South Australia: Hindmarsh Island bridge saga continuesby Mark PosaNews Weekly
, September 23, 2000
It is difficult to understand how Mr Justice John Von Doussa has come to the decision to allow “secret women’s business” to be heard by him in the continuing saga of the Hindmarsh Bridge damages action in the courts. The action has been before the court for more than 90 days at considerable cost to the Commonwealth.
One cannot help wondering how deeply Justice Von Doussa has studied Aboriginal Law to come to the decision “that while aboriginal tradition confirms the disclosure of the restricted women’s knowledge to women ... that restriction was not exhaustive”.
As aboriginal law is based on religious belief, it would be difficult to see how it would be acceptable in any other way than in toto. Important paper
It is interesting to note the paper presented by Mr Justice Kirby at the opening of the historical exhibition by the Strehlow Research Foundation in Adelaide, October, 1978.
The paper T.G.H. Strehlow and Aboriginal Customary Law contains many opinions by Professor Strehlow regarding the acceptance of Aboriginal Law, and indeed, sounds a strong note of warning to those who would see it as part of this country’s legal system:
“Aboriginal law was devised for the traditional situation with the elders in control and all powerful. This situation no longer exists ...
“Who today can speak with real authority on tribal laws? Who can advise the courts of the validity of claims of breeches of tribal law? ...
“We are creating in our community scope for a small sector to get away with murder or to avoid punishment normally required under European law, on the ground that tribal elders would exact retribution.
“These ill-considered theories could therefore lead to a legal no-man’s land between white and black society in Australia.
“I do not believe that thinking white or Aboriginal people want this.”Culture clash
Unfortunately, the Hindmarsh Island fiasco has emphasised the problem which occurs when we have a clash of cultures plus a lack of certainty when it comes to Aboriginal customary law.
When one considers the work done in the field of Aboriginal law by people like Professor Strehlow and Professors Ronald and Catherine Berndt, it is a pity that their views have been ignored in the debate regarding Hindmarsh Island.
Strehlow many years ago was critical of the way in which Australian universities handled the anthropology departments in their institutions. “More university training in anthropology or structural linguistics is no substitute for the full acceptance of a researcher by the aboriginal elders, and for detailed instruction by them in their own language”, he said, in a series of articles in Aboriginal Research and Politics.
Professor Berndt and his wife spent five years among the Ngarrinderi people of the Murray River. Their work is preserved in the book, The World that Was.
Professor Strehlow’s view, expressed regarding the misuse of aboriginal law, which could have a profound effect on decisions made today, is best summed up in these remarks.
“ I am concerned by the implications of some recent court cases and some of the theories being put forward by lightweight experts ... [I]t is one of those situations where well-meant sympathy plus a little knowledge is very dangerous and people are attempting to establish very important principles on this sort of shaky foundation.
“There is little real understanding today by either black or white people of traditional Aboriginal law. In some recent instances I suspect the courts and the community have had the wool pulled over their eyes.
“I don’t suggest deliberate intent to mislead but rather an end result of general well-meaning effort based on wrong or unsound premises.”
It seems to me that such wisdom should be the guiding light for those in the legal profession when cases such as the Hindmarsh Island Fiasco come before them.