28 July 2020

KALA CC Submission to the Inquiry in to the Destruction of Heritage Sites at Juukan Gorge

Please find attached KALACC's submission to the current inquiry. In regards to the Inquiry Terms of Reference the KALACC submission relates to the following: (h) how Aboriginal and Torres Strait Islander cultural heritage laws might be 1 improved to guarantee the protection of culturally and historically signifi cant sites; (i) opportunities to improve indigenous heritage protection through the Environment Protection and Biodiversity Conservation Act 1999; and (j) any other related matters.

KALACC's submission is provided in two parts: • This present cover letter • The attached draft KALACC Cultural Heritage Position Paper. In relation to the latter, the Position Paper remains in draft form until at least the date of the next KALACC Directors' Board Meeting ie 06 August. The Position Paper is a draft, but it is not confidential and all of this current submission can be freely made available in the public realm.

(tj)KALACC www.kalacc.org.au The concern that KALACC has is that the tail is wagging the dog. The destruction of Juukan Gorge has quite rightly triggered national outrage and has brought about a range of responses, including this Inquiry by the Joint Standing Committee on Northern Australia. But how can we understand any of this discourse if we don't in the first place understand the place of cultural maintenance, cultural traditions and cultural heritage? We share with you this quote from Social Justice Commissioner from earlier this year: As First , Aboriginal and Torres Strait Islander peoples have a remarkable living history. For 60,000 years plus we have sustained a cohesive and resilient society. We have the most extensive kinship network in the world and through a system of law, ceremony and song we have transferred a huge body of knowledge, including important principles of collective and common humanity, from generation to generation. There is much to celebrate but it is not celebrated - it is not even recognised. For too long there has been denial about Indigenous society, knowledge

systems and our existence in Australia before European arrival. The 2 continuation of this legacy of denial is why we continue to experience marginalisation, and structural and systemic discrimination at all levels across different sectors in our own country. https://www.theguardian.com/australia-news /20 2 0 /jan /31 /jw1e-oscars-2020s-vision-reaching­ our-potential-as-a-nation-begins-with-truth-telling

These messages regarding cultural maintenance and cultural traditions are perennial messages which have been communicated by the Kimberley Aboriginal people for over three decades. Amongst the many advices provided over the

decades are the following:

(tj)KALACC www.kalacc.org.au • 1978 Formation of the Kimberley - "no mining on

sacred lands"

• 1991 Crocodile Hole Report [KLC]

• 1995 Wire Yard Report [KALACC]

• 2008 MoU and Agreement with the WA Museum

• 2008 For now and forever: An analysis of current and emerging

needs for Aboriginal cultural stores and repositories in

[WA Museum]

• 2010 Kimberley Caring for Country Plan [KLRC; Nulungu Research

Institute]

• 2010 Performance Audit of the International Repatriation Program

[Australian National Audit Office - copies provided to WA Dept of Cu lture

and the Arts and to WA DIA]

• 2011 Keeping Places & Repatriation of Skeleton Remai ns & Artefacts

[Unsuccessful DIA funding application to Roya lties for Regions, seeking

support for KALACC's repatriations program in the Kimberley] 3 • 2013 A review and ana lysis of training needs for the collections

sector in Western Australia: a report for Museums Australia

(WA) [Consultant Brian Shepherd, working for the WA Museum]

• 2016 An eva luation of the Kimberley Aboriginal Law and Cu lture

Centre (KALACC) Cultural Governance Programme 2013-2015 Repatriation of

sacred objects and ancestral remains to the Ardyaloon (One Arm Point)

Community [Nulungu Research Institute, Notre Dame University]

• 2017 Cu ltural Solutions Position Paper [KALACC]

• 2018 KALACC meeting with Gai l McGowan and correspondence sent

to Ms McGowan, seeking to formalise understandings between the WA

Government and KALACC

• 2018 MoU and Agreement with the WA Museum

• 2020 Kimberley Aboriginal Caring for Cu lture Plan Discussion Report

[KALACC]

