The rights of Indigenous people in archaeology and cultural heritage using a case study from lutruwita / Tasmania
Silas A.F. Piotrowski
Bachelor of Arts (Archaeology), Honours – The University of Queensland Master of Liberal Arts (Cultural and Environmental Heritage) – Australian National University
0000-0002-6769-0291
A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2021 School of Social Science
i Abstract
The contention that an Indigenous people’s culture and heritage is fundamental to their enjoyment of human dignity is accepted in modern archaeology. Yet it is also accepted that often archaeology has dispossessed Indigenous people of that cultural heritage. In response, some archaeologists have sought to deal with their discipline’s problematic past in relation to Indigenous rights. In the same manner, cultural heritage managers have also sought to understand the impact of their work on human rights. Such efforts are ground-breaking, but their implications for archaeology as heritage practice are not clearly defined. I aim to contribute to the conversation about how the practice of archaeology might incorporate an acknowledgement of Indigenous rights, particularly those rights relating to cultural heritage. To do so, I examine a case study in which human rights and cultural heritage intersect, and determine the processes and agents of change in human rights practices.
Tasmania’s abundant history of change (and contrary lack thereof) in social, political, and scientific discourse relating to Indigenous culture and heritage make it a useful focus in this regard. I employ a complementary suite of methods including interviews, participant observation and discourse analysis to record what is said and done about Indigenous cultural heritage, and how this impacts Indigenous rights. I take an approach to human rights that defines them in terms of what people wish to do with their lives, within their own frame of moral reference, rather than referring to ideas that have become codified within a system of rights or laws. In doing so, I demonstrate that although people’s rights aspirations may sometimes be occluded by their use of certain language or action, such acts nonetheless champion those aspirations. Because what defines human rights is so personally, culturally and socially contingent, archaeological and heritage practice that is rights-aware needs to be built on an understanding of what people’s aspirations are, and the contexts in which such acts take place. As a result, the approach to human rights that I advocate for archaeology is built on the principles of early and meaningful community engagement, latitude for people to advance their own rights outcomes, maintaining a flexible view to rights centred on individual autonomy, and an acceptance that conflict over rights is inevitable. Fortunately, for the most part, these principles are already implied in best-practice cultural heritage management. By adopting these principles, and the definition of human rights I outline, archaeology can employ a practical and responsive approach to the rights of Indigenous people.
i Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis.
I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award.
I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School.
I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co-authors for any jointly authored works included in the thesis.
ii Publications included in this thesis No publications included.
Submitted manuscripts included in this thesis No manuscripts submitted for publication.
Other publications during candidature 1. Piotrowski, S., and F. Hamilton, The role of archaeology in the equitable management of wilderness areas, Proceedings of AAA and NZAA Joint Conference, Auckland, 2018.
Contributions by others to the thesis No contributions by others.
Statement of parts of the thesis submitted to qualify for the award of another degree No works submitted towards another degree have been included in this thesis.
Research involving human or animal subjects School of Social Science Approval Number: 2016001378, The University of Queensland Human Research Ethics Committee B, November 2016.
School of Social Science Approval Number: 2016001378 Amendment, The University of Queensland Human Research Ethics Committee B, July 2017.
iii Acknowledgments
I am thankful to my supervisors Annie Ross and Ian Lilley for their patience and attention over the course of many, terrible drafts of this thesis. For inspiring me into the field through their way of teaching and doing archaeology. From them I have learnt very much.
To the Tasmanian Aboriginal people who have, out of their own generosity, taught me about their culture and their Country. I am particularly indebted to Aunty Patsy Cameron, Fiona Hamilton, and Robert Anders.
To all of the friends, partners, housemates, and colleagues over the past five-odd years who have put up with the crankiness and general anxiety that goes with this kind of thing.
iv Financial support This research was supported by an Australian Government Research Training Program Scholarship and the NZAA / AAA 2018 Conference Subsidy Scheme for Indigenous and Student Participants.
Keywords archaeology, human rights, Indigenous rights, cultural heritage, Tasmania
v Australian and New Zealand Standard Research Classifications (ANZSRC) ANZSRC code: 210101 Aboriginal and Torres Strait Islander Archaeology, 50% ANZSRC code: 950302 Conserving Aboriginal and Torres Strait Islander Heritage, 50%
Fields of Research (FoR) Classification FoR code: 2101 Archaeology, 100%
vi Table of Contents
LIST OF FIGURES AND TABLES ...... 1
ABBREVIATIONS ...... 2
ABORIGINAL CORPORATIONS AND OTHER BODIES IN TASMANIA ...... 3
CLARIFICATIONS ON TERMINOLOGY ...... 4
CHAPTER 1: INTRODUCTION ...... 6
DEFINING RIGHTS, DEFINING INDIGENEITY ...... 6
PROBLEM DEFINITION: THE UNEASY RELATIONSHIP BETWEEN INDIGENOUS RIGHTS AND ARCHAEOLOGY ...... 8
RATIONALE FOR RESEARCH ...... 13
RESEARCH AIMS ...... 13
RESEARCH METHODS ...... 15
THESIS OUTLINE ...... 17
PART A: THEORETICAL FRAMEWORK ...... 21
CHAPTER 2: HOW ARE CULTURAL HERITAGE AND HUMAN RIGHTS CONNECTED? ...... 22
INTRODUCTION ...... 22
THE RECOGNITION OF CULTURE AND HERITAGE RIGHTS IN INTERNATIONAL LAW ...... 22
LINKING ARCHAEOLOGY AND HERITAGE PRACTICE WITH HUMAN RIGHTS: POSSIBILITIES AND ISSUES ...... 27
SUMMARY ...... 35
CHAPTER 3: AN APPROACH TO HUMAN RIGHTS, CULTURE, AND HERITAGE ...... 37
INTRODUCTION ...... 37
HUMAN RIGHTS AS INTERNATIONAL RELATIONS ...... 37
DEFINING RIGHTS AS CAPABILITIES ...... 42
RIGHTS, CULTURE AND HERITAGE AS INTERACTING DISCOURSES ...... 44
JUSTIFYING A FOCUS ON THE ‘LOCAL’ ...... 50
LOOKING AT RIGHTS IN THE PAST ...... 51
SUMMARY ...... 52
CHAPTER 4: METHODS ...... 54
INTRODUCTION ...... 54
WHO IS RESEARCH FOR? ...... 54
SELECTING METHODS – ADAPTIVE APPROACHES TO HUMAN RIGHTS RESEARCH ...... 55
METHODS OF DATA COLLECTION ...... 59
PARTICIPANT SELECTION ...... 60
BROADENING THE DATA SET ...... 62
RESEARCH SETTING – ARGUMENT FOR CASE STUDY RESEARCH ...... 65
COMMUNITY ENGAGEMENT ...... 68
ADDRESSING THE NEED FOR REFLEXIVITY IN RESEARCH ...... 68
SUMMARY ...... 70
PAUSE: INTRODUCTION TO THE CASE STUDY ...... 72
LUTRUWITA / VAN DIEMEN’S LAND / TASMANIA ...... 72
THE TASMANIAN WILDERNESS WORLD HERITAGE AREA (TWWHA) ...... 77
PART B: RESULTS ...... 81
CHAPTER 5 BACKGROUND: HISTORY OF INDIGENOUS RIGHTS IN TASMANIA ...... 82
INTRODUCTION ...... 82
FIGHTING THE MYTH OF EXTINCTION ...... 82
SUMMARY ...... 86
CHAPTER 6 RESULTS: ABORIGINAL TASMANIANS' EXPRESSIONS OF RIGHTS AND RIGHTS CHANGE OVER TIME ...... 87
INTRODUCTION ...... 87
EARLY ASSERTIONS OF INDIGENOUS RIGHTS BEFORE INDIGENOUS RIGHTS ...... 87
ABORIGINAL HERITAGE AND RIGHTS CLAIMS IN THE NINETEENTH CENTURY – CONTROLLING CULTURAL IDENTITY ...... 88
HERITAGE AND RIGHTS IN THE TWENTIETH CENTURY ...... 91
SUMMARY ...... 93
CHAPTER 7 BACKGROUND: ABORIGINAL REPRESENTATION IN TASMANIA TODAY ...... 95
INTRODUCTION ...... 95
EXPANDING TASMANIAN ABORIGINALITY ...... 95
SUMMARY ...... 100
CHAPTER 8 RESULTS: THE CURRENT CONFLICT OVER TASMANIAN ABORIGINAL HERITAGE, LAND, AND IDENTITY ... 101
INTRODUCTION ...... 101
OBSERVATIONS OF ASSERTIONS OF ABORIGINALITY ...... 101
THE WEST COAST AND THE RIGHT TO DEFINE AND CONTROL ABORIGINAL HERITAGE ...... 105
SUMMARY ...... 111
CHAPTER 9 BACKGROUND: ARCHAEOLOGY’S ROLE IN THE EXTINCTION NARRATIVE ...... 112
INTRODUCTION ...... 112
THE SCIENCE OF EXTINCTION ...... 112
SUMMARY ...... 117
CHAPTER 10 RESULTS: AUSTRALIAN ARCHAEOLOGY’S EXPERIENCE WITH THE TASMANIAN ABORIGINAL RIGHTS
MOVEMENT ...... 118
INTRODUCTION ...... 118
NOT ‘THE LAST’ ...... 118
SUMMARY ...... 122
CHAPTER 11 BACKGROUND: WILDERNESS ...... 123
INTRODUCTION ...... 123
DEFINING WILDERNESS ...... 124
WILDERNESS AND ECOCENTRISM IN EARLY TWWHA POLICY ...... 127
MIS-DEFINING ‘VALUES’ AND MISPLACING ABORIGINAL PEOPLE FROM LANDSCAPE IN THE 1999 WORLD HERITAGE
MANAGEMENT PLAN ...... 129
SUMMARY ...... 131
CHAPTER 12 RESULTS: CONTEMPORARY ABORIGINAL ACCOUNTS OF HERITAGE AND RIGHTS IN THE TWWHA ..... 133
INTRODUCTION ...... 133
2016 – A NEW PLAN, AND NEW ‘VALUES’ ...... 133
NEGOTIATING MODELS OF LAND ACCESS FOR MANAGEMENT ...... 136
ENGAGEMENT WITH LAND, PLACE AND HERITAGE AS A MATTER OF RIGHTS, AND A TOOL FOR IDENTITY AFFIRMATION140
TOURISM ...... 142
SUMMARY ...... 144
PAUSE: REDEFINING TASMANIAN WILDERNESS ...... 146
PART C DISCUSSION AND CONCLUSION ...... 149
CHAPTER 13 DISCUSSION ...... 149
INTRODUCTION ...... 149
STARTING POINT – CULTURAL RIGHTS BEYOND OWNERSHIP ...... 149
GOOD HERITAGE PRACTICE IS GOOD HUMAN RIGHTS PRACTICE ...... 156
WHO IS THE COMMUNITY? ...... 159
SUMMARY ...... 164
CHAPTER 14 CONCLUSION: TOWARD A MODEL WITH HUMAN RIGHTS AS A FRAME FOR THE RELATIONSHIP BETWEEN
ARCHAEOLOGY AND INDIGENOUS PEOPLE ...... 165
INTRODUCTION ...... 165
TAKE A NON-PRESCRIPTIVE ATTITUDE TO RIGHTS ...... 165
PROMOTE INDIGENOUS AGENCY AND MAINTAIN REFLEXIVITY ...... 166
ASK THE DIFFICULT QUESTIONS ...... 168
PRACTISE ‘GOOD’ HERITAGE ...... 169
FINAL WORDS ...... 170
LIST OF REFERENCES ...... 173
APPENDIX 1: INSTITUTIONAL HUMAN RESEARCH ETHICS APPROVAL ...... 204
List of Figures and Tables Figure 1 Map of Tasmania showing all major and some minor population centres...... 74 Figure 2 Eastern islands of Bass Strait, or the Furneaux Group...... 75 Figure 3 World Heritage Areas in Tasmania (shaded). The Tasmanian Wilderness World Heritage Area (TWWHA) covers approximately 20 per cent of the landmass of Tasmania. .. 79 Figure 4 TRACA organisations and their representative regions. (Adapted from TRACA response to Aboriginal Dual Naming Review December 2017)...... 98 Figure 5 Abalone, Muttonbird and Warreners for lunch at Mannalargenna Day in 2017. (Photo: S. Piotrowski)...... 102 Figure 6 The west coast of Tasmania, with the Arthur Pieman Conservation Area (APCA) shaded...... 107 Figure 7 The ridge leading to the summit of Mt. Rufus (running horizontally across figure), on which the quarry is located. (Photo S. Piotrowski)...... 139 Figure 8 Definition of wilderness from Hawes et al. (2018:4)...... 147
Table 1 Data sources used in the presentation of results...... 66
1 Abbreviations
AAA Australian Archaeological Association Inc APCA Arthur Pieman Conservation Area ATSIC Aboriginal and Torres Strait Islander Commission CDA Critical Discourse Analysis DPIPWE Department of Primary Industries Parks Water and Environment of the Tasmanian Government FPIC Free, Prior and Informed Consent ICESCR International Covenant on Economic Social and Cultural Rights ICCPR International Covenant on Civil and Political Rights ICOMOS International Council on Monuments and Sites IUCN International Union for Conservation of Nature MDA Mediated Discourse Analysis NGO Non-Governmental Organisation ORIC Office of the Registrar of Indigenous Corporations OUV Outstanding Universal Value PWS (Tasmania) Parks & Wildlife Service, a division of DPIPWE TMAG Tasmanian Museum and Art Gallery TWWHA Tasmanian Wilderness World Heritage Area RBA Rights-Based Approach(es) to heritage management RMM The joint IUCN/ICOMOS Reactive Monitoring Mission to the TWWHA TWS The Wilderness Society (formerly the Tasmania Wilderness Society) UN United Nations UDHR United Nations Universal Declaration of Human Rights UN DRIP United Nations Declaration on the Rights of Indigenous People UNESCO United Nations Educational, Scientific and Cultural Organisation WHA World Heritage Area
2 Aboriginal Corporations and other bodies in Tasmania (not all are referred to in text)
AHC The Aboriginal Heritage Council established under the Aboriginal Heritage Act 1975 AIC Aboriginal Information Centre (which would become the TAC) ALCT The Aboriginal Land Council of Tasmania established under the Aboriginal Lands Act 1995 bAC ballawinne Aboriginal Corporation CBIAA Cape Barren Island Aboriginal Association CHAC Circular Head Aboriginal Corporation ECoTAC Elders Council of Tasmania Aboriginal Corporation FIAAI Flinders Island Aboriginal Association mtwAC melythina tiakana warrana (Heart of Country) Aboriginal Corporation ppAC parrdarrama pungenna Aboriginal Corporation SETAC South East Tasmania Aboriginal Corporation SRAC Six Rivers Aboriginal Corporation TAC Tasmanian Aboriginal Corporation (trading as the Tasmanian Aboriginal Centre) TACLS Tasmanian Aboriginal Community Legal Service (now TALS) TALC Tasmanian Aboriginal Land Council TALS Tasmanian Aboriginal Legal Service TALSC Tasmanian Aboriginal Land and Sea Council TRACA Tasmanian Regional Aboriginal Corporations Alliance wAC weetapoona Aboriginal Corporation
3 Clarifications on terminology
Aboriginal Relics Act/Aboriginal Heritage Act 1975 Tasmania’s inaugural Aboriginal heritage protection act, the Aboriginal Relics Act 1975 underwent reform in 2017, after which it was re-named the Aboriginal Heritage Act 1975 consistent with other Australian State’s acts. As of 2020, the current act is undergoing a statutory review.
The Commonwealth of Australia Australia’s official name is often used when referencing the federal government of Australia. The terms Australian Government, Federal Government and Commonwealth Government are therefore interchangeable. This also applies when referring to government funding. I have used the term ‘Federal Government’ in most cases to help differentiate from the State Government of Tasmania. (See also the note below on the use of the word state). palawa kani palawa kani is the constructed Tasmanian Aboriginal language, or ‘Tasmanian Aborigines speak’ (Tasmanian Aboriginal Centre n.d.). Only fragments of the possibly dozen or more languages spoken by Tasmanian Aboriginal people at settlement survive in a collection of sometimes contradictory word lists. In the early 1990s, the Tasmanian Aboriginal Centre began a linguistic research and reconstruction project to revive spoken Tasmanian Aboriginal language by pulling together all known word and place-name records to discern a consistent structure of meaning, grammar and pronunciation. Customarily, palawa kani words are written in all lower-case, although the capitalisation of proper nouns sometimes occurs, as do names or words that have not been reconfigured from their initially recorded form. state/State Human rights literature customarily adopts the term state when referring to the usually political polity which can act as the arbiters of human rights. I use the term in this way throughout Chapters 2 and 3 in my review of such literature. Once I begin the presentation
4 of the case study and results, ‘the State’ refers to the government of the provincial division within Australia; either the Colonial Government of New South Wales (until 1825), or from that time, Van Diemen’s Land (until 1856), and then Tasmania, and finally the Government of the State of Tasmania (from 1 January 1901).
5 Chapter 1: Introduction
Working as an archaeologist in Australia, I have been fortunate to have formed some close working relationships with Aboriginal people. Something that always concerned me was how a people’s measure of the meaning and significance of their cultural heritage was sometimes ignored because parts of that heritage interested archaeologists so greatly, while other parts did not. Superficially, the relationship between archaeologists and Aboriginal people I observed often exhibited a sense of camaraderie in defiance of Australia’s unchecked progression of mining and construction, and government policy that facilitated development to dispossess Aboriginal people of their cultural inheritance. Yet I could not ignore the subtext that we archaeologists were knowingly continuing a pattern of colonial dispossession through our own inaction in relation to the privileging of archaeological over Indigenous interests in heritage. Of course, I am not the first archaeologist to have these sorts of ideas (Atalay, 2006; Bowdler, 1981; Byrne, 1991; Lilley, 2000; Smith, 1999, 2004). They also seemed to me to be a matter of human rights, and again, I was not the first person to consider this possibility (Langford, 1983; O’Keefe, 2000). While I was an undergraduate, the idea that Indigenous people had certain rights relating to their culture and cultural heritage was enshrined in the Declaration on the Rights of Indigenous Peoples (UN DRIP). However, as an archaeologist starting out in my career, I encountered a dearth of guidance as to how these lofty ideas of human rights informed the way we might conduct our work with Indigenous people and their cultural heritage. As the culmination of my thinking on that subject, this thesis is an attempt to answer the question: what do human rights mean to archaeologists working with Indigenous people?
Defining rights, defining indigeneity Before answering that question, it is necessary to define what I mean when using some key terms. The word ‘Indigenous’ has undergone de-construction (Trigger & Dalley, 2010), but Article 1 of the International Labour Organisation Convention 169 (Indigenous and Tribal Peoples, 1989) provides a starting point. For the ILO, the term accounts for peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country … at the time of conquest or colonisation or the establishment of present state boundaries
6 and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions [and who self-identify as such].
It is important however that the foregoing not be taken as necessary conditions for indigeneity, but rather, facets of how Indigenous people may self-identify (Wiessner, 1999), which extends far beyond a response to a colonial history (Lehman, 2003).
In its semantic sense, ‘Aboriginal’ has the same meaning as Indigenous, but for Australia to arrive at a legal and bureaucratic definition of the word required prolonged debate (Gardiner-Garden, 2003). The ‘three-part definition of Aboriginal identity’ was adopted by the Federal Government in the early 1980s. It relies on the principles of descent, self- identification, and recognition within an Indigenous community, but like indigeneity, it should also be applied in a way that allows for flexibility in response to local circumstances (Australian Law Reform Commission, 1986). ‘Aboriginal’ can sometimes be inclusive of both Aboriginal and Torres Strait Islander peoples (National Aboriginal Community Controlled Health Organisation, 2020), but I am mainly concerned with Tasmania and mainland Australia, so in the context of this thesis I use ’Aboriginal’ to refer to people from those places; more specifically, I use ‘Tasmanian Aboriginal people’ when mentioning people from Tasmania. Tasmanian Aboriginal people sometimes use the term ‘Palawa’ or ‘Pakana’ when referring to themselves (Lehman, 2006b). As I explain in fuller detail in Chapter 7, indigeneity remains a matter of contention in Tasmania, so the people I refer to as Tasmanian Aboriginal may not accord with all perspectives. I should also note that, particularly in the context of cultural heritage management and land rights, the term ‘Traditional Owners’ is often used to refer to the specific Indigenous group recognised as primary custodians. I occasionally use this term accordingly.
‘Human rights’ may appear to be a straightforward term, but it has nuances that warrant exploration. Despite some implicit agreement that human rights entail personal freedoms and protections from harm, there are more diverse ways of conceptualising them (Rubin, 2003). I trace the development of ‘generations’ of rights, and the concept of human rights in international law in Chapter 2. I outline, through a review of rights theory, how I approach human rights in Chapter 3. However, to facilitate introductory discussion, ‘human rights’ can
7 be thought of in the way they are defined by the Australian Human Rights Commission (AHRC), which states that they are a recognition of ‘the inherent value of each person’ and their ‘having the ability to make genuine choices’ about their lives (Australian Human Rights Commission, n.d.). In other words, human rights entail respect for the freedoms and actions that individual people may wish to undertake as part of their experiencing a personally- fulfilling life.
‘Indigenous rights’ can be thought of as rights that specifically relate to people’s indigeneity, such as a right to maintain a distinct identity through the engagement with and protection of cultural heritage, and rights protecting that indigeneity, as outlined in Article 2 of the UN DRIP, which reads, Indigenous peoples are free and equal to all others and have the right to be free from any kind of discrimination, including discrimination based on their Indigenous origin or identity.
I examine how both broad principles of rights and rights relating to indigeneity are impacted by archaeological practice, so I am technically interested in the rights of Indigenous people. In different contexts I may be referring to the impacts on one, or both of the above categories of rights, but for brevity and simplicity I use the terms ‘Indigenous rights’ and ‘the rights of Indigenous people’ interchangeably.
Problem definition: The uneasy relationship between Indigenous rights and archaeology The UN DRIP emphasises that Indigenous cultural heritage underpins Indigenous rights, something the UN has reiterated for more than two decades (Daes, 1997; United Nations Office of the High Commissioner for Human Rights, 2018). To date, archaeologists have recognised the link between cultural heritage and human rights as far as it imputes a recognition of cultural property rights (O’Keefe, 2000), and at least in Australia, the principle of Indigenous intellectual property rights is largely uncontested in heritage practice which encompasses some archaeology (Smith & Jackson, 2006), although this is not legally enshrined (Sentina et al., 2017). Note that while not all archaeology may fit into ‘heritage practice’, and heritage-related work includes far more than archaeology, what I am most interested in is where the two intersect over the rights of Indigenous people. I do not seek
8 to conflate the two where there is no or little Indigenous rights issue. As the Special Rapporteur for the United Nations Working Group on Indigenous Populations reported, the protection of Indigenous people’s cultural heritage is fundamental to their enjoyment of basic human rights and their self-determination (Daes, 1997). The distinction is therefore intuitive: I view any archaeology involving Indigenous heritage as a ‘heritage practice’ potentially affecting a human rights outcome.
Heritage practitioners and archaeologists who are attuned to the role that cultural heritage plays in underpinning people’s sense of identity (e.g. Baird, 2014; Keating, 2013; Logan, 2007, 2013; Reeves & Plets, 2015; Silberman, 2012; Sinding-Larsen, 2012; Smith & Campbell, 2017) may easily recognise how cultural heritage protection becomes a matter of human rights (Blake, 2011, p. 201). Yet as I show in the next chapter, there is still work to be done in showing why this approach should be adopted as standard in archaeological practice, as I aim to achieve. At the same time, it is important to note that I want to avoid placing archaeology and Indigenous people as necessarily opposed. There are, of course, Indigenous archaeologists, but again as I explain in the next chapter, the practice that has been built up – the discourse – of archaeology today rests on highly problematic Western-centric agendas that continue to impact Indigenous peoples.
There is some literature that has brought archaeology closer to discussions of human rights, originating not only from within the discipline itself but also from its allies in anthropology and in the cultural heritage field. Socially-aware archaeologists have attended to the sociopolitical placement of archaeology and heritage practice with regard to Indigenous people’s lives, and engage with them ethically (e.g. Bowdler, 1981; Byrne, 1991; Lilley, 2000; Meskell, 2009a; Smith & Jackson, 2006; Smith, 2004; Sullivan, 2008). This approach to practice, which connects archaeology to human rights, is made manifest in the methodological paradigm of ‘Indigenous archaeologies’ (e.g. Atalay, 2006, 2008; Colwell- Chanthaphonh et al., 2010; McNiven, 2016; Nicholas, 2017, 2018). It describes archaeology that is inclusive of, and meaningful to, Indigenous people (Nicholas, 2010). The objectives of a socially-aware Indigenous archaeologies methodology, therefore, align with human rights, because they support Indigenous self-determination in relation to cultural heritage.
9 However, as I outline in Chapter 2, neither socially-aware archaeology nor Indigenous archaeologies completely engage with human rights, as a reflexive assessment demonstrates. In Australia, the self-evaluation of archaeological practice emerged in response to Aboriginal activism, rather than through an attempt by archaeologists themselves to adopt human rights in practice (Lilley, 2009; Smith, 1999, 2004). Perhaps as a result, there was a significant lag between ideas being expressed and being put into action. For archaeologists who wish to be attentive to rights-based heritage issues, and thereby avoid an oppositional relationship with Indigenous people, there is an urgent need for a coherent and consistent engagement with human rights.
Compared with archaeology, anthropology has made a more conscious engagement with human rights. Since the recognition of anthropology’s entanglement with Indigenous people’s claims for rights and justice, the development of ‘engaged’ and ‘activist’ practice saw the deliberate invocation of human rights as its motivating force (Clemmer, 2014; Coombe, 2010; Cowan, 2001; Cowan et al., 2001; Dembour, 2010; Freeman, 2002; Goodale, 2006, 2009; Lam, 2000; Low & Merry, 2010; McCarty et al., 2005; Merry, 2006a, 2006b, 2009; Messer, 1993; Riles, 2006; Sen, 2005; Speed, 2006; Speed & Collier, 2000). Archaeologists seeking to incorporate human rights into their practice can learn from these efforts, but there appears to be an implementation gap between this high a level of critical anthropological theory and pragmatic archaeology. In this thesis I aim to bring some clarity to this arrangement, through the presentation of theory and data that examine the connection (and at times disconnection) between archaeological practice (and claimed practice) and human rights as expressed in cultural heritage management decision-making.
In terms of relevant work addressing human rights, the cultural heritage literature saw a proliferation of human rights references a decade ago (e.g. Baird, 2014; Ekern et al., 2012; Logan, 2007, 2012, 2014; Meskell, 2010; Silberman, 2012; Silverman & Ruggles, 2007; Sinding-Larsen, 2012; Ween, 2012). This literature often considered the intersection of the rights of Indigenous people and World Heritage (e.g. Ekern et al., 2012; Logan, 2013, 2014; Meskell, 2013). Although this focus produced an extensive body of case studies for comparison, it is not clear how what we observe in these instances might influence future
10 practice. The relevant literature on human rights and cultural heritage from which archaeology might draw insight thus exists as several overlapping, and occasionally complementary bodies of work among which complete links remain unmade. Compounding the problem, the question of whether human rights still comprise a useful frame of reference at all may outweigh the relevance of determining whether rights issues relate to archaeology at all. Rather than a universally ameliorating force, human rights appear to have reached a state of over-use in theoretical and rhetorical terms. Their application can serve to obscure rather than explain situations that are, in actuality, matters of social justice, inequality, and exclusion (Meskell, 2010, p. 840). The invocation of rights may, in fact, escalate conflicts beyond the original scope and intensity of the debate (e.g. Zalasińska & Piotrowska, 2012). Rather than becoming mired in attempts to universalise people’s situations to fit under the definition of human rights issues (Blake, 2011; Meskell, 2010, p. 854), which often underpins discourses on this topic, a better focus might be on the promotion of equitable development and sustainability as guiding principles (Kraak, 2018b), if the goal is the improvement of people’s lives. So although on one hand the present may be an opportune time for a rapprochement between archaeology and rights-based heritage practice, on the other hand, the era of human rights as a useful frame for cultural heritage may have passed.
Regardless of how we theorise human rights, the reality is that concrete examples of human rights issues and conflicts that involve Indigenous cultural heritage do still exist. The way Indigenous cultural heritage is managed often creates broader rights issues for Indigenous people. Examples proliferate in many countries, particularly in regard to World Heritage sites (e.g. Labadi, 2007; Rao, 2010; Smith, 2004; Ween, 2012; Willems, 2014), but also in relation to domestic cultural policy (e.g. Blake, 2011; Meskell, 2009c; Silverman & Ruggles, 2007; Smith, 2006; Sullivan, 2008). How Indigenous rights are handled in the practice of day- to-day archaeology, as well as national and sub-national cultural heritage management policies, still affects Indigenous people’s capacities to enjoy and assert cultural rights that many non-Indigenous people take for granted (Celermajer, 2005). For instance, Ween (2012) describes three instances in which state heritage management frameworks either ignore Indigenous values associated with a World Heritage landscape, or – if they are
11 recognised – fail to incorporate them into management systems adequately. In the first example, Indigenous Saami resisted both a national park and World Heritage nomination on the basis that their traditional hunting practices were only viewed as worthy of protection insofar as they had potential for tourism interest (Ween, 2012, pp. 262-263). In another similar instance, the classification of a World Heritage site on the basis of historical events failed to recognise prior Saami land use, which raised suspicions among the Saami about the extent to which those uses could continue under a World Heritage listing, leading to similar resistance to the World Heritage nomination (Ween, 2012, p. 264). In the third example, Saami supported a site’s nomination for the purpose of its protection, but the archaeological interpretation of the site accepted by the Norwegian national government did not correspond with the Saami telling of history. Ween (2012, p. 266) makes the case that if the listing had proceeded under the Saami historical account, it could have upset established truths in Norwegian society, and bring into question current understandings of other archaeological sites, which in turn might jeopardise the relationship between the Saami, the government, and Norwegian archaeology. Ween’s examples demonstrate a common theme wherein Indigenous perspectives of a landscape are not captured in a management paradigm, leading to suspicion that the things people view as rights, or connected to rights, may be lost or obstructed. In the third example especially, archaeology is part of the process of classifying the importance and meaning of landscapes and the materials in them.
The foregoing suggests that human rights and cultural heritage (and therefore archaeology) entanglements represent a nascent area of research in need of further development (Logan et al., 2015). While major ambiguities remain, for now human rights can represent one method through which we can engage with the complexity of ethical problems in cultural heritage studies (Kraak, 2018b, p. 130). In terms of archaeology, because human rights can neatly encapsulate much of the change witnessed in the discipline over the last few decades, human rights as a concept remain highly relevant in guiding day-to-day practice. The challenge for Australian archaeology is to determine how the last 40 years of self- development might reconcile with globally enshrined principles of Indigenous rights,
12 cultural rights, rights in heritage, and human rights, and what concrete form(s) this may take in practice. This challenge provides the context for my research.
Rationale for research In defining why this research should take place, the question of why archaeologists should engage with human rights extends from the contention that cultural heritage practices have human rights outcomes, particularly for Indigenous people. I explore the literature articulating this position in Chapter 2, the context chapter, but for now I reflect on the fact that cultural heritage, as the basis for the articulation and maintenance of claims to identity (discussed throughout this thesis), underpins Indigenous peoples’ claims to sovereignty, land rights and self-determination, and forms a fundamental basis for their enjoyment of human dignity. At the very least, this implies to me that there is an ethical imperative for archaeologists to understand how their work in cultural heritage may affect outcomes in these arenas. This proposition echoes the position taken by internationally high-profile Australian authors such as Smith (1999, 2004, 2006), Harrison (2015), and Byrne (1991, 2008a, 2009), who examine archaeology’s role in systems of power. They contend that the ability to control and define cultural heritage and its management influences Indigenous people’s ability to enjoy their ‘cultural rights’. In short, the need to explain how human rights relate to the work archaeologists have already done, and will do in the future, is a matter of professional ethics.
Research aims Because archaeologists have a clear impetus to understand how their work affects the rights of Indigenous people, the primary objective of my thesis is to contribute to this understanding. In answering my overall research question of what human rights mean to archaeology, I investigate a series of subsidiary research questions. These include: § What causes change in rights practices and results in rights outcomes? Do patterns of change exist? § How are discourses of rights and heritage used for and against the progress of Indigenous rights?
13 § What structures of power and knowledge (e.g. heritage management) influence rights outcomes for Indigenous people? § Does the literature capture the interaction between heritage and human rights? and § What do rights claims and issues actually look like?
For clarity, I define rights practices as any human actions that can be interpreted as rights- related (Coombe, 2010, p. 239). I enter into more detail in Chapter 3 on how I view human rights as actions reflected in capabilities for human flourishing. Rights outcomes in this sense are simply the end result of human actions, and can therefore be positive or negative.
Further to these applied rights-focused research questions, in this thesis I also aim to determine what theoretical approaches to human rights are most useful to archaeology and what methodological tools are best used in putting the understandings learned from that theory into practice. Therefore, the following chapters – together comprising Part A: Theoretical Framework – serve as both a justification for my choice of method and theory, and as the basis for an approach I argue to be useful to archaeology in general. The outcome I aim to produce from this thesis is a model approach to human rights that archaeology may use in the future.
In terms of theory, my starting point is to determine how an Indigenous archaeologies methodology can engage with human rights. If it can, I propose that it will entail a broadening of archaeological theory into areas with which it may not have engaged before. I refer to the way in which cultural heritage studies are informed by a wide range of disciplines. Archaeologists engaging with the human rights field (e.g. Meskell, 2012) advocate an open-ended approach to data collection, but the question of what knowledge archaeology can use to investigate such discourses is potentially vast. As a consequence, I propose that it is necessary to engage with a variety of methods to understand how that discipline has moved to understand how human rights are adopted, articulated, and conceptualised by Indigenous people. I also aim to define the extent to which it is necessary for archaeology, as a discipline, and cultural heritage as a practice, to engage with rights theory. Essentially, this lies at the heart of my question regarding whether an in-depth
14 understanding of rights theory is necessary if archaeologists are to adopt human rights overtly into their practice, or whether this can be achieved with the acknowledgement of some simpler set of core principles taken from other theoretical areas.
