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Table of Contents

LEGALDATE

Volume 34, Issue 3 2022

LEGALDATE

Volume 34, Issue 3, 2022

Lessons from Juukan Gorge: Protecting the cultural heritage of Australia’s First Peoples

Dr Sean Sexton 1

Introduction

In the contemporary sense, cultural diversity in Australia is a term that seeks to engage with the many and varied ethno-cultural communities, and individuals who now reside here. The Australian Human Rights Commission has useful facts and statistics to illustrate how culturally diverse this country has become.2 

However, the existence of cultural diversity in Australia didn’t begin with the arrival of the first fleet in 1788, the post-World War II influx of migrants or refugees from Vietnam or parts of Africa. It was already here, reflected for tens of thousands of years by people holding several hundred different traditional identities and at least that number of languages spoken.3  There wasn’t a single ‘first peoples’; there was, and remains, a multiplicity of Indigenous groups across Australia. We see that difference reflected in cultural practices, art, social organisation, and the often-complex relationships with other first peoples. 

This article examines the law’s treatment of the cultural heritage of Australia’s First Peoples. UNESCO (United Nations Educational, Scientific and Cultural Organisation) states that cultural heritage ‘includes artefacts, monuments, a group of buildings and sites and museums that have a diversity of values including symbolic, historic, artistic, aesthetic, ethnological or anthropological, scientific and social significance’.4 A useful way to understand the importance of cultural heritage is to recognise First People as ‘culture bearers’. An important part of their cultural identity carries specific cultural knowledge and practice. 

Suppose Australian law is to respect the cultural diversity of individuals, and particularly of its First Peoples. In that case, it must also protect its cultural heritage so it can be preserved, practised, taught, and shared. This article evaluates the effectiveness (or not) of the various Australian laws in place to protect and/or preserve the very often irreplaceable cultural heritage that First Peoples possess.

It is also important to consider that Australian law doesn’t only offer protections to aspects of cultural heritage because they are seen as cultural heritage.  For example, artists can assert moral rights over their work as part of the more general framework of intellectual property law.5 

However, this article focuses on cultural heritage laws. In Victoria, the heritage legislation specifically protects intangible heritage (in certain circumstances) from appropriation and unauthorised use.6

A wide definition of cultural heritage

The UNESCO definition of heritage is very wide and includes many things. It includes tangible heritage, which has a physical character. In the context of Australia’s First Peoples, this includes objects, or other materials, which are illustrative of the physical and material evidence of their prior occupation of what is now known as Australia. These can be tools, weapons, and art in various forms, such as rock art, or stone engravings (often called petroglyphs).7 

However, the UNESCO definition also includes things perhaps not often considered part of cultural heritage. For example, it includes intangible cultural heritage. For First Peoples, this includes traditional stories, social practices, ceremonial rituals, language, knowledge of foods and medicine, and environmental and ecological knowledge. It would also include astronomical knowledge. There are many references to objects in the night sky in mythology and navigation, charting seasonal change and initiating cultural practices.8 Intangible heritage is as important as the tangible and is validly recognised in almost every definition of cultural heritage.

Protecting cultural heritage through laws

In theory, at least every Australian state and territory has legislation to protect Indigenous Cultural Heritage. In this way, we can see that First Nations people are not only ‘culture bearers’ but also ‘rights bearers.’ However, what we see in practice is a patchwork of laws that in some places work relatively well and in others, are very poor at providing even the most basic of protections. 

Much of the focus of protective legislation is on land and cultural heritage that developments or other planned land uses might impact. However, gaps or inadequacies in a process can thwart even the best legislative regimes. I am going to illustrate this with a (de-identified) example of my own experience. A hearing was held about development, with evidence and submissions made about the project’s value and virtue. A Heritage Advisor gave evidence, which included the suggestion that if the project boundary was moved a mere dozen or so metres, then a Cultural Heritage Management Plan would not be required. The traditional owners would be effectively bypassed. It is cynical but not unlawful. It is an example that shows how land developers find gaps in laws and processes, which frustrate the protection of First Peoples’ cultural heritage. 

At times, however, the law can be applied to uphold the purpose of cultural heritage. An example of a decision of this kind is found in the ‘104-105 Station Street’ case. This was a 2019 Victorian Civil and Administrative Tribunal (VCAT) decision, which considered the treatment of small subdivisions and the Aboriginal Heritage Act 2006 (Vic).9 Specifically, the legal issue to be determined was whether a Cultural Heritage Management Plan was required to be prepared when the proposed development activity covered two lots, each less than 0.11 hectares or whether it was exempt. In its finding against the applicant (developer), the Tribunal held that it would not allow an interpretation of the proposal to frustrate the clear intention of the Aboriginal Heritage Act.10 The decision required the development to have a Cultural Heritage Management Plan.11

Heritage versus development: the Juukan Gorge disaster

For many First Peoples, culture is embedded into land and waters. Yet, in the competition over these lands and waters, it often seems like the cultural heritage of First Peoples is considered with the interests of development uppermost. It isn’t always the case. But it does seem that there is always a need to push back against a presumption that development or project is an inevitability. A project might go ahead with a buffer zone, or salvage cultural material, or result in the destruction of cultural heritage. For example, it is worth considering the contrasting values and understanding of landscape on the Burrup Peninsula in Western Australia. Some large-scale industrial developments are already in place, with plans for more. Directly adjacent to these enormous operations are thousands of rock engravings or petroglyphs. These petroglyphs are of high cultural significance and exist precariously amidst a relentless press for industrial development at that location. Similarly, as beautiful and valuable as the diamonds were taken from the Argyle mine in the Kimberley region of Western Australia may be, there is no disguising the fact that the mine and the extraction of the diamonds involved the destruction of a Barramundi dreaming site belonging to the traditional owners.

