Ogle, Greg --- "Just When You Thought It Was Safe to Talk about Hindmarsh Island" [2002] IndigLawB 15; (2002) 5(15) Indigenous Law Bulletin 16

Just When You Thought It Was Safe to Talk about Hindmarsh Island

by Greg Ogle

Issues as to how white law deals with Indigenous culture, beliefs and rights have haunted the Hindmarsh Island bridge saga for over a decade. Finally completed last year, the bridge was the result of plans by developers Tom and Wendy Chapman to expand their marina on the island at the mouth of the Murray River. The proposal was opposed by environmentalists, and by Ngarrindjeri people who claimed that the area was culturally significant.

Throughout the saga the legal system’s attempt to deal with issues raised by Ngarrindjeri bridge opponents has been appalling. There was a failure of the Aboriginal Heritage Act 1988 (SA) to protect acknowledged sacred sites.[1] There was also two successful legal challenges overturning procedures under the Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth),[2] a Federal government law to prevent any further application under that Act and an unsuccessful legal challenge to that law. Most famously there was the 1995 Stevens’ Royal Commission which found that Ngarrindjeri claims about the cultural significance of Hindmarsh Island in particular the ‘secret women’s business’ that had been crucial in stopping bridge construction in 1994 were a fabrication.[3]

While these findings were beyond legal challenge,[4] they were brought into question in 2001 by a year long trial in the Federal Court. In this case Justice Von Doussa found that:

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.[5]

This judgement appeared to many as a belated legal vindication for Ngarrindjeri opponents of the bridge. However any subsequent optimism was crushed by the judgement recently handed down in Tom Chapman v Conservation Council of South Australia (‘the Conservation Council case’).[6] This was the biggest of a series of defamation cases brought by the Chapmans in relation to the bridge affair.[7]

I have previously written here about the implications of these defamation cases for Indigenous people and for the politics of the campaign in support of the Ngarrindjeri.[8] In that article I drew attention to the way the structure of the legal system positioned Ngarrindjeri people and found facts about them without hearing evidence from them. Further I noted how the system structured legal interests so as to potentially drive wedges between Indigenous people and their supporters. In this article I want to look again at those themes and how they played out in the judgement in the Conservation Council case.

The case originally involved 18 separate claims of alleged defamation arising from publications printed between 1994 and 1997. Seven of these were withdrawn or struck out prior to trial, and Justice Williams found in favour of the defendants in eight of the 11 that went to trial. He found that three publications were defamatory of the Chapmans and awarded $200,000 in damages, costs and interest. Two of these defamatory publications were comments on legal actions brought and threatened against alleged opponents of the Hindmarsh Island Bridge in 1994.[9] The third defamation was a statement in the Conservation Council’s magazine that Justice Williams found to have carried the imputation that:

During the planning processes for the bridge the developers [Tom and Wendy Chapman] consulted with aboriginal (sic) people in a less than meaningful way and with respect to the bridge building they failed to consult aboriginals (sic) when they had an obligation to do so.[10]

This ‘lack of consultation’ theme has run through a number of defamation cases brought by the Chapmans. What is remarkable is that, although claims of a lack of consultation first surfaced in the public debate when Ngarrindjeri elder George Trevorrow spoke at a public meeting in 1993, no Ngarrindjeri people have been called as witnesses in any of the defamation cases. This is particularly worrying when the findings of the court bring into question the statements of Ngarrindjeri people. Once again the Ngarrindjeri people have no say in a matter that concerns them. The particular wording complained of, the widespread nature of the claims of lack of consultation, and/or the legal defences of reasonableness of publication were cited as the reasons why it was deemed unnecessary to call Ngarrindjeri witnesses. In the Conservation Council case the court found that the defences raised failed because the defendants had acted with malice and awarded $60,000 in damages to the Chapmans. Here the judge cited particularly the anti-bridge ‘campaign’ of the fourth defendant Richard Owen (an officer of the Conservation Council).

In his judgement Justice Williams’ findings of facts—in particular in relation to the position and power of Owen—raise serious issues for those Ngarrindjeri who opposed the bridge. Arguably it was the absence of Indigenous evidence from the court that contributed to a situation where the strength of the Ngarrindjeri (and others’) campaign, and the genuineness of their beliefs were downplayed. Justice Williams attributed ‘a great deal of the heat generated by the bridge affair to the intemperate conduct of Mr Owen.’[11] This statement appears to minimise the importance of the issues at stake and might come as a surprise to the many people who remember the Kumarangk (Hindmarsh Island) campaign as a broad based campaign. It is particularly problematic for the Ngarrindjeri people whose agency in the campaign is implicitly diminished by the primacy given to Owen.

