Ormond-Parker, Lyndon --- "A Commonwealth Repatriation Odyssey" [1997] AboriginalLawB 21; (1997) 3(90) Aboriginal Law Bulletin 9

A Commonwealth Repatriation Odyssey

By Lyndon Ormond-Parker

`You seek to say that because you are Australians you have the right to study and explore our heritage because it is a heritage shared by all Australians, white and black. From our point of view we say--you have come as invaders, you have tried to destroy our culture, you have built your fortunes upon our lands and the bodies of our people, and now, having said sorry, want a share picking out the bones of what you regard as a dead past. We say that it is our past, our culture and heritage and forms part of our present life. As such it is ours to share on our terms.'[1]

For the past thirty years, the Commonwealth has had the Constitutional authority to introduce national legislation for the repatriation of Aboriginal and Torres Strait Islander ancestral remains and cultural property. Yet despite ratifying a number of international instruments which specifically address this matter, the Commonwealth is yet to formulate a national repatriation policy, let alone enact national legislation. This absence of a `blanket coverage' national policy effectively denies the right of Aboriginal and Torres Strait Islander communities to have many of their ancestors' remains repatriated to their home lands. This has created tremendous discontent within the Aboriginal community, and is a reflection of the continuing neo-colonial attitudes of many institutions.

Moreover, whilst a series of disparate Commonwealth, State and Territory heritage protection laws have been enacted, many do not acknowledge Aboriginal and Torres Strait Islander ownership and control of cultural property.[2] Rather, ownership of this kind of intellectual and spiritual property has been vested in the Crown. Nevertheless, some individual museums have developed policies which address repatriation of ancestral remains, and the return of some secret/sacred objects to their communities of origin.

In Australia, there are currently two major national policies addressing this matter. The first is an Interim Policy formulated by the Australian Aboriginal Affairs Council on the Return of Aboriginal and Torres Strait Islander Cultural Property and Its Return to Aboriginal and Torres Strait Islander Ownership, which is still in draft form. The second is Museums Australia's Previous Possessions, New Obligations policy. Whilst the former acknowledges full ownership, control and management by Indigenous communities of their cultural property, the latter subordinates these rights depending on their scientific value.

In an attempt to retain Indigenous cultural property, many institutions argue they have a duty to preserve and display objects of benefit to the wider community, and to conduct research on items of scientific or educational value. However, many Indigenous communities around the world, including Aboriginal and Torres Strait Islander communities in Australia, argue that appropriating ancestral remains violates the sanctity of the dead and undermines the rights of their ancestors.[3]

A paper presented by the Brisbane-based Foundation for Aboriginal and Islander Research Action at the 1989 World Archæological Congress on `Archæological Ethics and the Treatment of the Dead' summarised the feeling of many Indigenous communities: `[i]n Aboriginal ... law there will be no spiritual peace until the dead are returned to the place of their birth and have received their last rights in accordance with their traditions.'[4]

Developments at the international level

Over the past few decades, numerous countries, institutions and other bodies have adopted policies for the repatriation of Indigenous cultural property and guidelines for undertaking research of an anthropological or archæological nature within Indigenous communities. Nevertheless, these have often been difficult to implement, not necessarily ratified by all, and above all, do not necessarily take into account Indigenous peoples' rights.

At the international level, the main policy development for the repatriation of Indigenous cultural property has been formulated under the auspices of the United Nations. Initially, during the 1960s, United Nations attention was directed to the fate of cultural property stolen by occupying states during war, colonisation and other situations.[5] Following this, in 1970, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ([1990] ATS 2). Whilst there are over 80 parties to this Convention, many of the important market states have not ratified it, and some, like Great Britain, are no longer members of UNESCO. For this reason, Zambia has been unable to progress a claim for the return of a skull from Great Britain.[6]

In 1986, the Commonwealth introduced the Protection of Movable Cultural Heritage Act 1986 (Cth) which partially fulfiled its obligations under the UNESCO Convention. However, under this Act, movable cultural property is defined in terms of its importance to the nation. Such a definition is of course at odds with the inalienable rights of Indigenous communities to own, control and manage their cultural property.

Similar concerns about the protection of cultural and intellectual property were expressed in 1993 at the United Nations Working Group on Indigenous Populations, which considered the Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples. The Aboriginal and Torres Strait Islander Commission's (ATSIC's) submission to the Working Group emphatically stated that `Indigenous peoples' ownership and custody of their heritage must continue to be collective, permanent and inalienable, as prescribed by the customs, rules and practices of each people.'[7]

An Australian policy and legislative odyssey

In Australia, campaigns for the return of Aboriginal and Torres Strait Islander ancestral remains progressed during the 1970s as part of the general land rights movement. Australian museums became increasingly aware of Indigenous concern regarding the scientific use of cultural property, and were approached for the return of ancestral remains and secret/sacred cultural material. The most publicised repatriation at the time occurred with the return of the remains of Truganini to Tasmania. As a result of this pressure, and increasing public support, some Australian museums began changing their policies governing the collection of ancestral remains. For example, in 1972, the Queensland Museum resolved to no longer accept newly disinterred Aboriginal remains. Since this time, controversy over repatriation has prompted many museums to develop policies for the return of ancestral remains held in their collections.[8]

In the early 1990s, the Commonwealth attempted to develop a national policy on the repatriation of Aboriginal ancestral remains and cultural property from within Australia and overseas. In February 1990, the Australian Aboriginal Affairs Council (AAAC), which is composed of Indigenous Affairs Ministers from the Commonwealth, State and Territory levels, established a `Task Force on the Return of Aboriginal and Torres Strait Islander Cultural Property'. The Task Force was subsequently widened to include representatives from Indigenous communities.