To provide a focus for my discussion of these theoretical issues, I concentrate my attention on a specific case study: Tasmania. Through the presentation of this case study, my aim is to provide novel insights into the theoretical observations I make, and their applied, on-the- ground consequences. The case study also fulfils an additional aim of adding to the literature entailing case studies of human rights and cultural heritage that are available for future comparison. The aim of the case study can be summarised as determining the extent to which archaeologists and Indigenous people have effected rights change, providing an account of how heritage and human rights interact in rights claims, and what archaeology has to do with these rights outcomes. At a practical level, this focus stems from my aim to use the meaning of my results to inform quotidian archaeological practice as much as possible.
Research methods Although I accept its importance, my interest lies not in human rights theory per se, but instead in the lived experiences of people dealing with human rights issues, and the ‘real- world’ effects that the practices of archaeology and cultural heritage management have on them. I am therefore interested in the discursive aspects of human rights and archaeology, that is, the ways in which these things represent institutions of knowledge, containing within them norms and structures of power (Foucault, 1972). I want to understand how Indigenous and non-Indigenous actors influence change in rights outcomes, and more specifically how the cultural heritage of archaeology’s interest fits into this change. The literature I consult often takes a similar approach, examining the discursive nature of both archaeology and heritage (Byrne, 2008b, 2009; Meskell, 2010; Piotrowski & Ross, 2011; Smith, 2006), World Heritage (Labadi, 2007), culture (Chow, 2014; Cowan, 2001; Lehman, 2003), and human rights and social justice (Baird, 2014; Coombe, 2010; Corntassel, 2008; Cowan et al., 2001; Dembour, 2010; Goodale, 2006; Larson & Aminzade, 2007; Low & Merry, 2010; Mazower, 2004).
15
Taking an observational perspective allows me to examine a case study in detail. Case studies have been used successfully in similar research combining the culture and human rights fields (e.g. Carter, 2010; de Almagro, 2018; Hales et al., 2012; Kawharu, 2009; Kraak, 2018a, 2018b; Larson & Aminzade, 2007; Meskell, 2009b; Tsutsui, 2017). In considering possible case studies that would be comparable to those in the literature, I required an example in which archaeology had an influence on the rights of Indigenous people. Also, given the frequency with which World Heritage appears in literature around Indigenous rights and heritage, I felt that a case study containing a World Heritage site would be advantageous. Tasmania provides an excellent case study for these purposes, as it combines long-running and well-documented issues in Indigenous rights (Anderson, 1997; Clements, 2014; Cove, 1995; Davies & Galloway, 2009; Lambert, 2002; Langford, 1983; Lehman, 2003, 2013; Price, 2014; Ryan, 2012). Moreover, nearly one fifth of Tasmania’s landmass comprises the Tasmanian Wilderness World Heritage Area (TWWHA), which itself is the subject of contested protected-area classification, management, and various forms of rights, including Indigenous land and cultural rights (Crowley, 1999; Hay, 1994; Kirkpatrick, 2001; McGaurr et al., 2015; McNiven & Russell, 1995; Russell & Johnston, 2005). I had originally intended to make the World Heritage aspect of the case study the primary focus of my investigation. However, during my preliminary research, it became clear that Tasmania’s broader social and historical context, within which the TWWHA represents only one aspect, would be more illuminating as a case study on archaeology and human rights. As I outline in Chapter 9, archaeology and its antecedents have heavily influenced the way Tasmanian Aboriginal people and their ancestral lands have been treated, talked about, and legislated around, from the early nineteenth century to the present day (Allen, 1983; Langford, 1983; Murray & Allen, 1995; Piotrowski & Ross, 2011; Taylor, 2016). As I explain in Chapters 9 and 10, archaeology’s interaction with Tasmanian society and politics has not always been to the benefit of Aboriginal people. This means that, recognised or not, Tasmania has long represented fertile ground for generating lessons in human rights for archaeologists.
My case-study methods have focused on interviews, participant observation, and archival research of relevant texts, but I did not limit myself to these approaches. Doing so would
16 have meant that interviews would make up the bulk of my data-collection strategy. However, as I explain in more detail in Chapter 4, this proved not to be feasible in this instance. Consequently, I amended my strategy to include an increased input from other sources, including historical literature, government publications and policy documents, academic papers related to a broad range of topics, news material, and personal observations of current events in Tasmania. Through this change in strategy, the data I collected became the case-study itself. By questioning how events – both those that have already taken place, and those currently ongoing – can be viewed through the lens of the connections between human rights and cultural heritage, I demonstrate how the issues identified in other case studies and discussions have played out in Tasmania, but also where instances are a unique result of Tasmania’s history of human rights issues. The patterns and discontinuities that emerge from the results provide the basis for the topics in my discussion in Chapter 13.
Thesis outline Following this introductory chapter, the thesis is split into three parts. Part A sets out my theoretical framework in three chapters. The first, where the thesis proper begins, is Chapter 2, where I begin the progression toward my central argument by reviewing global literature on the evolution of understandings of the connection between cultural heritage and human rights. This provides the broad context for my research by demonstrating the importance of culture in Indigenous rights claims. I then narrow the focus to the specific role of archaeology in the process of codifying Indigenous rights by informing the creation of domestic cultural heritage law. This process situates my own research in the field of heritage studies concerned with human rights and also demonstrates the need for continued research in that area. Examining archaeology’s role requires an assessment of the work done to date, both in an Indigenous archaeologies methodological framework and in heritage studies more broadly, to incorporate rights-based approaches into practice.
In Chapter 3, I determine what ‘human rights’ means to me, and outline the approach to the concept that I intend to use in the rest of the thesis. In this chapter I outline a capabilities approach to human rights (Nussbaum, 1997), and argue that human rights, culture and
17 heritage are best understood as discourses (Cowan, 2006; Dembour, 2010) that are leveraged through social actions (Norris & Jones, 2005).
Because one of my research aims is to clarify approaches to human rights which archaeology may find useful, it is essential for me to outline and justify my specific choice of approach and associated methods. In Chapter 4, I present my methodology and methods. I elaborate on the importance of selecting methodologies that can provide ‘thick’ explanations of discourses in action, while retaining a view to both wider relevance and replication. Essentially, while Chapter 3 defines ways of thinking about human rights, Chapter 4 forms the basis for a model of incorporating human rights into archaeological practice through the adoption of ethnographic methods. Before I conclude Part A, I pause to present a brief introduction to the case study itself.
The next part of the thesis, Part B, contains the results of my research. Through the collection of data, I identified four distinct yet interconnected areas wherein conflict around Indigenous cultural heritage and human rights has occurred. These instances might also be thought of as: Tasmanian Aboriginal people’s interactions and responses to the structures of the British colonisation of Australia; intra-community relations and conflicting ideas about Aboriginality and representation; archaeological knowledge on the past and its landscape; and the environmental movement’s characterisations of Tasmania’s landscape as ‘wilderness’. There are certainly many more areas of inquiry, or I could have only focussed on one particular aspect, such as World Heritage, as I originally intended. However, I felt that a meaningful exposition of the case study would need to be broad in terms of both its temporal scope and its subject matter. I need to account for Tasmania’s history and politics, rather than just examine matters of land and heritage, because by living in Tasmania I have observed how all of these things are interconnected. Doing this also provided me with a more robust set of results on which to base my discussion.
Upon collating the data, I found that several themes ran throughout these areas of interest. These include: the assertion of rights ‘ideas’ that pre-date the formalisation of human rights; the link between cultural heritage and the continuation of cultural identity; the
18 meaning of the Aboriginal material past and the natural landscape; and the failure of authorities to recognise the existence of an Aboriginal voice. Despite the consistency of these themes, it became clear that organising the results thematically would produce an erratic narrative by constantly alternating between historic and modern contexts. Consequently, I have ordered the results in a way that allows these thematic threads to run coherently through the thesis.
The results are thus presented in groups of two accompanying chapters, following an alternating pattern of a background chapter preceding a data chapter. The choice to present results in this way was also a response to the overwhelming amount of background information I found to be essential to explaining and understanding what I observed. Presenting this background information in a chapter that was widely separated from the related results would make cross-referencing difficult and interrupt the flow from one area of interest to another.
Based on this structure, I begin the results by looking back to Tasmania’s European settlement in 1803, seeking to identify assertions of ‘rights’ in the period before human rights (Chapters 5 and 6). I then look at how that history has shaped Tasmania’s modern-day society, and particularly, how the narratives that arose from that history have affected the way Aboriginal communities relate to one another and their cultural heritage (Chapters 7 and 8). Next I examine archaeology’s role in the way Aboriginal heritage and landscape interaction were characterised since Europeans first arrived, creating the narratives that I have already introduced (Chapters 9 and 10). I then pivot slightly towards World Heritage, examining how the landscape has more recently become known as ‘wilderness’ (Chapters 11 and 12).
The choice to place the results on World Heritage at the end of Part B is not just because they require a slight change of tack from the preceding chapters. It is also because most recently, the conflict over how landscape is conceptualised has merged with the conflict over Tasmanian Aboriginal identity. This raises some important further questions that I
19 address in the discussion, but before doing so, I present a brief ‘pause’ to consider this phenomenon.
I conclude the thesis with Part C, comprising Chapters 13 and 14. The discussion (Chapter 13) brings my findings back to bear on the research question, and determines what this particular case study can contribute to the improvement of archaeology as heritage practice. I then conclude the thesis in Chapter 14, where I make the argument for an approach to archaeology as heritage practice that incorporates the strongest aspects of Indigenous archaeology, rights-based approaches to heritage management, human rights theory, and reflexive practice, all of which should equip archaeologists with the necessary understanding of what human rights mean for applying their practice with Indigenous people.
With this introduction complete, I now move to Part A of the thesis, where I outline my theoretical framework, starting with the context around cultural heritage as it is connected to human rights, and the response to this contention from archaeology.
20 Part A: Theoretical Framework
Part A, my theoretical framework, begins with a consideration of the current state of the literature concerning archaeology’s role in cultural heritage, and its crossovers with human rights. This provides the primary body of work within which my research is situated. I demonstrate in Chapter 2 that although disparate bodies of literature in archaeology and heritage management have made similar inroads into human rights, there is work yet to be done in understanding what the lessons of this work mean for archaeological practice. The next two chapters outline my approach to research. Chapter 3 describes my approach to human rights (which is important to keep in mind while reading through the results chapters). I outline in this current section of the thesis how I take a very broad view of what rights and therefore rights claims are, which contextualises my assessment of Tasmania’s pre-rights history. Chapter 4 describes and justifies my choice of methods, and the selection of the case study. Together Chapters 3 and 4 form the foundation of my argument for an approach to human rights that archaeology might take, which I outline at the end of the thesis.
21 Chapter 2: How are cultural heritage and human rights connected?
Introduction I situate my work primarily within literature on cultural heritage and its intersections with human rights, which may guide archaeology’s approach to human rights. In this chapter I begin by recounting the process through which human rights, and then cultural rights have become concepts accepted in international law, and then I review how heritage practice has embraced these principles of human rights.
Because most archaeologists have their primary interest in material culture and cultural landscapes, I outline here what the concept ‘cultural rights’ means in international discourse. By tracing the development of a legal definition of rights relating to culture, I show that the concept has only recently attained clarity. In addition, the latest understanding of ‘culture’ has given rise to the concept of ‘heritage rights’. Heritage rights are even less well developed as concepts than are cultural rights. This perhaps results from their lack of recognition in archaeology and other heritage work until recently. I demonstrate that although heritage practice, and especially Australian archaeology, has for some time sought to be more attentive to phenomena that may be recognised as Indigenous cultural rights, a conscious connection has seldom been made between such practice and human rights proper. Similarly, although emergent methodologies for archaeology embracing an Indigenous perspective point in the right direction, there is a dearth of explicit engagement with human rights by those archaeologists who do adopt such methodologies.
The recognition of culture and heritage rights in international law As Vrdoljak (2018) identifies, the link between culture and human rights has often been the basis for Indigenous rights claims. Nonetheless, progress toward enshrining culture’s place amongst human rights has been slow (Chow, 2014). Rights to culture are not a new invention, being codified in the 1948 Universal Declaration of Human Rights (UDHR) as ‘indispensable’ to individual dignity and personal development (Art. 22). However, as Logan (2007, p. 38) contends, cultural rights appear to be a comparatively meaningless addition to
22 the UDHR, as Article 22 has been largely unappreciated and is seldom invoked as a matter of international law. Logan’s sentiment had been confirmed earlier, on the twentieth anniversary of the Universal Declaration’s founding. Reporting from the meeting on ‘Cultural Rights and Human Rights’, the UNESCO Secretariat conceded that “culture was, in the past, taken for granted” (UNESCO, 1970, p. 9). Yet little changed even from 1970 until the turn of the twenty-first century. Albro and Bauer (2005, p. 6), for example, make the case that Article 27 of the UDHR (‘participation in the cultural life of the community’) defines the cultural rights indispensable to the enjoyment of Article 22, but what ‘participation in cultural life’ actually entails remains ill-defined. This is probably a result of the fact that at the time the UDHR was drafted, what was defined as ‘culture’ was informed largely by static essentialist interpretations from structural anthropology (Byrne, 2008b, p. 151), which was perhaps the reason for the general lack of articulation of cultural rights until the emergence of minority rights in the human rights system.
The inclusion of the right to the pursuit of ‘cultural goals’ (Art.1) in the International Covenant on Economic Social and Cultural Rights (ICESCR), in conjunction with the International Covenant on Civil and Political Rights (ICCPR) concomitantly addressing the rights of ‘all peoples’ to self-determination, had the important effect of confirming cultural rights as collective rights, as opposed to the individual rights enshrined in the UDHR. This conceptual change toward recognising state obligations relating to social and economic equality between groups of people is sometimes characterised as the shift to ‘second generation’ rights (Vasak, 1977). The later shift to ‘third generation’ rights expands on this idea to consider the rights of collectives themselves, which includes the rights of Indigenous groups (Domaradzki et al., 2019). As a collective right, culture becomes more than something in which people have a right to participate, or to protect through the preservation of their cultural heritage; it becomes a means for individuals to find “a place in the world” (Albro & Bauer, 2005, p. 31 after Arendt 1951) within a global community of rights-holders. By turning culture into a “terrain of resistance and struggle” (Rajagopal, 2003, pp. 165-166), human rights make a rhetorical shift away from an individual’s fundamental liberties and towards framing special categories of rights-holders. Being able to draw a distinction on the basis of culture has “had arguably the most transformative impact
23 on minority social movements” (Tsutsui, 2017, p. 1091), as these movements gain legitimacy by being recognised as matters of human rights (Coombe, 2010, p. 235; Cowan et al., 2001, p. 11; Kymlicka, 2011, p. 190; Mazel, 2009, p. 144; Messer, 1993; Wiessner, 1999, 2011).
The question which is invariably raised at this point is, what happens when these Indigenous cultural rights movements come into opposition with more general human rights? (Nagengast & Turner, 1997). Cultural relativism has been used as the basis for resisting human rights (Ignatieff, 2001). The issue here is essentially whether respect for the diversity of cultural practices is compatible with the principle of individual freedom. The argument is that human rights, being demonstrably Eurocentric in origin, could be used as a means of cultural and moral imperialism over non-Western peoples (Dunne, 2002; Ignatieff & Gutmann, 2001; Mazower, 2004). For Indigenous peoples, the cessation of cultural practices on human rights grounds could be viewed as equivalent to assimilation into Western culture, or likewise, could be deemed as a threat to undermine Indigenous collective rights by the promotion of the individual above the group (Messer, 1993; Nagengast & Turner, 1997). A common response is to suggest the formation of a hierarchy of rights (e.g. Logan, 2007, p. 39). Regardless of what order a hierarchy of rights (or rights generations) might take, international law tends to preference individual liberty over cultural practices (Blake, 2011, p. 222). Where conflict between individual rights and cultural practices exists, the individual’s capacity for choice is usually given overriding importance (Franck, 2001). However, this view may overlook the consequences and causations behind such practices (Messer, 1993, p. 233). Particularly in what appear to be quite clear-cut rights violations, a simplistic culture vs. rights approach tends to “strip events of their subjective meaning in a pursuit of legal facts” (Wilson, 2009, p. 209). To take a particularly extreme example, Montgomery (2001) provides a case study of child prostitution in Thailand, where cultural familial obligations are one of many factors, among social, historical, and economic contexts, which shape the attitudes of both parents and children themselves. In this case, the discussion need not devolve into a simplistic opposition of rights against ‘culture’. Individuals’ autonomy can be respected while the discussion seeks to understand the broader conditions that influence the decisions people make. In effect, the ‘essence’ (Rubin,
24 2003, p. 73) of rights remains universal, but it must be translated through culturally recognisable norms (Blake, 2011, p. 222), while taking into account ‘local realities’ (Montgomery, 2001, p. 96).
Culture as a marker of ‘distinctiveness’ need not only imply a right to protect cultural expressions and practices that produce the materials in which archaeologists invest their interest. Rather, it encompasses the “shared set of ideas, beliefs or values” or “cultural narratives” (Chow, 2014) through which people see and engage with the world, including the world of human rights. It also demands contemplation of a “culturally bounded right to property and the culturally grounded right to self-determination” (Wiessner, 2011, p. 139). In other words, although the value of cultural diversity can be understood as the foundation of Indigenous rights (Wiessner, 2011, p. 140): culture is not a set of optional practices tacked onto a set of individuals who would otherwise enjoy the full range of human rights. It is the organising network within which those rights are held, [and which] … comes into relief only when the culture, the sovereign claims, the economic resources, and the legal rights of a group are simultaneously and inter-dependently violated (Celermajer, 2005, p. 14).
In a world of globalisation, colonialism, and cultural assimilation, for many Indigenous peoples, rights and culture come together as ‘emergent global discourses’ (Cowan et al., 2001) through which people may do things such as reclaim a cultural identity, or progress claims for social justice and political self-determination (Albro & Bauer, 2005, p. 3).
In terms of what the foregoing conception of culture means for states, the term ‘cultural rights’ has now come to encompass much more than simply the protection of cultural material, or the preservation of cultural difference solely for the sake of diversity. Culture, when rendered as an Indigenous people’s “collective memories of the past”, which typically contain memories of dispossession and rights abuses, now implies an obligation upon states to recognise how Indigenous uses and valuations of heritage places challenge those of the non-Indigenous settler society (Chow, 2014, p. 645). As Nicholas and Smith (2020) contend, acts or omissions by a state, even when unintentional, that damage or disconnect Indigenous people from their heritage by affecting heritage places can be viewed as a form
25 of ‘violence’ in that those acts interfere with a cultural right. This is a potentially difficult proposition for states to contemplate. I demonstrate in Chapter 6 how the Tasmanian Government’s reticence to admit Tasmanian Aboriginal memories of dispossession and near-extinction undermined the Tasmanian Aboriginal rights movement, thus confirming how the recognition of the kinds of cultural memories that Chow, Nicholas and Smith identify evoke rights outcomes.
It is important to note that ‘collective memories’ and ‘culture’ need not be read as things that are consciously agreed upon and set down in perpetuity. Rather, these words represent a sort of gloss, “a sociological fiction, a shorthand referring to a disordered social field of connected practices and beliefs which are produced out of social action” (Cowan et al., 2001, p. 14). Social action can “include not only objects and places, but also customs, practices, relationships, stories, songs and designs … [that] are passed between generations and contribute to a person’s or group’s identity, history, worldview and well-being”, and these actions constitute what we understand to be heritage rights (Nicholas, 2018; Nicholas & Smith, 2020).
Heritage rights may not yet be fully recognised in international law, but they have been considered in the context of World Heritage management, and this lends them some legitimacy. Following a directive from the UN Secretary-General in 1997 that called for all arms of the UN to adopt a rights-based approach to their functions, the enactment of the UN DRIP has meant that UN agencies are obliged to adopt its principles under Arts. 41 and 42 (Ekern et al., 2012). UNESCO subsequently set a strategy on human rights at its thirty- second session in 2003, affirming its role in the overall promotion of human rights (UNESCO, 2006), and this agenda was further extended by the Medium-Term Strategy for 2008-2013 (UNESCO, 2008) and 2014-2021 (UNESCO, 2014a). Human rights principles are also codified through the Operational Guidelines for the Implementation of the World Heritage Convention, which inform states on the domestic implementation of the World Heritage Convention (UNESCO, 2018b), and have recently evolved to reflect Indigenous rights principles (Lilley, 2017, p. 547; Marsden, 2015). The year 2017 saw the development of a UNESCO policy on engaging with Indigenous peoples (UNESCO, 2019), and this was followed
26 by the establishment of the International Indigenous Peoples’ Forum on World Heritage (IIPFWH) in 2018 (UNESCO, 2018a). Together, these developments provide Indigenous people with a formalised link to the framework of World Heritage, which in time may mark the establishment of an international institution concerning Indigenous rights in heritage. This is a promising start, although compliance with any principles ‘on the ground’ remains a matter of state policy, meaning Indigenous peoples around the world have little guarantee of any protections for these emergent rights (Vrdoljak, 2018).
Linking archaeology and heritage practice with human rights: possibilities and issues Now that I have clarified what the concepts of cultural and heritage rights mean, I examine how archaeology and heritage practice have adopted them. This section demonstrates how although the literature relating to cultural heritage theory and management has progressed toward human rights through several different approaches, a final connection to rights still demands elucidation. Despite the recognition of the human rights implications of cultural heritage protection emerging in the 1990s, formal rights-based approaches to cultural heritage management are a more recent phenomenon (Blake, 2011; Ekern et al., 2012; Logan, 2012) that situates heritage management amongst a broad array of global institutions, discourses, and power relations, sometimes entwining with the expansive theme of ‘critical heritage studies’ (Baird, 2013, 2014; Blake, 2011; Connor, 2015; Coombe & Baird, 2015; Silverman & Ruggles, 2007). Proponents of critical heritage studies typically value transcending technical management paradigms (Logan, 2007, 2012), and are open to divergence in cultural perspectives (Atalay, 2006, 2008), giving rise to a plurality in the creation of knowledge (Lilley, 2009, p. 67), thereby providing more diverse ways of valuing cultural heritage (Byrne, 2009), and allowing multiple conceptions of conservation (Colwell- Chanthaphonh, 2009). These principles are now enshrined as best practice in heritage management in Australia (Australia ICOMOS, 2013; Australian Heritage Commission, 2002). Critical approaches to heritage may provide a means of facilitating Indigenous people’s enjoyment of their ‘cultural rights’, because their objectives as outlined above align with cultural rights principles. However, the connection between working toward those objectives and achieving human rights has not always been made explicit, and the evolution of such ideas seems to have occurred separately from the concurrent development of
27 cultural rights. To illustrate this with regard to Australia during the 1980s, archaeologists such as Bowdler campaigned for the need to understand how cultural narratives were imbued in the landscapes in which they worked. Such places, these archaeologists argued, held social and political significance to Indigenous peoples, with that heritage significance only able to be determined, endogenously, by the people and communities to which it belonged (Bowdler, 1981, p. 129). In time, this principle became established as a matter of basic practice (Smith & Jackson, 2006), and although it echoed the principles laid out by the UN Special Rapporteur in relation to Indigenous heritage protection (Daes, 1997), the connection to human rights was never explicitly made. Instead, the motivation for recognising Indigenous forms of heritage significance was mainly expressed in terms of local legal rights (e.g. Godwin & Weiner, 2006), or matters of ethics (Harrison et al., 2008, pp. 6- 7). Some scholar-practitioners such as Lilley, did make a link to human rights by identifying how Indigenously-generated knowledge could be used in claims for social and political justice (Lilley, 2009, pp. 63-64). Meskell (2009a, p. 1) also calls for archaeologists to utilise an approach which “both extends our obligations to these communities and steps up to acknowledge our role as participants in national and international organizations and developments”, but these examples appear to be the exception. Nonetheless, even while not consciously invoking human rights, arguments promoting Indigenous people’s role in heritage work usually have at their core the recognition that Indigenous people have some preferential rights in relation to their heritage. As a result, approaches to heritage and archaeology such as those advocated by Bowdler, Smith, Lilley and so on, might be included retrospectively into the body of ‘rights-based’ heritage literature, particularly in a foundational sense.
There is a case to argue that heritage literature, particularly from Australia, has been linked to human rights because ideas that were expressed locally had a flow-on effect that led to positive outcomes for Indigenous rights globally. To illustrate, Gfeller (2015, pp. 373-374) argues that Isabel McBryde’s work in Australian archaeology through the 1970s and 1980s
28 equipped Australian archaeologists to deal with the post-colonial1 environment they worked in, by improving the ways they acknowledged and reacted to claims made by Aboriginal people in relation to their cultural heritage. When McBryde’s core ideas were taken up by the World Heritage Committee, they helped underpin the formation of the cultural landscapes category in World Heritage. The cultural landscapes category, Gfeller (2013, p. 497) argues, forced a “paradigm shift in the World Heritage Convention” towards the recognition of intangible cultural heritage, which was eventually enshrined through the separate Convention for the Safeguarding of Intangible Heritage (ICH). The ICH, Logan argues, by its broadening of the global recognition of culture as intangible in line with the concept I described above, gave rise to a profusion of questions relating to how culture, and particularly Indigenous culture, connected to the right to culture as laid out in the Universal Declaration (Logan, 2007; also Meskell, 2013, p. 157). What Logan saw at the time as ‘conundrums’ between recognising distinct cultural and human rights have since been resolved, as I explain in the next chapter, but the notable end result was the ICH. That Convention encapsulated the ideas that McBryde had put forth in response to Indigenous Australians’ claims that heritage is embodied in people not things and so, by extension, those people should have certain preferential rights relating to their heritage.
McBryde was not the only person working in a heritage-related field in Australia to call for the acknowledgement of Indigenous claims. As I mentioned earlier, Bowdler (1981) professed similar ideas but more specifically in relation to the practice of archaeology, and her work improved the dialogue between archaeologists and Aboriginal people in Australia from that time onward (Lilley, 2009, p. 52). In 1983, Aboriginal academic and activist Ros Langford (1983, p. 3), in the seminal paper ‘Our Heritage – Your Playground’, expounded that “archaeological activities have not, in the past, substantially aided Aboriginal groups and in the main have been, and still are, counterproductive”, because “Aborigines [sic] have been forced to rely on white sciences to support land claims and have not done so by choice”. Therefore, Langford continued, “science, not ownership, determines which land we
1 By this I am not referring to a temporal indicator, but use the term as a means of “engagement with and contestation of colonialism’s discourses, power structures and social hierarchies” (Gilbert & Tompkins, 1996, p. 2).
29 shall get back”. Here, Langford was making clear the connections between the archaeological discourse and Indigenous rights (in the above case land rights, although the paper also referenced broader claims regarding repatriation of cultural material), before any question of rights had entered the cultural heritage literature.
Gfeller (2015, p. 374) argues that Australian archaeology experienced occasionally hesitant progress toward engagement with Indigenous claims after McBryde, but the lag with which this occurred is problematic, as is the apparent reticence by practitioners to adopt such ideas unless they were professed by a non-Indigenous heritage ‘expert’. One of the key lessons that has arisen out of such dialogue is an understanding of how the dominant discourse of heritage management in most countries alienates contradictory viewpoints, particularly those of Indigenous and other minorities. Byrne (1991) was one of the first to articulate that archaeology in Western countries came as “part of the baggage of colonialism” and was conducted largely in ignorance of non-Western modes of valuing, interacting with, and preserving cultural heritage. Smith also put forth similar ideas based on observations in Tasmania. Smith (1999, p. 25) asserted that the structures of power and privilege set up through a colonial legacy permitted archaeology to forge its own ‘disciplinary identity’ in which it was afforded sole authority to interpret the past, even in the face of dissent from Indigenous people. Smith (2006) later extended this idea to reveal the way in which heritage is produced and controlled by archaeologists and governments to support self-affirming structures of power, termed the ‘Authorised Heritage Discourse’ (AHD). Smith (2006, p. 11) views heritage work as similar to any other discourse, in that it is “ultimately a cultural practice, involved in the construction and regulation of a range of values and understandings”. The values and understandings associated with what is typically termed ‘heritage management’ in most Western societies, it is further argued, originated in a scientific tradition concerned with “the pastoral care of the material past” (Smith, 2006, p. 17).
This view echoed Byrne’s earlier characterisation of the discourse of Western archaeological heritage management as one embedded in the ‘conservation ethic’, arising from perceptions that cultural heritage had an inherent universal value owing to the antiquity of
30 archaeological sites and objects (Byrne, 1991, p. 271). Smith (2006, p. 12) argues, still in agreement with Byrne, that because the past was seen as entirely separate from the present, heritage sites became “the proper subject of analyses and responsibilities for a range of forms of expertise and associated experts’’. Where Indigenous heritage was classed as a relic of ‘deep time’, at risk of destruction by the ignorance of modern society and amateur interference (Smith, 2000), its co-option by archaeologists and museum curators meant archaeologists become both the stewards of heritage and the interpreters of its secrets to the unknowing public, including to Indigenous people (Atalay, 2006). In taking on this role of controllers of heritage management, “heritage practitioners become ordained vis-à-vis these practices as spokespersons and knowledge producers, while other stakeholders are often relegated to subordinate roles in negotiations” (Baird, 2014, p. 150).
Smith’s account of heritage authorisation can be observed in operation through an analysis of the changes to Aboriginal heritage legislation in most Australian states2. Although it is beyond the scope of this thesis to undertake this analysis, it can be noted that in all states, early forms of heritage legislation were drafted primarily around Western-scientific value systems (Boer & Gruber, 2018; Godwin & Weiner, 2006). The Acts were originally informed by the processual archaeology of the 1960s, so they typically classed all Indigenous heritage material and places as ‘unknowable’ entities (Smith, 1999, 2000, 2004, 2006, 2008). Despite significant changes to much of Australia’s heritage legislation over the past two decades, leading to an acknowledgement of the central role for Traditional Owners/Custodians in determining heritage significance, all legislation still remains primarily focused on scientific significance, with some states being more focused on Western ideals than others. Tasmania’s heritage legislation is no different. Although Tasmanian Government guidelines mandate Indigenous community consultation, the Tasmanian act (McGowan, 1990) still privileges scientific (viz. archaeological) significance, although there was a review under way at the time of writing (Department of Primary Industries Parks Water and Environment, 2019), and changes may be forthcoming to reverse this scientific dominance. Overall, even with the recent changes to some of Australia’s heritage acts, the role for owners/custodians
2 Heritage protection and management in Australia is primarily a state matter rather than a federal responsibility.
31 of heritage in determining the future outcomes of their past, in practice, remains problematic. Smith’s (1999, p. 87) overview, that “the AHD, in privileging the innate aesthetic and scientific value and physicality of heritage, masks the real cultural and political work that heritage process does” remains largely relevant today. This social and political ‘work’ is perhaps the most damaging aspect of the AHD regarding Indigenous rights. Over and above the physical control of heritage, Smith recognised that the knowledge produced by heritage practice, including archaeology, also dictates who can access and interact with heritage and landscapes.
It is important to note here that recognising that the predominance of a Western scientific paradigm has been deleterious to Indigenous rights is not an attack on the science itself. As Latour (to whom I refer later) was forced to clarify, a critical examination of science is not necessarily anti-science (de Vrieze, 2017). Nor does the preceding discussion lead me to the position that archaeology is necessarily opposed to Indigenous rights or epistemologies. In Chapters 9 and 10 of this thesis, I provide numerous examples of how Australian archaeology has excluded Indigenous people. However, manufacturing a simplistic dichotomy between archaeology and Indigenous people precludes the use of archaeology as a tool for Indigenous ends (Smith, 2012, pp. 57-90). Ideas such as this have underpinned work by some archaeologists into an ‘Indigenous archaeologies methodology’. This methodology is not a single, homogenous structure, but rather a collection of approaches “in which the discipline intersects with Indigenous values, knowledge, practices, ethics, and sensibilities” and “seeks to make archaeology more representative of and relevant for indigenous people” (Nicholas, 2010, p. 11). The Indigenous archaeologies methodology has sought to address the proposition that Indigenous people should hold special rights in relation to their cultural heritage, arising for instance from colonial legacies and the socio- political predominance of non-Indigenous people in the creation of archaeological knowledge (Colwell-Chanthaphonh et al., 2010). This kind of archaeology has been argued to have led to improvements in collaboration in the Pacific region and more community control over heritage enshrined in practice in Australia and the Pacific (Gillespie & Lilley, 2015; Lilley, 2009; Smith & Jackson, 2006). As Smith and Jackson (2006) argue, this has taken the form of Indigenous empowerment through adjustments to language, the
32 adoption of consent principles that acknowledge a role for heritage custodians, and the gradual bestowal of Indigenous people’s power over research that is of specific relevance to them.
Critics of the Indigenous archaeologies methodology, such as McGhee (2008) and Stump (2013), argue that affording special rights to Indigenous people in relation to their cultural heritage has the potential to undermine scientific rigour and widen the division between Indigenous and non-Indigenous people through the creation of an essentialised ‘Other’, and consequently to create uncertainty over the control and ownership of that cultural heritage. However, Colwell-Chanthaphonh et al. (2010) demonstrate that the recognition of certain human rights as the basis for an Indigenous-informed and culturally appropriate approach to archaeology does none of these things. On the contrary, scientific rigour is not challenged by the inclusion of other ways of knowing, and the infusion of Indigenous Knowledge into archaeological methodology actually creates more accurate and meaningful results (e.g. Ross et al., 2015). Moreover, an openness to divergent and conflicting views, or what are sometimes termed ‘multivocalities’ (e.g. Atalay, 2008; McDavid, 2014), frees archaeologists from any imagined imperative to seek only where their own views agree with Indigenous perspectives (Lilley, 2009, p. 56). Doing so allows us to view heritage as always contested, and because it is often through this contestation that Indigenous rights claims are made, acknowledging these alternative viewpoints helps underpin rights-aware heritage work (Baird, 2014, p. 150).
