Indigenous heritage and the environment: "Legal categories are only one way of imagining the real"

Environmental and Planning Law Journal

Volumn 19, Issue 4, 2002, Pages 258-266

  Godden, Lee ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

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EID: 32844471213     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (78)

1. For example see The Convention for the Protection of the World Cultural and Natural Heritage, ATS 1975 No 47, 11 I.L.M. 1358, Paris, 23 November 1972, entry into force for Australia and generally 17 December 1975.
2. C Geertz, Local Knowledge: Further Essays on Interpretative Anthropology, (Basic Books, New York, 1983), pp 163-174, addressing the relationship between law and society in respect of the cultural values with which the natural world is imbued.
3. It is acknowledged that to blandly talk about a relationship between law and society is problematic, without any attempt to further define what is meant by those expressions. Each term, of course, is open to a wide range of interpretations. Moreover, it is often the character of the relationship between people, law and culture that is at issue in most competing discourses surrounding questions of native title, indigenous cultural heritage and protection of the "natural" environment.
4. For example see, I Watson, "Indigenous People's Law-Ways: Survival Against the Colonial State, " (1997) 8 Australian Feminist Law Journal, 39.
5. See R Coombe, "The Properties of Culture and the Politics of Possessing Identity", in J Hart and R Bauman, Explorations in Difference: Law, Culture and Politics, University of Toronto, Toronto, 1996, p 252.
6. C Morris, "A Full Law", (2000) 9 Griffith Law Review, 210.
7. J Greenfield, The Return of Cultural Treasures, Cambridge University Press, Melbourne, 1996, pp 253-7.
8. For a discussion see P Fitzpatrick "Law and Societies", (1984) 22 Osgood Hall Law Journal 115, p 122.
9. For a discussion of the manner in which law constructs an understanding of spaces, see N Blomley, "Legal Boundaries: Law, History and Critical Inquiry", in Law, Space, and the Geographies of Power (The Guildford Press, 1994).
10. "Ideas about what constitutes cultural heritage are everywhere vital to the construction of national narratives and identities, " as stated in M Chanock, "Introduction' in Law and Cultural Heritage", (1996) 14 Law In Context, i at i.
11. These terms were not in common usage until the 1970s and with native title it is not until 1992 that the concept was recognised by the Australian legal system.
12. D Grinlinton, "The Environmental Era and the Emergence of Environmental Law in Australia-a survey of Environmental Legislation and Litigation 1967-1987", (1990) 7 EPLJ 74.
13. It is beyond the scope of this article to detail these various statutory schemes. However examples such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the State regimes of planning law, pollution control, biodiversity protection provide evidence of the wide scope of regulation concerned with the environment. In addition many other statutes for example, those concerned with resource extraction, now include a range of environmental compliance measures, see for example the Mineral Resources Act 1989 (Qld).
14. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 40-42 per Brennan J.
15. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 43 per Brennan J.
16. For discussion re effect of terra nullius, see I Watson, "Indigenous People's Law-Ways: Survival Against the Colonial State, " (1997) 8 Australian Feminist Law Journal, 48.
17. For an overview see D Hutton, and L Connors, A History of the Australian Environmental Movement (Cambridge University Press, 1999).
18. For a discussion see D Tarlock, "The Non-equilibrium Paradigm and the Partial Unravelling of Environmental Law", (1994) 27 Loyola of Los Angeles Law Review 1121 at 1123.
19. For example, the Australian Constitution does not provide an identified "head of power" to legislate for the environment.
20. The first raft of comprehensive environmental statutes was the package of statutes introduced by the Federal Labor government in 1974/5.
21. Even a mere thirty years ago, Queensland Supreme Court judges were contemplating what this new-fangled environment concept might mean-and according to them, it certainly didn't have anything to do with turtles! See Murphy v The Crown (1989) 68 LGRA 286.
22. See for example, Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams case)
23. Richardson v Forestry Commission of Tasmania (1988) 164 CLR 261 (Lemonthyme case).
24. See, for example, The Intergovernmental Agreement on the Environment 1992.
25. N Sharp, "Re-imagining Sea Space: from Grotius to Mabo", (1996) 7 Arena Journal 111 at 114.
26. The term tabula rasa draws upon the early formulation of Australia as a blank space; an empty category in many early European maps where it was called Terra Australis Incognitae (Unknown Southern Land). Arguably this vision of an unknown, and perhaps unknowable, land according to British cultural constructions, was perpetuated during the early settlement phase. See G Williams and A Frost (eds), Terra Australis to Australia, (Oxford University Press, 1988).
27. However, Irene Watso n argues that in effect colonialism has not ended. Instead there has simply been a transfer of power from British to Australian colonial forms of governance and that, "[t]erra nullius has not stopped; the violations of our law continue, the ecological dest ruction of the earth our mother continues with a vengeance". I I Watson, "Indigenous People's Law-Ways: Survival Against the Colonial State, " (1997) 8 Australian Feminist Law Journal, 48.
