Charlesworth, Hilary --- "'Little Boxes': a Review of the Commonwealth Hindmarsh Island Report" [1997] AboriginalLawB 26; (1997) 3(90) Aboriginal Law Bulletin 19

• 'Little Boxes': A Review Of The Commonwealth Hindmarsh Island Report
• Origins Of The Mathews Report
• The Place Of Secret Women's Knowledge In The Mathews Report
• Indigenous Voices In The Mathews Report
• Conclusions

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'Little Boxes': a Review of the Commonwealth Hindmarsh Island Report

by Justice Jane Mathews

Reviewed by Hilary Charlesworth

The Hindmarsh Island/Kumarangk saga will surely enter Australian folklore as one of the most complex, and litigated, of disputes. It began with the attempt by Adelaide developers, Tom and Wendy Chapman, to construct a bridge linking the South Australian mainland with a small island in the waters of Lake Alexandrina near the mouth of the Murray River, part of which they intended to develop as a marina and tourist resort. The Bannon Labor State government supported the plans for bridge building, but significant environmental and Aboriginal opposition to it began to emerge. The Brown Liberal government, elected in 1993, was initially lukewarm about the bridge, but decided to proceed, apparently because of contractual commitments with the Chapmans. The first attempts at construction of the bridge in 1993 provoked angry demonstrations and confrontations. These protests then gave way to elaborate legal processes.

The Hindmarsh Island/Kumarangk dispute has generated a number of court cases and official reports concerning contract and commercial law, administrative and constitutional law, and the protection of Aboriginal heritage. It has also prompted great public debate on the nature of Indigenous culture and the way it should be taken into account in the imported legal system. At the end of the day, the epic of Hindmarsh Island/ Kumarangk suggests major flaws in the Australian legal system with respect to protection of Indigenous heritage. It has underlined the inability of Australian law to accommodate certain forms of belief and knowledge in the little boxes it has established.

Origins of the Mathews Report

The Commonwealth Hindmarsh Island Report, dated 27 June 1996, was prepared by Justice Jane Mathews of the Federal Court. It was commissioned by the Commonwealth government under s10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the Heritage Protection Act') after an application had been made in December 1995 by members of the Ngarrindjeri people, the traditional owners of the Lower Murray region. The applicants sought an order for the protection and preservation of a corridor of land and water, which would prevent the bridge from being built. Section 10 of the Act allows the Minister for Aboriginal and Torres Strait Islander Affairs to make a declaration preserving areas of Aboriginal heritage from injury or desecration after commissioning, receiving and considering a report from the Minister's nominee.

This was the second attempt by members of the Ngarrindjeri people to use the heritage legislation to stop the bridge from proceeding. In late 1993, an application had been made under s10, and in May 1994 Professor Cheryl Saunders was appointed as the Minister's nominee to report on the Aboriginal heritage significance of the area affected by the proposed bridge. After lengthy consultations, Professor Saunders reported that the major heritage significance of the area was in its great importance to the spiritual and cultural beliefs of the Ngarrindjeri. These beliefs were in the exclusive possession of certain Ngarrindjeri women and could not be publicly revealed.

Attached to the Saunders Report was a report prepared by a University of Adelaide anthropologist, Dr Deane Fergie, which had two confidential annexures detailing the importance of the area to Ngarrindjeri women. The annexures were in sealed envelopes and were labelled 'Confidential: to be read by women only'. After arranging for a woman staffer to read the confidential annexures and inform him as to her view on their significance, the Minister made a declaration prohibiting work on the bridge for 25 years. This action by the Minister was challenged by the Chapmans under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that the requirements of s10 of the Heritage Protection Act had not been complied with. The Full Federal Court found there had been a technical error in the notification of Professor Saunders' investigation, and also that the Minister was required to personally consider the representations from interested parties attached to the Saunders Report. Because he had delegated this task, the Court found that the terms of s10 had not been fulfilled.

Taking up a judicial suggestion made in the challenge to the Saunders Report (Tickner v Chapman & Ors, [1995] FCAFC 1726; (1995) 57 FCR 451 at 479 per Burchett J), the 1995 application requested that the report be considered by an acting woman Minister for Aboriginal and Torres Strait Islander Affairs (the then Minister being Robert Tickner), because Ngarrindjeri custom and beliefs demanded that traditional women's knowledge be made known only to certain women. The then Prime Minister, Paul Keating, agreed to the request and appointed Senator Rosemary Crowley to act on behalf of Mr Tickner in this matter.

