Auty, Kate --- "Aboriginal Cultural Heritage: Tasmania & La Trobe University" [1995] AboriginalLawB 54; (1995) 3(77) Aboriginal Law Bulletin 20

Aboriginal Cultural Heritage: Tasmania & La Trobe University

by Kate Auty

The protection and repatriation of Aboriginal cultural material remains one of the primary concerns of Aboriginal people throughout the country. The continuing efforts of Aboriginal people to have their cultural heritage respected have to be undertaken on a State by State basis, mostly relying on the legislation available within the particular jurisdictions.

Frequently, Aboriginal efforts to regain control and management of their cultural heritage crosses State boundaries. This was the case recently when the Tasmanian Aboriginal Land Council (`the TALC') brought legal action to regain control of some of their cultural material which had been held at La Trobe University, Melbourne, notwithstanding the fact that permits originally granted by the Tasmanian government under the Aboriginal Relics Act 1975 (Tas) (`the Act') had expired. The matter was litigated in the Federal Court of Australia in Sainty v Allen (Unreported, No. VG 643/1995 (Melbourne)).

Aboriginal people have frequently needed recourse to the law to gain respect for and control of their cultural heritage material. Notable early examples are found in the cases of Foster v Mountford ((1976) 29 FLR 233) and Pitjantjatjara Council v Lowe and Bender (Unreported, 25-26 March 1982). In the south-east Australian context, up until July 1995 successful litigation had been mounted on two occasions, in the cases of Berg v University of Melbourne (Unreported, 18 June 1984) and Berg v Museum of Victoria ([1984] VR 613). In both of these cases James Berg, Inspector under the Archaelogical and Aboriginal Relics Preservation Act 1972 (Vic), successfully challenged the rights of others to have control of Aboriginal cultural remains (notably skeletal remains).

In July 1995, the TALC, tired of unproductive discussions with the Tasmanian Government and the Archaeology Department at La Trobe University concerning the handing over to them of some 130,000 artefacts and remains, sought assistance from the Victorian Native Title Unit. This resulted in litigation in the Federal Court. The litigation was commenced only after efforts had been made to gain the active involvement of Victorian Aboriginal Affairs Department officials. The Department deemed the matter outside its purview.

The material had been excavated by two archaeologists, Professors Jim Allen and Tim Murray, from various locations in Tasmania pursuant to permits obtained under the Act. Five permits had been issued in all, and each and every one of them had expired at the time the litigation was commenced. One permit had expired as early as 1988, and had never been renewed. An extension of the permits was sought by Professor Allen in 1994; no extension was sought by Professor Murray. The application for an extension of time for examination of the cultural material was refused by the Tasmanian Minister responsible for administering the Act, Mr John Cleary, Minister for Environment and Land Management. The Tasmanian Government, however, took no immediate steps to recover the material and essentially allowed the archaeologists to remain in control of the material until the TALC took legal advice and action.

The matter came before Justice Howard Olney on 5 July 1995, at which time an Interim Order was obtained for the material to be delivered to the Museum of Victoria pending a full hearing. On this date La Trobe University was joined as a party. Prior to the return date, a stay of the Interim Order was obtained by La Trobe University, due to the unavailability of Court time to hear the respondents' application for a permanent stay of the Order.

On 24 July 1995, the Court heard argument from both parties regarding the continuation of the Interim Order. On 28 July 1995, Olney J confirmed the original Order, and the relics were subsequently delivered to the Museum of Victoria for safekeeping. In his judgement, Olney J encouraged Mr Cleary to intervene. In response, the Minister directed that the material be returned to Tasmania. This essentially finalised the litigation. The judge also ordered costs in favour of the Tasmanians in relation to some hearing days. It is understood that the material is to be handed over to the TALC in due course.

Since conclusion of the hearings, there has been some adverse press comment on the matter. Professor Murray stated his views in an article titled `The death of archaeology' (Campus Review, Vol 5 No 34, 31 August 1995, page 7), which talked about the discipline of archaeology giving Aboriginal people confidence and pride in their `pre-historic' achievements. Professor Murray believes that it was only since the publication of an article in Science in June 1995 that the TALC had decided upon going to court. Such an argument is irrelevant to Olney J's determination. The Court was concerned, among other things, with the failure of the archaeologists to return the relics in accordance with the conditions upon which the permits were originally issued. In reaching his decision, Olney J made the following comments:

`By their conduct, evidenced by the published writings and the correspondence which has emanated from the first and second respondents I have grave doubts as to their willingness to return the relics until they have concluded their research and this view is supported by the rather extraordinary statement made by Counsel at the conclusion of his submissions in which he set out a timetable for the return of various classes of relics'; and

`I am of the opinion that there is a real likelihood that the respondents will not return the relics in a timely manner even if it be held that they have no entitlement to continue in possession and accordingly I am satisfied that the balance of convenience falls heavily in favour of requiring the delivery up of the relics for safe keeping pending the hearing and determination of this proceeding'.

The adverse press comment also railed against the waste of tax payers' money in the whole exercise, commencing with the excavations and concluding with the Federal Court proceedings. This comment was answered by the Minister in his letter to The Australian of 9 September 1995, where he agreed there had been a waste of tax payers' money. He placed the blame firmly on the archaeologists when he said this would have been averted if they had complied with their legal obligations under the Act.

In this case, recourse to the negotiating table resulted in no action being taken. It is apparent that there is a need for the establishment of uniform State, or preferably, national cultural heritage legislation, so that problems relating to jurisdiction can be overcome. It is also apparent that there needs to be established some kind of Aboriginal cultural heritage organisation, independent of those presently operating out of the various government bureaucracies. There is nothing novel in such suggestions; but it is plainly time something was done about them.