28. A O'Donnell and R Johnstone, "Property" in Developing a Cross-Cultural Law Curriculum, Cavendish 1997 at 77-79.
29. For a discussion see C Morris and M Meadows, "Indigenising Intellectual Property", (2000) 9 Griffith Law Review 212
30. J Sheehan, "Linking Cultural Heritage and Native Title", (2000) Land Rights Queensland, 12.
31. For example, many of the older forms of heritage protection centred on archaeological site and relic protection, and included the vesting of indigenous cultural heritage in the nation state.
32. For an example note the pre-eminence given to western documentary forms of evidence over Indigenous people's oral evidence, see Yorta-Yorta Aboriginal Community v Victoria (2001) 180 ALR 655 at 660-661 per Black CJ.
33. The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 was to replace The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the 1984 Act). "As in the 1984 Act, the Bill provides a discretion for the Minister to protect areas and objects of particular significance to Aboriginal peoples and Torres Strait Islanders. The Bill reforms the processes for dealing with applications for protection under the Act. It also seeks to engage the States and Territories in protecting indigenous heritage. " Commonwealth Parliament, Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, Bill number: 98158 Date: 11 November 1998, Explanatory Memoranda, p 2.
34. See example, Justice E Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1996), ATSIC Heritage Act Task Force, National Standards for Protecting Indigenous Heritage: a Discussion Paper (1997) Australia, Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Twelfth Report: The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998.
35. Queensland government, Queensland Indigenous Cultural Heritage Review: Draft Model for New Legislation, 1999.
36. See for example, D Ritchie, "Australian Heritage Protection Laws: An overview", in J Finlayson, and A Jackson-Nanko, Heritage and Native Title: Anthropological and Legal Perspectives, Native Title Research Unit, AIATSIS, 1996, p 28.
37. For a discussion of the archaeological tradition to determine heritage significance see, H Morphy, "Landscape and the Reproduction of the Ancestral Past", in E Hirsch, and M O'Hanlon, (eds) The Anthropology of Landscape: Perspectives on Place and Space (Clarendon, 1995), 184-209.
38. Commonwealth v Tasmania (1983) 158 CLR 1.
39. The separate classification of the natural and the cultural is of long standing in western thought and relates to the early Enlightenment attempt to separate the objectiv e natural world from the man-made or cultural. Numerous critiques of this dichotomous conception of the relationship between people and nature have been advanced. For example see V Plumwood, "Mechanism and the mind/nature dualism", in Feminism and the Mastery of Nature, Routledge, 1993, at 120-140.
40. For example, see the Discussion Paper, "Working Together-Indigenous Partnerships, Rights and Interests, Master Plan for Queensland's Parks System" Qld govt, (accessed 19/8/01) www://env.qld.gov.au
41. The Kakadu World Heritage Area is a prime example of this dual classification. See, for example, T Press, et al (eds), Kakadu, Natural and Cultural Heritage and Management, Aust. Nature Conservation Agency & Nth Aust. Research Unit ANU, 1995.
42. See for example, T Keyes, "Indigenous Rights Sidelined Again: The Federal Environmental Protection and Biodiversity Conservation Bill", (1999) 4 Indigenous Law Bulletin, 14.
43. Wet Tropics of Queensland World Heritage Area Conservation Act 1994 (C'th)
44. See the definition of natural heritage under s 2 World Heritage Convention.
45. See C Jones, Voices in the Wilderness: The Problem of Joint Management in Australia's Protected Areas, Hons Thesis, Faculty of Environmental Science, Griffith University, 1996.
46. Titchen argues that the renomination of "natural" world heritage areas as cultural landscapes is part of an emerging opportunity for the involvement of indigenous peoples in the conservation of world heritage areas. S Titchen, "Changing Perceptions and Recognition of the Environment-from Cultural and Natural Heritage to Cultural Landscapes", in J Finlayson and A Jackson-Nanko, Heritage and Native Title: Anthropological and Legal Perspectives, Native Title Research Unit, AIATSIS, 1996, p 40.
47. For example, see the Discussion Paper, "Working Together-Indigenous Partnerships, Rights and Interests, Master Plan for Queensland's Parks System" Qld govt, (accessed 19/8/01) www://env.qld.gov.au
48. For example, see the Discussion Paper, "Working Together-Indigenous Partnerships, Rights and Interests, Master Plan for Queensland's Parks System" Qld govt, (accessed 19/8/01) www://env.qld.gov.au, at 466-472.
49. See generally, D Smyth, J Sutherland, and C Bahrdt, Indigenous Protected Areas, Conservation Partnerships with Indigenous Land-holders, Cth Dept. of Environment. Sport and Territories, AGPS, 1996. For example, s 6 Wet Tropics of Queensland World Heritage Area Conservation Act 1994 (Cth), provides that: "The Minister must include among his or her nominees under section 5 one or more Aboriginal representatives who have appropriate knowledge of, and experience in, the protection of cultural and natural heritage".
