Indigenous Law Bulletin
by Dale Kerwin & Mick Leon
This article is an assessment of state Aboriginal cultural heritage protection regimes. Historically Aboriginal peoples’ interests have not been considered when land and heritage arrangements have been reviewed. This article looks at how Aboriginal peoples have had to fight for their cultural rights within the context of a cultural terra nullius and suggests ways to improve protection of Aboriginal cultural heritage. It briefly discusses cultural heritage legislation, native title, usufructuary rights, covenants, access to cultural heritage, and Aboriginal involvement in environmental management and economic viability.
As a result of invasion and the past 210 years of colonisation the Australian landscape has become Europeanised. A quick look at any map of Australia finds names like Botany Bay, Glass House Mountains and Sturt Highway. The naming of the Australian landscape was based on European ideas of place. This is exemplified by Captain Cook’s description of Australia as a fine example of ‘a gentlemen’s park’. He had no words to describe the Aboriginal landscape. This practice of naming resulted in increased European ownership of the land. Australia became emblazoned with white fellow dreaming of the ‘old land’. Burke and Wills are immortalised. A tree at Coopers Creek has a symbol of their journey carved into it. The landscape is littered with the relics of these historical actors.
As a result of all of the above factors Australian legislation and policies for cultural heritage are formulated and framed in a cultural terra nullius. In the after glow of Mabo v State of Queensland (No 2) (‘Mabo’) Aboriginal people want the right to name our landscape, the right to access our cultural landscape, to use and enjoy the cultural resources which we managed before colonisation.
The current discourse relating to cultural heritage protection neglects to identify Aboriginal issues and focuses on representing governments and other stakeholders. Major issues that have not been adequately addressed in cultural heritage legislation are cultural affirmation and maintenance of Aboriginal heritage by Aboriginal peoples.
There is a propensity to ignore Aboriginal definitions when developing cultural heritage legislation, providing the basis for a cultural terra nullius. For example, the way cultural heritage protection laws were redesigned after the Hindmarsh Island Bridge fiasco. These laws focus on ‘bones and stones’, rather than taking a holistic humanist view of culture and provide far weaker protection and ownership rights for Aboriginal cultural heritage.
As the first peoples of this country Aboriginal peoples should have rights to manage and protect cultural heritage on public and private lands. Aboriginal people want to be treated not as fringe dwellers but as equal partners in the decision-making process that surrounds cultural heritage protection regimes. Cultural heritage legislation fails to adequately deal with and incorporate the rights of native titleholders. These regimes need to support an approach which includes native titleholders and other Aboriginal peoples in the development of Aboriginal cultural heritage management plans. These plans should be legally binding. In addition, more Aboriginal people should be employed in policy and legislation development to provide more meaningful participation in the process.
Since the historic court decision of Mabo, where the doctrine of terra nullius (a land that belongs to no one) was thrown out, Aboriginal nations have had proprietary rights to their territories and soils. Further, it has been recognised that Aboriginal peoples have ‘incidental’ rights in flora and fauna where native title exists. In Yanner v Eaton it was found that in certain circumstances s 211 of the Native Title Act 1993 (Cth) (‘the NTA’) preserved the domestic or non-commercial rights of traditional owners to hunt, fish, gather, and perform cultural or spiritual activities. It is also clear that in particular situations the NTA allows for compensation for traditional owners who have had resources removed from their land.
However, it is questionable whether native title provides rights for the Aboriginal traditional owners over land and waters that are integral to their lores, laws and customs. These include rights for traditional economics, spiritual and cultural practices, enjoyment of recreational and ownership rights over flora and fauna, and management of estates within traditional territories.
Native title claimants have some rights to be consulted with respect to acts that affect their native title rights. We propose that the native title regime should also include rights with respect to acts that affect lores, laws and customs of traditional owners. This would be a significant step towards protecting Aboriginal cultural heritage as most rural leases have native title claims pending over them.
Usufructuary rights allow for people to take and use the profits of land. Economic benefits for Aboriginal peoples, including the use and collection of native flora or fauna, should be built into all leases across the state. Such rights were recognised in the mid 1800’s and built into leases, but were removed over a hundred years later.
It is also important that covenants are built into land tenure agreements, so that cultural heritage areas and sacred sites are protected once a property changes hands. Burial areas, sacred areas and even archaeologically determined ‘small scatters’ could be protected within a title deed.