Because of the natural alignment between Indigenous archaeologies’ stated goals and general principles of heritage rights, including a right to heritage ownership and self- determination, they appear to be a promising approach for incorporating human rights into heritage practice. However, the actual links between Indigenous archaeologies and human rights have only recently been recognised and are still weakly articulated. For instance, Nicholas (2010), who provided useful definitions of Indigenous archaeologies at the time of this methodology’s emergence, has begun incorporating an assessment of human rights into his more recent work (e.g. Nicholas, 2017; Nicholas, 2018; see also Nicholas & Smith, 2020). In Nicholas’ view, heritage protection is a human right because the destruction of heritage
33 amounts to a form of ‘violence against history’, echoing Blake’s (2011) earlier sentiment. Nicholas has certainly taken Indigenous archaeology closer to human rights but relies primarily on rights insofar as they are inscribed through instruments such as the UN DRIP and in the case of his 2018 article, the Canadian Charter of Rights.
For me, the discussion that is situated in the Indigenous archaeologies methodology indicates that engagement in the rights field of archaeology and heritage practice more generally has been piecemeal and perhaps has only proliferated since the adoption of cultural rights into the UN framework. Nonetheless, the work that has occurred since the early 2010s has begun to make an argument for taking an explicitly rights-based approach toward heritage management (e.g. Blake, 2011; Silberman, 2012). This is particularly the case in the context of World Heritage sites, where heritage management occurs close to the machinery of human rights in organisational terms (e.g. Disko, 2012; Ekern et al., 2012; Larsen & Buckley, 2018; Lilley, 2009; Meskell, 2010; Sinding-Larsen, 2012; Stevens, 2014; Ween, 2012). The utility of rights-based approaches (or RBAs) to heritage management has been demonstrated through, for instance, drawing out rights issues in relation to minorities’ heritage that may otherwise have been obscured (e.g. Arokiasamy, 2012), and assisting in protecting peoples’ cultural identity when their heritage is under threat from destruction or co-option (Assi, 2012). RBAs have also been useful in demonstrating how the management of heritage, particularly World Heritage sites, can be used by states as a means of cultural assimilation, such as Sinding-Larsen (2012) demonstrated for the Chinese government’s efforts to downplay Tibetan cultural ties to the World Heritage site of Old Lhasa.
Questioning how heritage processes affect Indigenous peoples’ rights has been useful in uncovering other deficiencies in the World Heritage system as well. For instance, the issue of whether Free Prior and Informed Consent (FPIC) is afforded to Indigenous people during World Heritage nominations tends to reoccur despite the establishment of the UN DRIP. Hales et al. (2012) were able to demonstrate how gaining consent is often oversimplified and therefore incompletely carried out. As a result, advocates of RBAs continue to argue that the comprehensive adoption of rights-supportive language in World Heritage processes of identification, management, and interpretation is not only possible but critically
34 necessary to ensure the World Heritage list accurately reflects the heritage ‘of the world’ and not simply of the Western world (Disko, 2012; Larsen & Buckley, 2018; Logan, 2012; Silberman, 2012).
Instances such as that above demonstrate how the connection between heritage and cultural identity is the crux of its significance as a matter of human rights (Logan, 2014, pp. 160-162). It also follows that as places become ‘heritage places’ through use in people’s constructions of their cultural identities, they may also become the places over which such constructs are contested (Harrison et al., 2008, pp. 2-3; Silverman & Ruggles, 2007, p. 3). As Harrison (2015, p. 28) states: “Heritage is rarely deployed innocently, in the absence of some form of claim toward a self-evident truth that is often divisive or exclusionary, defining the forms of difference it specifies as a function of the past”. This kind of conflict can take the form, for example, of the destruction or co-option of heritage by a state in an effort to assimilate Indigenous people into the mainstream (e.g. Sinding-Larsen, 2012). From heritage, therefore, there can be implied both a negative right to have cultural heritage protected from harm (Blake, 2011, p. 201) and positive rights relating to the freedom to use heritage spaces and material as the basis for the enjoyment of human dignity through the maintenance of cultural identity (Daes, 1997, p. 5). Harrison (2012, p. 112) contends that while tracing the political and social role of heritage has been enlightening, in doing so we may have lost the meaning and connections people have to the world around them that constitute heritage itself. Consequently, more work is required to understand how heritage work, including archaeology, might address its role in these processes.
Summary A summary of the progress of human rights in archaeology might be that much has changed in the last few decades, but such change has been slow to develop after innovative ideas are first put forth. Langford’s calls in the early 1980s were in effect a concise summary of the dynamics Smith (2006) later describes and encapsulates in the AHD, albeit expressed more than 20 years earlier and explicitly in relation to rights. I have identified that, in terms of human rights, there are strengths in approaches to heritage work that are conducted with Indigenous people, but these positive aspects appear yet to be consciously combined within
35 a rights-based approach to archaeology more broadly. An additional hypothesis arises from the presentation of this literature. It is that the three distinct elements I have covered here – promotion of an Indigenous voice; reflexivity concerning one’s own role in rights outcomes; and a conscious understanding of how people may articulate their rights and engage in heritage –have all been present in different approaches to heritage management over time but are yet to be consolidated.
I propose that such consolidation is necessary for a meaningful and productive engagement with human rights by heritage practitioners, because it frees us from seeing rights solely as knowledge received from ‘on high’. By this I mean that, rather than waiting for the next evolution in heritage rights to come from the UN, grassroots ideas of ‘new’ rights can be generated by local actors. This process is already under way as Indigenous people increasingly gain access to the structures of power from which they have often been excluded, yet archaeologists still have a role as their ‘authorised’ status still holds weight. That Australian archaeologists were able to contribute so strongly to this process from their local experience shows how awareness of the Indigenous voice promotes these ideas that we may otherwise believe are generated only from within the formal human rights framework. At the same time, awareness of an Indigenous voice is a motivator for increased self-awareness or reflection. This local focus may better equip archaeologists to understand their role in processes involving human rights outcomes, both positive and negative. Using these elements as the foundation of my view of heritage and rights, I now explain how I intend to conceptualise these things in a way that allows us to capture locally-generated ideas.
36 Chapter 3: An approach to human rights, culture, and heritage
Introduction In the last chapter I investigated how culture and rights are defined in an international legal sense. Unfortunately, international recognition does little to dispel the vagaries of what culture and rights conjunctions mean to people in practice (Cowan, 2006). To conduct a discussion that relates primarily to culture, heritage, and rights, and therefore find out what rights mean to people in the case study, it is first necessary to establish how I will approach these terms in the case study analysis.
In this chapter I explain how my focus is not so much on how people’s actions reflect codified rights (as per the UDHR, or UN DRIP), but more about the conditions or outcomes people wish to achieve. I make the case that to understand how cultural heritage relates to human rights, we need to be able to identify the actions that people make around these things, as opposed to an abstracted understanding of rights ‘on paper’. There is a considerable body of work defining what human rights are (e.g.Donnelly & Whelan, 2018; Rubin, 2003). I develop here a general contextual understanding of rights change within states, based broadly on relevant theory, for which there is a breadth of potential sources. Because I am examining a case that contains a World Heritage element, I also look to theory that can explain how states act in relation to international institutions such as the United Nations (UN) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO), which advance human rights through the World Heritage framework. I demonstrate here that although much of this rights theory explains the function of rights at the international level, it does not fully account for relations between actors at a local level. To do this, I then consider theory that discusses the way that we might conceive of rights, culture, and heritage together as entangled, co-constituted discourses that are observable as social action.
Human rights as international relations The working definition of human rights I provided in the introduction chapter relates primarily to individual freedoms. Even though my focus is at the local and provincial level, it
37 could be argued that by ignoring the international nature of human rights, I may elide the true forces that have effected any change I might observe. This could conceivably lead me to draw inaccurate conclusions about where archaeologists fit in relation such change. In selecting theory that might explain the process of rights change, Landman (2005) suggests that in practical terms, human rights outcomes (which I have defined as “the end result of human actions”), are most often a product of an interplay between international relations and domestic politics. Accordingly, a significant body of literature examines how change in human rights practices occurs as a result of the influence between states and international institutions such as the United Nations (e.g. Finnemore, 1996b; Finnemore & Sikkink, 1998; Hafner-Burton & Tsutsui, 2005; Larson et al., 2008; Sikkink et al., 2013). Some of this literature considers the role of domestic actors, but this is typically only insofar as these actors have links to transnational human rights advocacy networks, as opposed to their direct interaction with the state (see Larson et al., 2008; Risse & Sikkink, 1999). Despite its international focus, such literature may be relevant to understanding rights change in the case study because the questions being asked about power dynamics are the same. As I demonstrate in Chapter 8, the actions of archaeology and the state share striking parallels in relation to Indigenous rights. This section tests whether theory can be reliably applied to both local and international contexts.
As a starting point, I make the presumption that states will resist contemplating culturally- grounded rights for their citizens because such rights may support minority movements toward self-determination, threaten to undermine established structures of power, and challenge the images of stability, homogeneity, and purportedly affirmative human rights records (Albro & Bauer, 2005). This represents a classic political realist position, which I am prepared to adopt in principle because it reflects how many states have acted in relation to human rights throughout the twentieth century (Novak, 2011). In terms of Indigenous cultural rights, as Logan (2014, p. 163) argues, nation states, usually constituted as a cultural majority, generally tend to enact laws, engage in politics, and create structures that disenfranchise minorities from their heritage. This is both physically, and in terms of the processes governing heritage management, because doing so confers the benefits that heritage generates to those in control. As I explain later in this chapter, archaeology and
38 cultural heritage management, similarly dominated by a cultural majority, have traditionally operated in a very similar fashion in relation to their acceptance of Indigenous rights to heritage.
While identifying similarities between structures of power may be useful in terms of conceptualising human rights, it is a superficial approach. Both state actors and archaeological/heritage practitioners operate inside institutions that impose rules and norms on their behaviour. Purely realist accounts of state action face the conundrum that the very existence of the human rights regime challenges the depiction of the international community as an entirely anarchical collection of self-interested states motivated only by power, wealth, and mutual fear (Casla, 2018). Instead, constructivist approaches to human rights can go beyond the simplistic utility-focussed motivators of state action in favour of the institutions that exert influence for states to act outside their immediate interests.
Institutions may be thought of in the abstract or literal sense. In the abstract, institutions are comprised by the typification of habitualised actions between actors. This typification serves actors’ understanding of one another, but while doing so, also influences their interests, and constrains their actions (Berger & Luckmann, 1966). Through this lens, actors (both individual or as groups) can still be assumed to seek to perpetuate power arrangements that benefit them, but in addition, may seek to portray themselves according to certain norms or acceptable behaviours. In the literal sense, institutions are the organisations that influence and regulate actors’ behaviours. In terms of international human rights, Finnemore (1996b) suggests that state interests are created as a result of their ongoing interactions between one another and international organisations that advocate for human rights. In that case, Finnemore (1996b, p. 128) argues, although “states do not always know what they want”, it is still possible to predict how their interests may be shaped by the influence of such institutions, thus “making sense of … those contexts where … economic and political power is wielded” (Barnes, 2016, p. 124).
In terms of Indigenous rights, the influence of institutions remains to be assessed. As Anaya (2000) stated two decades ago, the UN DRIP was then almost completely accepted amongst
39 UN member states, but as Vrdoljak (2018) has since demonstrated, the recognition of Indigenous cultural rights in practice often remains incomplete in domestic practice. Regardless of how far Indigenous rights are accepted, and form a body of ius cogens (i.e. the norms accepted by the international community) in international law (Risse & Ropp, 2013, p. 9), Indigenous rights abuses nonetheless abound (Dai, 2013; Hafner-Burton & Tsutsui, 2005; Vrdoljak, 2018). Shaheed (2012, p. 12) noted that despite the growing acceptance amongst the international community of the UN DRIP, state efforts to recognise Indigenous claims to cultural heritage in law differ widely. While many settler states may claim compliance with the UN DRIP on the basis of legal agreements formed between their governments and Indigenous populations, closer analysis reveals that such agreements often serve to preclude Indigenous people from making rights claims that might challenge the political order and sovereignty of the state (Gover, 2015). This suggests that there is a limit to how much international treaties, including human rights instruments, can actually deliver on the principles put forth as cultural rights. Baird (2014) argues that although the adoption of human rights into heritage work has had demonstrably positive outcomes toward recognising rights issues that Indigenous people may face, the reality is that the human rights framework is not always present a useful vehicle for addressing those issues. Complete translation of rights claims, Baird (2014, pp. 147-148) argues, through international institutions such as the World Bank, WHC and the greater UN, is not always guaranteed, owing to “institutional and bureaucratic limitations, legislation, or barriers related to who gets to be included in decision making”.
Baird’s argument was borne out in 2000, when Indigenous peoples from around the world brought a proposal directly before the World Heritage Committee for the formation of a World Heritage Indigenous Peoples Council of Experts (WHIPCOE). The council was intended to act as the means to uphold UNESCO’s mandate of “advancing tolerance, diversity, and rights, all of which have a direct bearing on the promotion of indigenous heritage globally” through advising the Committee “on the appropriate identification, evaluation, and management of mixed properties and cultural properties with indigenous associations plus the identification, management, and possible renomination of properties listed for their natural World Heritage values that may also hold indigenous values” (Meskell, 2013, pp.
40 158-161). However, discussion of the matter amongst World Heritage Committee member states was sufficiently prolonged to sideline the proposal until it lost traction, and the Committee ultimately resolved not to pursue the matter any further (Meskell, 2013, pp. 165-166).
While an International Indigenous Peoples’ Forum on World Heritage (IIPFWH) was formed in 2017 and quickly recognised by the World Heritage Committee, the WHIPCOE matter – and the almost two decades it took to form the IIPFWH – demonstrate the difficulty Indigenous peoples may have in influencing the structures that dictate their rights, particularly when their interests conflict with states’ interests (Champagne, 2013, pp. 11-14; Meskell, 2013, p. 169). As Meskell (2010, p. 849) notes, rights, by their definition, “operate on a state-to-state basis, rather than empowering communities, minorities, or Indigenous groups who might propose counter claims”. In terms of my thesis, it brings in to question the applicability of international human rights theory to a local-level analysis. Although I am not uninterested in the causes behind state actions, for my case study, I do not wish to rely too heavily on theory that assumes a unilateral progress whereby global ideas make their way to the local setting, leaving little room for divergence or variation along the way, and therefore having little regard for the agency of local actors. Although the use of institutionalist theory has variously identified that domestic actors’ engagement with international norms serves to raise the legitimacy and scope of those norms, and that such engagement also represents a constant process of “actorhood transformation and access to international political opportunities” (Tsutsui, 2017, p. 1092), the actors involved arguably remain beholden to the “static and linear conceptualisation of the life cycle of international norms” (de Almagro, 2018, p. 5; also Krook & True, 2012; Landman, 2005, pp. 563-564).
In the case study analysed in this thesis I do not seek to determine whether people enjoy predefined concepts of rights, nor whether they accept the principles laid down through states’ interaction (Dembour, 2010, p. 8). As Finnemore (1996a, p. 66) concludes, “international norms create pressures for isomorphism among states; they by no means create equifinality”. Institutionalists tend to converge on the presumption that the “normative dimensions of organisational reality” in world politics (Hafner-Burton & Tsutsui,
41 2005, p. 1382) result in “isomorphic outcomes across disparate local contexts” (Tsutsui, 2017, p. 1055). It is these locally-grounded nuances, that influence the end result, that are my main point of interest. This is why I am more interested in explaining the outcomes of (local) actors’ engagement with human rights discourse, rather than attempting to map the process by which such change occurs at a state level, or higher (e.g. de Almagro, 2018). I take this position because, in my view, it is clear that pressure on states to comply with rights norms is not solely imposed through institutions and international society (that is, from the ‘top down’), but equally from actors in the domestic space (or the ‘bottom up’, (Brysk, 1993), where I place my focus.
Defining rights as capabilities I see the failures of rights theory at the international level – its failure to be relevant at ground level - as reason to develop a more localised approach to understand Indigenous rights in archaeology and cultural heritage. As a result I define here how I will approach human rights for present purposes. In accordance with Cowan (2006), my view is that to understand rights solely in their legal sense as outlined in the previous chapter is to take a superficial approach. Instead, Nussbaum (1997, 2007) and Sen (2005) suggest that the idea of rights can be complemented with the concept of ‘capabilities’. A capabilities approach to rights is built on rights being “understood as entitlements to capabilities, [that] have material and social preconditions, and … require government action” (Nussbaum, 2007, p. 21). Nussbaum (1997, p. 287) devises a list of ten basic goods similar to fundamental human rights that are necessary for human quality of life, but framing them as capabilities allows for a broad interpretation of how they might be enjoyed practically (even allowing for people to choose not to enjoy them), and offers flexibility in terms of how the state might ensure their protection. Combining a capabilities approach with the language of rights allows the core nature of human rights to be preserved, as they are still based around an ‘especially urgent and morally justified claim’, and are available to anyone by virtue of their humanity (Nussbaum, 1997, p. 292), but asking whether or not a person has the practical capacity to enjoy a particular good appears more relevant to me than asking whether the right exists ‘on paper’ through some legal mechanism. This is a pragmatic, humanist (Dewey, 1960) approach to rights, but I see it as being able to be adopted widely by virtue of its
42 simplicity and flexibility. By this I mean that the only agreement about value that is required is that human flourishing is inherently good, but that what that flourishing is can be is entirely variable, being defined by people themselves, both individually and collectively. In terms of where rights might intersect with heritage, leaving the definition of rights open in this way avoids prioritising one value system over another, allowing a range of (even conflicting) ideas to cohabit either a place or an object.
The capabilities approach thus circumvents any question of cultural relativity, and the contention that some cultural mores potentiality place limitations on people’s rights aspirations. For instance, where individuals may use the language of Indigenous rights to underpin their ties to their community, but invoking human rights may also imperil these ties where communal expectations contradict individuals’ agency (Franck, 2001, p. 201). Rights theorists and anthropologists alike have tried reconciling the universality of human rights with the preservation of cultural relativity after recognising that cultural norms in certain communities contravene human rights principles, for example where traditional marriage practices involve the social control or abuse of women (e.g. Donnelly, 2007; Franck, 2001; Nagengast & Turner, 1997). Ultimately, culture and human rights can be reconciled in these instances as long as culture is not assumed to be unchangeable. Thus as Cowan et al. (2001) contend, rather than seeing culture as fixed, “it is more illuminating to think of culture as a field of creative interchange and contestation, often around shared symbols, propositions or practices, and continuous transformation” (Cowan et al., 2001, p. 5). By seeing culture as constantly contested and negotiated, and thus returning to the principle of individual autonomy as the starting point for what a right ‘should’ be (Nussbaum, 1997, p. 296), we might have “less interference in the culture of others and a more flexible understanding of what the good life might entail in specific settings” (Meskell, 2010, p. 854). In other words, this means not imposing our own criteria to determine whether a right is being obstructed or abrogated, and instead asking what it is that people want to do as a matter of their rights as they see them. Effectively, this approach enshrines the maxim that human rights are about personal freedom, insofar as that freedom does not impinge on anyone else’s freedom, and that the only inherent good that exists is human beings’ ability to define what freedom means to them.
43
Sen (2005, p. 157) cautions that a focus on capabilities highlights people’s opportunities to enjoy rights but does not account for the process aspect of rights (i.e. the means of providing an opportunity, including a government’s actions or laws). While not ignoring such processes completely, their in-depth examination in the case study would cross too far into the subject of law, and this is a thesis about archaeology. As Meskell (2009c, p. 321) suggests, a construction of rights that allows for variation in how people may interpret what constitutes a good and fulfilling life frees archaeologists from measuring their impact on people’s lives according to “hardened categories of ‘culture’ and ‘rights’”. I agree with Meskell because I wish to understand why people may assert rights relating to heritage places that go beyond pre-conceived criteria about what heritage places are, or what they must contain to be the subject of a claim. Returning to the idea that rights can be asserted over places as a form of social memory, which I mentioned in the previous chapter, the question becomes not “what is the heritage over which people are asserting rights?”, but more “what is the heritage-making that is occurring, and what is the rights aspect of that heritage?”.
Rights, culture and heritage as interacting discourses As I explained in the previous chapter, despite being continually reformed, rights and culture (and by extension heritage) have social meanings and govern social action. Because I am convinced that what aspects of reality come together as a result of the social interactions that form the connections between certain actors and aspects of the non- human world (after Latour, 2005), broadly speaking I am interested in how social interaction between actors creates these things, and the roles which those actors enact (after Berger & Luckmann, 1966). Therefore, in my view things are only valuable insofar as people ascribe value to them, heritage included. By taking such a view, human rights, culture, and heritage can be viewed as discourses in the sense that they are systems of knowledge and power constructed by people’s engagement with them and one another, and which contain rules relating to meaning and significance (Foucault, 1972). However, these things can also be called upon by people wishing to make assertions about how they wish their lives to be (Cowan et al., 2001). That is to say, people may express a desire for the capability to do
44 something as a matter of their human rights, or as something that is specific to their cultural identity, or as an act of continuing that identity. In this way, the term ‘discourses’ is used in the sense of a set of language tools people can use to help achieve their aspirations (Dembour, 2010).
Critical discourse analysis (CDA) is a theoretical approach that sees the use of discourses as a form of social action and examines how such actions govern power relations and produce inequalities between people (Chouliaraki & Fairclough, 1999). Human rights naturally involve matters of power and inequality, so based on the foregoing description, CDA appears to be a useful approach to my research question. CDA has also been put to use answering similar questions about how heritage affects, and is affected by, people, as for instance in Smith’s (2006) work, which I introduced in the previous chapter. Building on CDA, mediated discourse analysis (MDA) sees discourse as just one of many means people can use to effect social change, including material objects and places (Scollon, 2001). My aim, to see how cultural heritage is used among a variety of strategies as a means of making rights claims, therefore makes an MDA approach more useful than a CDA approach. In addition, Norris and Jones (2005) argue that the ideas and concepts behind the use of a discourse can be obscured behind the way it is deployed. As I mentioned above, I wish to get past simple readings of rights claims, and see into the meanings behind them. Where heritage is used in rights claims, I wish to be able to interrogate the real intent or ‘ideational content’ (Norris & Jones, 2005, p. 9) of its use. This being the case, looking only to the use of heritage in rights claims without an understanding of the broader strategies people employ (and the historical, political, social contexts in which they are employed) would illuminate only a portion of what is actually occurring. While I do not intend to adopt either MDA or CDA as my definitive theoretical approach, I do need to acknowledge their usefulness as ways of looking at how people engage with certain structures of power, and to frame the ways people assert their desire for certain capabilities, and therefore how I have borrowed their foundational ideas in building my own approach.
Using discursive approaches to human rights has grown over the past decade (e.g. Cowan, 2006; Cowan et al., 2001; Epstein, 2011, 2012, 2013). Although, like Epstein, many writing
45 on the topic are concerned with international relations, the principle of observing what is said and done by people (Epstein, 2013, pp. 515-516) remains the same in terms of how human rights change might be observed at the local level. As opposed to the focus on causal relations inherent in constructivist approaches to rights that can lead to reductive and essentialised assumptions about people’s motives, discursive approaches seek only to observe what is said or done (Epstein, 2013, pp. 515-516). This approach can be readily applied to the local level, where I seek to record the many voices that speak about and make claims to cultural heritage. As Epstein (2011, p. 345) contends, the question becomes less of what is said, but simply of “who speaks?”, and similarly, as Norris and Jones (2005, p. 9) ask, “what is the action that is being taken?”. By allowing for a range of voices and actions, the “widely divergent local practices” in which human rights are taken up leaves room for them to “be substantially changed by local interpretations, transposing [them] onto a new trajectory altogether” (Krook & True, 2012, p. 123). In other words, I want to facilitate local interpretations of what rights actually mean. I wish to provide this flexibility around rights claims because I agree with Davis (2012), who says that assuming Indigenous claims to rights will fit an established mould is at best naive essentialism, and at worst silences those people’s voices and obstructs them from achieving their rights aspirations. In short, the discursive approach allows ‘authentic’ and original rights claims both to emerge and evolve as they are being observed.
The search for authenticity is complicated by the contention that, in order to achieve their aims, people must often express their claims in the languages, legal systems, and typically boundaries of social norms that they are making claims against. In colonial and post-colonial settings, this typically entails the mobilisation of non-Indigenous discourses which obscures the Indigenous epistemologies behind the claim (Sharp, 2009; Spivak, 1994). In terms of rights, people speaking in the language of international law or Indigenous rights to have their claims interpolated into existing systems may give the appearance of uniformity in claims across different cases. As Merry (2006b, p. 49) identified though, the constant paradox is that “to be accepted”, human rights “have to be tailored to the local context and resonate with the local cultural framework”.
46 The adoption of exogenously codified norms by domestic actors occurs in highly varied, incomplete, and locally-relevant ways. As Klug (2005, p. 99) contends, “the assertion of rights is accompanied by the wholesale borrowing of arguments, as well as the specification of rights by analogising to similar claims and distinguishing others”. Klug is describing the process through which rights have expanded and also become more specific through, for instance, the discussion of shared experiences of Indigenous peoples leading to the development of the UN DRIP (Davis, 2012), and the principle of universality now being adopted in the defence of cultural practices, where once it threatened to undermine them (Blake, 2011, p. 222). Merry (2006b, pp. 39-41) calls this a process of ‘indigenisation’, whereby “new ideas are framed and presented in terms of existing cultural norms, values, and practices”, which “occurs when innovation is framed in terms of local symbols and terminology”. Because they are members of Indigenous communities who are more likely to interact with external parties, actors who carry out the ‘indigenisation’ of human rights ideas are the people with whom archaeologists engage most frequently and intimately. If rights change is observable in the case study as a result of local level actors’ leveraging of ‘global’ ideas, this is something that would be extremely useful in understanding how archaeologists might approach human rights in general. I wish, therefore, to adopt this discursive approach in the same manner as occurs in anthropology, namely to observe change in rights practices and outcomes, and to frame archaeology’s engagement with the actors who effect such change.
Discursive approaches to human rights are common amongst anthropologists, particularly those who are concerned with how human rights are perceived at the ‘ground level’ (e.g. Cowan, 2006; Cowan et al., 2001; Dembour, 2010; Jenks et al., 2013), which is where I place my focus. However, anthropologists’ primary interest is the study of cultural norms and evolution, as opposed to the somewhat more nuanced and past-focussed study of heritage, which has received much less attention in terms of its interaction with human rights (Blake, 2011; Meskell, 2010). Nonetheless, in the same way as culture, heritage has begun to be viewed as a discourse that is composed of actions that construct it and perpetuate its existence (Harrison, 2012, p. 110). Viewing heritage in this way allows us to see rights relating to heritage more clearly.
47
As I introduced earlier, Smith’s (2006) account of heritage discourse focussed especially on how its mobilisation by archaeologists ensconced them (archaeologists) as experts on its interpretation and significance. By taking the view that heritage “refers to the material world around us in its entirety, not just selected parts of it” (Schofield, 2008, p. 16), through the ‘doing’ – or discourse – of cultural identity, landscapes become imbued with meanings forming collective memories of space, and these may very often relate to memories of rights violations, or be culturally significant places over which collective rights might be asserted (Byrne, 2008b, p. 153). Heritage-making can then turn toward the future, as Harrison (2015, p. 35) says, “to discursively remake both ourselves and the world in the present, in anticipation of an outcome that will help constitute a specific (social, economic, or ecological) resource in and for the future”. Similarly, the discourse of heritage “is best understood as both an unconscious organically grown practice and also an intentional selective enterprise that is inherent in any social context or societal group” central to “maintaining social needs, or more specifically the sense of belonging” fundamental to human flourishing (Reeves & Plets, 2015, p. 205).
The creation of heritage places, even heritage itself, is often an expression of people’s desire to be part of a cultural community, and they frame their aspirations for the future around that identity – all of which is recognisable as human rights. This is important for me, because while I am interested in the ways in which people use heritage with rights, I want to avoid making assumptions about what heritage actually is. In this I follow Harrison, who suggests (as does Latour) a move to a relational ontology that “involves a range of material beings who co-produce heritage as a result of their own affordances or material capabilities … emerging from the relationship between a range of human and non-human actors and their environments” (Harrison, 2012, pp. 113-204).
Pocock et al. (2015) follow in the vein of Harrison, suggesting a reversal of the current process of heritage conservation, whereby an understanding of the meaning and significance (read: intangible values) people hold over a landscape should be the starting point for any heritage practice, as opposed to identification of heritage material. While I
48 agree completely with that approach, my interest in a broadened view of heritage, such as the one espoused by Harrison, is precisely because it allows a departure from long-held binaries between person/object, nature/culture, Western/Indigenous, and tangible/intangible; binaries that have tended to delimit the kinds of management actions that can be undertaken in relation to different parts of the world. For instance, as Harrison and Rose (2010) argue, the arbitrary separation of ‘natural’ and ‘cultural’ heritage in Australian heritage management frameworks has resulted in the disenfranchisement of Aboriginal people from a process of managing landscapes comprising much more than material culture and sites, but which nonetheless constitute their cultural heritage. Similarly, Smith and Campbell (2017) argue that the separation of heritage into tangible and intangible forms has, rather than leading to greater representation of non-Western heritage on the World Heritage List as it was intended, actually reinforced the position of non- Indigenous heritage managers to determine the value of Indigenous heritage. Byrne (1991, p. 276) had made this point long before, conjecturing that the continued unconscious categorising of intangible heritage by a form of global elite in the Western heritage profession would lead to an abundance of heritage sites that are unfamiliar to people outside this cohort, and especially Indigenous people themselves. Such heritage may be unfamiliarly bounded in terms of Indigenous perspectives, leaving it open to being interpreted and managed by those shaping the ‘authorised heritage discourse’. This is precisely what occurred in the World Heritage space, leading to the major project to reverse the bias in the World Heritage List away from European monumental sites (UNESCO, 2015a).
Such mis-theorisation of heritage, rather than simply being a matter of under- representation, has real human rights outcomes on the ground because it informs policy outside of the ‘traditional’ heritage management spheres (Hill et al., 2018), suggesting that it is not just the management of heritage, but the way it is conceptualised that has human rights outcomes. As Harrison (2012, p. 206) makes clear, while concepts such as intangible heritage reflect changes that were brought about in response to Indigenous, non-Western or minority critique of the concept of universal heritage, they did not fundamentally transform the Cartesian dualisms that underpinned it. We must thus question the extent to which these terms are just a means to reassure those invested in this discourse that they
49 are being inclusive and innovative in conservation and management practices (Smith & Campbell, 2017, p. 2). The call as I see it, therefore, is for an approach to heritage that is both rights-aware, but also sophisticated in terms of how it understands heritage and rights to work in conjunction with one another. That is why I have adopted the attitude I have outlined here.
Justifying a focus on the ‘local’ I am primarily interested in how people and structures influence domestic politics, despite many Indigenous actors being cognisant of global ideas and sometimes connected through supranational networks (Merry, 2006b). For clarity, I define ‘local’ in my case study as individuals, their communities, organisations and networks within the sociological and cultural bounds of ‘Aboriginal Tasmania’. It is, nonetheless, important to consider how Indigenous people are globally connected, and what this means for my research. In terms of how the process of borrowing international arguments occurs, Merry assigns the term ‘translators’ to the local actors “who translate the discourses and practices from the arena of international law and legal institutions to specific situations” (Merry, 2006b, p. 39). Larson et al. (2008, p. 55), in contrast, contend that rather than simply being aligned toward either the ‘local’ or ‘global’ sides, the “actors at the interstices of global and domestic fields” must exist both within the communities of those claiming rights and the state to be effective at turning state interests towards accepting rights norms. ‘Receptor sites’, as Larson et al. (2008) call them, are constituted by both rights advocacy organisations and individuals in “face-to-face human networks” (see also Tsutsui, 2017, p. 1091). Such networks create “strong links and regard for between-the-state and international structures, Indigenous people and the state, and Indigenous people and those global structures” (Larson et al., 2008, p. 72). The extent to which norms are ‘vernacularised’ into local models, Merry contends, is dependent upon the positioning of the translator actor in regard to their closeness to the local setting, and “where translators are committed to the target”, the outcomes are more “thickly shaped by local institutions and structures” (Merry, 2006b, p. 48). At the time, Merry was primarily concerned with how transnational ideas were shaped to local circumstances, but Tsutsui (2017) provides evidence to suggest that
50 the process works in both directions, meaning there is a feedback loop between the ‘vernacularisation’ and ‘re-vernacularisation’ of norms at both local and international levels.
To illustrate, Tsutsui (2017, p. 1058) argues that the Ainu rights movement has raised the legitimacy of Indigenous rights norms more generally by forcing growth in the number of states which accept and support the norm, but has also served to expand those norms. Tsutsui (2017, p. 1059) contends that the process of local translation through to “seemingly idiosyncratic historical experiences and political conditions” results in the mutation of norms beyond their original scope, leading to the creation of new rights, which themselves are mobilised and eventually accepted by an ever-greater number of states, and possibly even codified into international agreements. This process is relevant to me because it confirms the suggestion by Gfeller, cited above, in relation to how ideas in local cultural heritage practice can influence the ‘global’ conversations in the UN from which it lends ideas. In the case study I will not examine how local actors have influenced change outside their immediate (i.e. the Tasmanian) context, but this observation gives weight to the suggestion that local archaeological practice informed by local Indigenous rights claims has profound (i.e. global) impacts in the long term.
Looking at rights in the past In Chapter 6 I look at Tasmania’s history through the lens of rights as social action, so it is necessary, here, to address the fact that global and national institutional forces that are present today did not influence rights practices by states in the nineteenth century. The concept of rights specific to Indigenous people was largely non-existent at that time. There were no means of effectively linking local, and particularly Indigenous, voices to the rest of the world, and states at that time were largely free to act as they wished (Mazel, 2009). At the time of initial British settlement, the Colonial Government of Van Diemen’s Land faced no international obligations concerning Indigenous rights, because these ideas were yet to enter any form of law or even philosophical thought, domestically or internationally. In the nineteenth century, Europe had approached a “nadir of international law” (Mazel, 2009, pp. 140-141), where ideas relating to Indigenous people’s natural rights had been downplayed to the point where the international legal norms dictated that where Indigenous people
51 appeared to comprise a sovereign entity, they could be lawfully persuaded or coerced to give up their lands (Marks, 2000, p. 3). As a consequence of this, and in light of the method of settlement of Tasmania – which is often portrayed as lawless (e.g. Hughes, 1987; Slattery, 2017) – asking whether there was any consideration of Indigenous rights by the colonists is largely moot. Similarly, any discussion about the forces behind change in states’ rights practices generally also seems irrelevant. However, dismissing that period as one beyond the scope of any human rights discourse means the actions of Indigenous peoples are not recognised as valid assertions of their own concepts of rights. As a non-Indigenous academic I wish to refrain from leveraging this as an opportunity to interpret, on behalf of Indigenous people in the past or present, what these statements actually meant. It is still possible however to make the observation that if Tasmanian Aboriginal people’s actions during this time are viewed as the products of their particular worldview, those actions might become visible as rights claims. Even without knowing precisely what that worldview was, as long as the claims represent a desire for some form of capability, the resistance mounted by Tasmanian Aboriginal people to colonisation can be seen as a body of claims to rights that existed outside the British system of law.