50. Australian Heritage Council Bill 2002, (Cth) Bill No 02153, 27/6/2002 Environment and Heritage Legislation Amendment Bill (No 1) 2002 (Cth) Bill No 02155, 27/6 2002.
51. See Sch 2 Environment and Heritage Legislation Amendment Bill (No 1) 2002 (Cth).
52. For example, as Strelein argues, it may be culturally insensitive to incorporate indigenous interests within the relatively recent western concern with environmental protection denoted by ecological sustainability, in "Indigenous People and Protected landscapes in Western Australia", (1993) 10 EPLJ, 380 at 382.
53. D Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness, Aust'n Heritage Commission, 1996.
54. Commonwealth Parliament, Legal and Constitutional Legislation Committee: Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, 19 February 1999 Committee: Legal and Constitutional Legislation Committee Reference: Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, Canberra, Questioner: Chair, Responder: Ms Morgan.
55. For example in Queensland, there are proposals to include cultural heritage protection within the broad planning and assessment regime of the Integrated Planning Act 1997 (Qld). The "roll in" of cultural heritage considerations will require new cultural heritage legislation.
56. See generally, M Lane, et al, "Not All World Heritage Areas are Created Equal: World Heritage Area Management in Australia", (1996) 13 EPLJ 461, at 462-3.
57. B Hunter, "Which Way for our Country: The Future of Aboriginal Land and Cultural Heritage Management", (2000) 83 Chain Reaction 19.
58. In Yanner v Eaton (1999) 166 ALR 258, the High Court held, by majority, that the native title rights asserted by Murandoo Yanner under the Native Title Act 1993 (C'th) were not extinguished by the provisions of the Queensland Fauna Conservation Act 1974. Yanner had been charged with the taking of an estuarine crocodile, a protected species, without a licence, contrary to s 54 of the Act.
59. See Fauna Conservation Act 1974 (Qld).
60. Yanner v Eaton (1999) 166 ALR 258 at 267-8 per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
61. Yanner v Eaton (1999) 166 ALR 258 at 264-267 per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
62. See for example Titchen, who argues that, "The Cape York regional land use agreement was one providing innovative linkages between opportunities for reconciliation and environmental conservation". S Titchen, "Changing Perceptions and Recognition of the Environment-from Cultural and Natural Heritage to Cultural Landscapes", in J Finlayson and A Jackson-Nanko, Heritage and Native Title: Anthropological and Legal Perspectives, Native Title Research Unit, AIATSIS, 1996, p 40.
63. For an overview see D Smith, "Indigenous Land Use agreements: New Opportunities and Challenges Under the Amended Native Title Act", AIATSIS Native Title Research Unit, Land, Rights, Issues in Native Title, Regional Agreements Paper No 7, (1998).
64. B Harvey and N Tiffen (Rio Tinto), "Rio Tinto's Approach to Mining-Indigenous Agreement Making-A Global Context", paper delivered at Negotiating Settlements: Indigenous Peoples, settler states and the significance of treaties and agreements, The Other Frontier Seminar Series 2002, Institute of Post Colonial Studies, Melbourne 30 May 2002.
65. See Cape York Land Council and Comalco, A Way Forward Together, for details of Agreement (accessed 8/7/2002) at http://www.riotinto.com/features/WestCape.pdf.
66. Behrendt stresses the need to recognise the importance of ensuring the viability of the economic foundations for achieving indigenous rights more widely. L Behrendt, "Indigenous Self Determination: Rethinking the Relationship between Rights and Economic Development", (2001) 24 UNSWLJ 850 at 860-1.
67. A Sheehan and S Mascher, "Indigenous Land Use Agreements: A Pathway for Negotiating The Future", (1998) 17 AMPLJ 300.
68. D Smith, "Finding a Way to Just and Durable Agreements", (1999) 4 Indigenous Law Bulletin, 4.
69. A Padgett, "Native Title-Negotiations, Agreements and Opportunities", in G Meyers, (ed.) In the Wake of Wik-Old Dilemmas; New Directions In Native Title Law, National Native Title Tribunal, Perth, 1999, p 370.
70. Examples include the Quandamooka Process Agreement between Redland Shire Council and the Quandamooka people with regard to Stradbroke Island just off the coast of Brisbane and the Western Australia Rubibi Agreement.
71. See for example The State of Western Australia v Ward & Ors (2000) 170 ALR 159 per majority. Note: there are several major native title cases that have been heard in the High Court but not yet handed down by the High Court as at date of writing.
72. See Yanner v Eaton (1999) 166 ALR 258
73. The State of Western Australia v Ward & Ors (2000) 170 ALR 159.
74. For a discussion see L Strelein, "Conceptualising Native Title", (2001) Sydney Law Review 95.
75. The State of Western Australia v Ward & Ors (2000) 170 ALR 159 at 353.
76. T Griffiths, "Introduction", Hunters and Collectors: The Antiquarian Imagination in Australia, Cambridge University Press, 1996, at 6.
77. See for example, S Greer and R Henry, "The Politics of Heritage, The Case of the Kuranda Skyrail'" in J Finlayson and A Jackson-Nanko, Heritage and Native Title: Anthropological and Legal Perspectives, Native Title Research Unit, AIATSIS, 1996, p 16.
78. As Chanock states, "Heritage tends to emphasise, and to try to create a common collective narrative. " M Chanock, "Introduction' in Law and Cultural Heritage", (1996) 14 Law In Context, i at at vi.