A recent example of how the law has completely failed to protect the cultural heritage of our First Peoples arising out of the pressures of development is the destruction of the sites at Juukan Gorge in Western Australia. Like many First Peoples whose lands and waters are rich in minerals, miners’ rights will very often prevail over the rights of Indigenous people. There has been much written about what occurred and why. As a starting point, the subsequent parliamentary enquiry conducted by the Commonwealth provides a substantial resource for detailed information about the background of what occurred and a lengthy discussion of potential reforms.12 

To summarise some of the key facts behind what happened, Rio Tinto is a globally significant mining company with revenues of over $40 billion (US). Like other companies in the Pilbara region, they operate very large scale mining, principally for iron ore. Juukan Gorge is within the traditional country of Puutu Kunti Kurrama and Pinikura (PKKP) people. In May 2021, Rio Tinto destroyed many significant rock shelters in Juukan Gorge in their iron ore operations. The destruction of these sites has had a wide impact outside the physical act of explosively demolishing the area to recover the iron ore. The PKKP people are rightfully deeply hurt by what has occurred. However, the destruction has also materially damaged Rio Tinto’s reputation, caused senior managers/executives’ resignations, and obliged an immediate consideration of the adequacy of the Aboriginal Heritage Act 1972 (WA) (‘AHA’) and other regimes across Australia. Long considered to be amongst the weakest of the state regimes, the permissive destruction of these irreplaceable places illustrates how inadequate the Western Australian legislation was and how utterly ineffective it was at protecting to identify any known sites of cultural significance.

In the Parliamentary Inquiry, the National Native Title Council observed that the AHA predates native title and the Racial Discrimination Act 1975 (Cth).13 The AHA is very much legislation of another time and in no way reflects current thinking on cultural values nor best practice in protective legislation. They also highlight what the Western Australian government said about the AHA in 2019:

“The overwhelming weight of stakeholder feedback is that the current Aboriginal Heritage Act 1972 neither reflects the changed social and legal landscape that has led to the formal recognition of Aboriginal people’s deep connections to the land and their culture, nor modern approaches to heritage management generally. Indeed, many of these concepts cannot be comfortably incorporated into the scheme of the current Act, which envisages only a limited formal role for Aboriginal people in its workings. Consequently, modernising the system of protection for Aboriginal heritage in Western Australia needs more than amendment to the existing Act: a new Act is required.14 

The impacts of the disastrous events at Juukan Gorge continue to be felt in both the development of legislation and policy. Western Australia has now finally replaced the 1972 legislation with something more modern, intending to offer far more protection. Whether it does offer better protection remains to be seen. It could hardly be a worse scheme, but any protective regime in Western Australia will present challenges to the extent of the dominance of mining over law and policy.

Legal processes should both reflect First Nations Peoples as both culture bearers and rights bearers

Understanding enforcement and/or compliance is critical to its success or failure in considering how the law deals with cultural heritage. Juukan Gorge is an extreme example of this. However, there are examples of successful prosecutions for harm or destruction of cultural heritage. The number across the country is not large, but neither is it zero. In Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205, the NSW Land and Environment Court dealt with the destruction of a known culturally significant tree in Grafton. It was the same tree the Local Council had previously received a fine for damaging. Preston CJ goes into significant detail about the destruction’s circumstances and then sets out an extensive restorative justice process that subsequently took place.15 He also highlights some of the Aboriginal people’s responses to the loss of the tree. They express similar sentiments to the traditional owners of Juukan Gorge.

“It broke my heart. I couldn’t believe it. I got the shock of my life. I slowed down to a stop in my car to look at it and someone beeped their horn at me. It didn’t matter. I felt immediate loss and sadness. I said (to myself), ‘There goes another bit of our history and culture that has just been taken away and for no reason. It’s gone forever.

