Kartinyeri v Commonwealth [1998] HCA 22

Approval was given for the construction of a bridge from Goolwa to Kumarangk (Hindmarsh Island) in South Australia, subject to several provisos (including consultation with ‘relevant Aboriginal representative bodies’). A group of Ngarrindjeri women successfully applied under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘Heritage Act’) for a declaration to protect the area, as it was a site of particular cultural importance. The Federal Court overturned this decision on a technicality. Subsequent applications were made by the women, but these were interrupted when the Commonwealth Parliament passed the Hindmarsh Island Bridge Act 1997 (Cth) (‘Bridge Act’). Its effect was to suspend application of the Heritage Act to the areas where the bridge was to be constructed, and also to suspend application of the Racial Discrimination Act 1975 (Cth) to the Bridge Act. The case was heard before the High Court, which considered whether the Commonwealth had the power to make laws that were discriminatory on the basis of race (as a result of the ‘race power’). The majority held that there was no requirement that the race power be used beneficially, and therefore the Bridge Act was valid. The judgment has been rewritten with Indigenous voices, particularly Indigenous women’s voices, at the centre. By considering international norms and determining that the Commonwealth owes a fiduciary duty to Aboriginal peoples due to their unique historical relationship, the rewritten judgment finds the Bridge Act to be invalid.