In 1998 there was a high profile court case called Kartinyeri v Commonwealth. This was part of a larger drama which played out for years decades. I remember it being on TV all the time – where people would make snarky remarks about “secret women’s business” and dodgy, private developers being supported by taxpayers.

You can google it yourself (if you want to go down a rabbit-hole) but to briefly summarize for the purposes that I’m going to write about: this is what happened.

• A developer wanted to build a bridge to Hindmarsh Island.
• Some Aboriginal women objected, citing that to build a bridge would violate their women’s law. The Aboriginal Torres Strait Islander Heritage Protection Act (1984) could possibly support the women’s claims and stop the construction of the bridge.
• John Howard passed the Hindmarsh Island Bridge Act (1997). This basically cancelled the The Aboriginal Torres Strait Islander Heritage Protection Act (1984) for the purposes of building the bridge.
• The women challenged the Hindmarsh Island Bridge Act in court (Kartinyeri v Commonwealth(1998)). They argued that the Bridge Act was a law that relied on the races power in the constitution, and that it was invalid because the races power can only be used to pass laws beneficial to the Aboriginal race as per the result and the “vibe” of the 1967 referendum. The court decided against the women and said – the vibe of the referendum doesn’t matter, the wording of the races power matters and there is nothing in the wording limiting Australia to freely pass racially discriminatory laws.

I think the Kartinyeri case was a collusive lawsuit of the colonial variety. The end result was that the federal government ended up with not only the power to racially discriminate against the “Aboriginal race”, but also the power to hone-in that discrimination to apply not just to “a race”, but to a small, localised group of Aboriginal women. From this case onwards, the government are not even using the power as a “races power” anymore. The scope and flexibility of the power has been greatly extended. This was demonstrated during the NT intervention – where is was used in a regionalised manner and only applying to certain Aboriginal communities.

I think it is INSANE that this is still the case today. The races power is ridiculous. It isn’t even used “for the people of any race” – it is used to single-out political communities.

Hindmarsh Island

The location of this bridge is relevant, and tells a larger story. Here is a map showing where Hindmarsh Island is, with very rough reddish-shading where the Murray Darling Basin is;

It is in South Australia. It’s at the mouth the Murray Darling catchment. The Murray Darling runs into a big lake, and inside that lake lies Hindmarsh Island. The Murray Darling Catchment is significant in terms of British colonial claims over the land, click this text to see a previous post on this.

Here is a map from that post;

This story links in with the Myall Creek Massacre trial. The Myall Creek Massacre was as far as I know, the ONLY massacre of Aboriginal people (out of literally hundreds of them) that the British bothered prosecuting. WHY??

The reason they prosecuted is that the British Crown cherry-picked this case to demonstrate that the were “protecting” the interests of the natives within the “no-man’s land”. It was a way for the British to imply to the international community (ie. other colonial powers) that they have First Discovery over the no-man’s land, without having to make an explicit declaration.

For the British to make an explicit First Discovery declaration over the no man’s land would be a problem, because to do so, it would be necessary to specify which land is, and which land is not already under British/Dutch/other First Discovery. By 1838 when the massacre trial was held, this was already a very complicated and unclear situation due to the 1824 Anglo Dutch Treaty. It is still now unclear who has First Discovery over what parts. At best, one can guess some scenarios. I have speculated on some scenarios throughout this blog, but these are more “best-fit” scenarios inferred from British behavior. I am a blogger, not the International Court of Justice or a Colonial power – I am just reading the room.

Under the Doctrines of Discovery, a river basin can be treated as a single geographical unit. So the British can possibly extend this implied First Discovery claim (via exercise of protection in the Myall Creek massacre trial) to include the entire Murray Darling basin.

The state borders in south-east Australia are drawn up to take advantage of the basin claim, with QLD, NSW, VIC and SA all having a bit of Murray Darling basin in them. QLD and NSW have direct Cook-explored coastline. VIC also has Cook explored coastline if you ignore his fudging of the map at Point Hicks. This is all done to hedge bets on alternate basis’ for British First Discovery claims across different colonies. SA does not have Cook-explored coastline, but has the river mouth (claim the mouth, claim the basin= Doctrine of Discovery principle). The First Discovery claim of SA is 100% reliant on the British extended Murray Darling basin claim, as Cook never went anywhere near SA. I think this is the main reason why there was a difference in the status of Aboriginal people in SA in the letters patent establishing the colony compared to eastern-seaboard states – as the British knew their First Discovery claim was particularly fragile there, necessitating better treatment of the natives (at least on paper).

That demonstration of “protection” done in Myall Creek massacre trial was effectively overturned in Hindmarsh Island controversy. The court basically ruled that the races power can be used against the interests of the natives. Under the Doctrines of Discovery, protection of natives means protection of ALL their interests. Colonisers need to at least pretend that moving-in on native people’s land is in the native peoples’ benefit – at minimum by making an agreement involving exchange of blankets and flour. The argument in the High Court was whether or not the races power is limited to beneficial laws. Under the Doctrines of Discovery – yes – the First Discovering power has a fiduciary obligation to the natives – this means only beneficial laws are allowed. But unfortunately, this is not the argument used by the lawyers arguing that side. They chose a much weaker argument. They used the argument from the movie, The Castle. “It’s the vibe of it” (“it” being the 1967 referendum). This backfired, and now the races power is used against our interests.

This is a big deal. It is a shift in Australia’s colonial foundation. The implication of that is – as of Kartinyeri v Commonwealth, the British are no longer maintaining their implied First Discovery claim over the Murray-Darling, as they have thrown the fiduciary duty out to the dogs. Note – they are doing this in 1998.

1998. ONE YEAR BEFORE THE 1999 REPUBLIC REFERENDUM!

This is the British wiping their hands of responsibility it as much as possible before Australia becomes a republic. It’s tying-up loose ends.

Poetic irony…

In Myall Creek Aboriginal people were massacred. At Myall Creek, the British Crown decided to protect the lives of those Aboriginal people who were massacred. (Not that it really helped, in the long-run it drove future massacres underground)

Some of the massacre victim’s blood perhaps flowed into the creek, down and around Hindmarsh Island, then out to sea.

The British used the blood of massacre victims, and the trial to open up and claim more land in the river basin for themselves. They put on a façade to the world of protecting the natives.

After the British took all the land, at Hindmarsh Island 160 years later, the perfect case went through the courts to decide – nah, we don’t give a toss about Aboriginal interests, and we will discriminate against Aboriginal people as we please. The location is so ironic – that it is as if this location was hand-picked especially for this case.