In December 1993, the Council of Australian Museums Association (CAMA) (now known as Museums Australia) adopted principles to direct the future management of Aboriginal and Torres Strait Islander cultural property at a national level. A major development of the Previous Possessions: New Obligations policy is that museums are reclassified as `custodians' rather than `owners', and that decisions regarding the future of ancestral remains are the responsibility of the Aboriginal and Torres Strait Islander community.

Nevertheless, whilst this policy has been seen as progressive in that it respects the wishes and concerns of Aboriginal and Torres Strait Islander communities, it raises a number of problems for Indigenous Australia. In the first instance, it only covers member museums, and other institutions holding ancestral remains, such as universities, are not bound by this policy.

Second, many Indigenous communities see the Museums Australia policy as an example of neo-colonial dispossession which categorises Aboriginal and Torres Strait Islander communities as curios in the historical landscape of Australia. Mick Dodson, the Aboriginal and Torres Strait Islander Social Justice Commissioner, has also noted that the policy fails to deal with the anachronistic museum legislation under which museums currently operate; that it deals with Indigenous ownership in an ambiguous manner; and that it is based on the assumption that museums are the most appropriate institutions to harbour Indigenous cultural heritage. Dodson has further commented:[9]

`[g]iven the fact that, in general, governments have ownership of Indigenous cultural objects in museums and other collecting institutions, and that Indigenous peoples are disempowered through museum and other legislation relating to collections of our cultural property, Aboriginal and Torres Strait Islander peoples are very unequal partners in this much vaunted partnership relationship. It is a partnership in which the State remains firmly in control.'

Finally, the Museums' policy fails to seriously address issues of administration, funding and management of the repatriation of those items covered by the policy. Whilst lack of funding is often given as a major reason for the failure of museums to return provenanced ancestral remains to communities, such failure may just as be easily attributed to an inability on a museum's part to make repatriation an urgent priority.

In October 1993, in an attempt to address the inadequacies of Commonwealth, State and Territory policies and legislation, the AAAC Ministerial meeting issued recommendations, based on the draft policy, which became a set of `National Principles for the Return of Aboriginal and Torres Strait Islander Cultural Property'. These National Principles were a major development in the Commonwealth's repatriation odyssey because, unlike the Museums Australia policy, they affirm Aboriginal and Torres Strait Islander communities as owners of their cultural property, and assert the pre-eminent role of these communities in the recovery and care of their property.[10]

Nevertheless, Bob Weatherall, a prominent Aboriginal community member who was formerly on the AAAC National Task Force, publicly lamented:[11]

`I am continually frustrated by the rhetoric and persistence of government to make decisions that disregard our Native Title Rights to our cultural property ... There does not exist a legislative mechanism suitable to Aboriginal and Torres Strait Islander people to control the trading of our cultural property between collecting institutions.'

Moreover, although the Commonwealth, States and Territories have agreed with these National Principles, they have shown no substantive commitment to developing accompanying policies or allocating the necessary funding for implementation. For example, after four years, Queensland's Policy on the Protection and Return of Significant Aboriginal and Torres Strait Islander Cultural Property is still in draft form. Indeed, Queensland's Office of Aboriginal and Torres Strait Islander Affairs is to transfer all responsibility for Aboriginal and Torres Strait Islander cultural heritage to the mainstream Department of Environment, and Arts Queensland.

This gross inaction contrasts with the prompt manner in which ATSIC acted upon the AAAC National Principles. Less than a month after the National Principles were issued, ATSIC had formulated its Policy on the Protection and Return of Significant Cultural Property. This policy commits ATSIC to providing funding to facilitate repatriation, for the necessary research to provenance Aboriginal and Torres Strait Islander cultural property, and to inform relevant communities of the existence of their ancestral remains. The ATSIC policy also recommends that the States and Territories `must accept primary financial responsibility' for the return of significant cultural material within their respective areas.[12]

Finally, whilst the AAAC principles and Museums Australia policy were released after the High Court delivered its Mabo v Queensland [No. 2] ((1992) [1992] HCA 23; 175 CLR 1) decision, neither policy takes into account the affect of native title rights on Aboriginal cultural and intellectual property. Following Löfgren, Paul Burke notes:

`[t]his is precisely what Neil Löfgren argues. He holds that Aboriginal ... law, as it relates to intellectual and cultural rights, is the longest surviving form of intellectual property law in existence today. [Kamal] Puri adds support to this position when he observes, in Mabo v Queensland, their Honours took the view that the traditional interest of native title inhabitants were to be respected even though those interests were of a kind unknown to the common law.'[13]