Summary The most important part of my approach to rights as expressed through heritage is an openness to expressions of what rights mean to people as they understand them. My approach thus treats rights as capabilities that people may wish to achieve but does not presume to know what those capabilities may be. In the context of archaeology’s role in relation to Indigenous rights, my approach focuses on how people use rights, culture, and heritage as means to achieve those capabilities, and on how archaeology affects the use of those means. As I showed in this chapter, by viewing heritage more as a collection of meanings and social actions than as collections of places and things, the rights aspects of heritage come into clearer view.
This is an intentionally broad view of human rights. To me, the appropriate approach for archaeologists wanting to engage with Indigenous rights does not involve learning the articles of the UN DRIP, or aiming to understand how rights change occurs as a result of
52 international politics. Rather, it involves understanding what people’s aspirations are at the local level, because this is where archaeologists work. The question arising, then, is “how can this approach to rights and heritage be put into practice?”. That is to say, “how do we find out what the local aspirations for heritage are in the Indigenous communities where archaeologists work?”. This leads me to my selection of research methods that are directed toward answering this question. I address research methods in the next chapter.
53 Chapter 4: Methods
Introduction To employ the locally-focussed approach I advocated in the previous chapter, I have considered a choice of methods that would best equip me to analyse discourses of rights and heritage in action. Following Meskell (2012), I make the case for adopting various methods to answer questions of human rights. I go on to justify and outline my choice of case study and discuss the strengths of case study research before considering the literature concerning reflexive research, particularly in relation to heritage work. I conclude this chapter with a brief introduction to the case study.
Who is research for? González-Ruibal (2009) argues that many instances of what is termed ‘community’ archaeology are not really directed toward the interests of communities, including Indigenous communities. Rather, Gonzalez-Ruibal notes the emergence of a ‘fashionable attitude’ amongst archaeologists that their work needs to serve the interests of local people, without any thought as to how this might be achieved. Similarly, Meskell (2010, p. 841) argues that the mobilisation of human rights by archaeologists needs to be a matter of recognising interests, rather than a means of promoting the importance of other people’s cultural heritage; for archaeologists this can sometimes be their interests. Research that is initiated from within a community (e.g. Prangnell et al., 2010) most accurately reflects the principles of the Indigenous archaeology methodologies I described in Chapter 2. In 2015 I presented my proposal regarding the present research to the Tasmanian Aboriginal Heritage Council (AHC). My intent was not to use this meeting to present my project and gain acceptance, but as a test to determine whether the AHC thought it should proceed and could have value to Tasmanian Aboriginal people. The suggestion arose that my research could help publicise the AHC members’ aspirations in terms of TWWHA management and bring to light issues relating to the lack of Aboriginal involvement in land and heritage management. I was advised that my proposed project could present a medium for identifying and recording ‘clusters of aspirations’: the desires that people from different areas of the community may share in terms of what they wish to do in relation to the
54 TWWHA and cultural heritage more generally. This encompasses (but is not limited to) the use of natural resources as traditional cultural practice, access to Country3 and the development of joint management schemes for protected areas. By collecting and collating such information, the research could be published and used to assist Tasmanian Aboriginal people in making claims and furthering their aspirations through negotiations, particularly with the Tasmanian Government. With the formalisation of the 2016 TWWHA management plan, imminent at the time of my initial contacts with the AHC, my work also presented an opportunity to codify community sentiments on how the plan should be implemented. For this reason, the results in Chapter 12 record these ‘clusters of aspirations’.
Selecting methods – Adaptive approaches to human rights research Archaeology, as I explained in Chapter 2, cannot extricate itself from questions of human rights, particularly Indigenous rights. However, its core methods are not sufficient to answer those questions. Being concerned primarily with the investigation of the past, an “archaeology of archaeology” (Meskell, 2012, p. 3) is not equipped to examine the concept of human rights that concern the present and future. The same is probably the case for any other discipline that must also pay attention to human rights. For instance, Rozbicki, an historian, (2013, p. 447) suggests that human rights research needs to “move well beyond the separated methods employed internally by law, political science, anthropology, history, sociology, communication, and other academic disciplines that, collectively, might shine new light”.
As I outlined in the previous chapter, whereas Critical Discourse Analysis (CDA) might be defined as a methodological approach in itself, its founders state that any method can be directed toward its goal of examining the role of discourses in producing inequality (Fairclough, 1995). As a result, various methods have been used in CDA to discover how people use various means to self-identify their role in a particular group (e.g. Norris & Jones, 2005, p. 9). In the same fashion, there is a strong case for using a variable suite of methods in human rights research.
3 The term Aboriginal people throughout Australia commonly use to describe their traditional lands.
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As one set of potential methods, anthropologists have argued in favour of the power of close-in, interpersonal research to clarify the links between rights and culture as a means of understanding both discourses (see Clemmer, 2014; Cowan, 2006; Cowan et al., 2001; Dembour, 2010; Freeman, 2002; Goodale, 2006, 2009; Goodale et al., 2006; Merry, 2006a, 2006b; Messer, 1993; Riles, 2006; Speed, 2006). Such clarification is needed, Coombe (2010) argues, as cultural identity and cultural resources, including cultural heritage, become increasingly utilised in human rights claims. Goodale (2006, p. 491) contends that because human rights, although a powerful concept, have been co-opted by international institutions and thus tend not to be accessible to the people they are designed to protect. Therefore, the work of cultural specialists may become useful to Indigenous peoples to assist them to engage with human rights.
Anthropologists theorising on human rights reiterate the need to move beyond simplistic views toward rights and culture as I described in the previous chapter, namely essentialised and imagined abstractions, and to move toward “an analytical concept … which emphasises process, fluidity, and contestation” (Cowan et al., 2001, pp. 14-15). Such inquiry may elucidate how human rights norms and ideas are endorsed, rejected, or experienced (Freeman, 2002, p. 43). Alternatively, it might elucidate the socio-cultural factors that influence people not to engage with rights practices that would ostensibly be to their benefit (Merry, 2006a, p. 106). Keating (2013) believes anthropology can contribute to the implementation of Indigenous rights globally, through “multi-sited ethnographic analyses of the actual status and conditions of … rights in Indigenous communities”. By adopting these methods, my research may help both archaeologists and Indigenous people to understand the rights/culture crossovers that are relevant to them.
In the same way that culture is increasingly used in rights claims, as Coombe and Baird (2015) mention, heritage is also “part of a proliferation of culturalised claims to property and rights”. Therefore, a choice of methods must be used to enable an interrogation of the links between heritage and human rights. Reeves and Plets (2015), for example, suggest that “because social needs play out at different levels in society, and different social
56 institutions are involved, heritage is similarly [to human rights] ideally understood and tackled through in-depth ethnography and bottom-up management and policy-framework approaches”. The consistent theme in localised approaches to human rights is that they can uncover what people actually want to ‘do’ with regard to their rights. This is why I agree with Cowan et al. (2001, p. 15) (my emphasis) in saying that “an analytical approach to culture in the context of detailed empirical accounts of actual struggles around rights enables a better grasp of both the patterns and the contingencies, and logics and the contradictions, of these social processes”.
A similar approach has been used especially in World Heritage contexts: “indeed, World Heritage is interpreted differently depending on context, but rather than attempt to universalise the concept, we might, through local level ethnography, find out how individuals, groups, societies differentiate and correspond” (Gfeller, 2015, p. 368). Cowan and Gfeller highlight two important strengths of an anthropological approach to human rights. The first is, as Cowan alludes, its ability to get to the core or true meaning of claims to rights and heritage. The other relates to anthropology’s focus on the interactions between actors that produce human rights outcomes. One of my main focuses is the interactions between Indigenous people and archaeologists, and the outcomes, in human rights terms, of those interactions.
As Goodale (2006) points out, it is not only rights theorists but the “millions of ordinary social actors around the world who grapple with the idea of human rights as part of ongoing social and political struggles” who might question the utility of an anthropology of rights. In response to the inevitable variation in ideas that such a large pool of people engaging with a single concept creates, I aim to dispense with the assumption of an a priori understanding of case-study actors’ positionings, motivations, and even their identities, allowing such factors to remain completely subjective and open to constant change (Epstein, 2011, p. 345). Instead, I aim to record the dialogues occurring through the interactions between actors, and characterise how those actors construct their identities in relation to one another, and in reference to cultural heritage and human rights frameworks.
57 By approaching human rights “through methods of and orientations to cultural analysis” Cowan (2006, p. 10) argues that “one can approach rights practices armed with an anthropologist’s commitment to teasing out patterns and identifying relationships of meaning and practice between different domains of social life without necessarily taking on rights as a total ideological–practical apparatus, or assuming that they constitute anything so coherent as a culture”. Doing so allows me to acknowledge that rights are products of both international agreements and local-level claims. In addition, such an approach allows me to interrogate the mobilisation of culture in the dialogue of human rights (and vice versa), and clarify the intent of the claims being made.
I used primarily ethnographic methods successfully in my previous research in Tasmania, where I interviewed a range of actors in relation to a case study of Aboriginal archaeological cultural heritage management (Piotrowski, 2010; Piotrowski & Ross, 2011). There, following requests from local Aboriginal people to re-route walking tracks in a Forestry Tasmania4 reserve away from a rock shelter and rock markings claimed as petroglyphs, a Forestry Tasmania employee conducted an independent assessment of the area, ostensibly to demonstrate the rock markings being the result of early tin-mining activity rather than Aboriginal cultural creations (Field & McIntosh, 2009). What their findings meant for the management of Aboriginal heritage was left unsaid, as the argument was couched wholly in terms of the validity of previous archaeological research, but the implied meaning of the results was more about the acceptable limits of Tasmanian Aboriginal claims to land and heritage. In that instance, interviews and observations allowed me to uncover the ‘hidden’ nuances, motivations, and forces acting upon those actors that were not immediately apparent from a reading of literature about the conflict.
I have chosen to have ethnography form the foundation of my methodology, but it is by no means the sole approach. This choice is supported by Meskell’s similar holistic account of a single case study on heritage rights in Africa. Meskell (2012, p. 3) notes the realisation of “a new suite of methodologies” within an ‘archaeological ethnography’, which “benefit(s) from
4 The Tasmanian Government Business Enterprise that manages public production forests, rebranded as Sustainable Timber Tasmania in 2017.
58 drawing upon a mosaic of methodologies that includes archaeological practice … as well as long-term involvement, participant observation, interviewing, and archival work”. I engage in all of the practices Meskell lists because I see the long-term and intimate involvement with communities, combined with interviewing and observing how changes occur, as key ways for those practising archaeology to understand how people think about human rights and assert rights claims.
Methods of data collection The starting point for my data collection strategy was to conduct interviews with Tasmanian Aboriginal people, combined with participant observation. I agree with the position that how human rights and cultural heritage are conceptualised, used, owned, and constructed is arguably best understood by asking people themselves (Meskell, 2010, p. 854), and accordingly these techniques were employed, as advocated by Meskell (2012), Baird (2013), Harrison (2004) and Hales et al. (2012), and in my previous research (Piotrowski, 2010).
In defining what Tasmanian Aboriginal people want to do in relation to their heritage, and to what extent these aspirations were linked to or viewed as matters of rights, I did not work under the assumption that I could capture every aspiration of this kind. As my discussion of the contextual literature in Chapter 3 outlined, heritage and rights perspectives are too dynamic, contingent, and individually constructed (Cowan, 2006; Dembour, 2010; Smith, 2006) to achieve this goal. I did, however, wish to begin my case study with contemporary, first-hand reports of what people would like to do, or have the capacity to do, with their cultural heritage. I also wanted to determine the extent to which such issues are seen as a matter of rights or connected to a rights claim in some way. By asking these kinds of questions when examining the case study, I am interested in whether people have the capability to do things they view as morally imperative, regardless of whether it aligns with what others may see as basic human needs, cultural rights, or any other ‘order’ of rights. That is to say, rather than simply asking “do people have access to right X as per article X of the UN DRIP?”, I instead ask, “what is it that people want to do?”, and subsequently, “if they cannot, what is stopping them from doing so?”. This is a broad approach to rights, but I see it as necessary because morally justified claims are not always
59 going to be made in reference to codified rights. Such claims may even emerge before their root ideas have gained widespread normative acceptance, which was the case I described in the last chapter with regard to Bowdler’s and Langford’s works. Formal interviews aside, these data were also generated through daily interaction with Tasmanian Aboriginal people, whether on field trips or through informal conversations.
Participant selection Ethical approval processes for research, particularly with Indigenous people, typically require some indication of how the researcher will select project participants. As I explain in full detail in Chapter 8, Tasmanian Aboriginal identity is a contested issue. In light of this, it was clear to me that self-identification was the only appropriate means of determining participant involvement. If I were to impose any burden of proof on participants, under any definition of Aboriginality, I would only perpetuate a same denial of identity and Indigenous rights that, as I demonstrate in Chapter 9, was supported by archaeology and anthropology over the last century. Accordingly, I proposed to the AHC that I make participation open to any person identifying as Tasmanian Aboriginal and who wished to engage in the research. This decision meant that it was impossible to predict, at the commencement of my fieldwork, just how many people – and exactly who – would comprise the final participants in my study.
Another matter that bears discussing is that owing to the divergent views on representation I discussed earlier, researchers in the past have been advised to avoid contact with certain corporations (see Price, 2014, p. 188), and who chose not to engage with one organisation on that basis. I took the position that wilful ignorance of counterclaims and ‘multivocalities’ perpetuated the very rights issues I was investigating, and as such would be both counter- productive to my research and unethical. Even if doing so resulted in some form of ‘blackballing’, my rationale was that my intent was to “understand how interactions are not one-sided, (and) instead involve resistance, appropriation, reinterpretation and adaptation”, ultimately aiming to uncover “how indigenous peoples are engaged in negotiating and renegotiating heritage” (Baird, 2013, p. 328). At first, 12 people were interviewed; they all had current or past associations with the Circular Head Aboriginal Corporation (CHAC), the
60 melythina tiakana warrana Aboriginal Corporation (mtwAC), the weetapoona Aboriginal Corporation (wAC), the South East Tasmania Aboriginal Corporation (SETAC), and by former association with the5 Tasmanian Aboriginal Corporation (TAC) and the Tasmanian Aboriginal Land Council (TALC). It was generally agreed amongst participants that de-identifying the responses was a sound policy in light of the subject matter and community dynamics occurring at different times through the research, but Tasmania is also small community which makes any guarantee of anonymity difficult to provide. Instead of the use of pseudonyms or numerical identifiers, I chose to record the instance of the interview or interaction with a number (INT #01-08), wherein one or more people may have been speaking, and one or more participants may speak over more than one instance. As such, where a direct quote is cited, the identifier for the instance will follow in brackets e.g. (INT #04) without any reference to the specific speaker. This approach permits a reasonable level of anonymity, while avoiding the use of paraphrasing or summarising on my part.
Interviews and participant observation proved useful for providing fine-grained detail on specific examples of the issues of cultural heritage as human rights, but most responses tended to fall into similar groupings of similar sentiments. I would suggest that this is symptomatic of opinions amongst Tasmanian Aboriginal people in terms of their rights and heritage following a general pattern of seeking self-determination and the free expression of their identity, as is often the case for Indigenous people in settler societies across the world (Mazel, 2009). As might also be expected, the most informative interviews came from people who were involved in community organisations, had experience in government relating to heritage and land management, or had a history of being involved in Indigenous rights activism. These conversations were useful as they pointed to the potential actors who might be the ‘translators’ of information about human rights to others in the local or wider Aboriginal community. Nonetheless I chose not to limit, arbitrarily, the range of participants to those whom it might be assumed would be most pertinent to my research, such as only Tasmanian Aboriginal people, or government employees, although these people were likely to remain the focus, especially for their role as ‘receptor sites’ (Tsutsui, 2017, p. 1091).
5 There appears to be a custom in Tasmania to use the definitive article when abbreviating the Tasmanian Aboriginal Corporation only, as in ‘the TAC’, but generally all the other corporations are referred to simply as ‘CHAC’ or ‘SETAC’. I have used this convention in the text.
61 Broadening the data set The turning point in my approach occurred when it became clear that interviews alone could not fulfil my needs for an analysis of the forces that impact Indigenous cultural rights. One of the key points reiterated in the literature in Chapter 2 is that archaeology conducted in the same space as Indigenous heritage does not do so separately from the social, political, historical, and cultural contexts that surround it. Understanding Indigenous rights aspirations is the foundation of the approach I begin to develop here, but to understand how archaeology impacts on those aspirations requires a critical investigation of archaeology itself. There is also an element of removing the burden from Indigenous people to provide answers to the post-colonial problems they did not create.
From this point I chose to broaden my approach to data collection. One of the initial ways I broadened my research was to seek data from documentary sources. In dealing specifically with the TWWHA, one set of primary data are the successive TWWHA management plans from 1992, 1999, and 2016. Management plans have been a requirement for World Heritage sites since the World Heritage Committee’s first session in 19776 (UNESCO, 1977). Therefore, management plans will presumably reflect provisions of the Operational Guidelines relating to Indigenous participation at the time they were drafted. I examine the TWWHA management planning documents in Chapter 12. Planning documents are also typically contextualised in legislation, and therefore define and ground relationships between national and sub-national authorities in relation to the management of their World Heritage properties (Padgett, 2005). As an overall indicator of measures to address international and domestic standards relating to Indigenous participation in management, the TWWHA management plans and associated literature are key sources of data for my research.
Aside from management plans, policy literature relating to the TWWHA is also available. I began my work with a search for any relevant archival material, which included government documents, news articles, reports, opinion pieces and various other sources. I evaluated all
6 When the Operational Guidelines for the Implementation of the World Heritage Convention were drafted.
62 of these sources on their merits, in the context in which they were published or otherwise disseminated. For instance, an official government statement or policy position may rate highly in terms of the discursive authority of the document, but as found during similar research by Aplin (2004), a great deal of “reading between the lines” is needed to understand such sources and rate their value in terms of truthfulness, validity, and intent. This clinical assessment was necessary in my TWWHA research because, as interviews confirmed, such documents often contain positive language that disguises policy that later proves to be obstructive or ineffective. Baird (2013) confirms the importance of such resources, which help elucidate “unguarded insights into how experts view heritage”. As I show in Chapter 12, the view that the TWWHA was an unpeopled landscape pervaded management strategies for many years. The analysis of the management plans can thus reveal how heritage experts have professed that view to the detriment of Indigenous rights.
In terms of academic writing, the literature includes articles by Kirkpatrick (2001), Hay (1994), Russell and Jambrecina (2002), Russell and Johnston (2005), Sawyer (2000), and McNiven and Russell (1995). All consider issues that arose with the TWWHA plan’s implementation, particularly the concept of wilderness, the natural values conservation paradigm, and characterisations of the Aboriginal cultural landscape. These matters are presented in Chapter 11 and discussed in Chapter 13. When I acknowledged that I required a view into Tasmania’s history, my approach essentially grew to include an ethnohistory element, to contextualise and understand the results I collected. A keystone source of modern historical information, as is evident in Chapters 5 and 6, is Ryan’s (2012) ‘Tasmanian Aborigines: a history since 1803’. By no means definitive, Ryan’s focus on Tasmania’s Aboriginal history, and in particular, the rise of its Aboriginal political movement and reclamation of Aboriginal identity, is regarded as comprehensive (Clarke, 1997; Lehman, 2012; Taylor, 2012). Ryan’s work is complemented by authors who focus on specific topics such as the ‘Black War’ (Clements, 2014), the repatriation of ancestral remains (Cove, 1995), and colonial settlement (Boyce, 2018) to create a suitable foundation for a single-chapter historical review. Finally, when examining the interface between Australian archaeology and the Tasmanian Aboriginal rights movement, all the data here are sourced from academic literature of some kind. As I consider in more detail in Chapter 9, although archaeological
63 discourse may have progressed in terms of its relation to Indigenous rights, that such conversation rarely occurs outside of academic literature, and with the people it directly affects, could be a source of its ongoing friction with that particular rights movement.
The fact that many of the issues that I examine in the later results chapters are currently active, means that of the issues are documented mainly by current and recent public news sources, and these also comprise important data for my research. For example, in Chapter 8, I introduce the conflict over four-wheel drive tracks in the Arthur Pieman Conservation Area (APCA), in north-western Tasmania. The use of these tracks is still being debated both publicly and by governments at all levels. This means that although there is no academic literature on this issue yet, and governmental material is limited largely to press releases as opposed to policy documents, there are other pertinent sources. Local and national news outlets monitor these emergent issues, through reporting and opinion pieces. Importantly, these news articles provide a platform for many of the research participants and organisations, with which the specific issues are associated, to make public statements about their position in relation to key questions. For instance, in results Chapter 8, I present and review statements by CEOs of Aboriginal corporations opposed to the management decisions that have been proposed for the Tarkine tracks, as well as contrary opinion pieces in which participants state the intent and purpose of political actions. These varied sources proved as relevant and valid for my purposes as peer-reviewed research and other more formal literature.
Ultimately, my choice of data sources was wider ranging than I had initially proposed. Yet in addition to this being a response to the limitations of a single data source, it was also necessary for me to fully explore the distinct but interconnected points in Tasmania’s history where Indigenous rights and cultural heritage intersect. This in turn dictated the relatively unorthodox structure of my results. While covering one of four particular themes, the results chapters engage in data collection strategies relevant to the conversations and events relevant to that theme, and available at the key points in time that theme concerns. This is summarised in the Table 4.1 below.
64 Research setting – argument for case study research To carry out my analysis of heritage and rights processes, I have focused on the case study of Tasmania, as introduced in Chapter 1. Case studies involving close-in qualitative research are a much-needed area of research into human rights, because human rights theory on its own “cannot ‘unpack’ important historical, political, and sociological relationships” (Landman, 2005, p. 560).
The utility of case study research in accounting for complex issues (Yin, 2014) makes the use of this method suitable for exploring local contexts as the framework for understanding global theoretical frameworks. Case studies have been used regularly to unpack Indigenous rights issues in relation to World Heritage sites in Australia (Hales et al., 2012), New Zealand (Baird, 2013; Kawharu, 2009), the Pacific (Harrison, 2004), and Africa (Meskell, 2012).
These examples demonstrate the efficacy of a grounded approach to research in uncovering instances where, although rights practices appear to be free of conflict, hidden aspects of challenge may have negative effects. For instance, as mentioned in the previous chapter, Hales et al. (2012) used an analysis of significant areas on the Cape York Peninsula – a potential World Heritage area – to demonstrate that the preconditions required to achieve Free, Prior and Informed Consent (FPIC) for Traditional Owners during the nomination process differed from that which government heritage authorities assumed would be sufficient. The researchers (Hales et al., 2012) demonstrated that despite Australia’s adoption of UN DRIP principles and having some FPIC processes built into its World Heritage nomination guidelines, the Traditional Owners effectively had no self-determination throughout the nomination process.
Specifically, the government’s model for consultation did not facilitate traditional means of decision-making. In addition, Traditional Owners were not afforded the power of veto, so they had little capacity to refuse the government’s proposals (Hales et al., 2012, pp. 278- 283). Article 3 of the UN DRIP enshrines Indigenous self-determination, and Article 19 informed consent for “legislative or administrative measures that may affect them”, demonstrating how this situation becomes an Indigenous rights issue, particularly in a
65 nation that has accepted the Declaration. Similarly, (Baird, 2013) demonstrates how the World Heritage cultural landscape listing of New Zealand’s Tongariro National Park obscured a Maori connection to the landscape. Being constructed by the largely non-Indigenous government management authorities, the narratives presented in the area’s listing framed the area’s ‘gifting’ by the Maori to the New Zealand Government as directed primarily
Table 1 Data sources used in the presentation of results.
Data sources Interviews obs. Participant Academic literature Academic Field trips Field News sources News Chapter Primary Themes / topics Government/policy addressed
6 Aboriginal Tasmanians' • Rights claims outside of a X X expressions of rights and common framework their rights claims over time • Cultural identity as the basis for and against rights claims • Cultural heritage as resource in rights claims 8 The current conflict over • Intra-community conflict X X X X Tasmanian Aboriginal • Control of heritage, heritage, land, identity language, and land in assertions of rights/identity
10 Australian Archaeology’s • Archaeology’s control of X response to assertions of Aboriginal cultural Indigenous rights heritage • Authorised Heritage Discourse
12 Contemporary Aboriginal • Conceptions of landscape X X X X X accounts of land, heritage, • Protected area rights in the TWWHA management • Cultural rights aspirations of Tasmanian Aboriginal people
66 toward protection of the area’s natural values. This overrode Maori customary and domestic treaty rights and negated a Maori claim to a stake in the area’s management, which could be viewed as obstructing a right to maintain a (cultural) connection to traditional lands under UN DRIP Article 25 (Baird, 2013, p. 332). The pertinent point in both cases is the way in which research uncovered how matters of cultural heritage management became Indigenous rights issues, and that those issues were formerly unknown or obscured. These are the kinds of issues I see as most important for archaeology as it relates to rights questions. I see carrying out a case study as vital to identifying where they may occur in Tasmania.
Ideally any use of a case study would involve more than one case, as comparison between discrete cases assists in the generation of a global picture. While a single case is often sufficient as a research project (Yin, 2014), Lin (1998) advocates comparative case studies within the same study, saying that: The case study allows the researcher to see the phenomenon of interest within its context – to trace out and recreate the mechanisms that connect events or relationships – but the inclusion of several case studies in one project also forces the researcher to be more rigorous about defining specific relationships, provides the researcher with a ready-made collection of alternative explanations, and keeps the definition of terms from being so situation-specific that parallels to other situations are lost.
With this position in mind, my initial research proposal involved a comparative case study between the TWWHA and another World Heritage site elsewhere in Australia. However, I determined that the resources available for a PhD project did not permit me the time required to build the necessary relationships and trust with Indigenous communities in two locations (see Watts, 2011) while remaining responsive to the requirements of ethical research which is ‘thickly’ oriented toward local desires (Merry, 2006b). My research, which therefore focused on a single case study, can nonetheless produce a useful basis for comparison in future research by virtue of its focus on providing highly detailed empirical accounts while remaining grounded in widely applicable theory and explicitly situated in relation to other case studies such as those discussed above.
67 Community engagement The AHC provided in-principle endorsement to the project upon agreement that it (the AHC) would act as the ‘gatekeeper’ to the wider community and the conduit for feedback and ongoing assessment of the project. The use of gatekeepers is common in qualitative research because they can direct researchers to key people and establish channels of communication with communities (Given, 2008). In this role, the AHC provided a list of Aboriginal organisations that I was to contact as the first step in the engagement process. On this basis, I prepared the application for ethical approval from UQ (approval # 2016001378). From that point, I sent letters of invitation to all the Tasmania-based Aboriginal corporations listed on the Office of the Registrar of Indigenous Corporations (ORIC7). Through these organisations I was provided access to individuals within various communities.
Despite my agreements with the AHC, the group’s membership entered a state of flux soon after these arrangements had been made (Shine, 2017c) and this precluded subsequent meetings with them. Nonetheless, the medium for feedback to me on issues through the UQ approval process remained. Having established strong interpersonal connections with key contacts in the broader Tasmanian Aboriginal community, refining the research trajectory now occurs through those individuals.
Addressing the need for reflexivity in research As I discussed in Chapter 2, my contention has been that reflection on one’s own role in research is essential to a well-rounded understanding of what is actually occurring in a case study. Indigenous perspectives are non-negotiable in a thesis on this topic, so interview data has to form the foundation of the research. However, I wished to avoid conducting a study of Indigenous people which interprets and reflects their statement back onto them. Similarly, such work should not place on Indigenous people the burden to provide all instruction on how archaeological practice might adjust in relation to their rights. Rather, a
7 ORIC is the federally funded, independent regulator of Indigenous organisations in Australia.
68 competent approach necessitates being able to learn primarily from casting a critical view back onto archaeology itself.
The ‘engaged’ and Indigenous archaeologies methodologies (e.g. Atalay, 2006; Bowdler, 1981; Prangnell et al., 2010; Ross et al., 2010; Smith & Jackson, 2006; Smith, 2004, 2006; Sullivan, 2004, 2008), and Critical Heritage Studies approach (Baird, 2013; Hodges & Watson, 2000; Sullivan, 1996) in which I situate my research, share the common aim of ‘decolonising’ academic research through analyses of the interactions between heritage practitioners and Indigenous peoples (Atalay, 2006). Baird (2013) also sees the methods arising from these methodologies as essential to unravelling the power relations inherent in the researcher-subject relationship identified through engaged practices (e.g. Smith, 2008) and, as Byrne (2009) reiterates concisely, “we need to be willing to excavate our own practice in order to know how it is constituted”. Byrne’s call relates back to the obligation I considered in the previous chapter, relating to archaeology’s role in creating the issues upon which it now theorises. In Tasmania, “the spectre of genocide must be confronted and its consequences owned”, argues Lehman (2013, p. 205). In the results chapters that follow, I demonstrate how archaeology played a role in affirming the narrative that disempowered Tasmanian Aboriginal people. Addressing the long-term trauma caused by the discipline is therefore a means of uncovering how “colonial structures remain as hidden dimensions embedded in laws, policies and practices, and are largely unacknowledged” (Baird, 2013, p. 329), and likely to inform the authorisation of heritage discourses. As Hales et al. (2012, p. 275) note, communicating research from within an instance in which the researcher is taking part requires a sound understanding of the researcher’s positioning in relation to the people and events that are observed. I position myself as an educated non-Aboriginal archaeologist, often the very definition of a person who has directly and indirectly violated Tasmanian Aboriginal people’s cultural rights. I believe this has to be acknowledged in the collection of data, let alone any interactions with Tasmanian Aboriginal people. At the outset of the research, I often found a marked hesitance on the part of interview participants to engage with the project, and although I was able eventually to make personal and professional connections that allowed me to collect useable data, the history preceding my relationship with the community still needs to be taken into account. In this
69 field of study it is pertinent to acknowledge my positioning as a non-Indigenous academic will always influence the data that I can collect and the manner in which those data are presented to me, as the level of trust between the researcher and participant acutely affects the efficiency of the methods I have employed (Dahlke et al., 2015).
The other element to consider in a reflexive analysis of the research relates to the perception by researchers of the agency of the subject. I agree with Davis’ (2012, p. 48) criticism of the attitude taken toward Indigenous people’s agency in terms of asserting their rights, which tends to assume and essentialise their motivations for making rights claims. The approach to culture and rights I outlined should allow me to dispense with any assumptions but there is another aspect of agency to take into account. Admittedly, human rights are to some degree “dominated by an elite of legal experts”, yet they are directed toward “the democratic empowerment of ordinary people” for whom “human rights is unknown and, if it were known, it would be largely unintelligible” (Freeman, 2002, p. 52). Researchers thus “play complex and sometimes contradictory roles as scholars and as activists in the chaotic, multilayered world of international and local human rights advocacy” (Merry, 2006a, p. 107). However, we should not assume that this implies a requirement on behalf of the researcher to act as translator or representative. As Davis continues, although Indigenous people are often not formally connected into the structures that dictate how their rights are recognised and their heritage is managed, this need not exclude them from engaging with those systems on their own terms (Davis, 2012, p. 47). The crucial point is in “trusting that (communities) have the knowledge, intuition, and skills – to direct their collective rights challenges, and to do this in ways that they deem appropriate” (Baird, 2014, p. 151).
Summary My methodological approach outlines some of the key tools and considerations that I see as necessary for archaeology’s meaningful engagement with human rights. As I explained in this chapter, these are the means to determine, through interpersonal communication, what human rights aspirations (i.e. capabilities) are held by people in a community, a means of collecting information that provides a holistic ‘picture’ of the social, political and
70 historical setting in which those aspirations take place, a set of guiding principles that provide the foundation for why the research should take place, and a framework for recognising and responding to one’s own role in the phenomena one observes.
For the purpose of my research, I identified the use of ethnography and case study research as useful for this aim when combined with approaches to archaeology that prioritise our obligations toward the people with whom we work and recognise them as capable agents of change. Now that I have outlined my choice of methods, I present a brief outline of the case study of Tasmania.
71 Pause: Introduction to the case study lutruwita / Van Diemen’s Land / Tasmania As a result of the events I recount in this chapter, the first tellings of Tasmania’s creation and history were fragmentary, but not inconsistent (Ryan 2012:3). One common story involves the kangaroo as a creator being: The kangaroo is a metaphor for Palawa identity in Tasmania. Aboriginal people knew the animal as Tarner, a creation spirit and ancestor of Parlevar, the 'first man'. Through kinship obligations, the kangaroo bound Aboriginal people to the land and gave us a mythical identity as descendants of a creation spirit. The notable Aboriginal 'clever-man' Woorady told how the kangaroo was an ancestor, transformed into Parlevar (Palawa) by the creation spirit Moinee. Before this transformation, Palawa had no knee joints and could not sit down. The spirit Droemerdeener broke his legs and cut off his tail, giving him a place to stay and live. As well as creating Parlevar, Moinee “cut the ground and made the rivers, cut the land and made the islands” (Lehman, 2006b).
In modern geographic terms, Tasmania is an island off Australia’s southern coast, and Australia’s southernmost state (Figure 1). Archaeological knowledge says it was first inhabited by Australian Aboriginal people who crossed a land bridge from the mainland at least 35,000 years ago (Allen, 1996; Cosgrove, 1989). In Tasmania’s unique environment, Aboriginal people created a culture as markedly different from those on the mainland as the island of Tasmania differs environmentally (Jones, 1977). Sea level rise in the Holocene then saw the Tasmanian Aboriginal population completely isolated from any other culture for around fourteen thousand years (Davidson & Roberts, 2008). In palawa kani, the Tasmanian Aboriginal language restored from linguistic research of primary documentary sources, the island was then known as lutruwita (Tasmanian Aboriginal Centre, n.d.). Others understand it to have been called Trowunna (Cameron in Ryan 2012:6).
