Australia’s Indigenous heritage is powerful and unique. Ancient archaeology can be read and told by many Aboriginal Australians. It is unique contemporary living culture.
Yet tourist operators over and over miss it. They go for the dinky, the kitsch. On Arabunna Country, crowds gather to see the sculpture park on the Oodnadatta Track, yet by-pass the great kudni story beside it. They don’t discover the story of the three brothers, the bringing of fire, the bird men with their stone axes, the great serpent stories. They drive past most of the important mound springs. They’re unaware they missed anything.
Why ignore the treasure of our world-unique Aboriginal cultural heritage?
The story of the Marree Man is one such ignorance. Again, the Elder and Traditional Owner, burdened with sadness, had to ‘get up’, ‘stand up’ and ‘show up’ to speak for his Country and his People’s cultural heritage. Again, the cultural heritage system failed him.
Arabunna Country is marked by tabletop mountains. There is one near the ancient ceremonial area and, close by, the Udgella (Hermit Hill) another sacred area. Years ago, a small figure of a man was made on this tabletop. It became an outback yarn that locals told visitors at the pub – to keep them guessing how it came to be. Of course, those living near the tabletop knew the who, what, why and when. They knew the land would cover it over in time – and it did.
Tour operators ran joy flights over the Lake and, for fun, added the Marree Man to their yarns. Now built into a ‘good ole time’; some locals feared losing money if the Man wasn’t visible. They decided the Man must not fade away.
A clandestine gang, driving 4WD vehicles and heavy road making machinery, somehow made it up the perilous unmade track to the surface of the tabletop. They excavated and graded to make a larger, wider, deeper Man. They gave it an important-sounding-scientific-type name – a geoglyph.
This tabletop, extending over kilometres, was the location of thousands upon thousands of ancient campsites integrally associated with sacred ceremony. Savagely destroyed, huge grader excavations carved through the fragile thin sandy soil. Vegetation removal and destruction was everywhere. Erosion began, exacerbated with each rainfall and wind gust across the elevated surface. The place of ancient ceremonies was now a road work site, destroyed with rubble and gouge.
It brought the Elder to tears.
Because erosion was beginning, urgent legal action was required. A government archaeological team scheduled time on Country. They confirmed the significance of the site but, given the scale of the damage and their limited time, could only examine a minute fraction of the wrecked area.
No-one was prosecuted.
. . .
Dawn – an another tabletop.
Sliver of wild light across a horizon. Quiet. Bird chirp. Burst of electric orange, electric pink. Folds of cherub cloud – then the searing red sun ball – turn away, sun blind, new.
Elder Reg Dodd, artist Louise Foletta and Dr Leonie Kelleher are on the tabletop at dawn. Louise has her paints. The Elder gave Leonie the Native Title Act and the Aboriginal Heritage Act (South Australia). He walked his Country, silhouetted with bush shapes. The dawn rose. They all changed. Forging art and law with deep significance, this land is an ancient love – a statement from the heart.
. . .
National Heritage Listing
The Elder nominated part of his Country for inclusion on the National Heritage List, a response to the Marree Man destruction. The nomination included an extensive (317 page) submission prepared pro bono by a group of experienced professional consultants.
The National Heritage list recognizes and protects places of outstanding heritage value to Australia as a whole. Criteria are set out in the Environment Protection and Biodiversity Conservation Act 1999 (Cwth) (EPBCA) and its regulations. They clearly articulate the high standard required. This standard should remain high, but recognition and protection of highly significant Indigenous heritage places needs to be encouraged and prioritised. Strangely, the Indigenous Advisory Committee created under EPBCA has no role in the national heritage listing process.
The nominator has the onus of providing supporting information within tight timeframes. One of the relevant criteria requires a detailed comparative analysis of similar places against the criteria. It is insufficient to simply state that the Country is uniquely significant – it must compete with other culturally significant places and Indigenous Country.
What follows is Dr Kelleher’s personal observations of the departmental process for assessing the nomination.
“The visit by departmental officials to meet the Elder and view the nominated place became insensitive and disrespectful. The officials spoke to me rather than the Elder. They took ‘happy snaps’ of flowers and scenery of no significance, as if they were on holidays. An Indigenous official refused to view certain key places, suggesting it was culturally inappropriate to do so. The officials failed to earn the Elder’s trust. As a result, he did not show them places of high cultural significance. Although speaking to several senior Elders who made themselves available to the officials within their busy lives, the officials repeatedly asked to speak to ‘the people’, as if this was relevant or appropriate. They seemed to have a pre-conceived notion of what community should be assembled to meet them (e.g. a large community meeting).
“After this, the distrust seemed to be compounded due to the department’s secretive process. Despite particular request for all to be involved, the officers met separately with the native title group and provided no opportunity to join or even comment on minutes. I understand that they ‘warned’ the group to expect heavy costs, risks and onerous legal obligations if national heritage listing occurred. In this way, the officers created misunderstanding and division in respect of a place that all agree to be of great heritage significance.
“The Elder ceased to participate and the community, initially offered hope, seemed to view it as another pointless, hurtful, whitefella process.“
Ultimately, the Minister added insult to injury by patronizingly noting that her refusal might be a ‘disappointment‘ to the Elder as a ‘long-standing and passionate advocate[s] for the place‘.
