Indigenous Law Bulletin
Since the European invasion of Australia, places of significance to Indigenous people have been disrupted, degraded, desecrated and in some instances destroyed. Legislation purporting to protect these places has often been limited by Eurocentric concepts of heritage and place. The scientific paradigm of archaeology has exerted great influence on heritage legislation and agencies, and has sometimes led to a narrow focus on protection of only the tangible and objective elements of Aboriginal culture. In these cases ‘legislation has operated to exclude Aboriginal and Torres Strait Island world views and intellectual traditions from cultural heritage management practice.’
Queensland’s Cultural Record (Landscapes Queensland and Queensland Estate) Act No. 90 1987 (Qld) provides an example of some of the common shortcomings within heritage protection legislation. The state ‘has one of the worst site protection regimes in Australia’ according to Ritchie. The Act divides cultural heritage into:
The bias of the Cultural Record Act is towards the protection of the ‘Queensland Estate’ (or ‘Aboriginal Archaeological sites’), that is, the protection of tangible things which can be objectively identified. Non-archaeological sites which are significant to Indigenous people, and sites which can only be identified by Indigenous people are not adequately provided for under the Act.
The Act’s focus on archaeological sites (material evidence of the past) reflects an ethnocentric view of Indigenous culture which is perhaps a legacy of the assimilationist thinking of the 1950s, which viewed Aboriginal culture as dysfunctional, of the past or of a dying culture, and considered that remnant material traces of past cultures were the property of the Crown.
Unfortunately, successive Queensland Governments have not rectified two major shortcomings in the legislation. The first shortcoming is the lack of recognition of the ongoing cultural value of Indigenous sites or landscapes which do not necessarily have physical remains deposited by human agency. Of central concern here is the failure of the legislation to specifically protect sacred sites; sites which have been created by ancestral Dreamtime Heroes and which are imbued with spiritual energies. These sacred sites often have associated cultural knowledge as well as emotional values which cannot be detected by the archaeologist’s sieve. The second key issue is the failure to transfer legal ownership and control of these Indigenous cultural heritage places to a suitable Indigenous-controlled administrative structure.
These shortcomings are true to a greater or lesser extent of other State Cultural Heritage regimes, as well as of the Commonwealth legislation.
Since the 1970s, Indigenous people have widely and publicly asserted their right to exercise control over their own cultural heritage. However, Indigenous heritage remains under government control, and is subject to the interests of the wider public, including public servants, developers and land title holders. Under the Act, the Queensland Estate is the property of the Crown, and the declaration (hence protection) of a landscape area is thus dependent on the consent of a Minister who may also be responsible for other portfolioes which may lead him or her into a conflict of interest in relation to a particular area.
Heritage agencies have responded to Indigenous assertions of control over their heritage by incorporating Indigenous people into their programs in various capacities. In the last decade, there has also been greater emphasis placed on consultation with Indigenous communities. However, there is a vast range of problems associated with consultation. All too frequently, a situation arises in which the “‘powerful’ consult with the ‘powerless’ and having done so do as they will”.
In recent literature, there has been a move away from the archaeological paradigm to the use of ‘place’ as a model when discussing general and Aboriginal cultural heritage issues. All cultural groups have a set of place concepts of some description. Encoding place with knowledge and being able to differentiate place through the decoding of information are basic elements of human life and culture. Although the notion of place is discussed within disciplines such as human geography and environmental psychology, the focus is often on a more Western notion of place. We shall use Relph’s definition as our working definition:
A place is a whole phenomenon, consisting of the three intertwined elements of a specific landscape with both built and natural elements, a pattern of social activities that [are] adapted to the advantages or virtues of a particular location, and a set of personal and shared meanings...These meanings are created both by what one receives from and by what one gives to a particular environmental context, and they are not detachable and transferable. 
The focus of this paper is on this third strand of place properties; place meanings or place knowledge, and their role in Aboriginal place-making and place maintenance.
In many parts of the continent, the destruction of Aboriginal places has meant the loss of the accompanying place knowledge. Although legislation purports to protect certain categories of Aboriginal sites, negligible protection is given to place knowledge. Due to the legal requirements of proof, much legislation requires disclosure of place knowledge when seeking protection for sacred sites, often in breach of Indigenous Law. The Hindmarsh Island case, for example, highlighted the problems associated with presenting gender-restricted Indigenous evidence within the framework of a European legal system. Another important heritage issue is control of and access to site information records.
To illustrate the relationship between Indigenous place and knowledge, we will present a brief case study on the significance of sacred sites or ‘Story Places’ for the Lardil people of the Wellesley Islands in the southern Gulf of Carpentaria. Despite a lack of adequate resources, the local (all-Aboriginal) Mornington Shire Council has been trying to implement a Site Management Plan with the aid of Aboriginal rangers to protect and maintain many of these places. These sites are threatened by erosion, feral plants and animals, fishermen, indiscriminate dumping of rubbish and proposed marine transport of minerals from the Gulf. There has never been any effort by the Queensland Department of Environment and Heritage (or its predecessors) to document or protect any of these sacred sites.
