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Trevorrow, Tom --- "Hindmarsh Island: The Ngarrindjeri People petition the United Nations" [2001] AltLawJl 25; (2001) 26(2) Alternative Law Journal 89

Hindmarsh Island: The Ngarrindjeri People petition the United Nations

TOM TREVORROW[*] reports on a Communication lodged with the UN for intervention on Hindmarsh Island.

In March this year, the Ngarrindjeri people of South Australia lodged a communication with Ms Erica-Irene Daes, Special Rapporteur on Indigenous Peoples and Their Relationship to Land, of the Office of the High Commissioner for Human Rights. Their communication requests immediate intervention by the UN to temporarily halt use of the Hindmarsh Island Bridge pending further negotiations.

Readers no doubt are familiar with the controversial development at Hindmarsh Island. However, they may not be aware that the Island’s bridge has been built and was recently opened for traffic. The increased public access to the Island threatens Ngarrindjeri identity, and cultural and economic survival, thereby denying Ngarrinjderi people their rights to the use and enjoyment of their land, and to engage in the cultural and spiritual practices inextricably tied to their existence.

The Ngarrindjeri propose further negotiations in order to reach agreement with the South Australian government to preserve Ngarrindjeri rights, while permitting responsible use and development of the Island by non-Ngarrindjeri people. Their essential aim is to maintain their cultural and spiritual contact with the land, waters and Ngaitjis (totems which are considered friends or companions carrying messages from Ngarrindjeri elders) of Hindmarsh, as the island represents all that is left of the land, water, flora and fauna that are essential to Ngarrinndjeri existence. The Ngaitjis are endangered and on the verge of extinction. In short, increased and unrestricted public use of the island, made possible by the bridge and the marina, thus threaten the Ngarrindjeri with cultural genocide (that is, ethnocide).

Accordingly, the Ngarrindjeri want to limit access to the island, and require specific safeguards to protect sacred sites, sites of worship, burial grounds and healing places — places used to educate their people about their culture and laws. The ferry service — which ceased operation with the opening of the bridge — should continue to be provided for Ngarrindjeri people, whose culture prohibits the use of the bridge access. Just compensation should be negotiated and paid to the Ngarrindjeri for the constructive ‘taking’ of their property rights.

The Ngarrindjeri have sought the UN’s assistance, following unsuccessful legal actions by Doreen Kartnyeri (Kartinyeri v The Commonwealth [1998] HCA 22) and Darrell Sumner (Sumner v United Kingdom of Great Britain & Ors [2000] SASC 91), seeking to halt the construction of the bridge. In Kartinyeri the High Court held that the Hindmarsh Island Bridge Act 1997 (Cth) did not contravene the Constitution or the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Further, the South Australian Supreme Court rejected Sumner’s claim, which the Court found had been based on non-actionable ‘genocide’ grounds — ‘non-actionable’ as the Court held that Australian law does not protect against genocide, which is protected only by international conventions. The Ngarrindjeri also pleaded to the Human Rights and Equal Opportunity Commission (HREOC) for intervention, to no avail.

The communication argues that Australia has failed to meet its commitment to protect human rights within its borders under domestic and international law, and has discriminated against the Ngarrindjeri with regard to their cultural, spiritual, and environmental practices, and particularly the secret religious practices of women.

Specifically, the communication alleges that the government has failed to uphold its obligations under the Convention on the Elimination of All Forms of Racial Discrimination by contravening the Racial Discrimination Act 1975 (Cth). It argues that the government has done so by interfering with the Ngarrindjeri’s ability to enjoy and use their land. Facilitating the non-indigenous development of Hindmarsh Island inhibits the Ngarrindjeri’s ability to practice and teach their traditions and thus is promoting the demise of their people and their future. This can be statistically shown by the large decline in population, shortened life expectancy and higher rates of incarceration of Ngarrindjeri people resulting from governmental acts, essentially robbing the Ngarrindjeri of that which gives them life.

Secondly, it argues that the government has breached its obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Sex Discrimination Act 1984 (Cth), by failing to protect Ngarrindjeri ‘women’s business’ and violating Ngarrindjeri women’s special needs for the preservation of their heritage and future generations. The ‘secret women’s business’ is essential to Ngarrindjeri procreation. The enactment of laws such as the Hindmarsh Island Bridge Act and the development in the area of Hindmarsh discriminates on the basis of sex and ‘has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women’ of their human rights and fundamental freedoms (CEDAW). If Ngarrindjeri women are deprived of their practice and its secret nature, the effect will be the end of their procreation ritual and potentially their race. Without these practices, intertwined with the lands and waters of Hindmarsh, the women are deprived of an essential key to their procreation.

Thirdly, it is argued that the Australian government has infringed Ngarrindjeri’s land rights, in violation of Article 17 of the Universal Declaration of Human Rights because Ngarrindjeri have been arbitrarily deprived by the government of their right to own property, notwithstanding the Native Title Act 1993 (Cth). Although Ngarrindjeri have been given title to less than 500 acres on the entire island, additional claims submitted under the Native Title Act have been delayed and ignored, for reasons unknown.

Further, the Ngarrindjeri have not been given an opportunity to negotiate ‘just terms’ for the taking of their property rights, despite the ‘just terms’ provision in the Constitution. The Charter of the United Nations, pursuant to Article 1 requires all members to promote equal rights and self-determination of peoples and respect for human rights and for fundamental freedom for all without distinction as to race, sex, language or religion. Article 17 of the Universal Declaration of Human Rights requires respect for the right to own property and mandates that no one shall be arbitrarily deprived of his property.

Morever, it argues that the Australian government has violated three articles within the International Covenant on Civil and Political Rights. Most importantly, it is argued that the Ngarrindjeri are being denied their right to self- determination in violation of Article 1, as well as equal protection under the law (Article 26), and to practice their own culture, religion and language (Article 27). In short, an indigenous people with little power, the Ngarrindjeri argue they have been disregarded by a government exploiting an imbalance of political strength.

The Draft Declaration on the Rights of Indigenous Peoples is cited as having persuasive relevance as, among other provisions, it provides that ‘indigenous peoples have the right to engage freely in all their traditional and other economic activities’ (Article 21) and that indigenous peoples have the right to ‘maintain and strengthen their distinctive spiritual and material relationship with the lands, territories’ (Article 25).

Finally, the Communication also asserts that the government has acted contrary to the Heritage Protection Act by failing to prevent ‘desecration of areas … that are of particular significance to Aboriginals in accordance with Aboriginal tradition’, and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by failing to protect the wetlands and animal species on Hindmarsh Island (the endangered Ngaitjis).

The NLPA is seeking consideration, support and commitment from Alternative Law Journal readers to support its campaigns to protect Ngarrindjeri rights. If you are interested, you may contact the NLPA’s Chair, Tom Trevorrow, by e-mail: nlpa@lm.net.au or by phone on 08 85 751 557, mobile 040 996 1933. In addition you may be interested to join the Southern Cross Advocates for Legal Education (SCALE) convened by Patrick T Byrt, Reconciliation and Human Rights, Roma Mitchell Community Legal Centre Inc, a group which actively supports the NLPA (contact Patrick_Byrt@fcl.fl.asn.au).

More information about the NLPA and its campaigns can be found at: <www.adelaide.net.au/~nlpa/BIGGERPICTURE. html>.

More information on current Indigenous campaigns is at <http://www.kooriweb.org/ningala> .


[*] Tom Trevorrow, is a Ngarrindjeri Elder and Chair of the Ngarrindjeri Land and Progress Association.

© 2001 Tom Trevorrow


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