There are further issues of concern in the detail of the judgement. For instance in reference to bridge opponents’ observations about the absence of ‘key people’ as witnesses in the Stevens’ Royal Commission, Justice Williams found that Richard Owen was himself a ‘key person with special knowledge’.[12] In the context of a Royal Commission inquiring into the authenticity of ‘secret women’s knowledge’, subsequently found to be a fabrication, Justice Williams’ finding that Richard Owen had ‘special knowledge’ could be interpreted as mocking the Ngarrindjeri claim of hierarchic, restricted knowledge. Alternatively the finding could be interpreted to mean that the women’s knowledge was known by Mr Owen, something also likely to be offensive to the Ngarrindjeri women.[13]

The judge also commented on a 1994 memo signed by Owen and Sarah Milera (a senior Ngarrindjeri woman and bridge opponent) and Milera’s attendance almost a year later at a Conservation Council meeting. According to Justice Williams’ findings ‘[t]his speaks volumes in terms of the identification of the reach of Mr Owen’s campaign and his sphere of influence’.[14] There was no contemplation in the judgement of Sarah Milera’s own position or interest in the issue.

This focus on Owen becomes even more problematic when the position of the 1993 Secretary of the Lower Murray Aboriginal Heritage Committee (‘LMAHC’), Doug Milera is considered. During cross-examination it was put to Mr Owen that he had written letters in the name of Mr Milera. Owen said that he had typed the letters for Mr Milera, but that Doug Milera was the author. In the judgement Justice Williams found the letters:

... were composed by Mr Owen despite his denials. He [Owen] asserted in evidence that Mr Milera was ‘quite a wordsmith’. I have already applied that description to Mr Owen himself. His style of writing is unmistakable. His grasp of the planning process is impressive.[15]

Doug Milera died before the trial, and there was no evidence before the court challenging his role or abilities on the LMAHC. Yet the judge’s finding here implies (if not assumes) that Mr Milera had at least a less than ‘impressive’ understanding of the planning processes. Just as with Sarah Milera the possibility that Doug Milera was a leader in his own right, and/or that Richard Owen was acting on advice or instruction from Ngarrindjeri people was not contemplated in the judgement. This not only deprives the Milera’s of any agency in the Hindmarsh Island story, but also, in the absence of evidence from them or other Ngarrindjeri people, reflects disturbing assumptions about them.

If this finding was underpinned by generic assumptions about Indigenous people, it would be a further indication that the conservative white judiciary remains trapped within the paradigms of a colonial legal system. Alternatively, if there were no race based assumptions operating, the problem goes back to the structural one of the case being between two particular parties and about a particular defamation. The relevant evidence is therefore focussed on those players, which can result in a narrow writing of history, which is offensive to many—black and white—involved in the issue.

Whether these findings reflect underlying assumptions about Ngarrindjeri people, a lack of understanding about the nature of a community campaign,[16] or simply the outcome of a structurally narrow focus of evidence, the implications for Indigenous people and their supporters are worrying. While many thought that the Justice Von Doussa judgement and the subsequent publicity as to the authenticity of the Ngarrindjeri women’s beliefs had righted the wrongs of the Stevens’ Royal Commission, the judgement in the Conservation Council case marks a step backwards. Not only was the Conservation Council punished as a result of its campaign against the bridge and support of the Ngarrindjeri people opposing the bridge, but the bona fides of those Ngarrindjeri people have again been brought into question by a legal process in which they had no part.

The judgement is on appeal.

Dr Greg Ogle worked as an assistant to the Conservation Council’s defence team in this matter, however this article is written in his own right and without the endorsement or authority of the defendants.

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[1] South Australian Minister for Aboriginal Affairs, Michael Armitage, under s 23 of the Aboriginal Heritage Act 1988 (SA), authorised the destruction of Aboriginal sites in order to build the bridge.

[2] Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337. See also G Nettheim, ‘The Hindmarsh Island Bridge Act Case’ (1998) 4(12) ILB 17.

[3] G Ogle, ‘Unfinished Business: a History of Flawed Decision Making’ (1999) 4(25) ILB 19; D Bell, Ngarrindjeri Wurruwarrin: a world that is, was and will be (1998).

[4] Thomas Trevorrow v the State of South Australia and Iris Stevens HCA 3 September 1997 (Toohey, Gaudron & McHugh JJ).

[5] Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 (Summary). This judgement is currently on appeal.

[6] [2002] SASC 4.

[7] All 15 cases are listed in G Ogle ‘Defamation Processes and the Hindmarsh Island Bridge Campaign’ (1999) 4 (26) ILB 7 and Tom Chapman v Conservation Council Of South Australia [2002] SASC 4.

[8] Ogle, above n 7. This article has been the subject of complaint by the Chapman’s lawyer, who claimed the article defamed him. The article was also used as evidence of malice in the Conservation Council case, although Justice Williams made no finding on the matter.

[9] In April 1994 the Chapmans’ development company sought injunctions against bridge opponents under the old s 45D of the Trade Practices Act 1974 (Cth) and the tort of interference. They also sent letters warning opponents of a potential liability arising from protest actions.

[10] Tom Chapman v Conservation Council Of South Australia [2002] SASC 4, [77].

[11] Ibid [106].

[12] Ibid [100].

[13] The judge may not have intended these meanings, but in context these meanings can easily be inferred and the sting of the comments is the same regardless of intention.

[14] Tom Chapman v Conservation Council Of South Australia [2002] SASC 4, [136].

[15] Ibid [133].

[16]An article on this issue by M Parnell, entitled ‘Hindmarsh Island Bridge Defamation Case’ is being published in a forthcoming issue of Impact.