(tj)KALACC www.kalacc.org.au In KALACC's 1995 Wire Yard Reportwe read as follows: • Aboriginal elders are those people recognised by their communities as the holders of the traditional values and knowledge of their Law and Culture • Greater recognition of the eider's role as the "roots" of law and culture • Aboriginal people to control access to their count1y and the protection of sacred sites • Elders to have greater control of cultural funds for their region • Greater respect for elders depth of cultural knowledge • KALACC believes a holistic approach to Aboriginal life is essential to understanding that the spiritual, cultural, physical, economic and social wellbeing of Aboriginal people is intrinsically linked to the strength of their Law and Culture. Our intention is to empower Aboriginal elders in all aspects of decision making processes and recognise their key role in shaping the moral and cultural standards in the community • Our Culture is our identity, our heritage - a heritage for all Australians. It was given to us by our ancestors. Throughout the centuries our elders have passed

it on, generation to generation, to our young people 4 • Our elders are the fundamental basis of our cultural identity. The existing system pays token recognition to their cultural knowledge. Too often it is bureaucrats that are prioritising and making decisions to fund cultural programs. It is the elders that are best able to determine their own cultural priorities. Present programs are failing to consider traditional law and culture customs when dete1m ining policy.

If as a nation we continually marginalize, disenfranchise, disempower and ignore the cultural custodians, then what exactly is this thing called cultural heritage?

The Wire Yard Report was published by KALACC in 1995. Its messages are as true today as they were back in 1995. As June Oscar says in 2020: There is much to celebrate but it is not celebrated - it is not even recognised.

(tj)KALACC www.kalacc.org.au Professor Kerry Arabena beautifully illustrates this in her landmark report of 27 June 2020 '... Country Can't Hear English ... ' -A guide to implementing cultural

d eterm in an ts htq>s://www.karabenaconsulting.com/resources / country-cant-hear-english The title was inspired by an incident that occurred at the 2019 Lowitja Institute Conference in Darwin and Professor Arabena recounts that a senior Traditional Owner from the Pitjantjatjara Homelands stood on stage and as she was speaking 'she made herself invisible.' And then she whispered, 'Country Can 't Hear English'. As Professor Arabena tells it: "What the audience came to understand, by her actions and translated words, was that people who had power from a distance to influence her life failed to see her in her entirety. Her way of being in the world was smothered. Those responsible for smothering could not recognise or respond to her assertions, language, her connection to Country and the intimacy of that relationship. Her worldview, her culture and the responsibilities and obligations to other humans and beings on Country needed to be communicated in a language capable of facilitating the exact 5 nature of her relationship to the land and all beings that make up her land community."

In the attached KALACC Cultural Heritage Position Paper [Draft], KALACC draws the same observations about the current national dialogue around cultural heritage. If cultural heritage has any value and any importance then it is by virtue of the contribution that the past makes to the present iteration of the world's oldest living culture. So, yes, place, space and physical objects are significant and very worthy of protection. But the past is mediated through to the present not only through materiality but also through humanity, and that humanity is led by the living libraries, the cultural bosses who are the current custodians of the world's oldest living culture.

(tj)KALACC www.kalacc.org.au As Professor Arabena has beautifully illustrated in her recent anecdote, the very most important people are often the most marginalised and the least valued in the processes of developing Indigenous policy. These current messages about the centrality of the cultural bosses and the importance of living culture echo and mirror the sentiments expressed in KALACC's seminal report, the 1995 Wire Yard Report.

Yours sincerely

6

(tj)KALACC www.kalacc.org.au

KALACC Cultural Heritage Position Paper [Draft]

‘From my ongoing research, my understanding is that Aboriginal culture is the foundation of life, which binds people to particular social relations with kin, country and ancestors. Maintaining culture is not about returning to the past, but rather drawing upon the past in the present to find ways to live well in contemporary Australia and be healthy, strong, vibrant Aboriginal people who belong to Country’

- Dr Lisa Slater

KALACC’s Vision

KALACC’s vision is to ensure that Kimberley Aboriginal People and our deep cultural heritage and traditions, are empowered, respected and valued in Australian society.

