June 2000

Linking cultural heritage and native title

This is the 15th in a continuing series by John Sheehan* dealing with the developing accommodation between compensation law and valuation practice, and native title

IN an earlier article in LRQ (November 1999) cultural heritage was discussed as an important tool linking Aboriginal cultural heritage places and items with Indigenous property rights and interests which have survived as native title. The use of Indigenous cultural heritage as a diagnostic marker for native title is increasingly being seen as a response to the elusiveness of native title substantiation.

Francesca Merlan in her research into contemporary Aboriginal cultural activity in Katherine notes that:

". . . representations of what native title is seen to be, in ways that necessarily have a considerable past-orientation, may have some power in shaping the intercultural institutions of the future . . ."

(Merlan, F. [1998] Caging the Rainbow: Places, Politics, and
Aborigines in a North Australian Town [Honolulu: University
of Hawaii Press] page176)

Merlan's comments are also reflected in the discussion paper leading up to the current review of Queensland's Indigenous cultural heritage legislation, where it is noted that:

" . . . there are many places which tell us a great deal about the way Indigenous people have lived in this ancient land. There are ceremonial sites and places which reveal how tools and other artefacts were made or food was prepared. Familiar features in the landscapes are brought to life in stories about the creation of life and the organisation of social responsibilities . ."

(Discussion Paper: Review of
Queensland's Indigenous Cultural
Heritage Legislation [1999] page 2)

However, while the presence of such cultural heritage may often be uncontested, the assistance offered by the presence of objects and areas in proving the survival of native title can be problematic from both a spatial and temporal standpoint. In addition, the protection of Aboriginal cultural heritage is also somewhat haphazard, as natural features which may have great significance to an Aboriginal community are often not recognised or protected. As archaeologist Dr Josephine Flood notes:

" . . . such natural sacred sites, also termed Dreaming, mythological, traditional, ethnographic or living sites, are not generally recognised or protected, unless specially declared under the relevant law . . . ."

(Flood, J.[1999] The Riches of Ancient Australia
[St Lucia: University of Queensland Press] page 1)

Flood's comments highlight the fact that not only are cultural heritage and native title different issues, their different legislative roots ensure that they are identified and protected differently. It is therefore not surprising that attempts at utilisation of cultural heritage as a diagnostic marker for native title are sometimes contested.

In the current draft model for new Indigenous cultural heritage legislation in Queensland, it is pointed out that:

" . . . cultural heritage values, both Indigenous and non-Indigenous, are not dependent on tenure, and may exist on freehold, pastoral and other forms of tenure. In similar ways to how a grave site, place of worship, historic landmark or historical artefact may need to be protected for the wider community, Indigenous cultural heritage areas and objects, regardless of tenure, may require conservation and management in order to protect their cultural heritage significance . . .

. . . It is also important to note that the existence of Indigenous cultural heritage values in land does not mean that native title over that land necessarily exists or that it will be claimed to exist by Indigenous people".

(Queensland Indigenous Cultural
Heritage Review: Draft Model
for New Legislation [1999] page 5)

Thus, Indigenous cultural heritage, if it has survived, can be protected notwithstanding that there has been a freehold grant by the Crown at some stage in the past. This is the opposite situation to native title where in Fejo v Northern Territory (1998 156 ALR 721), the High Court has emphatically stated that a freehold grant by the Crown to private parties exhibits a clear and plain intention to extinguish native title.

However, this does not mean that Indigenous cultural heritage sites and areas are any less significant just because they are situated on private freehold land, merely that any nexus between cultural heritage and native title on the specific parcel of land is severed.

Paradoxically, apart from native title rights and interests, traditional owners have only limited consultative rights flowing from State and Commonwealth heritage legislation, and as ATSIC points out:

" . . . Indigenous people in Australia do not have any direct legal rights through which they can enforce their heritage values".

(ATSIC Submission to the Joint Parliamentary
Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund on the
Aboriginal and Torres Strait Islander Heritage
Protection Bill 1998 [1998] page 9)

This is notwithstanding that cultural heritage and native title can be intimately related and as ATSIC again points out:

" . . . in many cases, the existence of significant areas will be relevant to proving the existence of native title".

(page 39)

The complexity of any nexus between Indigenous cultural heritage and native title is compounded by the interaction between cultural heritage and State and Territory land rights legislation. For example, in NSW while the Aboriginal Land Rights Act 1983 (NSW) does not specifically mention the management of cultural heritage as a function of Local Aboriginal Land Councils (LALCs), sections 47 and 48 provide that LALCs may negotiate access to private land where that land has traditionally been used for hunting, fishing and gathering.

Further, sections 49(b) &endash; 49(c) of the Act provide that a Register of Aboriginal Owners be maintained showing the names of individuals having a cultural association with land that is derived from the traditions, observances, customs, beliefs or history of the original inhabitants of the land. In the recently released discussion paper on the review of the NSW Act, it is noted that during consultations:

". . . there was general agreement to suggested amendments to the Aboriginal Land Rights Act aimed at formalising the existing roles of the Land Council system in this area. The proposals include:

• Giving NSWALC [NSW Aboriginal Land Council ]and/or LALCs a function to protect and manage traditional sites in NSW;
• Entitling Aboriginal people to manage and protect human remains or cultural material under Aboriginal customary law;
• Entitling Aboriginal people and Land Councils to manage and protect intellectual property rights; and
• Entitling Land Councils to negotiate, protect, manage and collect items in relation to the making of Aboriginal arts and crafts".

(Review of the Aboriginal Land
Rights Act 1983 (NSW): Discussion
Topics [2000] page 73)

Reflecting the possibility of a nexus between Indigenous heritage values and native title, the discussion paper also notes that the recognition of native title and the creation of NTRBs (Native Title Representative Bodies) has had implications for the role of LALCs in the area of Indigenous cultural heritage. The paper (at page 74) refers to a need:

" . . . to ensure that conflict and duplication of responsibility are avoided".

At the outset of this article, it was stated that caution must be exercised in attributing to the presence of Indigenous cultural heritage a status which proves the survival of native title rights and interests. Nevertheless, cultural heritage is an increasingly valuable tool in predicting whether native title has survived. Cultural heritage, when coupled with tenure histories, archaeological and anthropological evidence, and contemporary Indigenous oral evidence, will assist the prediction of native title.

In many situations, determinations as to the survival of native title will not be available to the negotiating parties. There is an urgent need for new and better evidentiary methods to be developed proving the survival of native title, in order that the forthcoming compensation litigation can proceed both fairly and efficiently. All of the above is reflected in Merlan's words (page176) that:

" . . . interpretations of native title are emerging that would allow some freedom from constraining, traditionalising strictures".

*John Sheehan is the native title spokesman for the Australian Property Institute and member, Land Tribunal (Queensland).

Related Articles Previous articles from John Sheehan that have appeared in Land Rights Queensland

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