Justice Mathews faced some serious constraints in preparing her report. One was the fact that a Coalition Federal government was elected in March 1996, and the new Minister for Aboriginal and Torres Strait Islander Affairs, Senator Hereon, refused to nominate an acting woman Minister to consider the report. For this reason, the Ngarrindjeri women who had been prepared to give information about their spiritual beliefs centred on Hindmarsh Island (on the understanding that the information would only be revealed to particular women) withdrew most of their submissions. Moreover, in the course of justice Mathews' investigations, the Full Federal Court delivered a decision in another case to the effect that the s10 reporting process is subject to the requirements of natural justice, and that culturally sensitive information cannot be kept confidential from those whose interests would be affected by the making of a declaration under that section (Tickner v Western Australia, unreported, 28 May 1996).

The place of secret women's knowledge in the Mathews Report

The women's knowledge was thus not considered in any detail in the Mathews Report; nor was the well-known attack on the authenticity of this knowledge by the so-called 'dissident' Ngarrindjeri women, which sparked a 1995 South Australian Royal Commission. The Mathews Report, however, cast serious doubt on some of the findings made by that Royal Commission. Although Justice Mathews stated that, from her reading of the transcripts of the proceedings of the Royal Commission, she did not question the sincerity of the dissidents, she challenged some of the Royal Commission's findings that the 'women's knowledge' had been a fabrication. Thus, in her discussion of the 'Seven Sisters' story, stated by the Royal Commission to have been no part of the Dreaming of the Ngarrindjeri, Justice Mathews points to considerable material that refutes the findings of the Royal Commission (pp 179-181).

With the major, if contentious, rationale for the application for a s10 declaration unable to be investigated, the Mathews Report considered a much narrower set of heritage considerations. One of the major problems in the application was its designation of the area sought to be protected. The area was essentially the bridge corridor - the land approaches to the bridge on the mainland and Hindmarsh Island and the water between them. And yet, as Justice Mathews pointed out, the real concern of the Ngarrindjeri applicants was the protection from injury or desecration of Hindmarsh Island itself (p187). This mismatch in formal definition and actual intent meant that justice Mathews had to focus on a particular small area, and was unable to consider the effect of the bridge on the island itself. She acknowledged the problem of fitting Aboriginal beliefs about land into the language of the Heritage Protection Act:

'it is inimical to Aboriginal culture to single out a small discrete piece of land and say that this will be the area desecrated. For the land is, to them, a single and indivisible part of their culture, and segments of land must be viewed as part of the whole' (p 191).

To emphasise this point Justice Mathews quoted one of the Ngarrindjeri women, Rhonda Agius, who said:

Western society has a way of putting things in little boxes. You don't see things holistically as we do. To us, you damage even one part of that land, it is going to affect the whole lot' (p 192).

Justice Mathews examined information on both archaeological sites and burials and the significance of the waters in the designated area. She found that the physical damage done to many of the sites reduced their significance. While Justice Mathews rejected an argument by the Chapmans that burial sites were only covered by s10 of the Heritage Protection Act if they were in used or recognised burial grounds (rather than individual burial places), she found no evidence of burial sites in the actual area that was the subject of the application. With respect to the significance of the waters surrounding Hindmarsh Island, Justice Mathews concluded that they were of spiritual importance as the home of the ngatji, the totem animals and birds associated with the Ngarrindjeri, and crucial to their religious well-being. She accepted also that the waters were considered the home of the Mulyewongk, a creature important in Ngarrindjeri belief, and that they were associated with the Seven Sisters Dreaming story. Justice Mathews did not, however, consider that the applicants had provided enough information about the traditions to establish that the proposed bridge would injure or desecrate this area.

Indigenous voices in the Mathews Report

The Mathews Report contains a balanced guide to many aspects of the Hindmarsh Island dispute. One striking aspect is the strong Ngarrindjeri voices that appear in its text. Here is George Trevorrow on the indivisibility of culture and land:

'this part of the country to us is like a big book. You know when we're driving through it with our children and grandchildren, we're able to point out the places, the meaning of those places to them ...

