Is it possible to distinguish genuine Aboriginal traditions from those that have been invented recently for cynical motives? Last week's extraordinary Federal Court decision from Justice von Doussa suggests that it is not.
In 1994, Ngarrindjeri Aborigines said that a proposed bridge across the lower Murray between Hindmarsh Island and Goolwa would desecrate secret women's traditions which required that the island must remain separate from the mainland. They successfully appealed to Robert Tickner, then Minister for Aboriginal Affairs in the Federal Labor government, to block construction of the bridge.
But the following year a diverse group of Ngarrindjeri women said the supposed traditions were a hoax. In response, the South Australian Liberal government set up a Royal Commission which, after five months of investigation, found that the "secret women's business" had been fabricated.
After legal challenges and the passage of special legislation, the bridge was finally completed earlier this year. Nevertheless, developers Tom and Wendy Chapman said they had suffered massive losses because of the fabrication, and sued the Commonwealth Government and Mr Tickner, as well as an anthropologist and a lawyer who had prepared reports for the minister.
Initially, it was expected that the Chapmans' action would avoid matters considered by the Royal Commission, and concentrate on alleged offences under the Trade Practices Act. But as the case progressed, Justice von Doussa indicated that the outcome could depend on whether or not the women's traditions were bogus, and this became a major focus.
The key proponents of the "secret women's business" had boycotted the Royal Commission, which decided not to invoke the powers it possessed to compel them to testify. However, the proponents did appear in the Federal Court case, strengthening von Doussa's conviction that he heard evidence significantly different to that heard by the Royal Commission.
But although he disparaged the Chapmans for not calling witnesses who might possibly have questioned their assertions, von Doussa did not seem similarly troubled by the refusal of the major "women's business" proponents to appear before the Royal Commission. He thought the proponents were "credible witnesses", and where cross-examination had shown their evidence to be unreliable, he readily excused them as having made innocent mistakes.
Consequently, Von Doussa said that on the evidence before him, he was "not satisfied that the restricted women's knowledge was fabricated or that it was not part of genuine Aboriginal tradition". But he also admitted that it was impossible for him to be definitive about whether the "secret women's business" was authentic, and that others "may well come to different conclusions".
My confidence in Justice von Doussa's conclusions is not helped by the faulty account he gave of a paper of mine which had been placed before the court by an anthropologist appearing for the Chapmans. My paper criticised another anthropologist, Professor Diane Bell, who had written a book attacking claims that the Ngarrindjeri women's traditions had been fabricated, although she had not explained why the Royal Commission had come to its findings and then shown why its arguments should be rejected.
I stated that there were a number of "apparently stubborn and massive facts" that "must either be disproved, or else shown to be compatible with assertions that opposition to the bridge was based on ancient traditions". But von Doussa simply ignored my first alternative and then incorrectly criticised me for supposedly regarding the Royal Commission's findings as incontrovertible facts. Only a small matter perhaps, but a revealing one nonetheless.
Von Doussa's own treatment of some of these apparent facts also leaves much to be desired. For instance, he acknowledges that the timing of the claims about "secret women's business" seems strange to what he calls "the Eurocentric mind" -- a term which suggests that he is unaware that the great majority of Ngarrindjeri, a people who have been actively engaged with mainstream Australia for well over a century, also share "Eurocentric" assumptions.
He acknowledges that at least some individuals who supposedly knew about the women's traditions would also have known of the proposed bridge long before any Ngarrindjeri expressed opposition to its construction. However, he accepts questionable claims that the women's traditions were only invoked at the last minute because they were so secret.
Furthermore, he does not properly explain why the traditions were not disclosed in the 1930s and 40s, when a series of barrages which permanently connect Hindmarsh Island to the mainland were constructed, and when some traditionally educated Ngarrindjeri were still alive. Indeed, in the early 1990s, the possibility of converting the Hindmarsh Island barrage to a vehicle bridge was seriously investigated, although this was found to be impractical.
Von Doussa seems to go along with arguments that Aborigines were too powerless to protest at the time. Nevertheless, anthropologists who were studying Ngarrindjeri culture when the barrages were being built did record protests from Ngarrindjeri traditionalists that various other actions by non-Aborigines were desecrating their country. But the same anthropologists seem to have heard no complaints about the barrages. Indeed, a number of Ngarrindjeri were involved in their construction.
While von Doussa's arguments have not convinced me that I should change my mind about Hindmarsh Island, on one matter I sympathise with the proponents of "secret women's business". If his judgement is taken seriously, building the bridge constituted an injustice against the Ngarrindjeri who claim custodianship of the women's traditions. Perhaps the South Australian and Federal opposition parties should offer to demolish the Hindmarsh Island bridge as one of their election promises.
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