian Government, SA Government or more formally, His Majesty’s Government, is the Australian state democratic administrative authority of South Australia. It is modelled o ...
endorsed the finding that the "secret women's business" was genuine. Ngarrindjeri elders then led a symbolic walk across the bridge. Elders now believe it is acceptable for Ngarrindjeri people to use the bridge to gain access to their land and waters, but culturally and morally still reject the bridge.
References
Further reading
* Bell, Diane (ed.) (2008). ''Listen to Ngarrindjeri Women Speaking''. Melbourne: Spinifex Press.
* Bell, Diane. (1998). ''Ngarrindjerri Wurruwarrin: A world that is, was, and will be''. Melbourne: Spinifex Press.
* Brodie, Veronica. (2007). ''My Side of the Bridge: The life story of Veronica Brodie as told to Mary-Anne Gale''. Kent Town: Wakefield Press.
* Fergie, Deane. (1996) Secret envelopes and inferential tautologies. ''Journal of Australian Studies'', 48, pp. 13–24.
* Hemming, Steven J. (1996). Inventing Ethnography. In Richard Nile and Lyndall Ryan (Eds.), Secret Women's Business: The Hindmarsh Affair, ''Journal of Australian Studies'', 48, pp. 25–39. St Lucia, UQP.
* Hemming, Steven J. (1997). Not the slightest shred of evidence: A reply to Philip Clarke's response to "Secret Women’s Business." ''Journal of Australian Studies'', 5 (3) pp. 130–145.
* Kartinyeri, Doreen (2009). ''Doreen Kartinyeri: My Ngarrindjeri Calling'', Aboriginal Studies Press
The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), established as the Australian Institute of Aboriginal Studies (AIAS) in 1964, is an independent Australian Government statutory authority. It is a collecting, ...
* Kenny, Chris (1996). ''Women's Business: The story behind the Hindmarsh Island affair'', Duffy & Snellgrove
Duffy & Snellgrove is a small, independent publishing house founded in Australia in 1996 by journalist Michael Duffy and his wife Alex Snellgrove. Since November 2005, the company has stopped publishing new works, although they continue to publi ...
* Mathews, Jane. (1996). Commonwealth Hindmarsh Island Report pursuant to section 10 (4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Canberra: Australian Government Printer.
* Mattingley, Christobel and Ken Hampton (Eds.) (1988). ''Survival in our own Land: Aboriginal experiences in South Australia since 1836, told by Nungas and other''s. Adelaide: Wakefield Press.
* Mead, Greg. (1995).'' A Royal Omission''. South Australia: The Author.
* Saunders, Cheryl. (1994). Report to the Minister for Aboriginal and Torres Strait Islander Affairs on the significant Aboriginal area in the vicinity of Goolwa and Hindmarsh (Kumarangk) Island. Adelaide: South Australian Government Printer.
*
* Stevens, Iris. (1995). ''Report of the Hindmarsh Island Bridge Royal Commission.'' Adelaide: South Australian Government Printer.
* Trevorrow, Tom, Christine Finnimore, Steven Hemming, George Trevorrow, Matt Rigney, Veronica Brodie and Ellen Trevorrow. (2007). ''They took our land and then our children''. Meningie: Ngarrindjeri Lands and Progress Association.
* von Doussa, John (2001). Reasons for Decision. Federal Court of Australia, No. SG 33 OF 1997.
*George Williams, 'Removing racism from Australia's constitutional DNA' (2012) 37(3) Alternative Law Journal 151
External links
Ron Brunton (4 April 1998) Unfinished Business, ''The Courier Mail'', Queensland
from IPA in the News
{{DEFAULTSORT:Hindmarsh Island Bridge Controversy
Indigenous Australians in South Australia
Road bridges in South Australia
Indigenous Australian politics
Politics of South Australia
Political controversies in Australia
Murray River
Ngarrindjeri
Keating Government
Religion in Australia
1990s in Australia
1990s controversies
1990s in South Australia