In the North Wellesley Islands, sacred sites typically possess an extensive and culturally unique repertoire of properties which are invisible to the uninformed visitor, but which are known to the Lardil people. There are numerous places where potentially powerful and dangerous unseen entities are believed to dwell. At many of these places, signs in the environment such as shadows, ground tracks, footprints, noises, and meteorological phenomena are understood as signs of active environmental processes and forces at work, but at the same time as evidence of the existence of a separate Dreamtime world. Lardil traditional knowledge of these processes extends to methods of manipulating such environmental phenomena, usually involving songs as well as the enactment of episodes from the stories associated with these places. The Lardil believe that they can control most climatic forces with songs; white ochre is rubbed in the sea to make a flood, and there are songs to turn back hail, to stop waterspouts and dissipate cyclones, to induce and to stop rain, and so forth.
Of the different Lardil place types, ‘Story Places’ have the most complex set of properties. They are marked neither by artefacts nor structures, and even their natural characteristics are not necessarily outstanding visually, yet within Lardil cosmology, their invisible properties are very powerful.
The Lardil ancestors Maarnbil, Jirn Jirn and Dewildewil were the original creators of these sacred sites, but further properties have been added by subsequent supernatural beings. Each Story Place is believed to be inhabited by a separate spiritual entity which generates energies at the site. These beings reproduce at these sites, whether they are inside the ground or under sea. Aboriginal people are able to catalyse processes of reproduction or fertility by performing simple ritual actions at these places. Some sites are said to generate plant or animal species, whilst others produce meteorological phenomena. The energies of the spiritual occupants of each Story Place are supplemented by the energies of Thuwathu, the Rainbow Serpent. The spiritual entities act as agents for Thuwatu by monitoring the actions of humans and inflicting markirii sickness upon those who do not adhere to specified behavioural rules.
According to Lardil belief, the Dreamtime is a second spatial universe which somehow split away from the material world of everyday human existence at some time in the remote past. The Dreamtime co-exists in time with the material environment, but is situated in a separate space dimension which is not visually accessible under normal circumstances. Although there are believed to be two separate universes, there are places where the properties of one overlap with the properties of the other. Connections between these two universes occur via dreams and Story Places.
Story Places are the geographical source of Lardil sacred knowledge. By frequenting a Story Place, individuals may receive gifts of knowledge via dreams from unseen people in the Dreamtime dimension. The nature of this knowledge appears to be qualitatively different at each particular Story Place. Knowledge received in a dream at such a place is likely to deal with the nature of the local Story Place inhabitants. As Lardil Elder Lindsay Roughsey emphasises:
You gotta be there at that [story] place and show respect to place. You gotta talk to certain place too. You gotta talk to that certain ground...if you go to a certain [story] place, it always gotta come back in dream.
The Lardil believe that to maintain a balanced system of communal knowledge, it is essential to have contributions of knowledge imparted in dreams in the vicinity of each and every Story Place. The basis of knowledge, and hence social authority, can be seen to lie in social geography, through the association of patriclan groups to Story Places. In the 1970s, when Lardil people were living in a concentrated mission settlement, remote from their Dreaming sites in their patriclan countries, men often criticised one another for failing to obtain and provide an adequate contribution of cosmological knowledge for the communal pool of knowledge. Fortunately, the rise of the outstation movement back to the Lardil homelands in the 1990s has allowed families to reconnect directly with their Story Places once again.
Traditional Aboriginal identity is firmly rooted in land through custodianship, geography, totemism, history and the subsistence economy. Lardil culture was traditionally place-bound, with an emphasis on custodianship of place and environmental resources, rather than possession. There are special shared cultural properties which bind together relationships between people, places and natural species. In Lardil cosmology, these three distinct categories are seen as interdependent, each with a set of beliefs consistent with the other. The Dreamtime universe forms a fourth interdependent domain, and links into this world can be found in the landscape. In some contexts of everyday life there is a merging of individual identity with animal and plant species or with other natural phenomena, and also with the Story Place which is the place of residence and procreation of the relevant ancestral being.
The spiritual inhabitant of each Story Place is regarded as possessing some human qualities, and these entities are also associated with the unseen people of the area (reincarnated ancestral spirits). The local residents of the area (the patriclan) are also said to share the energies of the Story Place being. These energies are also transmitted from the Story Place to humans who are born or conceived near the Story Place, or who preside over and regularly occupy the local area. These humans then possess a close identity with their Story Place and its occupant. The totemic entities thus provide personal subjective links into a co-existing religious world, and render everyday life experience both profound and personalised.