“The rejection of the comparison analysis and other refusal reasons indicated significant misunderstanding of the nominator’s extensive, professional analysis. Canberra bureaucrats, far away, unwilling to build the trusting relationships required for passing of knowledge, or to respect traditional owner, toyed with internal community dynamics and assumed a right to knowledge (without earning it).“
The Law Council of Australia (LCA) has repeatedly argued for a higher level of competency across all levels of government, including decision-makers and public servants. As a start, the Minister entrusted to preserve and protect Indigenous cultural heritage should be the Minister for Indigenous Australians. Ministers and officials must become familiarised with cultural perspectives and community needs and develop innovative ways of meeting these within cultural norms. LCA suggests Indigenous led ‘two-way learning’ programs to increase cultural competency[i].
Cultural Heritage and Native Title
Australia’s cultural heritage framework fails to align with its native title framework.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwth) (ATSIHPA), originally proposed as a temporary measure pending national land rights legislation, predated the Native Title Act 1993 (Cwth) (NTA). NTA arose as a government codification after Mabo and the 1998 NTA amendments further eroded cultural heritage protection. Subsequent case law compounded the division between cultural heritage and native title. For example, in Western Australia v Ward[ii], the High Court majority held that rights and interests protected under NTA are rights in relation to land and water only and that, where protection of cultural knowledge goes beyond denial or control of access to land or water, these are not rights protected under NTA.
The Australian Law Reform Commission (ALRC) shares the view that native title has been construed as not extending to rights to protect cultural heritage[iii].
Indigenous cultural heritage protection is made complex by NTA. Both ATSIHPA and NTA require reform to achieve effective and robust alignment to properly and effectively protect Indigenous cultural heritage. It is critical that senior Elders, located on Country, and holding precious and unique knowledge, are meaningfully consulted and respectfully bestowed with leadership in protection of their land and water.
The Australian Human Rights Commission (AHRC) considered this:
‘(D)evelopments within the common law of native title, and amendments to the Native Title Act have placed heritage protection outside the broader frame.[iv]’
‘The bundle of rights approach to native title has meant that contemporary practices of protecting and respecting significant or sacred sites are considered insufficiently connected to the actual practices of the original inhabitants to be included in native title determination. In addition, the amendments to the [NTA] have significantly reduced the protection available to Indigenous heritage and the right of native title holders to participate in decisions about protecting their cultural heritage.[v]’
In remote areas, the Traditional Owner is likely living on Country. Often the native title group is run from far away in a capital city (e.g. a lawyer’s office) and membered by persons who do not live on Country. With the best will in the world, people living off Country, particularly younger community members or individuals to whom knowledge has not been passed, may be unfamiliar with deep elements of cultural heritage significance.
In addition, the native title ILUA process, in which Aboriginals have no ‘veto’ power and the Native Title Tribunal tends to approve a contested ILUA, despite Indigenous concerns, frequently compromises Indigenous people who already experience an imbalance of power in negotiation processes. Mr Tony McAvoy, Australia’s first Indigenous Senior Counsel, believes that native title ‘embeds racism’ by coercing Aboriginals and imposing duress on the native title group to approve developments, such as major mining projects, at the risk of losing their Country without compensation[vi].
Key features of new legislation might include:
- National intervention early in development projects, not as a last resort measure or in the face of damage or destruction;
- Defining cultural heritage to include intangible heritage, going beyond archaeological and historical significance;
- Protecting Indigenous cultural heritage irrespective of whether the place is registered;
- An offence of harming Indigenous cultural heritage, if occurring without Traditional Owner approval;
- Ensuring that the first step for any development or works project is a mandate to identify and notify persons with traditional or familial links to cultural heritage;
- The relevant Minister should be the Minister for Indigenous Australians.
[i] Law Council of Australia, 2021, Judicial Impartiality: Consultation Paper: Australian Law Reform Commission, 8 July, 30, https://www.lawcouncil.asn.au/publicassets/5ef65775-74e0-eb11-943e-005056be13b5/4040%20-%20Judicial%20Impartiality.pdfhttps://www.lawcouncil.asn.au/publicassets/5ef65775-74e0-eb11-943e-005056be13b5/4040%20-%20Judicial%20Impartiality.pdf (accessed 7.7.2022). truejustice.org.au (accessed 7.7.2022)
[ii] (2002) 213 CLR 1, at [468].
[iii] ALRC, 2015, Connection to Country, Review of the Native title Act 1993 (Cth), ALRC Report No. 126, 262.
[iv] Human Rights and Equal Opportunity Commission, Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, 2001, Native Title Report 2000, 23 February, http://humanrights.gov.aud/sites/default/files/content/pdf/social.justice/nt-report2000.pdf
[v] Ibid, 118.
[vi] Smee, B., 2018, Native title system ‘embeds racism’, Australia’s first Indigenous silk says’, The Guardian, 19 July, https://www.the guardian.com/Australia-news/2018/jul/19/native-title-system-embeds-racism-australias-first-indigenous-silk-says (accessed 5.7.2022).
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This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
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