Hindmarsh Island bridge controversy

About

The Hindmarsh Island bridge controversy was a 1990s Australian legal and political controversy that involved the clash of local Aboriginal Australian sacred culture and property rights. A proposed bridge to Hindmarsh Island, near Goolwa, South Australia (intended to replace the existing cable ferry and service a proposed marina development) attracted opposition from many local residents, environmental groups and Indigenous leaders. In 1994, a group of Ngarrindjeri women elders claimed the site was sacred to them for reasons that could not be revealed. The case attracted much controversy because the issue intersected with broader concerns about Indigenous rights, specifically Aboriginal land rights, in the Australian community at the time, and coincided with the Mabo and Wik High Court cases regarding native title in Australia. "Secret women's business", as the group's claims became known, became the subject of intense legal battles. Some Ngarrindjeri women came forward to dispute the veracity of the claims. The Hindmarsh Island Royal Commission found that "secret women's business" had been fabricated. Subsequently, the Howard Government passed the Hindmarsh Island Bridge Act 1997 (Cth...

In 1977, Adelaide developers Tom and Wendy Chapman, trading as Binalong Pty Ltd, purchased 30 hectares (74 acres) of land on Hindmarsh Island in the Murray River estuary and later received planning permission for their company to build a 560-berth marina, car parking, residential development, conference centre, golf course and associated buildings. Wendy Chapman was a former Lord Mayor of Adelaide from 1983 to 1985.

With the marina only partially completed, in 1988 the Chapmans applied for permission to increase the size of the project as the original project was found to be financially unviable. The Planning Assessment Commission rejected the proposal, stating that the development couldn't expand unless a bridge was built from Goolwa to Hindmarsh Island as the existing cable ferry would not be able to handle the increased traffic. In October 1989, approval was granted for a bridge, to be financed by the Chapmans, subject to an Environmental Impact Study (EIS). The EIS (the Edmonds Report) was completed within two weeks and identified the need for an anthropological study. The Chapmans funded a study by Rod Lucas who reported in January 1990 that existing written records did not record mythological sites, but cautioned that consultation with Indigenous groups would be required.

The Ngarrindjeri are one of the 30–40 clan-groups ( lakinyeri ) that inhabited South Australia at the time of white settlement. Originally numbering around 6,000 members, they are the only tribe in Australia whose land lay within 100 km (62 mi) of a capital city to have survived as a distinct people as recognised in the 2002 Kungun Ngarrindjeri Yunnan Agreement. [ citation needed ] [ dubious – discuss ]

In April 1990, the State Minister for Environment and Planning wrote to the Chapmans granting them planning permission for the bridge to Hindmarsh Island and the extensions to their marina. The estimated cost of the bridge was around $6 million which was considerably more than the estimated value of the marina once completed. The planning permission was subject to a number of conditions, including the requirements for consultation with "relevant Aboriginal representative bodies" such as Ngarrendjeri Elders, the Raukkan Community Council, the Ngarrendjeri Lands and Progress Association, and the Lower Murray Heritage Committee.

This was to become an issue in 1994 as the Chapmans had clearly not met these requirements. Although the Chapmans had done several environmental impact studies, submitted plans that included the bridge to the Raukkan Community Council and had also consulted with Henry Rankin, a senior Ngarrendjeri Elder, in November 1989 this was prior to the planning permission for the bridge being granted on condition of additional consultation. In the Federal Court hearing in 1994, Wendy Chapman gave evidence that the page of the letter setting out these additional consultation requirements was missing from the Minister's letter she had received (the same recommendations were also included in an assessment sent to the Chapmans by the Department of Environment and Planning). She also stated her belief that as no skeletal remains had been found, no further consultation was required.

The Hindmarsh Island marina was at this time losing money and the Chapmans were in financial difficulties due to the failure of another marina project they had built at Wellington. They could not afford to construct the bridge themselves so they approached the State Government for assistance.

Beneficial Finance, a subsidiary of the state owned State Bank of South Australia, had supplied the financing for the marina development. By 1990 it was obvious that the State Bank was having financial difficulties and The State Labor government led by Premier John Bannon was anxious to protect Beneficial's large investment in the Chapman's projects. The government was also under pressure for a series of major projects it had promised that had never eventuated so the bridge project was also seen as likely to be the only major success Labor would be able to claim for the next election.

The State government made a deal with the Chapmans. Binalong would pay up front for the bridge to be built. Then the State government would reimburse Binalong for half of the cost of construction, up to a limit of $3 million.

In September 1990 Beneficial Finance decided to withdraw funding and the Chapmans approached Partnership Pacific, a subsidiary of Westpac, to take over the financing. Partnership Pacific agreed but only with the condition that the State Government paid the entire cost of the bridge. A secret meeting was arranged between the Chapmans, Westpac and the government at which it was accepted that the government would pay the whole cost of the bridge while the Chapmans would pay back half at a later date, but only after Binalong had paid off all its debts to Westpac. Binalong owed so much money to the State Bank through Beneficial Finance that Bannon apparently had no choice but to prop the company up. The State Bank collapsed not long after with debts of $3 billion.

