Indigenous Law Bulletin
edited by Martin Chanock and Cheryl Simpson
Special issue of the La Trobe University journal Law in Context, volume 14 no. 2.
La Trobe University Press, Melbourne, 1996.
Reviewed by Chris Charles
This collection of essays offers a wide-ranging and intelligent discussion of law and practice relating to cultural heritage, with a particularly useful emphasis on indigenous heritage interests in Australia. Among the questions raised are ownership of Aboriginal culture and artefacts, intellectual property, the problems inherent in defining the value and meaning of cultural heritage in narrowly European terms and the implications of the Hindmarsh Island controversy for Aboriginal cultural heritage.
In their essay on cultural heritage and property, Couvalis and Macdonald contrast the differing paradigms of value implicit in Anglo-Australian Law on the one hand, with its Lockean assumptions about property rights, and Native Title and Aboriginal Heritage claims on the other hand, which are based more on religious attachment to land as the foundation of cultural identity. Through their philosophical analysis of property rights, the writers examine the intellectual origins of the notion of terra nullius, the uncertain meaning of 'just terms compensation' for compulsory acquisition of native title rights, and other questions. Contrasting value systems in relation to land and land use are seen as central to a host of political and legal disputes in the public sphere. In the Hindmarsh Island case for instance, economic interests in the Goolwa Channel area collided with an Aboriginal commitment to maintaining the spiritual values of the same area.
Mark Harris' article focuses on the ways in which the legal system is used to undermine Aboriginal claims and cultural traditions by insisting on its right to test them. Harris argues that the same administrative mechanisms which the Australian legal system uses to evaluate and protect heritage values in land may endanger the very religious traditions which are the ultimate source of those heritage values. An obsession with unmasking cultural secrets was one of the features of the Hindmarsh Island Royal Commission. Harris correctly notes that the Hindmarsh Island case leaves Aboriginal people with little prospect of future protection for cultural heritage values in relation to land without surrendering control to the Australian legal system.
Harris does not consider in detail whether such inquiries as the Royal Commission constitute an infringement of fundamental rights and freedoms, although further agitation of this question is likely to lead to questions about the nature of legal protection of religious freedoms. Does the law only protect private conscience and belief against the intrusion of the State, as expressed, for instance in the English Bill of Rights of 1689? Or does it extend to the protection of Aboriginal cultural and religious beliefs, when Aboriginal people seek to protect them from disclosure in the course of heritage claims? These are issues which relate very much to the public rather than the private sphere, yet hitherto, the main focus of the common law system has been on the protection of religious freedoms within the private sphere.
Couvalis and McDonald are critical of Aboriginal - Heritage legislation in Australia and in United Nations Educational Scientific and Cultural Organisation (UNESCO) conventions. Existing legislation based on the UNESCO model works on the assumption that the nation state should take steps to preserve and protect places and objects significant to Aboriginal heritage as part of the cultural heritage of humanity in general.
Couvalis and McDonald argue that this paradigm and legislation enacted under it are not equipped to protect indigenous relationships to land and waters, whether as aspects of native title or otherwise. One useful avenue of research which the writers might have considered is an analysis of the philosophical underpinnings of contemporary human rights and discrimination law and practice, for example in relation to the Convention on the Elimination of Racial Discrimination ('CERD'), the International Covenant on Civil and Political Rights ('ICCPR') and the draft Declaration on the Rights of lndigenous Peoples.
Chris Charles is a barrister and solicitor with the Aboriginal Legal Rights Movement of South Australia Incorporated