'Now, over the years, people been taking-like tearing pages out of our book so there's bits and pieces getting lost. Sometimes it's like whole chapters torn out of that book and then that leaves us, you know, with a big blank ...

'So our country is a big book. Every mile is a page in our history ... You know, it's a wonder that the Ngarrindjeri people have survived this long because of the damages that have been done to the important things in our life, in our way, our culture, you know ... But we know if this damage continues, especially to the most important site in our part of the country, there's not much hope for us as a people any more. You're taking too much away then' (pp 120-121).

The Mathews Report is valuable also for prompting thought on issues it does not, indeed cannot, deal with, most importantly the appropriate relationship between the imported and Indigenous legal systems. For example, what is the proper content of the rules of natural justice in the context of culturally sensitive information? Justice Mathews accepted the Full Federal Court's ruling in both Tickner v Chapman and Tickner v Western Australia that disclosure of even confidential traditions is required to both the Minister, and persons affected by a declaration under the Heritage Protection Act. At the same time in the Report, Justice Mathews includes anthropological voices that question such an approach. For example, with respect to whether the bridge would affect the Seven Sisters Dreaming story by violating its rule that nothing must come between the waters around Hindmarsh Island and the sky, justice Mathews searched for a causal connection between the story and the rule. She then quoted Dr Peter Sutton, an anthropologist, who had told her:

'there is no inherent reason why Ngarrindjeri women would have to be able to specify a logical link between the Seven Sisters and the prohibition on covering the waters, in order to make the link between the two. That is, the link may have been handed down minus its rationale' (p 204).

Dr Sutton had pointed to three reasons why such causal connections may not be made explicit: the prohibition of revealing such things in certain contexts; the absence of a consciousness about the connections in the group; and the obviousness of the connecting symbolism to members of the group. After quoting at length from Dr Sutton's submission on the issue of causation, justice Mathews wrote:

'In light of all this one might well ask why should Aboriginal applicants be required to disclose the details of their traditions-particularly confidential traditions-in order to establish their entitlement to a declaration. The answer is that the law requires that those who oppose a declaration must be given an opportunity to respond to the "case" against them. And if the case depends on "embargoes" or "rules" which are associated with a particular tradition, then the law says that the opponents of a declaration must be told of the details of that tradition.

'This no doubt places a heavy burden on applicants, particularly those who are relying on confidential traditions... ' (p 205).

Justice Mathews' juxtaposition of the (imported) legal rules, and the Indigenous reality that the rules cannot take into account, is an important aspect of her Report. Perhaps unintentionally, the narrative highlights the irony of the inability of legislation designed to protect Aboriginal heritage to understand that heritage in its own context. The legislation depends rather on European images of Aboriginal culture.

Conclusions

Although the Mathews Report did not recommend that the Minister grant a declaration under the Aboriginal heritage legislation, it generated its own legal baggage when the "dissident" Ngarrindjeri women challenged the nomination of a Federal judge to take on an administrative reporting responsibility. The Federal Court upheld the challenge, deciding that such activity by a Federal judge violated the principle of separation of powers (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 138 ALR 220). The Mathews Report, therefore, now has no formal legal status. Given the fate of the Mathews Report, the 1995 application for a declaration is still live. Frank Brennan, the Director of Uniya Jesuit Social Justice Centre, has proposed that the Minister could simply appoint Lindy Powell QC, counsel assisting Justice Mathews, as his reporter and allow her to use, with due notice, the representations received by Justice Mathews as the basis of her report (see 'Building a Bridge on a Sea Change' by Frank Brennan in Uniya Focus No. 10, November 1996). The Commonwealth government has adopted, however, a much more problematic approach by introducing the Hindmarsh Island Bridge Bill, prohibiting the Minister from taking any action on an application for heritage protection of Hindmarsh Island. This legislation would clearly breach the spirit and letter of the Racial Discrimination Act 1975 (Cth), and deepen the perception that the Howard government has discarded reconciliation as a policy objective in its relations with Australia's Indigenous peoples. The legislation would, moreover, violate the Convention on the Elimination of All Forms of Racial Discrimination, and would be an appropriate case to bring to the attention of the United Nations Committee on the Elimination of Racial Discrimination under its communications procedures.