The Dutch explorer Abel Tasman landed in Tasmania’s south east in 1642 and named it Van Diemen's Land, after Anthony van Diemen, Governor-General of the Dutch East Indies (Reynolds, 2012). By the end of the eighteenth century, Europeans had begun exploiting the natural resources of the Southern Ocean around Tasmania and possibly settling among the islands of Bass Strait (Figure 2), which separate Tasmania from mainland Australia (Ryan,
72 2012). Fifteen years after the first European settlement on the Australian continent at Port Jackson8, the colony that would become Tasmania’s capital city of Hobart was established on the River Derwent (Boyce, 2018). From this point, Tasmanian Aboriginal people experienced continued dispossession of their traditional lands and abuse of their life and liberty (Hughes, 1987; Ryan, 2012). The terror culminated in the ‘Black War’, an eight-year conflict resulting in the deaths of much of the Aboriginal population (Clements, 2014). The war was subsequently augmented by the systematic government removal of the remaining Aboriginal people from their lands and placing them in what they were led to believe was temporary detention at Wybalenna on Flinders Island in Bass Strait, where they would live (supposedly) unmolested (Reynolds, 1995). Named for the executor of a so-called ‘friendly mission’ to divest Tasmania’s original inhabitants of their lands, ‘Robinson’s promise’ to repatriate those people was never delivered (Cameron, 2019). In the meantime, the colony of Van Diemen’s Land became self-governing in 1842 and announced its change of name to Tasmania in 1856 (Townsley, 1991). The dwindling cohort at Wybalenna was returned to the mainland in 1847, but into continued detention at Oyster Cove in the island’s south-east (Gough, 2006). The death in 1869 of William Lanne, the last ‘full-blooded’ Tasmanian Aboriginal man, and of the Nuenonne woman Truganini in 1876, became known as the end of an Aboriginal presence in Tasmania, particularly on the advice of the scientists of the Royal Society of Tasmania (Ryan, 2012, p. 270).
The historical narrative has always created dissonance for people of Tasmanian Aboriginal descent because in reality several Aboriginal bloodlines continue. Many Tasmanian Aboriginal people today trace their ancestry through the ‘matriarchs of survival’ (Lehman, 2006a), such as Fanny Cochrane Smith and Dalrymple (Dolly) Briggs: Aboriginal women who outlived the closure of Oyster Cove. Fanny Cochrane Smith was abducted from her mother Tanganutura, and grew up at Wybalenna. She was later taken to Oyster Cove, and when that settlement closed, married an English sawyer (Lehman, 2006a; Ryan, 2012, pp. 261- 262).
8 The site of modern-day Sydney
73 Figure 1 Map of Tasmania showing all major and some minor population centres.
74 Figure 2 Eastern islands of Bass Strait, or the Furneaux Group.
75 Their children were taught traditional knowledge and cultural practices by Truganini and William Lanne. Briggs was the daughter of an Aboriginal woman named Woretemoeteyenner and a non-Aboriginal sealer working in Bass Strait. She married a British convict and lived near Devonport on the north coast (Lehman, 2006a; Ryan, 2012, p. 61). ‘Islander’ lines, like that of Dolly Briggs, comprise the genealogies of people living in Bass Strait as recorded in the 1930s and 1950s (Breen, 2006). These lines often trace back to the Aboriginal partners of European men who inhabited islands in Bass Strait prior to formal British settlement (Lehman, 2006b).
Such unions have generally been explained as instances of the kidnapping of Aboriginal women, which was a commonly recorded practice (Clements, 2014, p. 190). Cameron (2008), however, suggests that given the length of European settlement on the islands, lines of trade and exchange would have been well established between northeast Aboriginal groups and Europeans in the Strait by the time Aboriginal people were forcibly moved off their lands. This means that many women may have relocated voluntarily, or at the direction of their families in an act of survival. When the Oyster Cove settlement was closed, the descendants of these Aboriginal people remained throughout the islands of Bass Strait. In relative isolation from the mainland of Tasmania, these ‘Islanders’ began to see themselves as “a new kind of Aboriginal community” (Cove, 1995, p. 77; Ryan, 2012, p. 277). Their sense of cultural identity was supported by their continuation of traditional practices that continue to this day, in particular the seasonal harvests of short-tailed shearwaters known locally as muttonbirds (Skira, 2006). In Chapter 6, I demonstrate how the Islanders defended themselves against what they saw as incursions on their rights, including the practice of muttonbirding.
In the 1970s, Tasmanian Aboriginal people, particularly those descended from Islander families, began organising themselves into incorporated bodies (Ryan, 2012, p. 313). This initially took the form of the Aboriginal Information Centre (AIC), which was founded to assist people to trace their Aboriginal ancestry. It ended up serving a greater purpose in that it saw Tasmanian Aboriginality move from being a form of cultural organisation towards being a political entity (Cove, 1995, p. 108). I follow the growth of the AIC into the
76 Tasmanian Aboriginal Centre (TAC) and its assertions of heritage rights throughout the twentieth century in more detail in Chapter 6.
In the 2016 census, some 23,572 people, or 4.6% of Tasmania’s total population, identified as being of Aboriginal and/or Torres Strait Islander descent (Australian Bureau of Statistics, n.d.). For some time, there has been contention amongst people claiming Tasmanian Aboriginal identity over who can legitimately claim that descent (Marks, 2013, pp. 182-183), an issue I examine in more detail in Chapters 7 and 8. A majority of Tasmania’s Aboriginal and/or Torres Strait Islander-identifying people live in regional areas in the north-west and north-east, in the remote Bass Strait Islands and in outer suburbs of Tasmania’s two major cities, Hobart and Launceston.
The Tasmanian Wilderness World Heritage Area (TWWHA) As I mentioned in the introduction to this thesis, Tasmania’s World Heritage Area (Figure 3) comprises one of the focus areas of my research owing to its complex history and relation to Indigenous rights. In Chapter 11, I provide the more in-depth background that is necessary to understand the results I present in relation to the TWWHA in Chapter 12, but to proceed further now I need to sketch the history of the TWWHA’s World Heritage listing.
The late 1970s and early 1980s were a pivotal period in Tasmania’s history, as the State became the setting for a national conflict over Australia’ natural environment (Hay, 1994, pp. 1-2). In 1972, Lake Pedder in Tasmania’s south-west was artificially created as part of the Gordon River hydroelectric power scheme (Hydro Tasmania, 2019). The environmental damage caused by the scheme made it a politically polarising issue and saw the creation of what are now the Australian Greens9 political party and The Wilderness Society (Crowley, 1999). The dispute left a “bitter and cynical local legacy” (Sullivan, 2004, p. 51) which persists to this day, forming a rift in Tasmanian society between people who are pro- development and those pro-conservation.
9 Australia’s primary ecopolitical and third largest party.
77 In 1981, during the proposed second stage of dam construction, this time on the Franklin River, Aboriginal Pleistocene rock art, habitation sites and skeletal remains were discovered in the area to be flooded (Kiernan et al., 1983). The Federal Government moved quickly to nominate a series of national parks in the southwest for World Heritage status and in 1982 these places were inscribed onto the World Heritage List as the Western Tasmania Wilderness National Parks World Heritage Area (Commonwealth of Australia, 2007). Whether the Franklin would be dammed or not ultimately became a matter of constitutional interpretation, when the Federal Government enacted the World Heritage Properties Conservation Act 1983 (Cth) and regulations under the National Parks and Wildlife Conservation Act 1975 (Cth) to stop the Tasmanian Government from developing the dams within the newly-listed World Heritage Area. The High Court10 held that provisions of the new legislation were within the Federal Government’s constitutional powers, and notably, that provisions protecting the sites and artefacts in the Franklin were consistent with the Federal Government’s powers to enact laws on the basis of race (Mason, 2015; McMillan & Clark, 2015, p. 117). In 1989, the World Heritage Area was enlarged, and renamed the Tasmanian Wilderness World Heritage Area (TWWHA) (World Heritage Centre, n.d.). Despite the role that the Franklin River sites played in the conservation of Tasmania’s south-west, as Hay (1994) argues, World Heritage status often became a tool to preserve ‘natural’ areas viewed as wilderness from development. In addition to the 1989 enlargement, the TWWHA was enlarged through three Minor Boundary Modifications in 2010, 2012, and 2013 (Commonwealth of Australia, 2010, 2012, 2013). In most cases, the extensions coincided with areas either threatened or previously affected by logging (Rogers & Mackey, 2015, p. 149). The additional areas were recognised as variously containing Aboriginal cultural heritage sites and values, but these were never described in detail (Commonwealth of Australia, 2010, pp. 4-6; 2012, p. 14). At the time of the 1989 extension, the World Heritage Advisory Body ICOMOS11 viewed cultural heritage in the TWWHA as solely supplemental to the area’s natural values (ICOMOS, 1982, 1989).
10 Australia’s highest court. 11 The three Advisory Bodies to the World Heritage Committee are The International Council on Monuments and Sites (ICOMOS), The International Union for Conservation of Nature (IUCN), and The International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM). ICOMOS and IUCN are traditionally charged with advising and evaluating cultural and natural heritage respectively, but increasingly
78 Figure 3 World Heritage Areas in Tasmania (shaded). The Tasmanian Wilderness World Heritage Area (TWWHA) covers approximately 20 per cent of the landmass of Tasmania.
By 2013, when the paradigm of heritage evaluation had shifted somewhat from valuing only scientific potential, ICOMOS criticised the lack of consideration for Aboriginal cultural values and consultation in the proposal for the 2013 boundary modification (ICOMOS, 2013). The
work in collaboration (see IUCN & ICOMOS, 2013). ICCROM promotes the conservation of all forms of cultural heritage.
79 2013 modification was accepted by the World Heritage Committee despite the recommendations by ICOMOS, but in 2014 a new Federal Government sought to reauthorise logging by delisting the area. This proposal was rejected by the UNESCO World Heritage Committee on the basis that mining and logging in the TWWHA were not consistent with conservation of the area’s Outstanding Universal Value (Darby, 2014).
In response to the proposal, the World Heritage Committee decried the lack of Australia’s progress on a re-assessment of the TWWHA’s Aboriginal cultural values, including its consultation with the Tasmanian Aboriginal Community, and requested information on how the then draft12 management plan would address cultural heritage protection (UNESCO, 2014b). At its next meeting, the World Heritage Committee also requested Australia to invite a joint IUCN/ICOMOS Reactive Monitoring Mission to review the State’s progress on these matters in-person (UNESCO, 2015b). The Mission’s report reiterated the need for a review of the draft management plan, and a review of the handling of the Aboriginal cultural values of the TWWHA (Jaeger and Sand 2015:1). The Mission cited a disparity in how natural and cultural values were managed, noting that “it is widely accepted that the cultural heritage of the TWWHA has been playing second fiddle to the natural heritage at all times since inscription despite status as a mixed World Heritage property” (Jaeger & Sand, 2015, p. 31). The Australian Government accepted all 20 of the Mission’s recommendations, making detailed promises about how the Tasmanian Government would be acting on the matters identified in the Mission’s report, and offering any and all support it could to the UNESCO World Heritage Committee on the matter in future (Commonwealth of Australia, 2016). The management plan was finalised in late 2018 (Department of Primary Industries Parks Water and Environment, 2018). The TWWHA is managed by the Tasmania Parks and Wildlife Service (PWS) in the Tasmanian State Government Department of Primary Industries, Parks, Water and Environment (DPIPWE).
12 The first draft of the management plan that was presented for public comment was titled the Draft TWWHA Management Plan 2014. After the two-year consultation period, the final published plan was titled the TWWHA Management Plan 2016.
80 Part B: Results
I now begin the presentation of my results. To reiterate, this presentation unfolds through the following eight chapters. Each results chapter proper is preceded by an accompanying background chapter. These chapter dyads each correspond to a different ‘structure’, or area of interest where Indigenous rights and cultural heritage are observed to intersect. These areas might roughly be described as history, society, archaeology, and World Heritage. I place archaeology third in this sequence to avoid breaking the narratives that run through my results before the re-orientation toward World Heritage at the end of Part B. As I explained earlier, the results relating to World Heritage represent the most contemporary data (i.e. those which are not an ethnohistorical account) and refresh some important questions about practising archaeology today, which I address immediately after in the discussion chapter.
Before presenting results, however, I need to recapitulate my approach to gathering data. In examining Tasmania’s colonial and recent history, I aim to identify the rights and cultural heritage interactions that occur. Consistent with my methodological approach, I look especially to the interactions between Indigenous and non-Indigenous actors that represent matters of human rights, and to how cultural heritage mediates these actions. Through this investigation, I seek to identify the mechanisms for change in rights outcomes and rights practices. I show throughout the results how Tasmanian Aboriginal people’s actions both represented rights claims, and resulted in changes to the way their rights were recognised and legislated. Finally, I demonstrate how archaeology at times obstructed such change.
81 Chapter 5 Background: History of Indigenous rights in Tasmania
Introduction Tasmania presents a suitable setting for a case study on Indigenous rights because this state produced one of Australia’s most determined and arguably most successful Indigenous rights movements despite an ongoing narrative that the island’s Aboriginal history ended in the nineteenth century (Ryan, 2012). As historians such as Boyce (2018), Clements (2014), Hughes (1987), Reynolds (2012) and others note, the island state’s colonial history was rife with shocking examples of human beings’ ill treatment of one another. Its Indigenous inhabitants, as well as convicts and those managing their incarceration, experienced the worst depredations of Britain’s imperial savagery. Yet while the convicts’ story evolved beyond the end of ‘transportation’, as their banishment from Britain was known, the narrative of Tasmanian Aboriginal history has been stifled by the pernicious and entrenched notion of their extinction (Anderson, 1997; Lehman, 2013). In this chapter, I describe how the Tasmanian Aboriginal rights movement emerged despite a continual insistence on this extinction narrative.
Fighting the myth of extinction Soon after Truganini’s death, the notion that the Aboriginal people of Tasmania had ceased to exist became known as ‘fact’ – an objective observation of events that began to be characterised as inevitable (Anderson & Perrin, 2007; see also Jones, 1977). Following this proposition, Tasmanian history, as told in Australia, adopted “an uneasy and enduring silence” (Lehman, 2013, p. 201) in place of a cohesive, evidence-based Indigenous history of the island. The Tasmanian Aboriginal academic and senior public servant, Ian Anderson (1997), describes how: the horror of the convict system and associated Aboriginal genocide … were undeniable facts of history, but ones that contradict the more heroic imperial narratives of settlement. These aspects of Tasmanian history tended to be veiled in shame and whispers. It was never made easy for people to openly acknowledge their personal and family connections with such events. In the context of a public history, this tended to render a whole mob of Aboriginal people, and to an extent working-class whites, rootless and invisible.
82 Lehman (2013) agrees: “in Tasmania the standing of Aboriginal nations was simply swept from the table with an unspoken agreement that it should be raised no more”. The shame relating to Aboriginal ancestry to which Anderson refers was augmented by a tendency in academia to portray Tasmanian Aboriginal people as culturally inauthentic and racially distinct from mainland Aboriginal people. Anderson (1997) identifies how the hybrid conception, adopted by foundational scholars in Australian anthropology and Aboriginal Tasmania, placed Islanders in a “liminal zone … between tradition and history … black and white skins” (Anderson 1997:7), or as Elkin (1975, p. 379) himself saw it, “into a social and cultural ‘no-man’s land’”. But of course, Aboriginal Tasmanians survived, both physically and culturally, despite government neglect during the latter half of the nineteenth century, in “a reserve for 'half-castes’”, as Daniels (1995) puts it, “with all the worst features of such institutional control”. Later, these Islanders resisted the government’s attempts to force them to return to the mainland (Ryan, 2012, pp. 302-304).
The State’s disassociation of Tasmanian Aboriginal people from mainland Aboriginal people continued into the twentieth century. For instance, when anthropologists in the 1930s advocated for state protection of all Australian Aboriginal people and preservation of their culture, the Tasmanian Government took the position that Islanders with less than a 1/8th ‘Aboriginal blood' were not to be counted in that number. Owing to the history outlined above, few if any Tasmanian Aboriginal people exceeded this arbitrary ‘blood quotient’. The State thus deliberately avoided any obligation to act, other than preserving their material culture (Ryan, 2012, p. 303). The consequences of such actions in relation to Indigenous cultural rights are a central to the discussion in the next chapter.
In 1967, an Australian referendum made it possible for the Federal Government (rather than the States, to whom this power had been originally assigned in the drafting of the Australian Constitution) to make laws specifically for Aboriginal people (Parliament of Australia, 2017). The policy arising from the referendum generated greater Indigenous activism, especially in relation to land rights, but it also freed the Commonwealth from narrow definitions of Aboriginality (Gardiner-Garden, 2007, p. 15). When the Aboriginal Information Centre campaigned for Indigenous rights, the Tasmanian Attorney General
83 maintained that Tasmanians were neither biologically nor culturally distinct enough from Europeans to be afforded the same rights as Aboriginal people on the Australian mainland, and that the Tasmanian Government would remain the arbiter of the test for Aboriginality (Cove, 1995, p. 122). In 1968 the State Government carefully broached the possibility of seizing federal funds earmarked for addressing Aboriginal economic disadvantage to spend on Islander relocation. However at the same time, its Chief Secretary stated outright that “Tasmania has no Indigenous Aboriginals” (Cove, 1995, p. 107; Daniels, 1995, p. 107). Thus the Tasmanian Government continued “talking the human rights talk” (Risse & Sikkink, 1999, p. 27) while maintaining its latitude to act in its own interests irrespective of any rights it might recognise in principle.
Nonetheless, the AIC continued to call for control of cultural heritage in the State to be ceded to Aboriginal people. This included the call for the repatriation of Aboriginal human remains, including those of Truganini (Ryan, 2012, p. 309). Before Truganini died in 1876, her fear was that her body would be dissected and kept by scientists, as she had seen this become the fate of the body of her friend William Lanne in 1869 (Ryan, 2012, pp. 265-269). Although her desire was to be cremated and returned to the waters by her birthplace on the D'Entrecasteaux Channel, Truganini nonetheless was buried in Hobart, and her remains later collected by members of the Royal Society and put on display in the Tasmanian Museum, as “a trophy of white settler triumphalism” (Ryan, 2012, p. 270). One hundred years after her death, the AIC was successful in having Truganini’s remains repatriated and her final wishes fulfilled. In doing so, the organisation ensconced ‘Tasmanian Aboriginal’ as both a valid identity and a permanent presence in state politics (Ryan, 2012, p. 314). Whether or not the AIC had been successful in securing Truganini’s return, making the demand a matter of Indigenous rights appears to have increased public support for the Tasmanian Aboriginal people’s cause at the time (Cove, 1995, p. 153; LaVaque-Manty, 1999, p. 74). This support strengthened to the point where, as Ryan (2012) argues, domestic pressure on the State Government was such that the Tasmanian Premier was so “anxious to repair [his government’s] tarnished reputation with the community”, that he readily supported the repatriation.
84 These acts legitimised Tasmanian Aboriginal people’s identity and political presence in Tasmania and internationally (Davies & Galloway, 2009). In 1977, the AIC became the Tasmanian Aboriginal Corporation (TAC), establishing itself as the pre-eminent Aboriginal organisation in the State (Daniels, 1995, pp. 29-30). Michael Mansell, one of the TAC’s founding members, summarised intent for the organisation’s direction in 1980, saying: “I argue that we don’t ask for a little, we demand a lot” (cited in Daniels, 1995, p. 41). True to his word, Mansell personally petitioned Queen Elizabeth II in 1977 on the matter of the recognition of Indigenous cultural rights (Ryan, 2012, p. 315). As the TAC grew in power and public support during the 1980s, the repatriation of more human remains became symbolic of the success of the Tasmanian Aboriginal rights movement (Daniels, 1995, p. 33). The significance of these achievements bears noting: the rights that were claimed were won from a state that not only refused to entertain the notion of such rights being legislated but had, for more than 100 years, resisted even acknowledging that any Tasmanian Indigenous people lived to claim those rights.
Today, the existence of Tasmanian Aboriginality is accepted by the Tasmanian Government, but this does not mean that the TAC’s original objectives have been wholly achieved. In 2015, the Tasmanian Liberal13 government embarked upon a campaign to “reset the relationship” with the Aboriginal community, stating that its aim was to “improve access to Aboriginal specific programmes and services, and increase employment and career development opportunities for Aboriginal people”. This conservative government further maintained that “a key focus will be joint land management and land hand-back arrangements that support the Aboriginal community to connect to Country and culture” (Premier of Tasmania, 2015). Subsequently, State Parliament passed a constitutional amendment to recognise Aboriginal ownership and continued connection to the lands and waters of Tasmania as a means toward reconciliation between itself and the Tasmanian Aboriginal community (Department of Premier and Cabinet, n.d.-a). Superficially, this would appear to be a complete reversal of the government position on Indigeneity and Indigenous rights in the previous decades. However, as I explain in the next chapter, for many,
13 In Australian politics, this is the major centre-right/conservative party.
85 especially in the TAC, not much has changed between the government and Tasmanian Aboriginal people over the last century.
Summary In this chapter I narrated the emergence of the Tasmanian Aboriginal rights movement against the backdrop of the denial of Tasmanian Aboriginality and attempts by the State Government to stifle or downplay actions that might represent claims to that identity. I alluded to the means through which Indigenous rights have been variously asserted and denied in Tasmania, specifically in light of governmental control of cultural heritage and identity. In the next chapter, I explore the role of cultural heritage in Indigenous rights claims in Tasmania in detail and identify the forces and agents of rights change over time.
86 Chapter 6 Results: Aboriginal Tasmanians' expressions of rights and rights change over time
Introduction In Chapter 3 I explained how people’s actions might be viewed as rights claims, even when we do not have primary accounts of the exact statements that were made, if those actions are recognisable as a desire for some form of capability. This means that even without being able to interrogate people directly, I can examine Tasmania’s history and identify any actions taken by Tasmanian Aboriginal people that can be construed as rights claims. A scarcity of first-hand accounts from Aboriginal people in Tasmania’s early colonial period from 1803 until the 1830s makes it difficult to pin down the exact content of Aboriginal claims during that time. Nonetheless, an examination of the information that is available does suggest some patterning in terms of people expressing ideas behind certain rights before those rights became established, which I also identify in later chapters. More information on what Tasmanian Aboriginal people actually said became available in the later nineteenth and twentieth centuries, so I am able to discuss the meaning of those claims in greater detail. In this first chapter of results, I examine how heritage and cultural identity were used for and against the emergence of the Tasmanian Aboriginal rights movement I described in the previous chapter. I identify that control of and access to Aboriginal cultural heritage is directly linked to the power to define who is Aboriginal, and therefore who should receive particular rights by virtue of that identity.
Early assertions of Indigenous rights before Indigenous rights As I explained in the Chapter 4, I do not purport to understand, in complete detail, the motivations behind actions without direct interrogation of the actors themselves. Nonetheless, by taking a capabilities approach to rights, I am moved to consider the possibility that actions can be viewed as defending some kind of socio-cultural norms. Rather than being unconsidered responses to the colonial presence, acts by Tasmanian Aboriginal peoples that affected settlers, such as revenge killings and the slaughter of livestock, as well as chants in English of “go away you white buggers”, were always “inherently political” assertions (Clements, 2014, p. 60), conceivably of how Tasmanian
87 Aboriginal people perceived their natural rights, couched in Aboriginal identity, including rights in land and bodily autonomy. As Clements (2014) admits, experiences and motivations from the Aboriginal point of view must be constructed out of the records of the White experience, so their precise context and intent is unknowable today. Despite being based in a non-Western framework, Tasmanian Aboriginal people’s resistance progressed whatever culturally-informed principles were behind them into ideas that began to be adopted among the section of Van Demonian civil society that was sympathetic to the Aboriginal cause. For instance, Ryan (2012) notes that newspaper editor Gilbert Robinson implored Lieutenant-Governor Arthur to recognise the Aboriginal Tasmanians’ “ideas of their natural rights which would astonish most of our European statesmen”, and Clements (2014) also makes mention of how the treatment of the Aboriginal people began to divide the “pragmatic frontiersmen and humanitarian townsfolk”. Today, in light of the existence of human rights, it is easier to see these acts of resistance as assertions that Aboriginal people had a right to protect their land from incursion, and themselves from abuse. This is worth noting because it raises the question of whether rights in heritage and relating to cultural identity were similarly ‘invisible’ before the codification of cultural rights in the UN system. I return to this idea in Chapter 10 in the context of archaeology’s engagement with Indigenous rights in Tasmania.
Aboriginal heritage and rights claims in the nineteenth century – controlling cultural identity At the conclusion of the ‘Black War’, the period of Aboriginal incarceration from 1835 until the closure of Oyster Cove in 1862 began (Aboriginal Heritage Tasmania, 2017b). During this period, the ways in which the actions by Tasmanian Aboriginal people represent rights claims comes into clearer view than in the earlier period of colonisation, because the Aboriginal incarceration provided a means of dialogue with the Europeans, thus Aboriginal people’s voices and actions were recorded in slightly more detail. It is therefore possible to see in greater clarity how cultural identity, heritage, and rights intersect through those actions.
Incarceration at Wybalenna precluded the people taken there from asserting their claims under their traditional systems of law or continuing to mount an armed resistance.
88 Nevertheless, although forbidden by Robinson, people maintained their cultural practices of collecting ochre, hunting kangaroo, and speaking in their native languages while at the mission, and adapted elements of these actions where necessary, such as continuing the practice of bodily incision with glass instead of stone (Ryan, 2012, pp. 227-234). As with the earlier examples, the recording of these actions does not have the actors making explicit rights claims per se. However taken in the context of incarceration, they are recognisable as the new tools of resistance, and therefore represent rights claims, as they can similarly be viewed as representative of a desire to enjoy the capability to undertake traditional cultural practices and maintain a distinct cultural identity. Such resistance was effective, as the people in incarceration ensured a Tasmanian Aboriginal cultural identity survived. This allowed them to make more explicit claims to their perceived rights by adopting the discourse of the British legal system throughout the mid to late nineteenth century, which by that time had begun to consider rights afforded by virtue of Indigeneity. For instance, in 1846, in an act that placed them among “Australia’s first Indigenous activists” (Marks, 2018, p. 157), eight people on Flinders Island wrote a petition to the then monarch Queen Victoria with a reminder that Robinson had promised they could live freely and on the colony’s account, rather than as slaves to the Island’s Commandant. Ryan (2012) argues that the petition reflected a “sophisticated understanding of their legal rights”, in this case that they viewed the rations and lodging the government provided as compensation for ceding their traditional land. Robinson’s promise may not have had any legal weight, as Ryan implies (Reynolds 1995 also made this case), because it is unclear whether the agreement he made was ever accepted by the Colonial Government (Mansell, 1995). Nonetheless, the petition is both an assertion that the people on Flinders Island were aware of their rights under the British system, and a continued assertion of their rights under their own paradigm that protected them from unpaid servitude.
The 1846 petition was speaking to a change in international views on Indigenous rights taking on a character that is more familiar to today’s rights climate. At that time, changing attitudes in Europe towards viewing colonists as the protectors and guardians of Indigenous peoples, particularly as a means of protecting them from further abuse as a result of colonisation (Mazel, 2009, p. 141), saw the Colonial Government in Van Diemen's Land
89 exposed to a point on which it could be “named and shamed” (Clark, 2013). The remaining people at Oyster Cove may have already made British sovereignty an awkward issue, and they were a living reminder that the government’s prior actions conflicted with emerging concepts of Indigenous rights. The poor conditions at Oyster Cove might therefore have been one way of allowing the Colonial Government to avoid an obligation to protect Indigenous people from harm, while retaining the pretence of ‘protector’ of the Aborigines. For instance, Ryan (2012) records how the death rate at Oyster Cove was framed as a result of the inmates’ own laziness and immorality, and therefore required no recourse from the government.
Yet as the century progressed, Islander claims to their Aboriginality presented a clear obstruction of this agenda by maintaining an Aboriginal presence within the government’s jurisdiction. In the context of these international expectations on the Colonial Government, an interesting pattern emerges: cultural identity becomes the point of contention. In effect, the contest over Indigenous rights in Tasmania began to be fought not over the rights that Tasmanian Aboriginal people claimed, but over the legitimacy of the cultural identity of the people making those claims. In 1850, when the people at Wybalenna were finally moved back to the mainland, they made a request to the Colonial Government for monies to be taken from the Land Fund which maintained Oyster Cove to pay the salary of a school missionary. Their request was refused by the Lieutenant-Governor on the basis that they were not eligible beneficiaries of the ‘Aboriginal’ fund that was reserved for ‘full blood’ people such as Truganini (LaVaque-Manty, 1999, p. 69; Ryan, 2012, p. 69). As Larson et al. (2008) contend, “domestic political actors must recognise the category of actor in order for … principled claims to be compelling”. Whether the denial of Islander Aboriginality was conscious or not, it demonstrates how Indigenous rights claims may be accepted in principle, but not actually delivered if the identity of the claimant as a rights-holder can be denied by the state or other key actor. This is a phenomenon that occurs later in Tasmania’s history, and one to which I will return in Chapter 10 in relation to archaeology.
In the Bass Strait, the use of cultural identity, and the maintenance of cultural practices as the basis for rights claims continued. In 1871, Islanders claimed that they should be afforded
90 some form of preferential or exclusive use of the resource when muttonbird rookeries began to be over-exploited by hunters from the mainland (Cove, 1995, p. 77). As Ryan asserts, “they wanted exclusive rights to mutton-birding on Chapel Island and that, by virtue of their Aboriginality, Cape Barren Island should be granted to them to serve as the focal point of their life and identity” (Ryan, 2012, p. 281 my emphasis), pointing to a reciprocity between claims to practical rights based on cultural identity, and claims to identity itself. Despite its earlier resistance to acknowledging Tasmanian Aboriginality, the newly- independent Colonial Government did make a circuitous concession to the 1871 request relating to the muttonbird rookeries by way of granting leases under the Game Preservation and Waste Lands Acts (1870). Although the leases fell short of a true land handover, Ryan (2012) asserts that this move was instead construed by many non-Indigenous Tasmanians as a “dangerous recognition of Islander rights”, giving rise to the sentiment among Islanders that the designation of the reserves was in fact a compensatory act by the government for the loss of their ancestral lands on mainland Tasmania. Perhaps the government viewed the Acts as ‘cheap’ concessions (Risse & Sikkink, 1999, p. 27), and was truly unaware of their future implications, but the way culture works as ‘collective memory’, as I described in Chapter 2, is made clear here. How that cultural memory contains a right within it, in this case over land and resources, is also revealed when, upon the expiry of the reserves a century later, Islanders would refer to their continued access to the rookeries as proof of their ongoing Aboriginality, and have used this as the basis for resisting pressure from the Colonial Government to assimilate into mainland society during the twentieth century (Ryan, 2012, p. 305). Whatever the cause, the Colonial Government would not have been able to be pressured in this way had the Islanders not retained their sense of cultural identity through acts such as muttonbirding, further illustrating the co-constitutive nature of culture and rights claims.
Heritage and rights in the twentieth century As I explained in the previous chapter, throughout the twentieth century, the primary tactic taken by the TAC was to maximise exposure of the Aboriginal cause and to highlight the resistance it encountered from White society (Ryan, 2012, p. 263). During the fight over Truganini’s remains, drafting of the State’s Aboriginal heritage legislation (the Aboriginal
91 Relics Act 1975) also began. The Tasmanian Government managed to show its acceptance, outwardly, of the principle that Aboriginal cultural heritage had significance, but to deny Tasmanian Aboriginal people any rights to that cultural heritage (and dually to continue to deny their status as Aboriginal people), by including a ‘cut-off’ date of 1876 (the date Truganini died) for material covered by the Act. This had the same effect as the denial of Islander ancestry, in that it implied that ‘Aboriginal’ had ceased to exist as a legal category of rights-holder after Truganini’s death. By also classifying heritage as something only related to the past and without links to currently living people, it cemented non-Aboriginal ownership of Aboriginal cultural heritage for the purpose of ‘pastoral care’ by state- approved experts (cf Smith, 2006, p. 17). The wording of the Aboriginal Relics Act 1975 could have presented a coup for the Tasmanian Government in the fight over Indigenous rights in the State, but the TAC responded in 1977 by stating that its explicit objective was to control the spaces and objects which had been used to define or deny Tasmanian Aboriginal identity, specifically seeking the return of Cape Barren Island, “all sacred sites around Tasmania”, and islands where muttonbirding took place (see Ryan, 2012 #315). The TAC’s campaign was successful in securing the return of ancestral remains from Europe (Ryan, 2012, pp. 320-321). The political momentum that the TAC gained in the 1970s effectively overrode the implications of the Relics Act; the TAC’s fight for Indigenous rights had been won through its use of culture and cultural heritage.
The move in the Tasmanian Government in the late 1980s towards a dialogue on Aboriginal land rights may be partly in response to a shift to a Labor14-Green coalition in Tasmania at that time (Cove, 1995, p. 126). However, although the State then was willing to negotiate on land rights, it would not be until 1995, and the return of a new conservative government, that legislation would finally be enacted (see Ryan, 2012, pp. 331-339). The impetus for the introduction of Indigenous rights norms into Tasmanian law during the 1990s is directly linked to Tasmanian Aboriginal people’s assertion of principled ideas, often based in cultural identity, behind what would eventually become legal rights. For instance, before the Living Marine Resources Act 1995, which allows Aboriginal people to take marine plants and
14 The Australian Labor Party (ALP) is the major social democratic party in Australia.
92 animals for cultural purposes without restrictions such as size limits and licences, Aboriginal people had no choice but to fish illegally or discontinue their traditional cultural practices. Preferring the former, one informant told me,
They told me I had to have a licence to take abalone. I told them I was Aboriginal and it was my right, so I just took them. It cost me about fifteen thousand dollars in legal fees and fines, but now we have the Marine Resources Act (INT #01).