Aboriginal peoples want access to properties to manage sites, undertake spiritual activities and affirm relationships to land and traditional country. There is a need for greater recognition of Aboriginal rights and customary lore obligations to manage places of cultural heritage value. We suggest that a system is set up whereby legislation protects the rights of Aboriginal peoples to gain access to leasehold properties. The Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) and similar legislation in other states, reserve property rights for the Crown with respect to minerals and other resources. Such a system could be used to preserve rights for Aboriginal peoples to manage places of value.
Aboriginal peoples have been recognised as having a close relationship to country and all elements of the environment. It has been widely acknowledged that Aboriginal conservational practices for management of flora and fauna contributed to the landscape that Europeans described as a ‘gentleman’s park’. We had no go zones, whereby species were protected from overexploitation. We are what Tim Flannery called ‘environmental agriculturalists’.
After the full impact of European invasion took place, settlers occupied land that was traditionally managed by Aboriginal peoples. The environmental degradation of the Australian landscape has been created by the land management practices of the descendants of these peoples. Australia has the dubious honour of having the most extinction of natural species in contemporary times on the world stage. Australia clears large tracts of land and introduces species that are not friendly to the Australian environment, such as fish, insects, large and small beasts, and plant species all of which adversely affect Australian ecosystems. As a result of this degradation new management regimes have been introduced, however, they would have been unnecessary if proper management was introduced initially.
It is our position that Aboriginal peoples need to be included in any discussions about the management of traditional country. This would help to negate the effects of bad environmental management practices. A good example of this is fire management regimes in NSW, where there is little or no Aboriginal involvement. We know when to fire the landscape and when not to. The failure to include Aboriginal people has caused irreparable damage to more urbanised areas.
The current focus on economic development places a limitation on the effectiveness of cultural heritage legislation. This legislation should be expanded to require consideration of Aboriginal views on environmental management issues including bio-regions and harvesting of native species. In addition, the native title regime should also be expanded to require consultation with claimants on environmental management practices.
The economic viability of the landscape is tied closely to the health and biodiversity of the land. Since an increase in Aboriginal involvement in environmental management is integral to the health of the land, it will also have a significant impact on the land’s economic viability.
It is also important to see the role that could be played by Aboriginal people in the development of new industries. Bizarrely, Israel, New Zealand and South Africa sell more native Australian flora than Australia. In Europe Australian bush tucker is in hot demand but here in Australia there is a real cultural cringe to the consumption of such foods. All state governments should be investing in these industries. For this purpose, Aboriginal peoples are in the best position to assist with identifying appropriate species that can be grown in broad acre lots, in an economical and environmentally sound way. Such a plan should adequately renumerate and protect the intellectual property of the traditional owners. There is an opportunity to apply this approach with the emerging cherry guava industry in Tasmania. Comment and consultation with the Aboriginal community is needed before legislative change extinguishes any Aboriginal intellectual property rights related to this plant species.
While the Mabo decision reversed the concept of terra nullius, Australian Aboriginal peoples are still struggling to overthrow the entrenched notion of cultural terra nullius. Since the Mabo decision there has been a change in how Australians view Aboriginal peoples. Aboriginal history was a footnote in most texts on Australian history, but today it has become part of the preamble. There is now a need for a concerted will by all to position Aboriginal society and culture in the body of Australian history.
Dale Kerwin is a descendent of the Worimi nation, and has a passion for authoring Aboriginal peoples back into the Australian landscape. He is currently undertaking a PhD program in Australian history at Griffith University in Queensland.
Mick Leon is also a descendant of the Worimi people. He has been an advocate for Aboriginal cultural heritage issues in NSW for the past 10 years. He is currently an Aboriginal Cultural Heritage Officer at the Jali Local Aboriginal Council, Cabbage Tree Island.
 Keith Willey, When the Sky Fell Down: The Destruction of the Tribes of Sydney Region 1788-1850’s (1979) 34; Paul Carter, The Road to Botany Bay (1987) 233.
 John Gardiner-Garden, The Mabo Papers (1994); Tim Rowse, After Mabo Interpreting Indigenous Traditions (1993).
  HCA 23; (1992) 175 CLR 1.
  HCA 53.
 Native Title Act 1993 (Cth) s 24GE & 238.
 Tim Flannery, The Future Eaters (1994).
 Ibid; ‘Going, Going- A land of sunburn and waste’ Herald Sun (Melbourne) 20 March 2002, 13.
 See website of Greening Australia 2002 <http://www.greeningaustralia.org.au> .
 ABC Land Line program, Guava profits (14 March 2002).