December 1995: A telephone message from lawyer Pamela Ditton of Alice Springs... "Do you have three weeks to work on a new Ngarrindjeri application? The Royal Commission¹ has found them to be fabricators and Tickner's ban on the building of the bridge has been quashed. The appeal has been denied. I need an anthropologist."

A group of Aboriginal women, claiming that a site of special significance to them will be desecrated if a bridge is built and basing their claim on knowledge which is privileged to women, have been accused of making it up to frustrate development. This is an all-too-familiar dilemma in the history of site protection in Australia. With the written record mostly mute on the subject of women's interests in land, and the consultative bodies dominated by authoritative men, women's voices are often not heard until quite late in a development project.

On 19 December 1995, the same day the South Australian Royal Commission report is published, thirty-one Ngarrindjeri women and thirteen Ngarrindjeri men lodge an application under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Heritage Act). This is Commonwealth legislation, designed to be brought into play when all else fails. And all else has failed for the Ngarrindjeri applicants who are seeking, for the second time, a declaration for protection of an area, including the waters, between Goolwa and Hindmarsh Island.

Site claims stripped of context are fraught. What is the history of the region? What is the scope of the sources? Whose voices have been recorded by the nineteenth-century missionaries and "learned gentlemen"? With whom did the twentieth-century anthropologists, linguists, historians, and archaeologists work? Have there been trained women in the field who have actively sought out knowledgeable women as "informants"?

The rules which govern a Section 10 application under the Aboriginal and Torres Strait Islander Heritage Protection Act are by no means settled; this application is going to generate deeply troubling questions, some of which will be addressed in a report being prepared by Justice Evatt.² The Heritage Act sets out the following steps. After receiving a Section 10 application seeking protection of an area, the federal Minister for Aboriginal and Torres Strait Islander Affairs nominates a "Reporter" who deals with matters of significance and desecration for the Aboriginal applicants, and the nature of the impact a declaration would have on other interested parties. After consideration of the report, any representations attached to the report, and any other matters he thinks relevant, the Minister may make a declaration in relation to the area. This is just what Robert Tickner did in 1994.

As the federal Minister, Tickner had heard from Professor Cheryl Saunders, the Reporter. With the exception of one envelope marked "Confidential Appendices 2 and 3: To be read by women only", he had read the representations. With respect to these confidential appendices, which had been prepared by Dr Deane Fergie (1994), Minister Tickner had the Saunders Report (1994) and he took advice from a female member of his staff who had been authorised, by the applicant women, to read the contents of the envelopes. Armed with this information, Tickner was satisfied that the area was significant and that it would be desecrated by the building of a bridge. But why had it become necessary to invoke the powers of the federal Minister? Was not the purpose of the South Australian legislation to protect sites? What had satisfied him that a declaration was a proper use of the Commonwealth legislation? Tickner (Saunders1994: 51) agreed that indeed the South Australian Aboriginal Heritage Act 1988 did afford protection. However, in the matter of the site at Goolwa, the state legislation was not affording protection. The site had already been registered under that legislation but was now at risk. On 3 May 1994, Dr Armitage, the state Minister for Aboriginal Affairs, had exercised his ministerial discretion under the state legislation and authorised such damage to the site as might be necessary for the building of the bridge.³ The earth-moving equipment was in place. In such circumstances the federal Minister needed to act and act quickly if the site was to be protected. Thus, on 12 May, Tickner issued an emergency declaration under Section 9 of the Heritage Act and then, on 10 July 1994, after hearing from the Reporter, issued a twenty-five-year ban. The Ngarrindjeri applicants celebrated.⁴

The Tickner declaration of 1994 was an affirmation for the Ngarrindjeri applicants of the tenacity of their survival. It was also a statement that the work of the Council for Aboriginal Reconciliation⁵ may have significance for the lives of peoples in the "settled south", not just the peoples of the far north and central desert regions of Australia.

For the developers, Wendy and Tom Chapman and their son Andrew, Tickner's ban was an exercise in ministerial discretion that added to their problems. They had already gone into receivership. They took their grievances to the Federal Court where they sought judicial review of TicknerÕs declaration. By 15 February 1995, the Federal Court had agreed that the advertisement of the original application was flawed and that the Minister should have read all the representations, even those confidential to women. The Tickner declaration of July 1994 was quashed.⁷ Even though the court had ruled on procedural, not substantive grounds, the Ngarrindjeri applicants had once again to prove their case. Tickner and two of the applicants appealed the quashing to the Full Federal Court.⁸ It was to be another ten months before the results of that action were known, and there were rumblings in the Lower Murray region that not all Ngarrindjeri believed in the "traditions" on which the original application had been made. The most bitter moment for the applicants was March 1995, when Ian McLachlan - then federal Minister for the Environment, and member for Barker, a district which takes in Goolwa and Hindmarsh Island - revealed in the parliament that his office had copied the so-called "secret envelopes". How many copies were made was contested, as was whether he had actually read the contents, but his general attitude was one of contempt for Aboriginal womenÕs restricted knowledge. "The more documents you send, the more I will copy," he was reported as saying.⁹ Within a week he was forced to resign, but the case grew murkier and cries of "hoax", "fabrication" and "conspiracy" grew louder. By April 1995, political reporter Chris Kenny (1996: 139ff.) had begun to investigate the charges and to flesh out the claims that the "women's business" was "fabricated by men". On 8 June, the Premier of South Australia, Dean Brown, announced that a Royal Commission would inquire into the fabrication charges and the then federal Minister, Robert Tickner, announced that an independent inquiry would begin once the outcome of his appeal was known. The rules governing a Heritage application may be specified at law, but the process by which and the conditions under which a declaration is sought have been increasingly politicised (Brunton 1996a, b; Maddock 1988; Merlan 1991; Nile 1996).