The point that has been demonstrated here is that claims made at the local level relating to cultural identity and the ownership of cultural heritage can be an important part of the process of change in the conditions Indigenous people experience in regard to their rights.
At the time of writing, the current Tasmanian Government’s initiatives in recognition of language, constitutional reform, heritage and land management, and school curricula are viewed by some Tasmanian Aboriginal as a genuine acknowledgement of their rights (Lee, 2019). A cynic may contend that such positive language is simply “cosmetic changes to pacify … criticism” (Risse & Sikkink, 1999, p. 25), symptomatic of a “government seeking to avoid the moral implications of the past” as it had previously (Lehman, 2003, p. 25). However, the results presented in this chapter suggest that such change can be a product of the often-intertwined claims to cultural identity, and explicit claims to rights that Indigenous people make.
Summary From this look back on Tasmania’s history through a rights lens, it is possible to discern that rights claims can be made outside known frameworks or discourses. As demonstrated in the beginning of this chapter, Tasmanian Aboriginal people expressed rights ‘ideas’ before those ideas became widely adopted in both international and domestic law. In the case where there is no common discourse between actors to understand rights claims, the actions and use of other means such as cultural heritage are highlighted. When actors share a language, and a proficiency in a particular discourse, they can make more direct claims to one another, as the people in detention on islands in Bass Strait did during the mid to late 1800s.
93 Nonetheless, the legitimacy of the claim, or the actor’s suitability to make that claim, may still be challenged.
Two other threads running throughout this chapter are the maintenance of cultural identity that underpinned people’s ability to assert rights claims, and the power of Indigenous actors to effect far-reaching rights change through local-level action. I resume discussion on these threads in greater connection to archaeology in Chapter 10. Before doing so, however, I must complement the examination of Tasmania’s history with consideration of how it has played out today, because Aboriginal identity claims have another dimension in contemporary Tasmania. The history I have described over the last two chapters has given rise to a series of continuing conflicts between Aboriginal people, and opposing contentions on the positivity of rights outcomes, which I discuss in the next two chapters.
94 Chapter 7 Background: Aboriginal representation in Tasmania today
Introduction This chapter and the one which follows carry the conversation begun in the previous two chapters forward from Tasmania’s history into the present. Whereas previously I examined the Indigenous/settler dynamic, here I discuss how the extinction narrative has influenced the relationships among people identifying as Tasmanian Aboriginal. As I mentioned in the introduction to the case study, contention now exists between people claiming this identity, with people of some lines of descent questioning the basis of emerging claims, and those do not benefit from written genealogical records. In this chapter, I provide the background to the current conflict, before I examine its outcomes in Chapter 8.
Expanding Tasmanian Aboriginality The 1990s in Tasmania saw claims of Aboriginal identity and rights which expanded beyond the lines of descent that were commonly accepted. In addition to a groundswell of claims to the established lines, claims emerged relating to Aboriginal ancestors who lived on the Tasmanian mainland as the servants and partners of Europeans. Marks (2013) notes that because these claims were often based on descent from a single ancestor, many relied on oral evidence rather than literary records of proof. For people from Islander families, this was seen as inventing a new way to be Aboriginal in Tasmania (Marks, 2013, pp. 183-184). A ‘crisis’ developed in 1990 in relation to the three-part Commonwealth test of Aboriginality, namely it’s tenet that self-identification and community recognition contribute equally to descent itself in the way people may identify as Aboriginal (Gardiner-Garden, 2003). The TAC had pressured the State Government to require the submission of documentary evidence of ancestry to nominate for Aboriginal and Torres Strait Islander Commission (ATSIC)15 and State bodies such as the Aboriginal Land Council of Tasmania (ALCT), and took 11 people to court over the matter (Ryan, 2012, pp. 340-341). The TAC also began to refuse people access to childcare and legal services, but after a series of cases the Federal Court
15 A now defunct (1990-2005) Australian Government body set up as a means to formally involve Indigenous Australians in government processes which affected their lives.
95 found that self-identification and community recognition can contribute to establishing descent (Australian Law Reform Commission, 2003, p. 914), particularly in the case of Tasmania (Connell, 1998). This arrangement meant that community organisations asserting themselves as Tasmanian Aboriginal were possibly eligible to register with the Commonwealth Office of the Registrar of Indigenous Corporations (ORIC), and receive Federal funding to provide services to clients, including those who did not have the endorsement of the State Government or the TAC. As a consequence, over the following decades many Federally eligible organisations did just this. Eventually an ATSIC commissioner was refused an Aboriginal fishing license on the basis that they could not satisfy the State criteria for Aboriginality (Denholm, 2008) and the argument again went to court. As of 2020, there were 26 Aboriginal corporations registered with ORIC in Tasmania, all offering a range of community services to people who identify as Tasmanian Aboriginal in a variety of ways, including some ways not recognised by people associated with other corporations (Office of the Registrar of Indigenous Corporations, n.d.).
One organisation in this list is the Circular Head Aboriginal Corporation, or CHAC, which was formed in 1994. The corporation has maintained a position inclusive of people who followed other lines of descent than the norm, and avoided imposing as rigid a requirement of proof of ancestry to access its services as does the TAC (Marks, 2013, p. 187). CHAC has grown into a major community organisation, and with Federal funding it provides numerous health care, social, and justice-related services in the otherwise under-resourced north-west region of Tasmania (Circular Head Aboriginal Corporation, 2014). The organisation is involved in a number of cultural heritage-related projects and thus forms an integral part of the results in the next chapter.
In 2015, several regional Aboriginal corporations amalgamated into the Tasmanian Regional Aboriginal Corporations Alliance (TRACA), which now includes: melythina tiakana warrana Aboriginal Corporation (mtwAC) in the north-east; the South East Tasmania Aboriginal Corporation (SETAC) in the D'Entrecasteaux Channel and Huon areas; the Flinders Island Aboriginal Association (FIAAI), representing people now living in the Bass Strait Islands, primarily those descended from Islander lines; parrdarrama pungenna Aboriginal
96 Corporation (ppAC) from the Tasman Peninsula; Six Rivers Aboriginal Corporation (SRAC) from the north coast between the Mersey and Leven rivers; weetapoona Aboriginal Corporation (wAC) from Bruny Island; and the aforementioned Circular Head Aboriginal Corporation (CHAC) based in Smithton in the north-west (Figure 4).
TRACA thus represents a cross-section of people from often mixed ancestral lines. However, TRACA’s main difference from the established model of representation is that it is based on regional affiliations, as opposed to the state-wide model assumed by the TAC. Dissent among members of the TAC and the wider community is not new, as communities on Flinders and Cape Barren Islands positioned themselves as separate from the AIC as early as 1975 (Daniels, 1995, p. 62), but TRACA’s stated purpose makes the distinction explicit. TRACA co-chairs stated that “a line was drawn in the sand on August 13, 2015, when TRACA was formed in response to the continued mantra that the TAC was the only voice to speak for all Tasmanian Aboriginal people” (Cameron & Dillon, 2016). Today, although the TAC is still the largest Aboriginal corporation in Tasmania (Office of the Registrar of Indigenous Corporations, n.d.), its monopoly over Aboriginal affairs is being consciously eroded by the State. As I explained earlier, Tasmanian Aboriginal affairs were originally governed by people who could meet the TAC-endorsed test for Aboriginality. Consequently, the provision of Aboriginal services, including health and legal services as well as cultural heritage management, defaulted to either the TAC or to a body affiliated with the TAC. For instance, in the 1990s, the Tasmanian Aboriginal Land Council (TALC) formed as an offshoot from the TAC, specifically to preside over land and heritage, including the administration of community consultation for heritage assessments.
At that time the Aboriginal Heritage Council (AHC) that advised the State Government on matters relating to Aboriginal heritage, including the management of the TWWHA, included people affiliated with the TAC. With the ‘reset the relationship’ campaign, the State Government made changes to the Aboriginal Heritage Council’s functions as part of the reform of the Aboriginal Heritage Act 1975. The amendments saw the AHC remade into a statutory body and its advisory role concerning Aboriginal cultural heritage expanded (Premier of Tasmania, 2017a).
97 Figure 4 TRACA organisations and their representative regions. (Adapted from TRACA response to Aboriginal Dual Naming Review December 2017).
With this shift in status, the Tasmanian Premier called for a re-nomination for Council members, and when the newly elected Chair was a TRACA member, the previous Chair, along with two other members of the former council, stepped down from their reappointed positions (Shine, 2017b). The changes to the AHC followed the State Government’s re- tendering pf the TAC’s contract to run the legal service (the Tasmanian Aboriginal Community Legal Service, TACLS) in 2015, on the basis of complaints from people turned
98 away by the service for not meeting the TAC’s narrow definition of Aboriginality (ABC News, 2015a). Instead the contract was awarded to the Victoria Legal Aid Service (Crawley, 2015). As the TAC relinquished control of its former functions, relationships between TRACA and the government thrived. The two new partners agreed on a ‘statement of intent’ that is aimed at facilitating “enriched cultural, social, economic and political participation by member organisations and the families and communities they represent” and providing “better pathways for participation by Aboriginal people in decision-making and policy development processes” (Premier of Tasmania, 2017b). Thus TRACA’s model of representation has been not only endorsed, but has also underpinned funding to TRACA organisations to cover their operational costs (Willard, 2017). While the Aboriginal Land Council of Tasmania (ALCT), the statutory body established under the Aboriginal Lands Act 1995 to administer the return of Aboriginal land, is still primarily aligned to the TAC position, the Premier contends that the joint statement’s aim of “better integrating [TRACA] in our government agencies” signals changes to the way Aboriginal lands are managed in Tasmania, beginning with the review of the hand-back process under the Aboriginal Lands Act 1995 (Department of Communities, 2019). The crucial point this shift raises is how we might assess the positivity of actions by the state and other external actors on Indigenous rights where there is disagreement within a community in relation to the outcomes those actions have. I return to this point in the following results chapters.
The percentage of people identifying as Aboriginal in Tasmania rose in the 2016 census (ABC News, 2017). The TAC’s response was that this would be reflected in abuses of the welfare system, and an undermining of the authenticity of Tasmanian Aboriginality. The TAC Chief Executive, Heather Sculthorpe, said in response to these changes that “we're going to be the laughing stock of the country” (Hunt, 2016). Although the public’s regard for Tasmanian Aboriginality has not been quantified, TRACA’s legitimacy has been established as a voice for Tasmanian Aboriginal people (e.g. Burden, 2017). In terms of access to services, the number of people accessing the Tasmanian Aboriginal Community Legal Service (TACLS) in the year following the policy change is estimated to have doubled, and the number of people accessing State Government-funded Aboriginal services increased by approximately 30%, although this followed a roughly 15% decrease the previous year (Shine, 2017a).
99 Summary In this chapter I outlined the genesis of the disagreement between organisations on Aboriginal representation. I explained how it runs much deeper than organisational affiliation, being rooted in the more serious matter of cultural identity. This raises the issue that supporting or advocating the rights of a group of people is not always a matter of relations between the state and its citizens. Nor is conflict that leverages rights language only ever separated along Indigenous and non-Indigenous/settler society lines. In the next chapter, I examine how the current division over Tasmanian Aboriginality is enacted through competing claims over cultural heritage and landscapes, which brings the matter closer to the practice of archaeology.
100 Chapter 8 Results: The current conflict over Tasmanian Aboriginal heritage, land, and identity
Introduction In this chapter, I examine how cultural heritage has become contested owing to its use as a means through which people assert their cultural identity, much as it was in earlier times, as outlined in Chapter 6. The difference here is that the contestation occurs between groups of people who all claim Indigeneity. As I show here, people’s interactions with cultural heritage and expressions of their connection to the landscape all match what we might recognise as clear assertions of cultural rights. Yet not all these actions are viewed as legitimate by all the people who claim the same cultural identity. This brings into question the feasibility of archaeologists adopting a commitment to Indigenous rights, when precisely who is Indigenous is a matter of perspective.
Observations of assertions of Aboriginality Even a superficial analysis of the actions of TRACA groups refute the inference that people do not take their claims to Aboriginality seriously, or that such claims are purely instrumental. For instance, since 2015, the melythina tiakana warrana Aboriginal Corporation (mtwAC) has hosted ‘Mannalargenna Day’, a celebration of traditional food, dancing, cultural practices, and Aboriginal identity at the Tebrakunna Visitor Centre on the Mussleroe wind farm in Tasmania’s far north-east. The event has grown over successive years, attracting local Members of Parliament, Indigenous authors, and the Governor of Tasmania as its patron (Shine, 2016). From my observations, the event is a positive and inclusive celebration of Tasmanian Aboriginal culture (Figure 5). This appears to be the reaction from Indigenous and non-Indigenous people with whom I spoke at the event in 2016 and 2017. More importantly, for many Tasmanian Aboriginal people, it is a rare opportunity for them to enjoy cultural rights, such as active participation “in the cultural life of the community” as per the UDHR (Attorney-General’s Department, n.d.), and a chance to learn about and strengthen their own sense of personal and community identity. mtwAC advised me that attendance is open to anyone, both Indigenous and non-Indigenous.
101 Figure 5 Abalone, Muttonbird and Warreners for lunch at Mannalargenna Day in 2017. (Photo: S. Piotrowski).
On the west coast, Circular Head Aboriginal Corporation (CHAC) manages its own initiatives regarding cultural (re)connection. Through a federally-funded cultural capability activity, it conducts field trips for members to various locations along the west coast. As a participant noted at one point: “some of these people have never been out here, they want to see these sites” (INT #02). People with whom I spoke expressed a sense that they had not had a means of expressing their Aboriginal identity until that time, despite being aware of their Aboriginal ancestry. CHAC’s growth from a community service organisation into one that engages with cultural heritage appears to be one way of enabling cultural revitalisation, but the process remains exploratory and co-constitutive between members and the organisation itself (INT #02). Nonetheless, heritage is not divorced from the work CHAC
102 already carries out in relation to economic and cultural advancement for the community. For instance, the organisation owns a small parcel of land in Smithton called Trawmanna. It is used as a community meeting place, contains a community garden, and is the site of several other programs (Indigenous Land and Sea Corporation, n.d.). The corporation also grows a small plot of Tasmanian mountain pepper (Tasmannia lanceolata) trees, which are increasing in popularity in modern Australian cuisine for their unique flavour and nutritional qualities (SBS, 2018). The trees represent both a promising commercial enterprise and a means of connecting to culture through traditional foods. In a similar fashion, community field trips concluded with a visit to the kelp drying facility. Kelp, a form of seaweed, is well known as having been a key resource for Aboriginal people in the past (Aboriginal Heritage Tasmania, 2017a), and although the company processes the seaweed primarily for use as fertiliser, it is the continued use of the resource by Aboriginal people that is viewed as a cultural act.
In the D’Entrecasteaux Channel area, South East Tasmania Aboriginal Corporation (SETAC) has a similar role to CHAC, running community services such as a health service, and is considering an expansion into the heritage sphere. Community members there advised me that expansion in this field could initially entail involvement in Aboriginal heritage assessments, then as an extension, help the local Aboriginal community learn about and physically connect with heritage sites in the area. However, a lack of access to information on heritage sites hinders this project. Aboriginal Heritage Tasmania (AHT) holds site files and heritage assessment reports on the Aboriginal Heritage Register (AHR) database, similar to other states’ systems (Aboriginal Heritage Tasmania, 2018). Any person may request information from the AHT, but few people with whom I spoke are familiar with this process. Another confounding factor is that much of the information held by the AHT is incomplete, particularly for pre-digital survey reports and site record cards. For a time in the 1990s, Tasmanian Aboriginal Land and Sea Council (TALSC) managed the bulk of heritage assessments, and retained all material produced through that process. When TALSC closed, those materials were transferred to the TAC. Often, reports appear on the AHR, but there are no digital copies in the AHT archives. Investigations into the database gaps usually reveal that a physical copy is held by the TAC, but gaining access to such material is effectively
103 impossible for personae non grata with that organisation. This gives rise to the attitude that “The TAC controls the heritage still” (INT #01), and for most practical intents, that is true.
In relation to Aboriginal heritage assessments, where heritage places are recorded and managed, decisions about which members of the community can be invited to participate are made at the discretion of an Aboriginal Heritage Officer (AHO) or archaeologist commissioned for the work. Such archaeologists and AHOs tend to find themselves working on either side of the TAC/TRACA divide, either by conscious choice, or by finding that “certain sections of the community don’t talk to [them] anymore” (INT #03). Because a development proponent, who pays for the work, engages the archaeologist/AHO, the section of the community that ultimately speaks for a place and, importantly, controls what information can make its way into a Minister’s decision-making purview, is beyond the control of the Aboriginal community. Although community consultation cannot veto a heritage assessment, community members can make comments in relation to their preferred management strategies. This may include, for instance, submitting that the Minister not grant a permit to move or disturb cultural material. Although there is no process to appeal decisions made by the AHT and the Minister in relation to heritage assessment reports, at the time of writing there appeared to be significant potential for criticism of heritage assessments to be reason for conflict between the organisations.
The common theme among statements from the regional organisations is a desire for them to gain status as the local representatives on Aboriginal affairs, especially in relation to heritage management. TRACA has made clear its position that these organisations each represent a specific region, and the TWWHA envelops the interests of all of the organisations (Department of Premier and Cabinet, n.d.-b) (Figure 4 in Chapter 7). TRACA organisations, defined by their respective regions, challenge the TAC’s position as the sole representative body for all Aboriginal heritage, irrespective of where it is in the State. Previously, little distinction was made with regard to the lands over which people could assert a connection to cultural heritage, and Aboriginal ancestry affirmed through the TAC implied a right for people to act as custodians over all lands and heritage, sometimes as a
104 means of continuing the legacy of groups with no surviving descendants. As the TAC Chief Executive explained:
Unlike many, but not all, areas on mainland Australia, the Traditional Owners of Country have long been removed by force from the lands they traditionally owned and the course of history has ensured that attachments and relationships have taken on broader significance with community-wide connections extending through the State … All Tasmanian Aboriginal people have a right of traditional ownership to all lands in Tasmania (Sculthorpe, 2016).
The West Coast and the right to define and control Aboriginal heritage The conflict between the TAC and TRACA over the Aboriginal landscape is most obvious in the two parties’ contention over the management of the Arthur Pieman Conservation Area (APCA, Figure 6). On the west coast of Tasmania, events originating around 2012 have been especially demonstrative of the role of heritage in disagreements over Aboriginality and representation.
Following a complaint that four-wheel-drive and other off-road vehicles were impacting Aboriginal sites in the APCA, the Tasmania Parks and Wildlife Service (PWS) closed several access tracks. This resulted in public protest, particularly from shack owners and four-wheel- drive enthusiasts in the north-west (Bryan, 2012). A change in State Government saw an order to re-open the tracks in 2014, to which the TAC responded by applying for an injunction from the Federal Court on the basis that reopening the tracks was a Federally- controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act)16 because it affected Aboriginal heritage on the National Heritage List (ABC News, 2014). During the period that the injunction was in effect, the State Government devised a proposal to reopen the tracks with some management measures including the placement of rubber matting over Aboriginal midden sites where tracks could not be re- routed (Wahlquist, 2017). The Federal Court ruled in favour of the TAC, confirming that the proposed action should be referred for review under the EPBC Act (Tasmanian Aboriginal Centre Incorporated V Secretary, Department of Primary Industries, Parks, Water and
16 Australia’s main piece of environmental legislation.
105 Environment (No 2) [2016] Fca 168, 2016). Since then, the TAC has partnered with the Tasmanian branch of The Wilderness Society to manage the area by collecting rubbish and recording Aboriginal sites, and thereby re-connecting with Country and spreading awareness about the Aboriginal cultural landscape (The Wilderness Society, 2017). When the State Government opened a tender for a consultant to provide a Public Environmental Report (PER) to meet the requirements of the EPBC referral, the TWS claimed it would be an “indictment of their ethics and counter to the opinions of the Aboriginal community” to lodge a tender because it “runs counter to protecting Aboriginal heritage” (Bayley in McBey, 2018). Bayley did not make clear why an assessment would present such an indictment, but it can presumably be based on The Wilderness Society’s criticisms that the EPBC Act and its processes are ineffectual in achieving heritage protection (The Wilderness Society, 2020). As of 2020, a consultant was engaged and the findings of the PER are forthcoming.
APCA access has become a divisive issue for Tasmanian Aboriginal communities. CHAC openly stated its support for re-opening of the tracks, arguing that proper management could have alleviated vehicular impacts without Federal Court action, a position supported by TRACA (Cameron & Dillon, 2016). Many people associated with CHAC own shacks, and in many cases, use the four-wheel-drive tracks in the area. Some were even present at the protests over the closures of the tracks (INT #03). This is consistent with CHAC’s previous statements in favour of the public’s interests, on the basis that managed properly, Aboriginal heritage need not be a barrier to development and local employment. For instance, CHAC previously supported the development of a mine in the takayna/Tarkine despite TAC protests on the basis of its environmental impact (Circular Head Chronicle, 2013). Despite the TAC’s longstanding activity regarding the takayna/Tarkine, there is a perception among CHAC members that prior to the site disturbance and NHL listing, the TAC had little presence on the west coast other than in relation to a parcel of land named Preminghana, previously handed back under the Aboriginal Lands Act 1995. It was only Preminghana when they got that back in ’95. They only visit there. But as CHAC’s growing, and getting more services and doing more stuff, they’re trying to do more down this way (INT #03).
106 Figure 6 The west coast of Tasmania, with the Arthur Pieman Conservation Area (APCA) shaded.
107 The nearest TAC office is in Burnie, around 150Km away, although the TAC asserts that it has always had a presence in the area: Since the 1970s we have had branches in Burnie, Launceston and Hobart and have members in nearly every town in the State, including Smithton and Stanley [on the north-west coast; CHAC’s main office is in Smithton]. Our members have long connections with takayna and in recent years the TAC has taken over the role formerly done by the Tasmanian Aboriginal Land and Sea Council as managers of the Indigenous Protected Area of Preminghana (formerly known as Mount Cameron West) (Sculthorpe, 2016).
After the Preminghana hand-back, the site was reputedly kept closed for the exclusive use of people affiliated with the TAC: The TAC was the first organisation that started, so they think they’ve got the whole and sole role to Tasmania. In fact, if they had the whole and sole right to it, why aren’t they set up looking after communities instead of just Hobart, Launceston and Burnie? They haven’t reached out to the wider community. Now that other organisations have proven that it can be done, and communities can come together and reconcile and work together, they’re just not liking it, so they’re trying to damage people and their reputations just to get their own way (INT #03).
Former TAC CEO, Michael Mansell, however, refutes the contention that the public were ever denied access through Preminghana and argues that the proposed plan for the APCA accommodates public use under Aboriginal management (Holmes, 2019). The TWS would like to see the ALCT take over management of Preminghana through a hand-back of the National Heritage Listed area (Carlyon, 2016; The Wilderness Society, 2016). The current TAC CEO’s position is clear about who is recognised as Tasmanian Aboriginal: Surely all Tasmanian Aborigines have equal rights to access the land returned to them? As far as the North-West Coast is concerned, there are no living ancestors from that region, therefore there are no direct ancestral ties to that area. However, Aboriginal people [from elsewhere in Tasmania] have extremely strong ties to that area and these ties should be respected (Sculthorpe, 2016).
Nonetheless, people in the north west are eager to be actively involved in management and conservation, and improving the cultural information available to tourists and the public: To us as a community it’s about having the next generations being able to learn about Aboriginal history, go and visit it, go and read about it, go to the tracks, have fun, go camping, and do all that stuff. And people want to come in [to]
108 learn too and have fun, and that’s fair enough, but there’s got to be rules and regulations (INT #03).
The proposition is that this would support the preservation of the sites impacted by modern land use and be positive for promotion of Aboriginal interests in land generally: If we had the sites protected, had the story there, what it is and why it’s protected, people can drive past, stop, have a look, and be educated on their way there and have a bit more respect about the land. And what it means to all of us and what it’s there for (INT #03).
In terms of the public attitude toward Aboriginal heritage and the Aboriginal community, there is a sense that actions by the TAC, along with the court decision, have frustrated relationships with shack owners and four-wheel-drive users, as many people in the public may not see the distinction between the TAC and the broader Aboriginal population. There is a feeling that breaking down barriers between the Aboriginal community and the public was a long process of trust-building that was beginning to bear fruit, but which has been detrimentally affected by the TAC’s position: Everyone down this way, from when they locked up Preminghana, the community turned on anything Aboriginal. It just got their backs up, to think that anyone Aboriginal – that’s what they want to do, lock people out and all this. So we’ve gone around and discussed with locals and people down the west coast just so they know the truth, what we’re about
It’s getting people to trust us, to work together. People have worked a little with TAC in the past, on the understanding that there was going to be access to Preminghana, that people could visit, go to the beach, see the petroglyphs, all that. Well as soon as they've got it they've locked it up. So you can’t do that, and this is what people in the community are scared of. That we’re going to say that we’re on board with them and when we get stuff say no, no, no, we’re in control. We don’t want that. We want 100 percent what we’re doing to be in the best interests for both parties.
These groups just want to be the only ones; they don’t want to look into the future, they must have such hatred inside them, that they just aren’t willing to give an inch. When here we are, down here in a remote community where people are starting to say “let’s work together”. We are over this fighting for over 200 years, we’re sick of it. We just want to move forward and make this place so much better, create jobs, get people to come and see what we’ve got. But we can’t do it with the TAC because they just don’t want to move forward. They can be in Hobart and Launnie [Launceston] doing all their special stuff, but
109 while we’re sitting here getting left behind, not creating anything new (INT #03).
In the meantime, the matter has not progressed. For the TAC, it seems to fit well into the long-running narrative of its battle with government over the protection of Aboriginal heritage. The TAC has since released a video entitled ‘takayna niparana/faces of takayna’, which is spoken entirely in palawa kani. The video states that “Tasmania’s Premier talked reconciliation, but he does not walk it. He wants to cover our heritage with rubber mats, to drive over it for fun”. The same message is employed by engaged sections of the non- Aboriginal public, which tend to flatten the issue into one of a government driven by economic and political gain threatening to “undermine reconciliation” through its actions, which are supported by the unsympathetic non-Indigenous public (Beavis, 2017; The Mercury, 2016). However, the reality of the situation is not as simple as statements such as this suggest. As an example, in 2018, two men claiming Aboriginality were fined for driving All-Terrain Vehicles on tracks in the APCA after TWS staff witnessed and reported them to the police (Zwarts, 2018).
The contest over Aboriginal heritage on the west coast also extends beyond the conservation of cultural material and into the conceptualisation of the landscape itself. As of 2012, the Tasmanian Government has maintained an Aboriginal Dual Naming Policy for place names throughout the State. Dictated by the policy, consultation between the Nomenclature Board17 and the Aboriginal community has occurred exclusively through the TAC (Department of Premier and Cabinet, n.d.-c). The TAC has managed the palawa kani Language Program since the early 1990s (Tasmanian Aboriginal Centre, n.d.). Thirteen places in the State have been assigned palawa kani names. At present, the TAC has proposed 11 new names, nine of which are in the north-west (Shine (2017d). Accordingly, TRACA raised the concern that CHAC was not involved in the process of arriving at those new names, to which the TAC Chief Executive responded by saying that this was a “purely political ploy to undermine the reconstruction of Aboriginal language and to give credibility
17 Replaced by the Place Names Advisory Panel since the Place Names Act 2020 was introduced on 1 July, 2020.
110 to non-existent Aboriginal languages” (Shine, 2017b). The State Government recently announced a review of the Dual Naming Policy, which would see consultation expanded beyond the TAC (Department of Premier and Cabinet, n.d.-c), which may allow proposed names to be challenged formally. The TAC rejects this position, arguing that palawa kani is the most rigorous reconstruction of Tasmanian Aboriginal languages, and the ‘only’ Tasmanian Aboriginal language. A common refrain is “there are no traditional languages spoken in Tasmania today” (Reynolds in Maloney, 2012), which implies a lack of legitimacy for any words or place names that organisations such as CHAC may put forward. Regional groups such as CHAC do not take issue with the act of place name reconstruction per se, although they do reject some TAC-proposed names based on their own linguistic information and tradition (INT #04). For the most part, rejection of the TAC’s proposed names seems to be based on the fact that none of the regional constituents was involved in the reconstruction process, and that, because the names are palawa kani, no local peoples “have permission to use” the proposed words (Baldock in Kelly, 2019). TRACA rejected the assertion that palawa kani should be the only means of determining place names, citing that “true self-determination is about local people in local areas speaking the language of that area” (Dillon in Tasmanian Regional Aboriginal Communities Alliance, 2019).
Summary This chapter demonstrates that cultural heritage still forms an important core of rights claims in Tasmania, but instead of always being made against the State, contrasting rights claims are increasingly being made among people who assert their indigeneity. This adds a difficult dimension to archaeology’s engagement with Indigenous rights. The question arises as to whether a situation such as that I described on the west coast represents the continued dispossession of Indigenous people from their lands and heritage, or an opportunity for marginalised groups to explore and enjoy their cultural rights, depends on one’s perspective. I resume consideration of this same question in the final results chapter on Indigenous views of wilderness ideology. However, before doing so, I consider archaeology’s role in perpetuating the situations I have described over the preceding four chapters.
111 Chapter 9 Background: Archaeology’s role in the extinction narrative
Introduction As I demonstrated in the preceding results chapter, the narrative of Tasmanian Aboriginal extinction informed how the Tasmanian Government viewed the rights of Tasmanian Aboriginal people. In the next two chapters, I examine the role archaeology has played in those events. In the present chapter I show that archaeology has been pervasive in informing popular views toward both the Tasmanian landscape and the Indigenous people who inhabit it. From the foundation of the discipline, archaeology maintained a desire to explore Tasmanian Aboriginal material culture as a unique relic of deep human history. On the surface, this is commensurate with the discipline’s primary interest in the human past. However, the stories that have been told from this research have, until recently, been acutely damaging to the Tasmanian Aboriginal rights movement, because they contained within them the notion that those people were extinct.
The science of extinction The genesis of the extinction narrative arguably lies in the production of scientific knowledge, and later, its privileging over the claims of Indigenous people. In 1850s Tasmania, practitioners of the emergent discipline of physical anthropology, while seeking to make scientific observations on Tasmanian Aboriginal material culture, facilitated narratives of Tasmanian Aboriginal primitiveness and extinction. Anderson and Perrin (2007) describe how European scientists’ fascination with the exoticness of the Australian continent’s land, environment, and people informed constructions of race based on observations of the apparent similarities between Indigenous material cultures and physiologies to the peoples of prehistoric Europe. Among these, Edward Burnett Tylor, often viewed as the founder of evolutionary anthropology (Stocking, 1995) sought through the analysis of a particular Tasmanian stone tool, to find “the representative beginning to human cultural evolution” (Taylor, 2016, p. 338). Based on such observations, Tasmanian Aboriginal people were typecast as those who had somehow failed to follow through the same process of cultural development that Europeans had (Anderson & Perrin, 2007, p. 18),
112 remaining as a ‘living fossil’ existing in isolation in “the lowest place in the gradatory scale of the human species” (Wentworth in Ryan, 2012, p. 77).
More problematic than the nature of the comments themselves was the cultural and political ‘work’ (Smith, 1999, 2006) done by these constructions of race and culture. This is most clearly exemplified through constructions such as those used in contextualising the nineteenth century relationship between Indigenous peoples and European colonisers. What was viewed by early anthropology as a simpler culture and technological repertoire than that of contemporary European culture underpinned the argument that Indigenous peoples were “descending to the grave”, and so were naturally destined to be replaced by the ‘new’ races (Bonwick 1887:207,210 in Anderson & Perrin, 2007, p. 21 see also Jones 1977).
Not long after Tylor’s work, Henry Ling Roth, who was instrumental in the founding of Australian anthropology (McDougall, 2007), maintained a strong interest in determining the point at which the Tasmanian Aboriginal “race … ceased to exist” (Roth, 1899; Taylor, 2016). While Taylor (2016, p. 339) argues that Roth’s interest in Tasmanian Aboriginality was not intentionally tied to the colonial project, the persistent idea of extinction informed Australian anthropology into the twentieth century, and speaking from its privileged position, it informed government policy relating to Tasmanian Aboriginal people. In the 1930s, the anthropologist Elkin advocated Indigenous rights, and endorsed government actions toward the protection of Aboriginal people and their distinct culture (Cove, 1995, pp. 87-94). However, he excluded Tasmanian Aboriginal people from this consideration. As an example of Elkin’s attitude, his biographer, Wise (1985, pp. 213-214) records that Elkin advised the Tasmanian Museum and Art Gallery (TMAG) that the repatriation of Truganini’s remains was at best tokenistic, saying that “I cannot see that any indignity is meted out to the extinct Tasmanians by keeping the skeleton of their last survivor in a museum vault”.
The influence that highly-regarded anthropologists such as Elkin exert on government policy in relation to human rights can be readily observed in other Tasmanian examples. LaVaque- Manty (1999, pp. 70-71), for example, points out that is was anthropological research that
113 informed the Tasmanian Government’s offer to Islanders that they could assimilate into White society as their only option of realising their basic human rights. Anderson (1997) agrees, noting how Elkin’s work influenced the construction of the ‘hybrid’ in the colonial understanding of race, which greatly informed assimilation policies aimed at reducing the possibility of a resurgent Indigenous presence in Australia by converting the ‘hybrid’ to White. The ‘hybridisation’ of Islander identity meant that their resistance to assimilation placed them into ‘legal limbo’, and rendered them in some ways stateless (Ryan, 2012, pp. 296,305) and therefore bereft of protections both by and from the State. Anderson (1997) makes the personal observation that “it made me feel as if I was indeed without tradition or culture”. Anderson’s statement is similar to the recollection of one research participant I interviewed this during my honours research who grew up on Flinders Island during the 1960s: I grew up not knowing my identity, where they [the younger generation] grew up denying their identity. See I didn't even have that chance to deny. I didn't know I was Aboriginal until I got to high school. I kept being told I was Aboriginal. I used to always get it said to me. I had really long hair you could sit on, and they used to say "you should have hair that's short and curly” and I used to say “well why?” I didn't know. All these kind of things (Piotrowski, 2010, p. 36).