On 22 November 1990, Premier Bannon wrote a personal letter to the Managing Director of Westpac, Stewart Fowler, guaranteeing government financing of the bridge and in February 1991, Cabinet approved the funding agreement as outlined in the Premier's letter. Initially the government had no liability beyond paying half the cost of the bridge. Unfortunately, Premier Bannon's letter had created an unintended liability for the State government. Not only was the government liable for Westpac's losses if it did not build the bridge but even if the bridge was built and Westpac suffered any losses from stages two, three and four of the marina project, the government was now also liable to cover those losses which could run to hundreds of millions of dollars.

A deed was signed in March 1993 binding the government to this commitment. Public outrage at government funding of a project for the sole benefit of private developers, led South Australian Legislative Council member and leader of the Australian Democrats, Mike Elliott, to call for a Parliamentary inquiry into the bridge and the financial arrangements between the government and Westpac. One of its terms of reference dealt specifically with the propriety of the government's decision in conferring private benefits at taxpayers' expense. The inquiries’ findings criticised the financial arrangements between the government, the Chapmans and Westpac, and recommended that the government reconsider the bridge and examine whether the bridge could be replaced by a second ferry.

In early October, the Lower Murray Heritage Committee wrote to the Aboriginal Affairs Minister asking him to protect Aboriginal sites on Hindmarsh Island however, work on the bridge began on 27 October 1993 though it quickly ceased due to industrial action.

Largely due to the financial disaster of the State Bank collapse leaving the state essentially bankrupt, Labor was routed in the December 1993 election and the Liberals came to power with Dean Brown as Premier. When in opposition the Liberals had campaigned against the Hindmarsh Island Bridge and stopping it was a campaign promise during the election. Further up the Murray, the local community in Berri was campaigning for a much-needed bridge to replace their ferry and the government had agreed to build it. Seeking a way out of the Hindmarsh Island contract, [ citation needed ] Premier Brown hired Samuel Jacobs QC, to carry out an investigation into the legal responsibilities of the contract.

Shortly before the 1993 elections the Labor government had instructed archaeologist, Dr Neil Draper, to survey Hindmarsh Island and the mainland foreshore for Aboriginal sites. [ citation needed ] Justice Jacobs, unaware of Draper's survey, finished his report in early 1994, concluding there was no way out of building the bridge without significant financial liabilities. On 29 April 1994, Draper presented his report to the new Liberal government. The report mentioned that the area had spiritual significance to Aboriginal women, identified a number of significant sites and argued that they should be protected under the State Aboriginal Heritage Act. On 3 May the State Minister for Aboriginal Affairs, Dr Michael Armitage, now used his powers under the act to authorise damage to the identified sites if required for the bridge to proceed. [ citation needed ] Work recommenced and a number of protestors were arrested. It has since [ when? ] been pointed out [ by whom? ] that Justice Jacobs and the government had missed an opportunity to cancel the bridge contract. [ citation needed ] They had overlooked that Aboriginal Heritage legislation overrides all contractual obligations. [ citation needed ]

The Ngarrindjeri are one of the 30–40 clan-groups ( lakinyeri ) that inhabited South Australia at the time of white settlement. Originally numbering around 6,000 members, they are the only tribe in Australia whose land lay within 100 km (62 mi) of a capital city to have survived as a distinct people as recognised in the 2002 Kungun Ngarrindjeri Yunnan Agreement. [ citation needed ] [ dubious – discuss ]

In April 1990, the State Minister for Environment and Planning wrote to the Chapmans granting them planning permission for the bridge to Hindmarsh Island and the extensions to their marina. The estimated cost of the bridge was around $6 million which was considerably more than the estimated value of the marina once completed. The planning permission was subject to a number of conditions, including the requirements for consultation with "relevant Aboriginal representative bodies" such as Ngarrendjeri Elders, the Raukkan Community Council, the Ngarrendjeri Lands and Progress Association, and the Lower Murray Heritage Committee.

This was to become an issue in 1994 as the Chapmans had clearly not met these requirements. Although the Chapmans had done several environmental impact studies, submitted plans that included the bridge to the Raukkan Community Council and had also consulted with Henry Rankin, a senior Ngarrendjeri Elder, in November 1989 this was prior to the planning permission for the bridge being granted on condition of additional consultation. In the Federal Court hearing in 1994, Wendy Chapman gave evidence that the page of the letter setting out these additional consultation requirements was missing from the Minister's letter she had received (the same recommendations were also included in an assessment sent to the Chapmans by the Department of Environment and Planning). She also stated her belief that as no skeletal remains had been found, no further consultation was required.

The Hindmarsh Island marina was at this time losing money and the Chapmans were in financial difficulties due to the failure of another marina project they had built at Wellington. They could not afford to construct the bridge themselves so they approached the State Government for assistance.

Beneficial Finance, a subsidiary of the state owned State Bank of South Australia, had supplied the financing for the marina development. By 1990 it was obvious that the State Bank was having financial difficulties and The State Labor government led by Premier John Bannon was anxious to protect Beneficial's large investment in the Chapman's projects. The government was also under pressure for a series of major projects it had promised that had never eventuated so the bridge project was also seen as likely to be the only major success Labor would be able to claim for the next election.