Hindmarsh Island Bridge Controversy - The Von Doussa Decision

The Von Doussa Decision

Federal Court judge, Mr John von Doussa, heard from all parties to the dispute in the course of the action brought by the Chapmans. In his Reasons for Decision (2001: para 5), von Doussa summaries

This action seeks damages for losses allegedly suffered by Binalong from five respondents. Mr Tickner is sued as the former Minister. Professor Cheryl Saunders is sued as the person nominated by Mr Tickner under the Australian Heritage Protection Act to receive representations from interested members of the public and to prepare the report required by the Act concerning the application for protection. Luminis Pty Ltd (Luminis) and Dr Deane Fergie are sued in respect of their provision of consultancy services to the ALRM including the preparation of a report containing an anthropological evaluation of the significance of secret women's knowledge within Aboriginal tradition to the area where the bridge was to be constructed. The last respondent is the Commonwealth of Australia which is sued for compensation on the basis that the declaration under the Heritage Protection Act resulted in the acquisition of property belonging to Binalong.

Von Doussa found for the respondents. His findings took issue with those of the Royal Commission of 1996 (para 12) stating "the main bases for the Royal Commission conclusion were not established". In particular; late emergence of the knowledge did not provide proof of fabrication and is expected in the case of genuine sacred information, lack of recording in the literature was not inconsistent with the material, that it was inappropriate to assert that a particular spiritual belief was irrational, Wilsons testimony was not reliable and Mileras was a personal belief and not evidence of fabrication. Most significantly, the various accounts of the Seven Sisters story given were consistent. He wrote:

The evidence received by the Court on this topic is significantly different to that which was before the Royal Commission. Upon the evidence before this Court I am not satisfied that the restricted women's knowledge was fabricated or that it was not part of genuine Aboriginal tradition.

One of the two key independent expert witnesses from the South Australian Museum, Philip Clark, was found by the Federal Court to have erred in terms of professional objectivity before the Royal Commission when it was discovered that he had been secretly helping the lawyers for the "dissident" Ngarrindjerri women. In 2001, a civil case in the Federal Court of Australia found against the developers and dismissed the claims of fabrication.