Comparing the incommensurable

Underlying my task in each case was the question: ‘How does one measure the value of protecting an Aboriginal site against the value of some proposed activity that threatens it?’ Or to put it crudely, ‘How much is one prepared to pay to protect an Aboriginal site?’ That in essence is what the Minister has to do at the end of the inquiry, unless an agreement can be brokered. There is invariably a price tag to protection, and the currency in which the price has to be paid varies—it may be money, perhaps in the form of lost GNP or revenue or export earnings; it may be in jobs or other opportunities foregone; it may be in the loss of the chance of water-based recreation for people living in a hot, dry climate, as in the Boobera Lagoon case, or it may be, as the Northern Territory Government was suggesting in my first assignment, in terms of lives that would be lost.

Of course it will not be the Minister, or the rapporteur who advises him, who will pay the direct price—they will not lose the profits or get drowned. The burden may fall on a private company, a government, individuals or some form of community interest. But the responsibility is the Minister’s and there will usually be a political price to pay, and for both the Minister and rapporteur there may be other forms of unpleasantness. After the Alice Springs dam was stopped, I had to suffer the misrepresenting of my report and the traducing of my character under Parliamentary privilege by the Northern Territory Ministers of the day, with the Minister for Transport and Works saying, ‘I tell Mr Tickner, Mr Wootten and the Leader of the Opposition that they will be hounded. Despite the fact that they will be long gone from the public arena, I will hound them next time there is a flood that causes damage or loss of life. Wherever they might be, whether it is in one year’s time or 10 years time, I will ensure that they are reminded of this little charade, this shameful exercise, perpetrated on the people of the Northern Territory.’ So far 12 years have passed uneventfully, and I sometimes wonder if I have the powers of the sacred sites to thank, but I still keep an eye on the Alice Springs weather reports.

I have not heard anyone advocate that all Aboriginal sites should be preserved intact, whatever the consequences, although I have encountered the view that sites should never be given special protection against lawful activities, because, it is argued, this would amount to racial discrimination. Once you put these extreme views aside, you become involved in a balancing of interests, a negotiation. Consistent with this, the Act requires the report to deal on the one hand with the particular significance of the area to Aboriginals and the nature and extent of the threat to it, and on the other hand with the effect of protection on the proprietary or pecuniary interests of other persons.

How do you balance one against the other? A philosopher might say that the conflicting interests are of such radically different kinds that one cannot weigh one against the other; they are simply incommensurable. However lawyers, and others responsible for bringing disputes to an end, learn to be pragmatic. In a recent paper to the Academy of the Humanities, I compared the pursuit of truth by historians and by courts. Historians have the luxury of dealing in provisional truth. They never have to make a final decision, they can decline to make a decision at all. Courts necessarily have a quite different approach, which is not to pursue truth for its own sake, but to respect it as one factor among a number in their task of putting an end to disputes as justly as possible. In essence a court does not and cannot say to parties ‘These findings are the truth about your dispute’. It can only say, ‘This is the closest we can get to the truth following a just and practicable procedure and with the time and resources available. We hope we got it right, but whether it’s right or wrong, it is the basis on which you have to conduct your affairs for the future. Stop arguing and get on with life.’[6]

It is the same with the protection of a site. The competing interests may be incommensurable, but a decision has to be made or the bulldozers will roll. A failure to make a decision amounts to a decision that the site will not be protected.

How then does one go about weighing the contesting claims? The conflicting interests may be logically incommensurable, but reasonable people make choices between incommensurable things every day. Popular wisdom says that apples and oranges are not commensurable, but few people would have difficulty in choosing between ten apples and one orange, or between a good apple and a bad orange, or an apple worth a dollar and an orange worth a cent, and a dietician may give you other information that facilitates a choice.

This example illustrates two points. One is that finding out more about the objects of comparison may make choice easier, although it won’t necessarily do so. The other is that you may be able to find criteria by which very different things can be compared. In our capitalist society money is often invoked to play this role. Market economists, for example, tend to think that everything can be given a monetary value. I once heard an economist making a case for nuclear power add in so many hundred thousand dollars for each life that would be lost, assuring his audience that he had an actuarial basis for what he was doing. And I believe the Australian Bureau of Agriculture and Resource Economics has calculated that it would be cheaper to move the inhabitants of low-lying Pacific Islands to Australia than cut the consumption of greenhouse gas producing fossil fuels. I have not seen an attempt to put a money value on a sacred site, although questions sometimes arise as to whether Aboriginals will accept monetary compensation for interference with a site, and opposing interests are quick to argue that willingness to accept financial compensation would show that the claim of significance is not bona fide.