Taylor (2016) suggests that the nineteenth century constructions of Tasmanian Aboriginal culture as both ‘primitive’ and ‘extinct’ informed archaeology in Tasmania into the 1970s. Another founder in the field of Australian archaeology, Rhys Jones, carried out pioneering work in Tasmania throughout the 1970s. In his research, Jones proposed the idea of Aboriginal ‘fire stick farming’, or fire management of the environment (Taylor, 2014). The 1978 television documentary ‘The Last Tasmanian’ (Haydon & Jones, 1978) brought Jones’ work in Tasmania to the public’s attention. Jones argued that the lack of the adoption of the ‘Australian small tool tradition’, as well as an apparent elimination of scale fish from the late Holocene diet amongst Tasmanian Aboriginal people, although representing possible intense specialisation to the environmental conditions at one time, eventually led to a lack of options facilitating adaptability when climatic change later occurred (Jones, 1971, 1975, 1977). It was on this work that Jones made his most contentious statement, asking whether such simplification could infer a “squeezing of intellectuality”, whereby Tasmanian Aboriginal people became “doomed to a slow strangulation of the mind” (Jones, 1977, pp.
114 202-203). On the basis of this proposition, he also suggested that their decline resulted in Tasmanian Aboriginal people having lost the knowledge that allowed them to create fire (Jones, 1977). To state that Jones’ assertions had “a familiar Tylorian ring” (Murray, 1992, p. 738) is not unreasonable. In the same way as Tylor, Jones’ scientific observations created an image of a culture experiencing inexorable decline (Taylor, 2008a, p. 21).
In the context of the emergent Tasmanian Aboriginal rights movement I described earlier, the documentary’s title – ‘The Last Tasmanian’ – suggests an insensitivity to the rights and identity claims that were being made at the time by people such as Michael Mansell and the TAC. Confirming the suggestion Jones had raised, the filmmaker, Tom Haydon, called Mansell himself a ‘hybrid’ (Ryan, 2012, p. 316), making it clear that he shared Elkin’s attitude toward Islander descent. Statements of this nature appear to be the product of Haydon’s and Jones’ regard for Western science as the only form of legitimate knowledge creation in regard to the past, and this informs their portrayal of how cultural rights might be afforded to Tasmanian Aboriginal people at that time. For instance, the film describes the “swiftest and most complete genocide” in the world, and opens with the-then Tasmanian Premier D.A. Lowe opining that the return of Truganini’s remains would “right the wrong that was allowed to occur in 1878” [sic]. But while Tasmanian Aboriginal people are shown and interviewed in the film, they are always referred to as ‘Aboriginal descendants’. In effect, the message put forward by Jones and Haydon was supportive of Indigenous rights in the general sense, but suggested that, owing to the apparently immutable scientific ‘facts’ arrived at through objective observation, such rights did not apply to Tasmanian Aboriginal people.
Although their motivations may have differed, Jones and Haydon responded in the same way as had the Tasmanian Government in relation to Indigenous rights claims in the 1850s. Although they accepted the ‘idea’ of a right in principle, they rejected Tasmanian Aboriginal people’s status as claimants to that right. By resurrecting the binary around race and the concept of cultural ‘purity’, Jones’ assumptions excluded modern Tasmanian Aboriginal people from being recognised as Indigenous, so a denial of special rights for them might have appeared appropriate to him and to Haydon. However, ‘The Last Tasmanian’ is now an
115 example of how the privileged position of scientific knowledge and the assumptions it takes for granted, have detrimental effects on people’s ability to assert their cultural identity and enjoy cultural rights.
The social and political ‘work’ done by Jones’ statements was also similar to Tylor’s characterisation of Tasmanian Aboriginal culture as hopelessly backward, and had similar outcomes. As Taylor asserts, it was his “passionate and energetic prose that captured and then persuaded a wide audience into accepting as fact his argument” (Taylor, 2008a, p. 21). Although his assumptions were not without debate in the Australian archaeological community (e.g. Bowdler, 1980), this conversation occurred through academic journals, rather than as material designed for popular consumption, such as the film. As a result, the more easily digestible tropes of extinction and backwardness have persisted despite more accurate but nuanced and technical archaeological explanations of the past. The conception in the public mind that Truganini was “the last of the Aboriginal Tasmanians” continues to undermine indigeneity claims today, and therefore threatens Indigenous rights claims even now. A commonly-heard refrain in Tasmanian society is something similar to “it’s different [in Tasmania] from other parts of Australia where Aboriginals have lived on their own land for the entirety of White occupation” (Sawyer in Ross, 2015, p. 41). Speaking from an Aboriginal perspective, Everett (2006) recalls: On call-back radio we listened to the most racist remarks one would ever want to hear, being told that we had no rights other than what white people allowed us, and then only if they made us to be more like white people. We were caught on a see-saw: “we want you to be like us, but we don't want you”.
Tasmanian Aborigines are forced to maintain a political struggle which involves arguments concerning Aboriginality and rights inherent in this identity.
It is not only the public that consumes and reproduces archaeological knowledge. Academics from other disciplines can distil claims made by archaeologists without reference to the data on which those claims are based, nor with an appreciation of the debates that may have occurred around these claims. This occurred in the 1990s, for example, when the historian Windschuttle used Jones’ “slow strangulation of the mind” proposition in support of his argument that colonial rights violations on Tasmanian Aboriginal people were less
116 severe than indicated by the historical literature (Windschuttle, 2002, p. 386). Windschuttle’s account was refuted within Australian historical studies, but nonetheless gained widespread public traction (see Grieves, 2003; Parry, 2003a, 2003b, 2004). In effect, Windschuttle was simply using archaeological knowledge in the same way as Tylor had done a century earlier, albeit in Windschuttle’s case, that knowledge was already outdated. Nonetheless, the effect that this style of heritage-making had on public discourse and Indigenous rights was very much the same, in that it could be used to “offer… the consolation of a glorious, if largely fictitious, past to a nation in the midst of a painful present” (Davison, 2008, p. 34).
Summary In this chapter I explained archaeology’s role in not only perpetuating, but establishing the extinction narrative. Tylor and contemporaries, while making their early forays into what became archaeology, may not have considered or cared what the social outcomes of their statements might be. Yet even as archaeology developed a social conscience into the twentieth century, the ignorance remained the same. This is despite the presence of Indigenous people putting the lie to the work of Tylor, and, by the 1970s, openly and clearly refuting Jones’ assumptions about Tasmanian Aboriginal culture. That scientific claims will be shown to be false over time is a natural part of the scientific process. However, the latency to engage with contesting Indigenous views is of concern to me. In the next chapter I discuss how this hesitancy has influenced Australian archaeology’s interaction with Tasmanian Aboriginal people.
117 Chapter 10 Results: Australian archaeology’s experience with the Tasmanian Aboriginal rights movement
Introduction As I show in this chapter, the effects of archaeologists seeking to control Tasmanian Aboriginal cultural heritage, and the stories told about the past based on archaeological research, have bred a distrust of the discipline from Tasmanian Aboriginal people. As the Aboriginal rights movement in Tasmania grew, Tasmanian Aboriginal people increasingly made claims relating to how they wished to see their heritage handled. As I demonstrate below, practitioners of Australian archaeology have at times not fully recognised the intent behind Aboriginal claims to cultural heritage, and this has protracted the conflict. In addition, in making claims over their cultural heritage, Tasmanian Aboriginal people promoted ideas that have now become commonplace in heritage practice, as well as concepts that are now established as Indigenous rights principles.
Not ‘the last’ Mansell’s response to ‘The Last Tasmanian’ particularly criticised Jones’ presumption that archaeologists could define his Aboriginality (Ryan, 2012, p. 316), and therefore rights. Essentially this is a repetition of the patterns that existed one hundred years earlier, and which I discussed in Chapter 6. Cultural heritage is again the tool through which broader rights claims and claims to identity are expressed. The momentum that the Tasmanian Aboriginal rights movement had gathered by the late 1970s put it in a position to contest Australian archaeology’s assumed ownership of Aboriginal cultural heritage into the next decade. However, the fact that claims to Aboriginal cultural material were also claims to Aboriginal identity does not appear to have been appreciated by Australian archaeology at the time. As I explained in Chapter 2, Aboriginal activist Rosalind Langford’s 1983 paper was in effect a call for archaeologists to recognise Indigenous people’s rights relating to their heritage. For Australian archaeologists, the debate ostensibly revolved around the control and ‘ownership’ of the objects of archaeological interest. Although there was general agreement among members of the Australian Archaeological Association Inc. (AAA) that consultation with Aboriginal people (or their ‘descendants’) was a basic ethical
118 consideration, and that archaeologists should support Indigenous people’s rights claims (Allen, 1983, p. 7), there appeared to be little experience or expertise at that time in what a recognition of such claims might entail for archaeology. For instance, in response to Langford, during the excavation of the Franklin River sites, it was “arranged for an Aborigine to participate in this fieldwork”, and the dispensation was provided that “[archaeologists] have also agreed that the TAC can give Aboriginal names to the sites” (Allen, 1983, p. 9). There are a few points to note from this interaction. However, before continuing, I wish to state that this examination of past events is not intended as an indictment. Since the 1980s, the relationship between Aboriginal people and Australian archaeologists has grown in terms of the mutual understanding between the two communities (Murray, 2011). Nonetheless, a retrospective is useful because it allows me to demonstrate the link between archaeological practices and Indigenous rights.
Although acknowledging that Indigenous claims to cultural heritage may have set a new precedent in Australian archaeology at the time, Indigenous claims were filtered into a more palatable form. Through the modern lens of cultural rights, the allowances made for the Franklin River sites might now be read as token gestures, “expressed in assimilatory terms”, which “frame heritage audiences as passive receptors … who are ‘invited’ to ‘learn’, ‘share’ or ‘become educated’ about authorised heritage values and meanings” (Smith, 2006, p. 44). Archaeologists’ placing themselves in a position to dictate by whom and in what form a heritage right will be enjoyed reflects the authorisation of heritage discourse to which Smith refers. Langford’s calls to acknowledge Indigenous rights to heritage were also calls to practise heritage in a way that was meaningfully inclusive of Indigenous people. As well as helping us to understand how archaeological practice affects Indigenous rights, the concept of Indigenous cultural rights provides a reason to understand why Tasmanian Aboriginal people would make such claims to cultural heritage. The lack of such a frame of reference for Australian archaeology appeared to protract its conflict with the Tasmanian Aboriginal rights movement. For instance, in 1995 the Tasmanian Aboriginal Land Council (TALC)18
18 The non-statutory body set up alongside the Aboriginal Land Council of Tasmania to assist the Aboriginal Heritage Section of the Parks and Wildlife Service to manage Aboriginal heritage sites. Later this body became the Tasmanian Aboriginal Land and Sea Council (TASLC), and was then de-registered from ORIC in 2019 (Office of the Registrar of Indigenous Corporations, n.d.).
119 demanded the return of material excavated in the south-west of the State by archaeologists working from La Trobe University (Morell, 1995; Murray & Allen, 1995). The case set a new precedent, because the demands from Aboriginal people related purely to artefactual material and animal bones, which had hitherto not been the objects of repatriation contestation (Smith, 1999, p. 30). Eventually, TALC sought a Federal Court injunction, and was successful in securing the ‘forced repatriation’ (Murray & Allen, 1995) of the material to Tasmania.
In defence of their retaining the excavated material, Murray and Allen contended that “none of the sites were known to Tasmanian Aborigines before their excavation. The contents of these sites consist partly of garbage discarded by humans … no human bones or teeth, ornaments or art which might be considered sacred” (Murray & Allen, 1995, pp. 871- 872). By doing so, Murray and Allen were viewing and valuing material heritage through a Western, archaeological lens, and assigning that value to Traditional Owners. TALC correctly identified this to be an artificial delimitation of the kind of cultural heritage to which legitimate rights claims might be recognised (Tasmanian Aboriginal Land Council, 1996, p. 294). Again, there is a stark parallel here with the language adopted by the Tasmanian Government in response to Indigenous rights claims in the 1970s. Although Indigenous rights to cultural heritage were recognised in principle, those in the position of power – this time archaeologists – still defined the terms by which a claim could be legitimised. By asserting what it viewed as a cultural right, the Tasmanian Aboriginal Land Council (1996) described the Authorised Heritage Discourse in action, saying that the act of archaeologists seeking to make judgements on significance were simply “thinly veiled claim(s) to archaeological ownership” being naturalised through repetition.
Although Smith’s explication of the AHD may have been pivotal in archaeological theory, and despite her first raising these issues in light of the TALC/La Trobe affair (Smith, 1999), TALC’s response, and moreover Langford’s earlier calls for the same attention to heritage’s importance to the social and cultural wellbeing of communities appear to have been paid little attention by the Australian archaeological community at the time. Unfortunately, TALC’s claims were obscured by the rhetoric around the politics of the matter, as the
120 discussion languished while it was debated in the language of ownership. Now that the context of claims such as these, made by Traditional Owners, is largely accepted as best practice, or enshrined as Indigenous rights, I might argue that the ‘maturing’ of the relationship between archaeologists and Indigenous people, as was suggested by Murray (2011), is largely a result of archaeologists’ coming to the overdue understanding of how heritage and rights work together. The argument made by TALC in relation to this matter contained the same core idea that Langford had professed a decade earlier: that archaeologists’ self-authorised control of access to cultural heritage and their claimed sole ability to produce information relating to such heritage had real effects on Aboriginal people’s rights to assert a distinct cultural identity. For instance, echoing Langford, TALC stated that “It is our ancestors who left the material remains you study. As a community, we are the custodians of the places, tools and food resources used by our ancestors. Caring for the cultural property left by our ancestors is part of our continuing culture” [my emphasis] (Tasmanian Aboriginal Land Council, 1996, p. 293). TALC went on to argue that archaeologists had used the hiatus in occupation of south-west sites as the basis of their (archaeologists’) undermining of the idea that Tasmanian Aboriginal people might lodge a native title claim. This, TALC argued, was done to facilitate archaeological access to the sites, with the archaeologists making such claims able to do so from the politically safe position of academic objectivity (Tasmanian Aboriginal Land Council, 1996, p. 297). In its response to Murray and Allen, the Tasmanian Aboriginal Land Council (1996) carefully expounded the point that “we are not anti-science”, but that where archaeologists would not enter into negotiations that could result in changes to their research (often planned long before consultation with Traditional Owners/Custodians), the only power Aboriginal people held, and the only means of having their rights claims recognised, was to withhold consent as a form of veto over the project once formal permissions were sought from government regulators. As Sullivan (1996) argued, the fact that “consultation, community archaeology, return of materials … [were] often acts of grace and favour or of bureaucratic discretion rather than a right” was a main contributing factor to the difficulty between archaeologists and Aboriginal people working together at that time.
121 Summary As I have said, much has changed in the relationship between Australian archaeologists and Aboriginal people since the 1980s (Murray, 2011). The ideas TALC advocated are now entrenched as principles of best practice by most people practising archaeology (Smith & Jackson, 2006). Nonetheless, Tasmanian Aboriginal people have had to persevere through resistance to their claims to see the standard of archaeological heritage practice progress to where it is today. For Australian archaeologists, this has been an ongoing learning opportunity, because the links between inclusive, socially-minded heritage practice and human rights have been expressed with clarity in the making of those claims. Tasmanian Aboriginal expressions of cultural rights also pre-dated the entry of such concepts into heritage literature.
In this chapter, I suggested the connection between ‘good’ heritage practice and the facilitation of cultural rights. By ‘good’ heritage practice I mean both the way we see our archaeological role in forming the social and political outcomes of our work, and in the way we value and describe what cultural heritage actually is. I showed how archaeological discourse might have adjusted its language to be more amenable to rights claims made by Indigenous people, yet the discipline as a whole continues to maintain the same practical obstructions to Indigenous enjoyment of cultural rights through our ability to dictate the applicability of those claims to a certain situation. As Smith argued, we (archaeologists) may be unaware of our positioning which allows us to undermine the relevance of rights claims through our role as experts. Just as the State questioned the validity of Indigenous rights claims in the 1970s, archaeologists’ rebuttals to TALC’s claims for the heritage value of sites and material culture, and for rights to make decisions about sites, were made in the same language that was used to position archaeologists as experts providing in-principle support for Indigenous rights. The narratives around Aboriginal heritage I have discussed here also inform the way the landscape of Tasmania’s World Heritage Area has been described and managed. In the final two results chapters, I discuss the progression of management of the TWWHA. This broadens the discussion from archaeology to heritage practice generally.
122 Chapter 11 Background: Wilderness
Introduction As I mentioned when introducing the case study, the World Heritage listing of the TWWHA resulted from the conflict between the conservation movement and government interests in developing Tasmania’s ‘wild’ areas. Aboriginal heritage became subsumed into this conflict through the role of the Franklin River sites in the High Court’s decision that damming the river would be unlawful. The focus on the sites during that conflict saw the TAC lend its support to the environmental campaign led by the emerging Tasmanian Wilderness Society (Allen, 1983, p. 9). Ryan (2012) contends that the TAC intended to use this tactic as a means of protecting the heritage sites both from destruction and from co- option by archaeologists. However, as Ryan also notes, up to that point, the Tasmanian Aboriginal rights movement had distanced itself from the environmental conservation movement owing to the latter’s characterisation of Tasmania’s landscape as people-less wilderness. In the context of the TWWHA, the discourse that separates Tasmanian Aboriginal people from their heritage and the landscape is a quotidian tool of environmental conservationists encapsulated within the concept of ‘wilderness’. As I demonstrate in this chapter, the conception of Tasmania’s landscape as ‘unpeopled’ pervaded TWWHA management in the 1992 and 1999 management plans. Under this paradigm, Aboriginal heritage management reflected a non-Indigenous Authorised Heritage Discourse in that Tasmanian Aboriginal people were rarely involved in decision-making, and the practice of archaeology supported this construction of wilderness, even if unintentionally. In the same way that archaeological data were used to perpetuate the extinction myth, wilderness has also been used to support the idea of people-less country (Spence, 1999). The use of wilderness discourse by environmentalist groups is useful to my discussion because it serves as an analogue for the relationship between heritage practitioners and Indigenous people. Whereas heritage discourse has acknowledged where it imposes on Indigenous people’s engagement with their heritage, wilderness discourse has not undergone such realignment in any effective way.
123 Defining wilderness Before I discuss the effects of ‘wilderness’ on Indigenous rights, it is necessary to define the term itself. On the surface, the word ‘wilderness’ typically relates to undeveloped land containing a high degree of biological diversity and ecological integrity, and often significant natural beauty (National Geographic Society, 2020). Wilderness is frequently classified in a reserve system and sometimes also by legislation. As an example, the definition used by the (then) NSW Office of Environment and Heritage for the purpose of applying the Wilderness Act 1987 is “large, natural areas of land that, together with their native plant and animal communities, remain essentially unchanged by modern human activity” (Office of Environment and Heritage, 2017). Similarly, the IUCN Protected Areas category 1b ‘Wilderness Area’ is defined, in a practical sense, as land that is “free of modern infrastructure, development and industrial extractive activity”, “characterised by a high degree of intactness”, and “of sufficient size to protect biodiversity”, but, more subjectively, as that which can “offer outstanding opportunities for solitude”, and “be free of inappropriate or excessive human use or presence” (IUCN, 2018). While the potential incompatibility between wilderness and Indigenous perspectives on landscape is recognised in IUCN literature (Kormos et al., 2017, p. 2), the subjectivity relating to the acceptable limits of human impacts and how these impacts are seen to de-value landscapes is where the concept becomes problematic in relation to Indigenous cultural rights.
Wilderness is not an Indigenous construct (Standing Bear, 1933). Rather, as a reflection of the modern Western world, “it is entirely a creation of the culture that holds it dear” (Cronon, 1996, p. 79). This definition is notable in the context of the results I have presented, in that it favours a Eurocentric conception of heritage, founded on notions of authenticity and antiquity, and is therefore concerned primarily with its preservation (Brumann, 2014; Byrne, 1991; Gfeller, 2015; Nielsen, 2011; Smith, 2006; Spence, 1999; Sullivan, 2008). As I discussed in Chapter 2, World Heritage doctrine and Western heritage practice more generally have been reconfigured to incorporate Indigenous perspectives on heritage. However, much of the conservationist discourse on wilderness has not been able to depart from the preconception of a human-less landscape (Cronon, 1996; Spence, 1999), despite some recent attempts, which I describe later.
124 In terms of Indigenous people, Cronon explains how the ‘past-perfect’ created by wilderness exists as “a place outside of time, from which human beings had to be ejected before the fallen world of history could properly begin … it is a savage world at the dawn of civilisation … home of … the One who remains untouched and unchanged by time’s arrow” (Cronon, 1996, p. 79). Thus wilderness is a Western-oriented discourse on nature built on a binary ontology that places humans and the natural world as separate entities. Practically, this conception obstructs Indigenous interests because, like the ‘conservation ethic’ (Byrne, 1991, p. 271) in cultural heritage, it does not allow for negotiation around how people might affect nature, “so bound up, as it is, in saving sacred spaces from the destructive forces of civilisation and thus treating ‘wilderness’ as the Other … it [similarly] treats Indigenous people as Other as well and fails to acknowledge the potential of perceiving all areas – cities and wilderness – as ‘home’” (Pickerill, 2008, p. 99).
Human impacts on the non-human world are undeniable (Cafaro, 2001; Mackey & Rogers, 2015; Thompson, 2018), but what typically follows from concerns for impacts on ‘wilderness values’ are appeals to promote an eco-centric value paradigm, where “human rights and self-interest are no longer paramount considerations”, in preference to “a system in which the rights of non-human species and the Earth itself carry equal weight” (Rogers & Mackey, 2015, p. 150). Placing human and non-human ‘rights’ as equal is not problematic on its own, because it allows for the possibility that the two might be reconciled. The principle is also consistent with Indigenous ethics that have informed sustainable land management practices for millennia (Rose, 2005). I too am aligned, personally, to the principle of minimising human impacts because I agree that human interests are not necessarily paramount. However, my doubt arises when appeals to the purported intrinsic value of nature envelop a concern for the loss of a particular set of interests in the experiential value of place. In any case, this being a thesis on Indigenous cultural rights necessitates an investigation of how the application of this environmental conservation paradigm impacts Indigenous interests.
From my observations, the balance between ‘applied’ wilderness and Indigenous interests is often achieved only through the derogation of Indigenous cultural rights. This is in much the
125 same way as how the archaeological discourse sought to circumvent a meaningful admission of Indigenous rights to cultural heritage, which I raised in the previous chapter. Under an eco-centric paradigm, the only Indigenous interests that are commonly professed to be compatible with wilderness protection are those that can either be subsumed into nature (and thus de-humanised), or be deemed not to affect the integrity of the natural environment. Actions by Indigenous people in the past are usually incorporated into the natural landscape by virtue of their perceived minor impacts on the environment. Spence (1999, p. 23) identifies this as the pervasive “framework of a self-reciprocating maxim”, whereby (as in the United States), “forests were wild because Indians and beasts lived there, and Indians were wild because they lived in forests”. In Australia, this creates a situation where “’traditional' Aboriginal people with spears, firesticks and stone tools are welcome in wilderness landscapes but 'civilised' Aboriginal people with motor vehicles, guns and houses are not” (Ellis, 1994). As McNiven and Russell (1995) concisely summarise: “wilderness is the realm of the Noble Savage19”. As I demonstrate in the next chapter, and in the same manner as I described in relation to archaeology in Chapter 10, a cultural right to resource use and landscape modification may be recognised in principle, but contested on the basis that it does not fit the specific context of the particular landscape or site.
Sometimes constructions of what wilderness ought to look like drive Indigenous interests so far into the periphery that Indigenous people are retrospectively removed from the landscape. Conceptions of landscape as untouched by human activity are patently false, including in Tasmania, where close to the entire environment has, at one time or another, been subject to anthropogenic firing or occupation of some kind (see Gammage, 2011; Marsden-Smedley & Kirkpatrick, 2000; McNiven & Russell, 1995). Nonetheless, narratives of wilderness areas sometimes evolve to displace Indigenous inhabitants in order to fit the ‘unpeopled’ paradigm (Cronon, 1996). In Tasmania, as a result of a lack of primary historical evidence owing to the relative inaccessibility of most of the ‘wilderness’ area until the ‘discovery’ (Allen, 1983) of the Franklin River sites, a popular conception held that a majority of the south-west and highlands were uninhabited (Kiernan et al., 1983).
19 The Enlightenment personification of the idealised original ‘man’, projected onto Indigenous peoples, popularised by Jean Jacques Rousseau.
126 Spence (1999, p. 84) notes similar narratives for national parks in the United States which relied on invented notions of spiritual and mythological taboos that made remote areas uninhabitable, and assumed that Indigenous people held unfounded fears of natural features. Possibly owing to some of the features for which the TWWHA satisfied World Heritage criteria being remnants of the ancient Gondwanan supercontinent, the popular appellation of the south-west as being a ‘primeval’ landscape emerged (ABC News, 2003). Despite Jones’ findings to the contrary, the public perception of an uninhabited landscape evolved into one that was uninhabitable, on the basis that such areas of ‘primeval forest’, as well as alpine regions, were bereft of the natural resources in which the ‘Noble Savage’ had their sole interest (e.g. Ross, 2015, p. 22). Although not always intended to downplay Aboriginal connections to the landscape, the ‘primeval’ appelation continues to be mobilised as a means of evoking support against logging (e.g. Flanagan, 2004). This means that the same ‘atavistic illusions’ (Reynolds, 2015) about Aboriginal landscape interaction may persist in some public quarters as well. As one respondent asserted, conservation groups see wilderness areas as “theirs to own”, on the basis that it was unpopulated – either by choice, or after the forced removal of Tasmanian Aboriginal people (INT #01).
Wilderness and ecocentrism in early TWWHA policy The development of national parks systems in Australia and the United States were both based on the wilderness paradigm. In both countries, “generations of preservationists, government officials, and park visitors have accepted and defended the uninhabited wilderness preserved in national parks as remnants of a priori Nature (with a very capital N)” (Spence, 1999, p. 15). In the US, the establishment of national parks often required the removal of Indigenous peoples so the landscape could match the construct of wilderness as ‘virgin’ land (Cronon, 1996, p. 79; Kareiva et al., 2012; Spence, 1999, pp. 116,129). In Tasmania, the removal of the Indigenous inhabitants meant the TWWHA could be re- imagined and epitomised as an unpeopled ‘wilderness’, provided those who advocated it as such could maintain an ignorance of, or convenient distance from Tasmanian Aboriginal rights claims.
127 In 1992, concurrent with prevailing views of Tasmania’s wilderness areas, the first TWWHA management plan aimed not only to preserve but to create a landscape free of evidence of human activity. In reality, even some of the remotest areas of the TWWHA exhibit the signs of European surveying, mining, pastoralism, forestry, and trapping activities that took place from around the 1830s, and continued for at least 100 years; in some discrete pockets much longer (see Cubit, 2013; Marsden-Smedley & Kirkpatrick, 2000; Mattingley, 2001; Russell & Jambrecina, 2002; Russell & Johnston, 2005). Cubit (2013, pp. 71-72) argues that the 1992 plan was developed in close alignment with The Wilderness Society’s “vision pregnant with misanthropic intent” of an untouched landscape, and consequently sought to erase all evidence of these activities having occurred. Trappers’ and graziers’ huts were to be demolished, roads revegetated, and, had the TWS’ wishes been acknowledged, might also have included measure such as “the removal of introduced trout from streams, [and] the cessation of the production of detailed maps” (see Cubit, 2013, pp. 67-70). Consistent with an eco-centric paradigm, Aboriginal heritage became treated as part of the natural landscape, which might slowly become erased as well. For instance, where midden deposits came under threat from coastal erosion, the management strategy dictated that stabilisation of dune systems would amount to interference with natural processes (McNiven & Russell, 1995, p. 511). The 1992 plan stated that: the outstanding cultural value of the WHA [World Heritage Area] is the rich, undisturbed suite of Pleistocene archaeological sites dating back over 30 000 years which include cave paintings and archaeological deposits.
Reminiscent of Jones, it added “bearing testimony to an Ice Age society that has disappeared” (Department of Parks Wildlife and Heritage, 1992, p. 14). It then went on to state that, in regard to the management of the Franklin River sites: In the national context, these Aboriginal archaeological sites provide valuable evidence about the original settlement of Australia, life in the most southerly part of the country during the Ice Age and human responses to climate change. The sites have special cultural significance for the Tasmanian Aboriginal community (Department of Parks Wildlife and Heritage, 1992, p. 14).
This statement is telling, because although it included the acknowledgement that Tasmanian Aboriginal people may feel some connection to the sites, the point remained a vague addition to the sites’ significance to archaeologists, providing a clear example of
128 social values becoming “de-personalised and abstracted” (Smith & Campbell, 2017, p. 14) through their dismissal as solely augments to ‘real’ or ‘tangible’ heritage assets. Where Aboriginal sites were potentially affected by development, the primary source of expertise is archaeological, and given significance only insofar as Tasmanian law permitted: Where approved developments might adversely affect Aboriginal heritage resources or the cultural significance of historic sites, appropriate professional investigations will be undertaken prior to and during the works in accordance with the provisions of the Aboriginal Relics Act 1975 and the relevant conservation plan in order to recommend appropriate mitigation measures (Department of Parks Wildlife and Heritage, 1992, p. 44).
Consistently, the 1992 management plan’s “Actions for management of Aboriginal Heritage” directed that while it would “increase Aboriginal involvement in management of Aboriginal heritage”, it would also “provide advice to the Tasmanian Aboriginal community on the scientific significance and world heritage values of Kutikina, Wargata Mina and Ballawinne Cave” (Department of Parks Wildlife and Heritage, 1992, pp. 43-45). This is reminiscent of where, in the US, Spence (1999, p. 16) makes note of how “in the rare instance that park literature even mentions … [Indigenous people], they [the Indigenous occupants] tend to assume the unthreatening guise of ‘first visitors’”. By offering Tasmanian Aboriginal people involvement in the management of their own heritage, but only valuing that heritage in terms of its archaeological/scientific and World Heritage significance, what happened in US parks is essentially what also occurred in Tasmania.
Mis-defining ‘values’ and misplacing Aboriginal people from landscape in the 1999 World Heritage management plan When the 1999 management plan was drafted, there was a move away from the concept of the ‘primeval’ landscape toward co-option of Aboriginal heritage under the remit of PWS reserve management. However, the 1999 plan exhibits a distinct lack of clarity concerning the definition of ‘values’ that has persisted in contemporary environmental management discourse. This has led to a lack of clarity about how the non-Indigenous and Indigenous perceptions of the value of the environment might be reconciled. For instance, Rogers and Mackey state that values can be impacted by human activity, and “placed in jeopardy” by a lack of focus on wilderness (Rogers & Mackey, 2015, pp. 149,156,159). The language used in
129 the 1999 TWWHA management plan reflected this lack of clarity. It, like Rogers and Mackey, tended to use ‘values’ interchangeably to mean both the physical material, and the values ascribed to it under the World Heritage Convention, and by tourism operators, and Aboriginal people. The plan’s ‘summary of values’ includes: Features of outstanding significance include extensively glaciated landscapes; undisturbed habitats of plants and animals that are rare, endangered and/or endemic that represent a rich variety of evolutionary processes; magnificent natural scenery; and an impressive assembly of Aboriginal sites that include cave art.
The WHA is also highly valued for recreation and tourism based on its natural and scenic qualities (Parks and Wildlife Service, 1999, p. 6).
As a result, the plan speaks of values being identified, protected, conserved, presented, and “where appropriate”, rehabilitated (Parks and Wildlife Service, 1999, p. 3). This definition of value aligns to the monological process inherent in the creation of wilderness. The use of wilderness in the management plan is nested in an assurance that despite the connotations the term was known to have held, PWS would act to accommodate whatever ‘intangible’ values Tasmanian Aboriginal people might hold. To wit, it states that: Aboriginal custodianship and customary practices have been, and in many places throughout Australia continue to be, a significant factor in creating what non-Aboriginal people describe as wilderness.
Note that many members of the Tasmanian Aboriginal community have objections to the definition and use of the word wilderness as used above as in their view it limits Indigenous rights. The Service view is that the definition of wilderness above takes into consideration this concern of the Aboriginal community (Parks and Wildlife Service, 1999, p. 92). and … all Aboriginal sites within the WHA are important to the Aboriginal community. Note also that the Aboriginal perception of values, in many situations, does not divide natural from cultural values, e.g. plants and animals are of cultural value to the Aboriginal community (Parks and Wildlife Service, 1999, p. 24).
The first paragraph creates a circular reasoning reminiscent of Spence’s remark that “Indians were wild because they lived in forests”. By doing so, it also allows the PWS to gloss
130 over Aboriginal objections and implies that, because they were complicit in creating wilderness, Aboriginal people are mistaken in opposing the use of the term. The second paragraph is an example of a possibly well-meaning but nonetheless clumsy attempt at recognising Indigenous-held values, but by doing so, relegating them to the kinds of esoteric, potentially immutable values commonly encapsulated in the concept of ‘intangible heritage’ that I discussed in Chapter 3 (see Smith & Campbell, 2017). This pattern is repeated in that although the plan provided for Aboriginal involvement in management decision making through the TALC (Sawyer, 2000, p. 368), how this might occur was very loosely defined. One of the Key Focus Areas (KFAs) of the 1999 plan was “Increased Aboriginal involvement in management of the WHA”. To this end the plan stated that: The Service recognises the special relationship that exists between the Tasmanian Aboriginal community and the WHA. The Service and the Aboriginal community will set up a partnership to manage for the conservation of Aboriginal values in the WHA (Parks and Wildlife Service, 1999, p. 8).
The relevant Key Desired Outcome (KDO) of this is Aboriginal involvement in management: Involvement of the Tasmanian Aboriginal community in the conservation of Aboriginal heritage, potentially leading, if practicable, to an Aboriginal community organisation administering Aboriginal heritage conservation on behalf of the Service (Parks and Wildlife Service, 1999, p. 39).
The “if practicable” qualifier in the above statement might signal the way in which rhetorical references to Indigenous values ”work to reassure those invested in this discourse that they are being inclusive and innovative in conservation and management practices”, but in fact “simply sustain the basic tenets of the authorised heritage discourse” thereby “maintaining the primacy of professional expertise” (Smith & Campbell, 2017, p. 2).
