COLONIAL STATUTES AND STATUES: Rethinking the Law on Aboriginal Cultural Heritage in New South Wales.
| Author | Pearson, Elizabeth |
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INTRODUCTION
Aboriginal cultural heritage law in New South Wales, the historical epicentre of British colonisation in Australia, is facing its biggest reform in more than 40 years. In February 2018 the State Government of New South Wales invited public comment and is currently considering submissions received in response to a draft bill to create a standalone Aboriginal Cultural Heritage Act, (1) amid widespread agreement that legislative change is long overdue. (2) Aboriginal and Torres Strait Islander cultures are the oldest continuous living cultures on earth.* (3) While 29th April 2020 will mark 250 years since Lieutenant Cook's first encounter with the Gweagal People at Botany Bay, (4) a recent report by the Australian Law Reform Commission into the incarceration rate of Indigenous Australians has acknowledged that :
the legacy of historical dispossession and dislocation from land, culture and family has ongoing harmful effects for Aboriginal and Torres Strait Islander peoples, commonly described as 'intergenerational trauma'. (5) Australia continues to attract censure for the lack of explicit recognition of its First Nations Peoples in the Australian Constitution. Although the Constitution Act 1902 (NSW) was amended in 2010 to acknowledge the unique spiritual, social, cultural and economic relationship that Aboriginal people have with their traditional lands and waters, (6) New South Wales is the only Australian state that does not have a standalone Aboriginal cultural heritage Act. (7) Instead, legislative protections are currently located in the National Parks and Wildlife Act 1974 (NSW) ('NPWA'). This framework has consistently been criticised as disrespectful and offensive to the First Nations Peoples of New South Wales, and ineffective in protecting their tangible and intangible cultural heritage. The First Nations Peoples of New South Wales were the first to suffer the impacts of British colonisation and much Aboriginal cultural heritage in New South Wales has been destroyed. More than 67,000 Aboriginal sites in New South Wales are known to the Office of Environment and Heritage and recorded on the Aboriginal Heritage Information Management System ('AHIMS') created under the NPWA. (8) AHIMS also contains more than 10,700 archaeological and other Aboriginal heritage reports. (9) However, the inadequate penalties and variety of defences available under the NPWA for harming Aboriginal heritage have prompted concern that existing legislation is more permissive of cultural destruction than protective. (10) The continued harming of Aboriginal cultural heritage in the 21st century due to a lack of robust statutory protections has had what Justice Pepper described in Chief Executive, Office of Environment and Heritage v Ausgrid as a "tendency to perpetuate the 'national legacy of unutterable shame' caused by the dispossession of Aboriginal persons from their lands as a consequence of colonisation". (11)
This article investigates the imperative for reform of Aboriginal cultural heritage law in New South Wales and the effectiveness of the proposed Draft ACH Bill in addressing deficiencies in the status quo. Importantly, state law reform should not occur in a vacuum but must be understood within the broader policy landscape in Australia. This article locates and seeks to ground this proposed reform in a broader socio-political context, with a focus on three ongoing policy developments: first, a national campaign for Constitutional recognition of Indigenous Australians; second, national planning to commemorate the 250th anniversary of Cook's landing; and third, ongoing calls for the return of an Indigenous shield in the British Museum's possession and thought to have been acquired by Cook from the Gweagal People in 1770.
Part II considers the unique nature and importance of cultural heritage to the contemporary practices of Australia's First Nations Peoples. Part III outlines the history and content of Australia's Commonwealth cultural heritage legislation. Part IV critically analyses existing state Aboriginal cultural heritage legislation in New South Wales and evaluates proposed reforms contained in the Draft ACH Bill. Part V considers the national legal and political backdrop against which this legislation is being developed. Ultimately, this article reaches two conclusions. First, legislative reform in New South Wales cannot be postponed any longer without risking and contributing to a further loss of Aboriginal cultural heritage and knowledge. Second, this legislative reform must be understood as a crucial opportunity to improve relations with and meaningfully recognise New South Wales' First Nations Peoples.