Indeed, Löfgren has proceeded to articulate a common law Aboriginal knowledge system based on sui generis Aboriginal rights.[14] He further argues that the failure of the Commonwealth, States and Territories to legislatively acknowledge these Aboriginal rights breaches the equal protection of property rights found by the High Court in Mabo v Queensland [No. 2] ((1992) [1992] HCA 23; 175 CLR 1), affirmed by the Native Title Act 1993 (Cth), guaranteed by Australia's ratification of the International Convention on the Elimination of All Forms of Racial Discrimination ([1975] ATS 40), and protected by the equality provisions contained in the Racial Discrimination Act 1975 (Cth).[15]

Concluding comments

In conclusion, there is an obvious need for a national policy on the repatriation of ancestral remains held in all Australian museums, universities, private collections, and other institutions which will assist Aboriginal and Torres Strait Islander communities in facilitating the unconditional return of their cultural property.

Indeed, the Coalition's Aboriginal and Torres Strait Islander Policy commits the Coalition Government to `assist in the return of culturally significant items that form part of the heritage of Indigenous communities'.[16] ATSIC's report to the Commonwealth on native title social justice measures (Recognition, Rights and Reform) has also proposed the Government must `adopt a national policy for protection and return of significant cultural property for Commonwealth institutions and ensure that similar policies are applied in States and Territories'.[17]

The framework for such a national policy must, at a minimum, acknowledge Aboriginal and Torres Strait ownership, control, administration and management of cultural property. It must also address the issue of unprovenanced ancestral remains and their care, the need for land for reburials, and the issue of protection of burial sites. Anything less would be a breach of Aboriginal and Torres Strait Islanders' rights of inheritance, property ownership and equality before the law, and their Indigenous rights to cultural integrity.[18]

A first step in achieving a national policy would be a nation-wide summit or forum of relevant community people to address the various issues associated with the repatriation and caring of ancestral remains and cultural property.[19]A major hurdle in this odyssey, however, is that the Commonwealth, States and Territories have, as usual, failed to reach agreement about their respective financial responsibilities.

The author would like to dedicate this article to Bob Weatherall and others who have continually lobbied governments and museums for the return of their ancestral remains. Without this pressure, little progress would have been made in this area.

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[1] R F Langford, `Our Heritage--Your Playground', (1983) 16 Archæology Australia 1.

[2] Even though the Aboriginal Heritage Act 1988 (SA) recognises traditional ownership, it does not vest ownership of Aboriginal heritage in the Aboriginal community.

[3] R Worl, `NAGPRA: Symbol of a New Treaty', (1995) 7 (3) Federal Archæology 34 p 35.

[4] Foundation for Aboriginal and Islander Research Action (FAIRA), `Archæological Ethics and the Treatment of the Dead', Unpublished Conference Paper (World Archæological Congress, University of South Dacota, 7-10 August 1989), p 1.

[5] R Worl, `NAGPRA: Symbol of a New Treaty', (1995) 7 (3) Federal Archæology 34 p 35.

[6] Ibid, p 232.

[7] Aboriginal and Torres Strait Islander Commission (ATSIC), `The Australian Contribution 1994; UN Working Group on Indigenous Populations, Twelfth Session 20-29 July 1994' (ATSIC Office of Public Affairs, Canberra, 1995), p 128.

[8] C Fforde, Unpublished Thesis (1996), Department of Archæology, University of Southampton.

[9] M Dodson, `HORSCAA Inquiry into Aboriginal and Torres Strait Islander Culture and Heritage', unpublished submission (Aboriginal and Torres Strait Islander Social Justice Commission, Sydney, 1995), p 22.

[10] Council for Aboriginal Reconciliation, `Valuing Cultures: Recognising Indigenous Cultures as a Valued Part of Australian Heritage', AGPS, Canberra, 1994, p 27.

[11] B Weatherall, `Press Release', Foundation for Aboriginal and Islander Research Action, 18 October 1994.

[12] Aboriginal and Torres Strait Islander Commission, `Policy on the Protection and Return of Significant Cultural Property' (November 1993), p 3.

[13] P Burke, `Native Title and Intellectual Property', Land, Rights, Laws: Issues of Native Title (Issues Paper 10), April 1996, p 8.

[14] N Löfgren, `Aboriginal Common Law Knowledge', Vol 3, 77 Aboriginal Law Bulletin 11. See also Wik v Queensland (unreported, High Court, 23 December 1996) per Kirby J at 185.

[15] N Löfgren, `Aboriginal Community Participation in Sentencing', Unpublished Conference Paper (National Labor Lawyers Conference, Australian National University, 5 October 1996).

[16] Federal Coalition, `Aboriginal and Torres Strait Islander Affairs Policy', Electoral Policy Document (1996).

[17] Aboriginal and Torres Strait Islander Commission, `Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures' (1995), p 109.

[18] N Löfgren, `Added Impetus for Legislative Protection of Aboriginal Cultural and Intellectual Property Rights', (1994) 4 Arts & Entertainment Law Review 63.

[19] R Weatherall, personal comments between Bob Weatherall and the author, February 1997.