The appeal against the quashing of the Tickner declaration was denied on 7 December 1996 when the Federal Court agreed that the Minister should have read the contents of the envelopes. All those working on Heritage claims realised this decision would have dramatic ramifications. How were applicants to provide documentation when gender-restricted information is central to their claims? Aboriginal men may reasonably expect to speak with a male Reporter and have their words read by a male Minister. Even if the matter should go on appeal, there are plenty of male judges on the Federal and High Courts. The courts and parliament are, after all, male-dominated institutions. Thus, when it comes to material that should only be read by women, the decks are stacked against women. The applicants had little time to think through this one. The findings of Commissioner Iris Stevens (1995: 299) that the whole of "women's business" was fabricated for the purpose of obtaining a declaration, were published on 19 December 1995. The "dissident women" celebrated.¹⁰

During the six months spent investigating Ngarrindjeri womenÕs beliefs regarding the significance of the Hindmarsh Island sites, the Royal Commission divided the Ngarrindjeri community into those who believed in the "women's business" (the "proponent" women) and those who didnÕt (the "dissident" women). It pitted anthropologists against anthropologists; provided the local media with a tale of intrigue; and left the general public tired, vexed, and disinclined to believe the word of these politicised Aboriginal women applicants.

NOTES

1 In Australia a Royal Commission is an inquiry directed to be carried out by the executive branch of government. The jurisdiction of the inquiry is defined by its terms of reference. It may simply ask for a report containing findings of fact and reasons for same or it may ask for a finding of fact and recommendations consequent upon the findings of fact. It may be conducted by a judge or a barrister or any other person. Judges are usually appointed to give such an inquiry a colour of judicial quality. It is possible to publicly dispute the findings of a Royal Commission but rather more difficult to convince a court to hear a challenge. See Thomas Edwin Trevorrow and the State of South Australia and Iris Eliza Stevens, in the South Australian Supreme Court, 1996. See also Mr Justice Kirby's reason for decision (dissenting) in the High Court ruling on the appointment of Justice Mathews as Reporter (Wilson and Ors v Minister, High Court 6 Sept 1996).

The terms of reference for the South Australian Royal Commission into Hindmarsh Island of 16 June 1995 contained in Letters Patent from Dame Roma Flinders Mitchell, the Governor of South Australia, to Iris Eliza Stevens, a retired judge from the District Court of South Australia, required that she inquire and report on whether the "women's business", or any aspect of the "women's business", was a fabrication and if so "(a) the circumstances relating to such a fabrication; (b) the extent of such a fabrication; and (c) the purpose of such a fabrication" (Stevens 1995: 1-4, 311-5). Stevens was granted three extensions and reported on 19 December 1995. A Royal Commission is not a court of law but Stevens (ibid.: 5) conducted the Hindmarsh Island along the lines of a trial. The proponent women, with one exception, declined to give evidence and on the first day their legal representative read a statement setting out their reasons (Stevens 1995: 20-1).

2 The Hon. Elizabeth Evatt (1996) conducted a review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 between 1 December 1995 and 22 August 1996. It was undertaken at the invitation of Robert Tickner, Minister for Aboriginal and Torres Strait Islander Affairs, and submitted to John Herron who became the Minister after the March 1996 federal election. The Terms of Reference included (ii) matters of procedural justice in light of federal court judgments and appeals and, (vi) how secret/sacred information should be dealt with under the Act.

3 The Amelia Park site was registered pursuant to the Aboriginal Heritage Act (SA) 1988 and recorded at the Department of State Aboriginal Affairs Registry as an archaeological site.

4 See Muir (1996: 75) for an analysis of the media representations of the "proponent women" and the threat presented by their breaking of "feminine norms".

5 The Council for Aboriginal Reconciliation (1995), a bi-partisan group of Indigenous and non-indigenous persons, first met in 1992 and has as its agenda to "build bridges" for a better understanding between Aboriginal and Torres Strait Islanders and the wider community. It comprises twenty-five individuals (twelve of whom are Indigenous and eleven of whom are from the wider community). It is to work towards a better understanding between Aboriginal and Torres Strait Islanders and the broader Australian community. It identified eight issues as essential to the process of reconciliation. These include "understanding country" by recognising the importance of country and the nature of sacred relations to land; improving relationships by healing the ruptures caused through dislocation and dispossession of peoples, and valuing the diversity, strength and developing nature of indigenous cultures. Reconciliation meetings occur regularly in Adelaide and the concept is discussed by Ngarrindjeri, albeit in different ways. The applicants view the Royal Commission and much of the media reporting of their claims as hostile to the spirit of Reconciliation and any future possibilities of respectful partnerships.

7 This matter was heard by OÕLoughlin J. under the Administrative Decisions (Judicial Review) Act 1977. See Chapman v Tickner (1995) 37 ALD 1.

8 Tickner v Chapman (1995) 57 FCR.

9 Lawnham and Towers (1995); Attorney General Michael Lavarch (1995: 1691); Minister Robert Tickner (1995: 1795).

10 See Muir (1996: 74, 79) for an analysis of the media representations of the Òdissident womenÓ as defending the ÒgoodÓ name of Aborigines and identifying with the "suburban domestic interior, the feminine sphere".

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	More extracts from the Prologue 1996 1997 Other EXTRACTS JOIN THE DISCUSSION
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