KALACC’s guiding principles and beliefs

• Placing Culture at the Centre Aboriginal culture is central to Aboriginal people, their past, present and future, and shapes and influences how Aboriginal people view and interact with the world. All Australians should value and respect Aboriginal culture and appropriately support Aboriginal people to maintain and strengthen their connection to culture, language, country and traditions. 7 Expressions of cultural heritage build respect, resilience, leadership, cohesion and connectivity and build social and emotional well-being.

• Cultural Heritage Indigenous cultural heritage is expressed through cultural ways of living. It is diverse and is expressed in both tangible and intangible forms. For example, tangible cultural heritage includes physical objects, sacred and secret artefacts, geographical landscape features and ancestral remains. The more subtle, intangible expressions of cultural heritage include cultural expressions such as law, ceremonies, dance, songs, language, myth, narrative and stories. As Aboriginal people interact with, interpret and express aspects of their cultural heritage, it becomes a living, ephemeral culture that evolves as it passes along generations, building and maintaining identity, belonging and continuity.

• Respecting the authority of Old People and systems of Cultural Governance In Aboriginal culture and community, authority lies with the Old People (Aboriginal Elders). They are the living libraries and custodians of law, knowledge, stories and ceremony. Their authority shapes Aboriginal identity and the cultural standards by which Aboriginal people live. Their wisdom, knowledge and expressions of cultural governance will drive change - the stronger the law and culture - the better the spiritual, cultural, physical, economic and social wellbeing is embedded in peoples future. We must listen closely to what Old People have to teach about cultural governance and leadership.

KALACC www.ka lacc.org.au

• Engaging directly with Aboriginal People and empowering a new generation of leaders Support for ongoing collaboration with Aboriginal people to directly engage with Old People and support the new generation of future Aboriginal leaders, is necessary. A co-design approach, in which Aboriginal people participate in, and take ownership of, culturally appropriate program development and delivery, empowers and fosters connection and responsibility. Supporting the new generation of Aboriginal leaders and cultural governance builds critical networks, connection and co-operation across communities. This contributes to a more cohesive voice and representations on policy and decisions directly impacting Aboriginal people.

The Current Climate KALACC seeks action to continue to support its principles relating to cultural heritage, to build capacity and support the lives of multiple Aboriginal people across Western Australia. In 2020, these actions need to be understood in the context of the prevailing social, legal and political climate. The recent destruction by Rio Tinto of Juukan Gorge in Western Australia is evidence of the inadequacy of the Aboriginal Heritage Act, Western Australia (1972) to protect highly significant cultural sites and highlights the need for legislative change. Kimberley Aboriginal people are fearful of how the destruction of Juukun Gorge may impact upon their important cultural sites. Aboriginal people feel powerless to protect cultural sites, many of which are important national and global cultural treasures, against development.

Current State heritage legislation does not require consultation with traditional owners and 8 is ineffective to protect important places of cultural significance. New protections must be enacted to include legal standing for traditional owners to object to, review and/or challenge applicants and address issues relating to their cultural or significant heritage sites, including but not limited to interference with, or destruction of, those sites. Prescribed bodies corporate (PBCs) currently play an important role in providing corporate and collective governance to Aboriginal people which have been granted Native Title over their lands. However, the Old People as cultural leaders are the custodians of Aboriginal cultural governance. The cohesive networks and connection formed with other bosses is a core feature of how that governance works. By contrast, Native Title processes, which we acknowledge are essential, by their very nature represent a version of Aboriginal Australia that is dissected by grid lines on a map, serving to divide one group from another.

Actions KALACC holds a unique position by virtue of its deep experience and capability to broker engagement with Aboriginal people, representative organisations and government agencies. KALACC uses co-design principles to work with Old People and with the next generation of community leaders, undertaking this important work out on country. KALACC’s diplomatic facilitation and support, rather than intrusive programme delivery, distinguishes KALACC as an organisation that knows how to do business in the Kimberley. KALACC urges State and Federal Governments to action the following cultural heritage priorities:

KALACC www.ka lacc.org.au

1.Recognise the unique role of Old People as cultural custodians and place them at the centre of Culture based strategies to . The authority of Old People is the most significant cultural governance role for Aboriginal people and decision making. Governments must listen and follow their example- in the formulation of policy, programs and decision making. Support for Old People needs to be reflected in legislative frameworks, but also critically in the policy and funding decisions of Government. KALACC extend an invitation for Old People to be heard and contribute to the formulation of policies that directly and significantly impact Aboriginal lives.

