By Angela Walker
Journalists, Aboriginal people and others gathered at the High Court in Canberra on February 6 were astonished to hear Dr Gavan Griffith, QC for the government, defend the validity of the 1997 Hindmarsh Island Bridge Act by arguing the right of parliament to pass "racist" laws.
Contradicting the general mood of the Australian public, (more than 100,000 people have signed the Australians for Native Title and Reconciliation citizens' statement supporting the coexistence of native title rights and pastoral leases), state and federal governments are constantly seeking ways to minimise or extinguish Aboriginal land rights.
Seven years before the historic High Court Mabo decision in 1992, Queensland Premier Joh Bjelke-Petersen and his legal advisers were worried that Eddie Mabo and his fellow Torres Strait Islanders might have a valid case against the Queensland government. State parliament responded by passing the Queensland Coastal Islands Declaratory Act 1985, which retrospectively extinguished Torres Strait Islander property rights and interests (if any such rights existed) without compensation.
This act was found to contravene the Racial Discrimination Act 1975 and was struck down by the High Court. The claims of the Murray Islanders of the Torres Strait then proceeded, and the legal doctrine of terra nullius was overturned by the Mabo decision.
In response to that decision, the federal Labor government enacted the Native Title Act just before Christmas in 1993. NSW magistrate Pat O'Shane described the legislation at the time as "an act to protect and preserve big capital interests, with only some token gesture of recognition of the moral issues underlying the High Court decision. Its primary provisions are designed to validate land grants made on or before December 31, 1993, and legislation made on or before June 30, 1993, that may be invalid because of native title."
The Howard government now plans to amend the Native Title Act further, to make claims even harder to lodge and prove, and to extinguish native title over rivers, lakes and coastal sea areas and on pastoral leases. The amendments will also retrospectively validate hundreds of unlawful mining licences and leases on pastoral land and strip away native title holders' right to negotiate over proposed developments on their land.
Racist legislation
When Howard produced his 10-point plan, one of his own legal advisers, Henry Burmester, warned that it could breach the Racial Discrimination Act. The federal attorney-general intervened to prevent a submission to the parliament's Wik committee by the Australian Law Reform Commission which advised that the 10-point plan was racist, amounting to an "extraordinary, singular and discriminatory" law against people of a particular race. Church leaders too argued that the Native Title Amendment Bill is racially discriminatory.
In the meantime, the High Court challenge against the Hindmarsh Island Bridge Act 1997, which was heard in February, provides an insight into the government's agenda. The legal challenge against the bridge act also has far-reaching implications for Howard's Native Title Amendment Bill, given Australia's obligations under several human rights treaties not to pass racially discriminatory laws.
The Hindmarsh Island Bridge Act was passed by the government with the Labor opposition's support. This is the first time since the 1967 Aboriginal rights referendum that the commonwealth has passed a law under the "race power" of the constitution which so clearly discriminates against Aboriginal people.
The act prevents the Ngarrindjeri people of the Hindmarsh Island area from using the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to protect sites of cultural significance.
An appeal against the act was recently heard by the full bench of the High Court, lawyers for the Ngarrindjeri women arguing that the act is invalid because it is racially discriminatory.
However, the Racial Discrimination Act stops only state parliaments from discriminating against people on the basis of their race. The commonwealth parliament can do as it pleases, or so the commonwealth's lawyers tried to argue in the High Court. Rather than trying to paint the bridge act as beneficial, they stated that it was legally passed under the "race power" of the constitution which was a "racist power, rooted in prejudice".
Women's struggle
The Ngarrindjeri women have faced many attempts to discredit them and cast doubt upon Aboriginal heritage claims. They have battled numerous violations of their rights, including a royal commission, or inquisition, into their spiritual beliefs (which they refused to cooperate with) and the opening and copying of the contents of sealed envelopes clearly marked as confidential and not to be read by men.
The Aboriginal and Torres Strait Islander Heritage Protection Act provides a federal "safety net" to protect significant Aboriginal areas from injury or desecration. On May 12, 1994, the federal minister, Robert Tickner, made an emergency declaration under the federal heritage act and appointed Professor Cheryl Saunders to visit the Hindmarsh Island (Kumarangk) area, take submissions and prepare a report.
In July 1994, Tickner announced a declaration for 25 years to protect Aboriginal sites. The declaration was overturned on technical grounds after a successful challenge in the Federal Court by the bridge developers.
The Federal Court did not question the factual basis of the declaration in regard to Aboriginal sites of significance, merely the process, such as the specificity of the public notice announcing Saunders' inquiry.
It was at this time that Liberal MP Ian McLachlan accidentally received the women's sealed documents, meant for Tickner's office. McLachlan read, copied and distributed the documents.
He also sought advice from Ian Callinan QC before handing the documents back, and resigned from the opposition front bench in March 1995 for misleading parliament. McLachlan, one of the country's wealthiest pastoralists, had loudly criticised the Mabo decision.
In 1995 McLachlan asked Callinan to draft terms of reference for an inquiry into the Ngarrindjeri women's spiritual beliefs, to be established by the SA government.
A Channel 10 interview with a clearly inebriated Ngarrindjeri man (who later retracted his comments) and a front-page story in the Advertiser with the headline "The Great Lie of Hindmarsh Island" were the precursors to the announcement that a royal commission would be established to test whether the Aboriginal "women's business" was fabricated. The royal commission findings were made without the evidence of the Ngarrindjeri women.
At the same time, Tickner announced a second inquiry under the heritage act, appointing Justice Jane Mathews, deputy president of the Native Title Tribunal, to conduct the inquiry and nominating a female minister to read the report. The federal inquiry was under way when Labor lost the 1996 federal election and Senator John Herron became the new minister for Aboriginal and Torres Strait Islander affairs.
Herron refused to appoint a female minister to consider Mathews' report. The Ngarrindjeri women withdrew their evidence, Mathews' findings were inconclusive, and her appointment as commissioner was also challenged, resulting in a High Court decision to disallow federal judges from conducting inquiries and commissions for governments.
As the Ngarrindjeri women and their supporters have pointed out, the high cost of inquiries into the Hindmarsh Island case is not their fault, but the failure of the law to provide adequate protection for Aboriginal law and culture.
Prior to the passage of the Hindmarsh Island Bridge Act, Herron sought advice from Callinan as to whether the act was capable of being construed as racially discriminatory. Callinan forwarded a submission on the legality of the act to the minister and the relevant Senate committee.
After the passage of the act, the Ngarrindjeri women announced their intention to appeal its validity in the High Court on the grounds that the parliament has the power to enact legislation only for the benefit of Aboriginal people. When a vacancy appeared on the High Court, the government appointed Callinan as the seventh judge.
Callinan's judgment on the appeal could have been decisive. After initially refusing to stand down from hearing the case, Callinan on February 25 announced his decision to withdraw. The High Court will hand down its decision sometime before May.
This is a victory for the Ngarrindjeri women and their supporters. Nevertheless, the whole history of their struggle for justice reveals that the Racial Discrimination Act and Australia's signature on an international treaty banning racial discrimination are largely ineffectual against a government which argues in the highest court of the land that it is acceptable to pass racist legislation.