“The scarred tree is gone forever now and this saddens me. I cannot share the story about the tree with my grandchildren now, or others in the community. It was a proud tree but it no longer proudly stands on that site.” 16

“I felt shocked when I heard this. I felt like the Clarence Valley Council had disrespected me and the local Aboriginal community by removing the tree as it was culturally significant to us. I also know from my correspondence with Richie Williamson from the Clarence Valley Council 2014 that the Clarence Valley Council was aware of the scar tree’s cultural significance.17

“When I learned that the tree had been removed my first reaction was shock and sadness. The tree had been recorded by me to ensure its significance, was recognised, and it would be protected. 18

Ultimately, a monetary penalty of $300,000 was paid to the local Aboriginal Community, in addition to a number of other measures, including; a restorative justice process, widely published public apologies, and far stronger processes to ensure that such destruction is not repeated. The outcome of the case and the complexity of the court’s remedies reflect the stark contrast between the values of Indigenous and non-Indigenous Peoples. A straightforward fine or award of damages was insufficient. It could not address the social and emotional harm or damage caused by the destruction. The aftermath of what happened to this highly significant tree in Grafton is also reflected in the conversation that followed the destruction of the caves at Juukan Gorge. There is no simple solution. There is no replacing what has been lost. Any meaningful response must consider not only the physical aspects of what has occurred but also the individual and communal emotional impacts on people that such acts of disrespect for cultural heritage convey about cultural diversity and the systemic failures that led to the destruction in the first place.

Doing better – reforms and rethinking cultural heritage protection

Without unnecessarily maligning Western Australia, it has regularly produced outrages that include Nookenbah, Argyle Diamonds, the Burrup, and now the travesty of Juukan Gorge. It is no accident. The dominant imperative has been economic development. It is worth considering what sort of principles or ideas would contribute to something far stronger than the 1972 Heritage Act in Western Australia. Here are two that derive from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly on 13 September 2007. 

Article 31.1

Indigenous Peoples have the right to maintain, control, protect and develop their cultural heritage. 

Article 32.1 

States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.

Basing legislation on providing rights of control and protection, underpinned by the concept of free and informed consent prior to any approvals, is a fundamental starting point and very much reflects the positioning of First Peoples as both culture and rights bearers. These are the conversations now being had in the wake of Juukan Gorge and are partially reflected in the Report of the Parliamentary Inquiry.19

Conclusions

It is difficult to simply offer a view as to whether or not Australian law offers sufficient protection to cultural heritage. Answering that question will depend on the circumstances. However, in general terms, it is clear that while some legislation is more effective than others, there is scope to improve and expand the protections given to cultural heritage. It is a highly challenging area to reform because it requires the consideration of competing land uses and values. To date, much of what is offered as a protective legislative structure is inherently compromised by prioritising economic interests. Recognising First Peoples as both culture and rights’ bearers means legislative reform that is less derived from protecting or promoting non-Indigenous economic interests and much more rooted in the UNDRIP principles.

Student activities

  1. In what way did cultural diversity exist at the time of the arrival of the first fleet?

  2. Considering the UNESCO definitions, what examples of tangible and intangible cultural heritage (outside of Australia) can you think of?

  3. What are petroglyphs?

  4. What examples of Indigenous cultural heritage can you think of?

  5. Do you think these examples are well protected?

  6. What would you do to make Indigenous cultural heritage more protected?

  7. Why do you think the knowledge of types of food is seen as part of the First Peoples cultural heritage?

  8. Do you think the legal reforms after what happened at Juukan Gorge were adequate? Discuss and consider how they might be better.

  9. If you were in a position that required judging the actions of someone who has damaged or destroyed cultural heritage, what are the things that you would be taking into account?

  10. In your opinion, how important are cultural heritage’s communal and emotional aspects to the current frameworks of legal protection?

  11. Using the UNDRIP principles or other sources, what would make cultural heritage legislation more effective? Is it the type of protection? Are its penalties? Is it a process? All of these – or more?

References

1 Dr Sexton is a highly experienced lawyer in the field of native title and cultural heritage. His PhD used legal pluralism to examine the relationships between traditional owners and the mining industry in Australia. Currently General Counsel, Bunurong Land Council Aboriginal Corporation, Victoria.

2 See, https://humanrights.gov.au/our-work/education/face-facts-cultural-diversity

3 See, https://aiatsis.gov.au/explore/living-languages

4 See Glossary | UNESCO UIS

5 See, Moral Rights – Copyright Act 1968 (Cth). Defined at s.189, they are subject to range of regulatory treatments set out in Division IX.

6 See, Part 5A of the Aboriginal Heritage Act 2006 (Vic)

7 See,  https://www.nma.gov.au/defining-moments/resources/first-rock-art

8 See, https://aiatsis.gov.au/explore/aboriginal-astronomy

9 104-105 Station Street Pty Ltd v Kingston CC (Red Dot) [2019] VCAT 1546 (3 October 2019)

10 Para [32]

11 Para [33]

12 See, A Way Forward – Parliament of Australia (aph.gov.au).

13 National Native Title Council NNTC Submission 34 (and 34.1)

14 Review of WA Heritage Legislation (Discussion Paper 2019)

15 [2018] NSWLEC 205, 12-22

16 [2018] NSWLEC 205.  Roger Duroux [50]

17 [2018] NSWLEC 205. Brett Tibbett [52]

18 [2018] NSWLEC 205. Lisa Southgate [54]

19 See Part 7 (A pathway forward) of the Inquiry Report. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Northern_Australia/CavesatJuukanGorge/Report

 

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