2.Work with KALACC to learn and understand how the Government of the Old People operate. KALACC urges support for a macro approach to cultural governance. From the top down, Old People encourage Aboriginal people to co-operate with each other, use resources, resolve problems and ‘get things done’. Accessing the knowledge and networks of Old People has the capacity to build connections across and within different communities and regions, promoting common interests, respect and accountability - irrespective of Native Title boundaries. Within the Kimberley, cultural governance is underpinned by the constancy of Indigenous relationships to Country, community interaction across language groups and respect for traditional ownership. Aboriginal values, visions, rights and aspirations for Country; the protocols bound in ownership and seniority, of recognised cultural practices and Aboriginal cultural governance, are a daily reality for Kimberley Aboriginal people. Many senior elders and entrusted younger leaders take responsibility for Country in this manner. 9

3.Invest in KALACC’s Programs

Support and rebuild systems of community governance led by Old People, recognising that cultural governance is at the heart of law and culture, language, cultural heritage and it will be the means by which the health, education and social outcomes are improved for Aboriginal people. KALACC seeks financial support for programs which deliver positive cultural heritage driven outcomes for Aboriginal people and their communities. We know these projects work - they strengthen Aboriginal culture, build resilience, encourage belonging and connection, foster respect and accountability -improving mental health outcomes for these communities. The following projects require support. They are co-designed on country, embed authority and cultural governance within community, restore the role and authority of Old People and promote understanding of how the government of the Old People operates:

Pearl Shell Trade Routes Cultural Governance Project1: KALACC is currently working with the Old People, senior cultural custodians from across three states to share the cultural knowledge and ceremony relating to the engraved pearl shells - - from the north-west Kimberley coast and the stone tools originating from the central desert. This is a major, multi-year cultural governance project bringing together for the first time, Aboriginal elders from WA, NT, and SA, across diverse language groups, to work collaboratively and share cultural knowledge.

KALACC www.ka lacc.org.au

This project will connect and embed cultural governance practices with a new generation of cultural bosses, the Red Shirts, a significant cohort of initiated men, practitioners of law and custom, who have growing influence within their communities. It is rare to have a project that impacts three States and brings together such a large group of new leaders whose diverse communities share significant ancient cultural governance. Its scale offers the potential to elevate cross- community cultural understanding, meaning and clarity and the capacity to forge connection, new networks and alliances across a modern generation of policy makers – building cohesion and shared leadership.