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NATURE AND IMPORTANCE OF FIRST NATIONS' CULTURAL HERITAGE
Aboriginal and Torres Strait Islander Peoples have continuously inhabited, cared for Country and practised their culture in Australia for more than 65,000 years. (12) Former Prime Minister the Hon. Kevin Rudd MP described First Nations cultures as 'a unique, uninterrupted human thread linking our Australian continent to the most ancient prehistory of our planet'. (13) As a 'living culture', (14) the value of heritage to Indigenous Australians must be understood in the context of 'cultural continuation'. (15) That is, engagement with heritage continues to inform and influence contemporary cultural practices. (16) The Australian Productivity Commission has identified recognition of culture as being critically linked to the ongoing wellbeing, social and economic development of Aboriginal and Torres Strait Islander peoples in the 21st century. (17) These considerations must be central to the development of any proposed law reform in this policy space.
There has been increased acknowledgement that recognition of Indigenous culture should involve not only the protection of tangible cultural artefacts and objects but also intangible cultural heritage and associated spiritual landscapes and knowledge. (18) Australia's First Nations Peoples derive their cultural identity from the Dreaming, which is inextricably linked with connection to land and sea Country. (19) Berndt explained that:
Traditionally, from an Aboriginal viewpoint, all land was, and is, sacred--sacred because the deities shaped it, humanised and put within it the resources it now contains. Moreover, the presence of deities in the land is symbolised by the sites; sites which are spiritually alive; a constant source of protection and reassurance for the future--no matter how difficult the present may appear to be. (20) Relationship with and custodianship of traditional lands and waters remains an important aspect of Aboriginal cultural practice. Mortimer J. acknowledged in Tasmanian Aboriginal Centre [No. 2] that:
the value to Aboriginal people is in the whole of the landscape. The connection to their ancestors' way of life arises as much from the dunes, the beaches, the vegetation, and the sea life as from the artefacts which may be found in dedicated surveys. (21) The preservation of natural and tangible cultural heritage is intimately associated with the ongoing practice of First Nations' living intangible heritage. Conservation is therefore vital to ensure that associated cultural knowledge, stories and rituals are preserved and shared between generations.
Dislocation from traditional Country and damage to tangible cultural heritage, such as Indigenous rock art sites, has deleterious consequences in turn for associated intangible cultural heritage. By way of example, in the 2013 case of Ausgrid, an energy distributor pleaded guilty to harming an Aboriginal object in contravention of the NWPA. (22) A mundowie, an Aboriginal engraving of a footprint in sandstone rock, thought to be centuries old, was irreparably damaged by a rock-breaker team working to lay electrical cabling in Cromer, New South Wales. (23) The motif was thought to mark an important cultural path of the local traditional owners, the Garigal People. (24) Ausgrid was of the mistaken belief that the excavation works would be carried out on the other side of the road and would therefore not impact upon the Aboriginal rock engraving which was known to the team. (25) In affidavit evidence before the Land and Environment Court, the Acting Chief Executive Officer of the New South Wales Aboriginal Land Council Lesley Turner explained that:
Aboriginal peoples' definition of culture is not limited to particular places or physical evidence of Aboriginal existence on the land. It includes both the tangible and intangible things that tell a story about the land, environment, people, family, history, law, community and spirituality ... The destruction of Aboriginal sites, such as has occurred in this instance impacts on the ability of Aboriginal peoples to connect with a living culture of the past. These sites tell important stories for Aboriginal communities and must be protected to provide Aboriginal people with opportunities to strengthen and maintain culture now and in the future. (26) The Chief Executive of the New South Wales Office of Environment and Heritage warned that the unfortunate mistake in this case had resulted in the loss of connection to country and history. (27) The Court noted there were 113 other rock engraving sites registered in Sydney's northern beaches area alone, and recognised the cultural and spiritual significance of these sites to both the local and wider Indigenous community, including as a record of cultural heritage prior to non-Indigenous contact. (28)
Contemporary legal conceptions of heritage, such as embodied by the NWPA in New South Wales, remain heavily influenced by a traditional Eurocentric emphasis on old, physical, built environments. (29) Yet, there has been increasing recognition that cultural and natural heritage are "interconnected, indeed, indivisible". (30) Lowenthal described them as "Siamese twins, separated only at high risk of the demise of both". (31) In the...
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