Totemic energies are also transmitted through the various patrilines, which continue to be maintained today. For example, young men from Sydney Island (Langunganji) refer to themselves as the ‘bluefish boys’ after the Bluefish Story Place there, whilst young men from the east end of Mornington Island (Barardkiya) call themselves the ‘rock cod boys’ after their grandfather Dibirdi and the Rock Cod Story Place in their patriclan country.
Aboriginal identity with sites, landscape and seascape in the Wellesley Islands is still very strong today despite the many changes which have taken place recently in the relationship between people and the environment. Identity is defined within a cognitive domain of place-specific knowledge and invisible properties of place. The cultural heritage of Lardil sacred place and geography is one of intellectual complexity and beauty, but not one which can be readily detected or defined using conventional archaeological methods. To properly assess these kinds of place-based knowledge systems and to formulate strategies which allow their Indigenous owners to protect and maintain them, it is necessary to map entire cultural landscapes and their dynamic and holistic cognitive properties, rather than merely selecting isolated ‘best-example’ sites to record and protect.
There is clearly a need for lawyers to seek ways of protecting Indigenous place-based knowledge rights in both statutory and common law, for example by asserting Native Title Rights in site-specific or landscape-specific knowledge. There is also a need to support the wider movement for the recognition of Indigenous Cultural and Intellectual Property Rights through a range of statutory and commercial mechanisms. 
Paul Memmott is a consultant anthropologist and architect and the Director of the Aboriginal Environments Research Centre at the University of Queensland.
Stephen Long, is a post-graduate student and senior research assistant at the Aboriginal Environments Research Centre.
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Fourmile, H. 1996, ‘The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 ; Legislative discrimination in the Protection of Indigenous Cultural Heritage' Australian Indigenous Law Reporter vol. 1 No. 4.
Hall, C. M. & McArthur, S. (Eds). 1993, Heritage Management in New Zealand and Australia: Visitor Management, Interpretation, and Marketing. Oxford University Press, Auckland.
Janke, T. 1997, Our Culture, Our Future, Proposals for Recognition and Protection of Indigenous Cultural and Intellectual Property. [Prepared for AIATSIS and ATSIC] Michael Frankel and Company, Solicitors, Sydney, 1997.
McBryde, I. 1995, ‘Aboriginal Places: Needs and Priorities in Legislation and its Administration’, in Cultural Conservation: Towards a National Approach., Australian Heritage Commission Special Australian Heritage Publication Series no. 9, Australian Government Publishing Service, Canberra.
McNiven, I. 1994, ‘Relics of a By-Gone Race’? Managing Aboriginal Sites in the Great Sandy Region, Ngulaig vol. 12, Aboriginal and Torres Strait Islander Studies Unit the University of Queensland, Brisbane.
Memmott, P. 1979, Lardil Properties of Place, An Ethnological Study in Man-Environment Relations, PhD Thesis, University of Queensland, 1979.
Relph, E. 1993, ‘Modernity and the Reclamation of Place’, in Dwelling, Seeing, and Designing: Toward a Phenomenological Ecology, ed. D. Seamon, State University of New York Press, Albany.
Ritchie, D. 1996, Australian Heritage Protection Laws: An Overview, paper presented by D. Ritchie at the AAS/AIATSIS Workshop on Heritage Issues, 14- 15 February 1996 (unpub).
Rowland, M. J. 1992, Conservation Plan for Cultural Heritage Sites on the Keppel Island Group, Central Queensland, A Report to the Livingstone Shire Council, Queensland Department of Environment & Heritage, Brisbane.
 Williams In Ellis 1994:ii.
 Ritchie 1996: 3; Fourmile 1996.
 Rowland 1992: 1.
 AHC 1985: 112, Rowland 1992: 1-2, Ellis 1994: 16, 1995: 342.
 See Ellis 1994: 1-4, Ritchie 1996: 2.
 Janke 1997.
 Evatt 1996.
 Ritchie 1996: 2.
 See also Dobb 1995: 41-43.
 Dobb 1995: 41, AHC 1985: 109, McBryde 1995: 112.
 McBryde 1995: 121.
 Ellis 1994:18.
 Ellis 1994: 23.
 Ellis 1994, McNiven 1995, AHC 1994, Brown 1993, Hall and McArthur 1993.
 Relph 1993:34, 36.
 Memmott 1979. This case study is based on field work carried out by Paul Memmott in the 1970s with the Lardil people. Permission to cite this material has been granted by the Lardil Elders. Paul Memmott recently documented approximately 145 sacred sites in the Wellesley Islands for the Mornington Shire Council, and this information is to be used in a forthcoming Native Title Sea Claim.
 See for example ATSIC 1997.