Julurru Junba: Julurru is a powerful tool which unites diverse Aboriginal peoples within and across diverse language groups and conveys culturally-embedded knowledge. Until the late 1960s, when it became dormant, Julurru was practiced by Aboriginal people from one quarter of the Australian land mass. KALACC commenced a program in 2018 to rekindle Julurru across the Kimberley and the Pilbara and now wishes to extend this program to bring together more cultural groups from across Western Australia, uniting people from the Goldfields, Pilbara, Kimberley and the Walpiri people in the . The process of bringing this precious and unifying cultural practice back to life involves the cultural bosses, Old People, collectively remembering and singing the songs they heard in their childhood. Their shared performances are dynamic and encourage participants to offer spontaneous cultural interaction, song and dance. They are assisted in this process by KALACC’s access to good sound recordings and manuscripts, which materials support KALACC staff to make wise and informed decisions about sensitive cultural matters. As Julurru strengthens and gathers momentum during its performance, the elders invite younger people in, to teach them the cultural significance and choreograph their participation in Julurru performance. KALACC’s program partner KLRC invites community linguists to assist with the songs and recordings. 10 Future Leaders – the Red Shirts: Across both of the above two projects Trade Routes and Julurru, KALACC is creating a critical sub-project to focus on the Red Shirts. This project will support the critical role they must assume now and, in the future, inheriting the leadership and cultural governance mantles for their communities with the responsibility and accountability that includes. These projects will embed cultural governance capability in a new generation of leaders by facilitating communication of law, knowledge and ceremony from Old People to Red Shirts. It will also build a network of Red Shirts across communities, across States, building connections and co-operation which will contribute to a more cohesive voice and response for representations on policy and decisions affecting Aboriginal communities. 4.Build the capacity of KALACC to build projects that promote Aboriginal led cultural heritage and deliver repatriation services in the Kimberley. KALACC supports Aboriginal people and their communities in Western Australia by building projects that support repatriation, healing and justice. Presently, the cultural heritage debate is one sided, focused on the imbalance in power relations between mining interests and preserving sacred sites. Repatriation also represents a core component of healing, restoring community and cultural governance, returning ancestral remains and sacred objects to their rightful place. We note the Heritage Council of Australia’s Best Practice Standards in Indigenous Cultural Heritage Management and Legislation. KALACC has long advocated for the principles reflected in these standards that ‘property in secret and sacred objects can only legitimately vest in the community of origin of the object’ and legislative regimes and policy ‘must deploy mechanisms to achieve the repatriation of these objects’.

KALACC www.ka lacc.org.au

KALACC also organises and facilitates key law and ceremony projects annually that support the preservation of precious intangible cultural heritage. These projects are led by the Old People and represent expressions of their knowledge, traditions and practices to new generations - including public festivals and restricted ceremonial business. These outward expressions of ‘a living, breathing culture’ are intrinsically linked to building Aboriginal identity and pride and positive social outcomes. The following projects require support: Employment of KALACC’s Cultural Heritage and Repatriation Officer: this represents the need for a dedicated repatriation focus, record keeping and embedding of repatriation processes. Funding for this position was lost in 2005 with the termination of ATSIC. This role entails important participation in and contributions towards a national network of cultural heritage and repatriations organisations. Through the employment of a dedicated cultural heritage and repatriations officer KALACC benefits from having access to reliable and accurate cultural heritage information and KALACC has the capacity to assist the Old People to undertake repatriations in culturally appropriate ways. Keeping Places: Support for the development and construction of two (2) modest ‘Keeping Places’ in the East Kimberley Region (- three(3) are already completed) with the result that five(5) cultural block/groups in the Kimberley would have their own Keeping Place to appropriately house and store repatriated heritage items. The resourcing required to achieve this outcome is very modest. On-Country Repatriation: Completion of the on- country repatriation process of sacred artefacts and objects across the North Kimberley, and off-shore islands. Law - Ceremonial and Restricted Business: Annually, KALACC facilitates ceremony and law through empowering and private events for Aboriginal boys from up to ten remote Kimberley 11 communities. This law and ceremony focused time represents the transition from boyhood to manhood, reflecting the nuances of various tribal connections, sacred sites and animals, stories, songs and dances. This is a cultural tradition that is 60,000 years old and which is the bedrock and foundation of cultural heritage in the Kimberley. KALACC Festivals: The regional KALACC festivals have in past years attracted up to 3000 people over several days, representing a meeting of Aboriginal people from across the entire Kimberley. Diverse language groups are encouraged to come together, to learn and enact cultural practices such as songs and dances and to share, discuss and determine views and action as one cohesive voice. KALACC festivals are not tourist festivals but exist to support the Aboriginal people of the Kimberley, but the festivals are nonetheless outward and public expressions of intangible cultural heritage and cultural governance for diverse communities, sharing knowledge and ceremony, and building networks across the region. These festivals are an important platform for recognising the authority of Old People and the emerging role of the Red Shirts. Critically, KALACC festivals foster social inclusion and empowerment which are key pathways for positive social and health outcomes. These festivals are currently run on a Triennial basis. KALACC seeks financial support to deliver the KALACC festival more frequently, in conjunction with combined Kimberley Annual General Meetings.

KALACC www.ka lacc.org.au