Summary In this chapter I suggested that although wilderness value is an entirely valid means of measuring impact to the natural environment, it is built on the assumption that certain mainly aesthetic measures of that environment comprise its purported intrinsic value. The application of wilderness in this way therefore mirrors the way cultural heritage was managed under a similar conservation ethic. Although properties such as antiquity and rarity can be objectively measured, just as distance from development can, the value these
131 imbue on an object or landscape is entirely subjective. Moreover, in both cases, these measures of value were assumed to be culturally universal. Wilderness advocacy, as I have described it here, typically sought to preserve a set of Western idealised experiential qualities by packaging these in the guise of nature conservation. The Western heritage ethic appears to have operated similarly, using heritage conservation as the vehicle to preserve a set of scientifically valuable attributes of places and things. I also showed how a lack of precision in what ‘value’ meant has led to ineffective efforts to reconcile the wilderness paradigm with Indigenous interests. Effectively, this links outdated heritage practices that privilege utterly scientific significance with obstructions to Indigenous cultural rights. I examine the meaning, for archaeology, of the similarity between wilderness and heritage discourses in Chapter 13. Before doing so, I demonstrate how the wilderness paradigm, entrenched in the management of the TWWHA, has affected rights practices and outcomes for Tasmanian Aboriginal people.
132 Chapter 12 Results: Contemporary Aboriginal accounts of heritage and rights in the TWWHA
Introduction In the last chapter I described how the wilderness value paradigm governed TWWHA management through the 1992 and 1999 management plans. In this chapter, I examine how the operationalisation of wilderness in TWWHA management policy has obstructed the aspirations of Tasmanian Aboriginal people to access and engage with Tasmania’s landscape (including the cultural landscape) as a matter of Indigenous cultural identity and cultural rights. Furthermore, despite the 2016 management plan’s representing a significant departure from the previous two plans in terms of Indigenous land use, Tasmanian Aboriginal people still face practical obstructions to the realisation of many of their cultural rights aspirations.
2016 – a new plan, and new ‘values’ Evidently, the Key Desired Outcomes (KDOs) set out in the 1999 plan were not achieved. Author: How has access [to places of significance to you] been in the past?
Oh it’s been terrible! It’s been extremely difficult. Well, one example I can give you is that we were prohibited from lighting fires when we went in to visit Country in the TWWHA. I’ve been to field trips – one to Nye Bay, and one to Louisa Bay – and both times we were committing an offence [simply by going onto our land and using fire]. How could Aboriginal people go into Country without having a fire? It made us feel like we couldn't care for our Country and be responsible for making sure that we didn’t set the whole landscape on fire! It prohibited us from the very resource that kept us well and safe for 30,000 years. Fire is essential to our existence (INT #04).
The lighting of campfires outside designated areas in the TWWHA has been illegal since the 1992 plan, punishable by fines of more than $8000 (Tasmania National Parks and Reserves Regulations 2019). The 1999 plan allowed for fire management, but only as a means of reducing the “increasing risk of loss of values from an inappropriate fire regime” (Parks and Wildlife Service, 2015). In this light, statements about “recognising the special importance” of the land to Aboriginal people seem to ring hollow. In other words, while wishing to
133 acknowledge Aboriginal cultural values, there may have been little intent within PWS to recognise these as uses of landscape (i.e. living heritage) that fell outside of the range of activities deemed acceptable under the wilderness paradigm.
In the interim between the 1999 and 2016 plans, PWS introduced a system of adaptive management, which was intended as a means of identifying defective policy before it became an issue (Jones, 2009). However, the fact that the 1999 planned outcomes were not realised is clear. From one informant who was involved in drafting the 2016 plan: Really, I think the main difference was right from the start the approach that we took. (In) the 1999 plan, … if you wanted to find the prescriptions relating to cultural heritage for example, they were scattered all over the plan, and it was very difficult to see in one location what had actually be prescribed for Aboriginal cultural heritage, and it was pretty limited anyway. There were key recommendations, which obviously were poor, and it didn't represent the scope of interest for Tasmanian Aboriginal people in the WHA, so the challenge was to make it [the new, 2016 plan] a much more usable plan in its design. The past management plan didn't really have any photography of contemporary Aboriginal people on Country, and that serves to further disconnect Tasmanian Aboriginal people from our Country (INT #05).
Consequently, joint management is addressed candidly in the 2016 plan: … many of the [1999] plan’s Key Desired Outcomes (KDOs) for Aboriginal interests have not been fully achieved, particularly with regard to the integration of responsibilities for management of Aboriginal cultural values, leading to a view amongst some Aboriginal people that the management of natural values has overshadowed the management of Aboriginal cultural values (Department of Primary Industries Parks Water and Environment, 2016, p. 96).
The language of the 2016 plan thus portrays a sense engendering reform of the exclusionary style of wilderness preservation in favour of facilitating Aboriginal people’s engagement with the cultural landscape. The draft document is prefaced with a foreword from a senior Elder, and in the final version, with the addition of one by the AHC chair (Department of Primary Industries Parks Water and Environment, 2016, pp. iii,v), both of which cover these aspects succinctly: Having been closely associated with the TWWHA for about three decades I hope you will join with me in celebrating this new and different approach for managing the significant and unique Tasmanian landscape (Department of Primary Industries Parks Water and Environment, 2016, pp. v – my emphasis).
134 This is contextualised by this statement: A lot of Aboriginal people said that even though they felt a great connection to the TWWHA, they felt really disconnected from it by virtue of how it had been managed in the past. People felt that it was very, very difficult, and overly bureaucratic to go out on Country and do the kinds of stuff that they wanted to do, and in fact they felt at times that it was almost deliberately made as difficult as possible, and that that was a way of preserving a status quo of the importance of natural values management over cultural values management (INT #05).
This suggests that the intent of the new document is to demonstrate that Indigenous rights are afforded primacy over environmental conservation, and that the plan might redress the sense of alienation felt by Tasmanian Aboriginal people imposed through the previous eco- centric management paradigm. The plan specifically aims to address the predominance of environmental management by linking the Aboriginal cultural values to the site’s Outstanding Universal Value (OUV): … management of the outstanding cultural values addresses not only the management of the values that underpin the World Heritage listing for the TWWHA, but also Tasmanian Aboriginal cultural values more broadly (Department of Primary Industries Parks Water and Environment, 2016, p. 95).
The 2016 plan provides some clarity on the definition of values: By identifying the Aboriginal cultural values from a broad perspective, the Management Plan has been developed to move beyond a restrictive view that would limit this heritage to one derived largely from evidence of Pleistocene occupation or other sites of material culture, to one that views the TWWHA as a cultural landscape in its entirety. Across its extent, the TWWHA reflects a tangible expression of the presence of Tasmanian Aboriginal people. However, it is also imbued with the intangible; that which gives cultural meaning to the landscape, seascape and skyscape (Department of Primary Industries Parks Water and Environment, 2016, p. 8).
This allows attendant rights of Tasmanian Aboriginal people to these values to be explored. In terms of the provisions relating to Aboriginal cultural heritage management, the 2016 management plan is comprehensive, and potentially very powerful in terms of facilitating access by Aboriginal people to the WHA to carry out traditional practices. This allowance is couched within an explanation of how the Outstanding Universal Value (OUV) of the TWWHA relates to the value of the land for Aboriginal people.
135 Thus: … the values that underpin the listing criteria are part of a continuous relationship between Aboriginal people and the TWWHA. Management of cultural values must be concerned equally with all aspects of that continuous association, not least of which is the relationship with Country that Tasmanian Aboriginal people seek to continue and strengthen (Department of Primary Industries Parks Water and Environment, 2016, p. 95).
This statement articulates that the elements on which the TWWHA meets the criteria for World Heritage listing are not things that exist separately from Aboriginal people, but rather are a product of Tasmanian Aboriginal people’s ongoing interaction with, and relationship to, the landscape. Because the value of the landscape to Tasmanian Aboriginal people is stated to be fundamental to the recognition of the area’s OUV, the 2016 plan presents a point of departure from the eco-centric and wilderness-driven paradigm of previous plans. As a result, this enables the recognition of broader rights for Indigenous people: Tasmanian Aboriginal people assert a right of ownership over Aboriginal resources within the TWWHA … [T]he control of its use is a vital part of the TWWHA’s contribution to Aboriginal health and wellbeing (Department of Primary Industries Parks Water and Environment, 2016, p. 146).
Negotiating models of land access for management The plan effectively commits PWS to the facilitation of ongoing access for Tasmanian Aboriginal people to the TWWHA, to carry out actions that they, as Traditional Owners, identify as necessary to management. Presumably such actions can form part of the area’s management regime. The Reactive Monitoring Mission mentioned above noted that: The joint management process suggested in the draft Management Plan [the 2016 plan] provides an unprecedented opportunity to strengthen dialogue and cooperation between the Tasmanian Aboriginal Community and the Tasmanian Government about the TWWHA. The likelihood of a successful process will depend as much on mutual trust and effective working models as it will on the evolving legal and policy framework. New approaches to the management and governance of the TWWHA are to be developed and tested if the political willingness to better integrate the Aboriginal perspective on ‘Country’ is to become a reality. The proposed joint management will depend on adequate and reliable financial and human resources beyond short and medium term planning horizons (Jaeger & Sand, 2015, p. 34).
136 Similar to some of the issues I recorded in my earlier research (Piotrowski, 2010; Piotrowski & Ross, 2011), there is a strong desire shared amongst Aboriginal people in Tasmania to see their cultural heritage protected through self-management arrangements (INT #01, #05, #06). Essentially, heritage sites that are on Aboriginal-managed land, such as Indigenous Protected Areas or land divested through the Aboriginal Lands Act 1995, are viewed as having the best standards of management and highest level of protection (Holmes, 2019), because the organisations managing the land are free from government intervention (INT #01). Legally, all Aboriginal heritage is still under the State’s jurisdiction, but in Indigenous Protected Areas, the organisations managing such lands exercise unfettered control of the heritage there for all practical purposes. Nevertheless, these lands account for only 1% of Tasmania’s land mass (Department of Premier and Cabinet, n.d.-a), and no returns have occurred since 2005 (Gooch, 2018), despite the ALCT having made several applications (Ryan, 2015). The Tasmanian Government may have placed this process on hold until the review of the Aboriginal Lands Act 1995 (Department of Communities, 2019) is complete, but the public is not prevented from returning land through the same system. Recently, some private landowners bequeathed half of their property to the ALCT, which the ALCT describes as an excellent outcome (Hosier, 2019b). It also inspired similar actions from other landowners (Hosier, 2019a). As a secondary preference to Aboriginal-controlled land, there was also a favourable attitude taken toward joint management arrangements between Aboriginal community organisations and land holders or managers (INT #04, #05, #06). In one example, a Midlands landowner offered up their property for a joint TAC/University of Tasmania research project using traditional fire practices for fuel reduction, wherein visiting the cultural landscape was seen as being as important as the biological outcomes of the firing by Aboriginal people (McIntyre, 2018).
The questions that partnerships and handbacks raise in the Tasmanian context are: who is involved in these kinds of activities? And subsequently, to what extent do people feel positively about them? The ALCT is the statutory body for receiving land handbacks, and is one of the more publicly visible organisations, making it in some ways the ‘default’ for landowners wishing to undertake such actions. Its connection with the TAC, however, may
137 mean that people identifying as Tasmanian Aboriginal can be excluded, depending on their organisational affiliation, as I discussed earlier in relation to the west coast.
The primary criticism of joint management, and particularly in the World Heritage Area, was that it could be seen as “coming with strings attached”, or could involve some form of ‘blackmail’, such as the obligation to allow tourist access (INT #01). Thus far, none of the joint management arrangements in the TWWHA plan has been put into practice. Where there are no formal joint management arrangements, there is often a concern that cultural heritage material is improperly protected from harm. A field trip with to the site of an extensive stone quarry within the TWWHA boundary reflects this.
The site is located on Mt Rufus (Figure 7), approximately three hours walk from the visitor’s centre at Lake St Clair, the southern terminus of the popular Overland Track. A sidetrack forms a five hour loop, which is a popular day walk for tourists and backpackers, particularly in summer. The site was first recorded during a large-scale survey throughout the more heavily-visited areas of the central plateau, including the Cradle Mountain/Lake St Clair and Walls of Jerusalem National Parks. The ensuing report recommended that impacts to the site be managed and, in particular, that the walking track that intersects the site be re- routed (Tasmanian Aboriginal Land Council, 1995). However, as of the time of writing, PWS has not acted on any of these recommendations. Throughout the summer, walkers on their way to the summit of Mt Rufus still make their way through the site, which contributes to damage and relocation of artefacts, as well as erosion of the sloping track. Another reason why Tasmanian Aboriginal people might wish to own areas in the TWWHA, wholly or jointly with government, is because such ownership might facilitate their use of fire as a cultural resource. As I mentioned earlier, lighting fires of any kind in the TWWHA has long been illegal. In terms of management, PWS recognises that this was once carried out ‘appropriately’ through traditional Aboriginal burning (Parks and Wildlife Service, 2015, p. 2) and, in addition to employing Aboriginal Fire Rangers and Aboriginal Burning Project
138 Officers, is developing a fire management plan for the TWWHA (Parks and Wildlife Service, n.d.-b). The 2016 plan undertakes to: Engage Aboriginal people to develop protocols that allow the use of fire as a traditional cultural practice (Department of Primary Industries Parks Water and Environment, 2016, p. 103).
So, notionally, there is room to incorporate such practices into the management paradigm. In light of the effects of climate change, the TWWHA remains an extremely fire sensitive landscape (Dingwall, 2016). Recent catastrophic fires in 2016 (Slezak, 2016) and 2019 (Wood, 2019) affected some areas of high ‘wilderness value’ (e.g. Pyrke & Jones, 2013). Although Aboriginal fire management is often referred to as a means of managing the TWWHA, it is unclear how a desire to protect the landscape as ‘wilderness’ is fully compatible with the actions Tasmanian Aboriginal people wish to carry out. Respondents told me that they wish to be able to use fire, both in the form of campfires, and as return to traditional burning practices: I’m really looking forward to being able to have a safe but small fire, where we sit around and over that fire to cook up some traditional cultural foods, to cook some cultural food over that fire and reawaken some old practices (INT #06).
Figure 7 The ridge leading to the summit of Mt. Rufus (running horizontally across figure), on which the quarry is located. (Photo S. Piotrowski).
139 Superficially, this is a seemingly minor request. However, it is quite likely, from my observations, that a campfire would be well received by non-Indigenous TWWHA users, let alone PWS, and this is a sentiment confirmed by some participants. Despite the provisions against fire use in the 2016 plan, the example of the Mt Rufus site suggests that not all of the plan’s submissions to Aboriginal interests have filtered through into directives to PWS on the management of National Parks. Moreover, it is unclear how the involvement of Aboriginal people (if at all) in practices that mirror traditional fire management would be conducted on the principle of Indigenous people managing their land as they wish, or to maintain areas of high wilderness value. Fire is allowed in areas of the TWWHA where it was connected to non-Indigenous land use. The use of campfires and the associated collection of native flora for firewood is allowed within a small area around Deadman’s Cove on the South Coast, as the site was a regular pull-over point for fisherman operating along the coast where fires were ‘historically permitted’ (Parks and Wildlife Service, n.d.-a). However, this principle appears yet to be carried over to the historical use of campfires by Indigenous people.
Engagement with land, place and heritage as a matter of rights, and a tool for identity affirmation There remains a possibility that the operationalisation of the TWWHA plan’s provisions for Aboriginal engagement is yet to be viewed as being connected to Indigenous cultural rights. Some participants make this connection clear. For instance, one participant stated that “the most important right for us is the right to be able to manage what is ours. … It’s the same as the right to be who you are” (INT #01). Here, the intersections between heritage, a right to identity, and self-determination are made clear. Similarly, when Michael Mansell talks about an Aboriginal treaty as “an expression of true democracy and self-determination”, he immediately links this to Aboriginal managed land that is free from political interference (Holmes, 2019). In other instances, a desire to manage lands and heritage is simply an expression of “how things should be” (INT #08), or could more closely resemble a concept of natural rights. As might be expected, separation between these two kinds of responses generally corresponded with the degree to which participants were engaged with government processes relating to land and heritage management. Regardless of people’s
140 understanding of such processes, practically speaking, there is a strong desire for land management structures that would allow contemporary engagement with heritage and place (INT #03, #04, #05, #06).
With the issue of Aboriginal identify being so pervasive throughout discussions of land and heritage, it is not surprising that across participant responses, the desire to be engaged with land and things and places is also an act of asserting and forming that identity. Again, as I documented previously (Piotrowski, 2010), access to heritage places is about conservation and is also a medium for teaching and learning, as well as being a means of (re)discovering a sense of identity: Part of the issue that I have is that it’s Country [in the TWWHA] that I’m not overly familiar with, because I don’t travel through very often. But I can just feel from the importance of it, and what it meant to our old people. When I travel through to Queenstown or the west coast, you go to that area on the western side of Derwent Bridge, looking at those large buttongrass plain areas, I just sort of wonder what it would have been like in the old days, with the old people. And to see how they managed that landscape. Part of a connection that I'm wanting to build is to get back into the Country and to experience it myself, and look at it through the lens of the old people (INT #06).
As might be anticipated, people wish to be able to use natural resources for cultural activities, although doing so is viewed as a cultural activity in itself, and an act of identity affirmation. These quotidian activities can include the collection of paperbark for ceremonial purposes; marine shells, seaweed, and grasses to fashion crafts and functional items; the collection of native plant foods generally; and hunting marine and terrestrial animals (INT #01, #04, #06). The important subtext behind all of these actions is that by doing them, people are asserting that they are Aboriginal, because Aboriginal people came and did these things, and had the knowledge to do them. As one participant put it: “the experience that I want to have is to practise [our] culture in Country” (INT #06). The rights aspect here is similar to the illegal collection of abalone in the past, in that doing so is viewed as an implied right by virtue of Aboriginal identity. Similarly, fishing has a particular cultural significance for people descended from Bass Strait Islanders (INT #04). It connects people to their Aboriginal ancestry as a continuation of traditional practices, but also links them to the culture that emerged on the islands as generations of Islanders’ families fished
141 recreationally and as part of their livelihood (INT #04). Recently, Tasmanian Aboriginal academic Emma Lee began explorations into a market for cultural fisheries (Lee 2019). While the Living Marine Resources Management Act 1995 exempts Tasmanian Aboriginal people from licence restrictions, this is only for non-commercial purposes. While prescribed fish can be taken for “the manufacture, by Aborigines, of artefacts for sale” (such as shell necklaces and artworks), the sale of the catch itself it not permitted.
The assertion that the people doing these activities are doing so as the custodians of land and culture is also demonstrated through the hunting of terrestrial animals. There is an increasing population of feral fallow deer (Dama dama) throughout Tasmania’s reserve areas and private rural land. Their numbers and environmental impacts have become a growing concern (Johnson & Potts, 2014). Under the current system, landowners can shoot deer or employ professional shooters, and private hunters can operate under a ballot system on private land and in game reserves (Department of Primary Industries Parks Water and Environment, n.d.). The Tasmanian Government floated the idea of opening hunting opportunities in national parks and the TWWHA, which it couched as a necessary land management initiative. As part of a re-election pledge, the conservative government stated that it would consult with the hunting lobby (Tasmanian Liberals, 2018), but the response from Tasmanian Aboriginal people is to ask why the opportunity to take part in those activities has not been similarly offered to them (INT #06). In this sense, deer hunting is viewed as a necessary part of Aboriginal land management extending across the landscape, irrespective of land tenure. However, in the same manner as fire management, the connections this kind of action may have to Indigenous rights to land and identity do not yet appear to be fully reflected in TWWHA management.
Tourism Finally, the ways in which Tasmanian Aboriginal people wish to present and communicate their connections to Country demonstrate how access to land and control of management correspond to a recognition of cultural rights. There is significant interest in the Aboriginal community to lead tourist ventures in the TWWHA and other reserve lands. The link to conservation is usually made explicit, such as when I was told that “[Tourism] done well can
142 protect areas” (INT #01). Perhaps for this reason there is also a commonly-held attitude toward high-end eco-tourism leveraging Tasmania’s uniqueness, and often also the World Heritage ‘brand’, where one participant expressed the view that “people should pay top dollar to visit a World Heritage site” (INT #01). Another provided more detail, saying that: … with cultural tourism it’s not going to be dealing with multitudes. It’s just dealing with small groups who are prepared to tread lightly on Country, and so it’s essential, it’s something that gives Aboriginal people an opportunity not only as tour guides and people who might operate small tourism ventures, so it gives Aboriginal people an opportunity to expand into those areas, but it’s going to be run different, it’s not going to be run like what we see at Cradle Mountain20, for instance, where, every time I go I’m just amazed at how much intrusion there is there into the areas on each side of the road. I couldn’t imagine that cultural tourism would look like that (INT #04).
In some places, people wish to see heritage displayed to the public as a resource to spread cross-cultural awareness and foster respect. Local management and presentation of Aboriginal heritage is sometimes seen as a means of reconciliation (INT #02), education being preferable to fines and exclusion as a means of curbing vandalism (INT #01). The issue often arose (INT #02, #03, #05) that presentation of Aboriginal cultural value was incomplete, particularly in popular tourist areas. This was the case in the Arthur Pieman Conservation Area for instance. The interpretation panels throughout the APCA display only basic information about lifeways and resource use and suggest a past rather than contemporary Aboriginal connection to the landscape. Participants asserted a desire to see difficult parts of Aboriginal history addressed, such as nearby massacres and the story of William Lanne (INT #03, #07). It was sometimes stated that an ideal situation would entail non-Indigenous people learning about Aboriginal culture simply by seeing Aboriginal people carrying out cultural activities in the landscape, such as fire management, hunting and so on (INT #01, #05). However, it was also noted that this would be unrealistic under the current reserve management paradigm (INT #05).
The question also arose as to whether the ‘authentic’ picture of Aboriginal culture many foreign tourists seek is one reminiscent of the ‘Noble Savage’ – that is, people living a
20 One of Tasmania’s premier tourist attractions in the northern section of the TWWHA.
143 hunter-gatherer existence – and how this might be challenged by Tasmanian Aboriginal people carrying out activities that do not match this conception, such as by building permanent and semi-permanent structures in the TWWHA (INT #05). These actions are illegal but not addressed succinctly within the management plan, which could make them possible as with the use of fire. Again, the restrictions around campfires are seen to obstruct the kind of cultural tourism many Tasmanian Aboriginal people envisage: “If we were allowed [to light fires], we could do tourism” (INT #07).
The 2020 draft TWWHA Tourism Master Plan states that “Aboriginal people are not considered ‘visitors’, as they are the Traditional Owners of the land” (Parks and Wildlife Service, 2020, p. 4). As with the management plan, this acknowledgement opens with the recognition that: The area of country that is encompassed in the Tasmanian Wilderness World Heritage Area is Aboriginal land. In fact, the whole island of Lutruwita/Tasmania is Aboriginal land (Sainty in Parks and Wildlife Service, 2020, p. foreword).
The Tourism Master Plan provides for Aboriginal cultural tourism through ‘Cultural presentation hubs’ incorporated into existing visitor services infrastructure and smaller, ‘secondary’ hubs to be developed in consultation with local Aboriginal communities (Parks and Wildlife Service, 2020, pp. 28-30). How these provisions translate into the kinds of actions on Country that people wish to carry out will almost certainly depend on an interpretation guide to Tasmanian Aboriginal cultural heritage; as of the time of writing, this is still in development (Parks and Wildlife Service, 2020, p. 43).
Summary In this chapter I introduced the concept of wilderness as a means of viewing landscapes. I demonstrated how its pervasiveness in TWWHA management has tended to hinder Tasmanian Aboriginal people from enjoying their cultural rights. I also made the case that some ways of viewing the non-human environment as intrinsically valuable mirror the way in which cultural heritage has previously been assumed to hold a universal value by demonstrating the parallels between the two. I concluded this chapter by demonstrating how TWWHA management has slowly come to recognise Indigenous aspirations for
144 engagement with the landscape and cultural heritage, but for the most part, such aspirations are yet to be realised in practice.
In the following and final part of the thesis, I reconcile all of the findings of the results chapters with the research questions raised in Chapter 1, and then conclude with a suggestion about how these might inform new models of practice. However, before I conclude the presentation of my results, one further matter relating to wilderness bears mentioning, because the wilderness concept has been adopted by some Tasmanian Aboriginal people in support of their rights aspirations.
145 Pause: Redefining Tasmanian Wilderness Prior to the release of the draft of the 2016 TWWHA management plan, the Tasmanian Government proposed removing wilderness from the TWWHA’s title on the basis that it was “problematic for Aboriginal people” (ABC News, 2015b; Denholm, 2015). In hindsight, this proposal may have had more to do with facilitating private tourism development in national parks (see Carlyon, 2018; Jaeger & Sand, 2015, p. 20). Nonetheless, it spurred the debate about the applicability of wilderness to the TWWHA (ABC News, 2015c). The question of whether the TWWHA was wilderness also came in light of the Reactive Monitoring Mission suggesting that Aboriginal heritage within the World Heritage Area had hitherto been overlooked and undervalued within its management frameworks (Jaeger & Sand, 2015)21. The extent to which the TWWHA was viewed as unpeopled had in fact been raised as an issue earlier. The Minor Boundary Modification - a campaign to extend the boundaries of the TWWHA over areas set for logging - made no mention of the Aboriginal cultural values, despite the insistence by Aboriginal people and archaeologists that it contained important sites (Ross et al., 2015, p. 36; Sims, 2014). This was viewed by some Tasmanian Aboriginal people as the continued co-option of Aboriginal heritage into the wilderness ‘brand’ in support of a conservationist agenda, and an obstruction to Aboriginal joint management of the TWWHA. Lee and Hamilton (2016) stated that: … the election pledge by the Greens for … increasing TWWHA Country boundaries has made clear that our people are to be used as things for wilderness branding. These groups and proponents value our heritage as unspeaking items, but will not acknowledge our people as active participants in caring for Country.
Lee (2015) also raised an inconsistency between the IUCN Category 1b and claims by conservationists that wilderness was still compatible with the recognition of Aboriginal interests, citing the fact that none of Australia’s Indigenous Protected Areas overlaps IUCN Category 1b Wilderness Areas, “because this explicitly denies Aboriginal people’s history, heritage and continuing rights”. In response, ex-Greens leader Bob Brown (2015) contended that “the term ‘wilderness’, in the United Nations context in the TWWHA management plan,
21 The RMM’s report was presented in March 2016, prior the 2016 Management Plan being finalised in December. The Mission also acknowledged at the time of its visit in 2015 that Aboriginal heritage was under- documented in TWWHA management.
146 embraces indigenous heritage, habitation and culture, while excluding modern technological impacts”. Brown’s response accurately reflects the IUCN definition, which is designed to minimise the impact on ecological integrity from modern, large scale industry (Kormos et al., 2017, pp. 1-2). However, it still calls on the ‘Noble Savage’ conception of “indigenous heritage, habitation and culture” because it necessarily precludes Aboriginal people from actions that have ‘modern technological impacts’. In addressing a lack of consensus on what essentially defines wilderness, Hawes et al. (2018) later set out to enshrine Brown’s view as a means of protecting the experiential and ecological value of land based around its remoteness from modern infrastructure. While acknowledging Indigenous cultural and social interests in certain landscapes, Hawes et al. (2018) still only see wilderness as existing where Indigenous people are “following a predominantly hunter- gatherer, wilderness-based ways of life” (Figure 8). The vagary of what a ‘wilderness-based’ lifestyle entails aside, such statements expose the manner in which environmental management can act as a tool of colonialism, delimiting and determining for Indigenous people where their rights exist, and have been extinguished (Muller et al., 2019).
Figure 8 Definition of wilderness from Hawes et al. (2018:4).
Despite the outward incompatibility between Indigenous cultural rights and wilderness suggested in Brown’s and Hawes et al.’s positions, the Reactive Monitoring Mission noted that, as understood by most in the nature conservation community today, wilderness has moved on from the “typically untenable notion of human absence in past and present”, and to some extent adjudicated on the matter in Tasmania by recommending that the existing TWWHA title be retained, “as long as it is not abused to imply an absence of the rich human past and contemporary and/or the relationship between the TWWHA and the contemporary Tasmanian Aboriginal Community”, and that “the notion of a ‘cultural
147 landscape’ is seemingly, but by no means necessarily, contradictory to the notion of ‘wilderness’ and deserves to be further explored” (Jaeger & Sand, 2015, pp. 20-21).
While the TAC’s relationship with the State Government has deteriorated, its relationship with The Wilderness Society sees both organisations mobilising wilderness (and World Heritage) in support of Indigenous rights claims. In relation to the Government’s bid to remove ‘wilderness’ from the TWWHA, the TAC CEO went on record to say that such moves were “a blatant attempt to drive a wedge between [Aboriginal people] and the environment movement”, and supported the retention of ‘wilderness’, stating that “many international legal definitions of wilderness allow for people to be in the landscape” (Denholm, 2015). The alliance between the TAC and TWS uses the rhetoric of both Aboriginal rights and environmentalism to assert dissent from the Government’s handling of the TWWHA. In a joint media release, TWS and the TAC leveraged the area’s Outstanding Universal Value (OUV) as a means of defending Aboriginal heritage, saying that “through this World Heritage listing, the global community is confirming that Aboriginal heritage is just as significant as the Pyramids in Egypt, the Taj Mahal in India and the old city of Jerusalem” (Tasmanian Aboriginal Centre, 2014). This is a departure from TALC’s earlier dismissal of ‘world significance’ as a reason to support archaeological ownership of Aboriginal heritage (Tasmanian Aboriginal Land Council, 1996, p. 298), although the new position has to be taken in its political context. The TAC’s alliance with The Wilderness Society comes associated with the former’s declining social and political capital, resulting from the establishment and expansion of the TRACA organisations. The Wilderness Society also may be experiencing a period of receding political capital in light of an incumbent conservative government. In any case, this coalition reminds us that the very same structures of power and language that can obstruct Indigenous rights aspirations can also be used in their support, and so archaeology’s interaction with Indigenous rights is not as simple a task as selecting a certain set of ideas or perspectives on landscapes and the past.
148 Part C Discussion and Conclusion
Chapter 13 Discussion
Introduction The last ‘pause’ leaves the transition into a discussion of my results on an awkward footing. Discussion of how the narratives raised in then results might influence archaeological practice would be straightforward had I been able to show that there was homogeneity in the way Indigenous people thought about and reacted to the situations I observed. Allowing for diversity and individuality in what rights mean to people inevitably captures the instances where such heterogeneity involves conflict and estrangement. In response, I have structured this discussion chapter to begin from a set of broad, elementary observations of the results, and then progress through the more nuanced consideration of how heritage and rights co-operate, toward the complex matter of responding to conflict. Tying these pieces of discussion together, I set the foundation for an approach to human rights similarly built on key basic principles able to respond to more complex situations.
Starting point – Cultural rights beyond ownership The first observation I make of the results is that they demonstrate how people’s engagement with cultural heritage, its management, classification, and the stories that are told around it all produce human rights outcomes. As I outlined in Chapter 2, the link between cultural heritage and human rights through cultural identity is particularly apparent in the case of Indigenous rights, which is why these things become entangled, mutually sustaining ideas and discourses (as suggested by Albro & Bauer, 2005; Byrne, 2008b; Coombe, 2010; Coombe & Baird, 2015; Cowan et al., 2001). This connectivity was articulated through people’s interactions with the places and things that constitute a culture’s heritage becoming part of their claims to human rights. For instance, the way in which the continuation of cultural practices on the Bass Strait Islands in the 1840s eventually led to an Indigenous rights movement in the 1970s exemplifies the reciprocity between the survival of people’s cultural identity and their ability to make rights claims. Much of the modern Tasmanian Aboriginal rights movement has been spent in reclaiming
149 cultural heritage. As a ‘bottom line’, this demonstrates why archaeologists have some Indigenous rights obligations owing to their role in preserving those places and things, although this only confirms what has been stated for some time: that cultural heritage preservation is commensurate with protecting cultural identity (e.g. Daes, 1997). The destruction of heritage is a destruction of identity, and thus is a human rights issue (Nicholas, 2018; Nicholas & Smith, 2020).
I would argue though that acknowledging archaeology’s role in cultural heritage preservation only achieves a baseline standard of engagement with human rights. The idea that heritage preservation in a museum does not equate with effective preservation of a culture has been professed for some time (e.g. Mugabowagahunde, 2015), but the preservation of cultural heritage in the ‘field’ on archaeological terms does often not acknowledge the correlation between access to cultural heritage and the breadth and volume of rights claims that people can make concerning that heritage. I showed how colonisation, archaeology, and even environmentalism all distance (either physically or conceptually) Tasmanian Aboriginal people from their cultural heritage. Once Tasmanian Aboriginal people gained control over and therefore access to, the sites of their ancestors’ lives and deaths and the objects that signify their distinctive cultural identity, they have been able to assert increasingly powerful claims to that identity. The people at Wybalenna worked with very little in terms of cultural heritage and were able to make a few, albeit seminal, claims. The handful of stories and fragments of knowledge that they preserved were perhaps enough to make the modest assertions needed to survive as a distinct culture. The Bass Strait Islanders’ determined maintenance of muttonbirding as a key form of subsistence and cultural practice formed the foundation of early claims to land rights, which were a marked expansion in the suite of rights that could be recognised. The repeated successful claims made by the Tasmanian Aboriginal rights movement over cultural heritage throughout the 1980s and 1990s facilitated the reclamation of a much broader range of rights, including rights to political self-determination and land that had been stolen at settlement.
150 These examples demonstrate the reciprocity between the accrual of cultural capital through cultural heritage (either as space, material or concepts), and the expansion of the breadth of rights claims that can be made on the basis of Indigeneity. This is perhaps why, since the nineteenth century, Aboriginal rights claims in Tasmania have almost always included some element concerning cultural heritage. If self-identification is recognised as a human right (Ferri, 2018), then it follows that obstructions to claims of this nature become human rights issues. It thus also follows that obstructions relating to people’s use, control and access to cultural heritage also become matters of human rights. Nominal control of heritage that is preserved to minimise access (e.g. in a museum collection or in a shipping container22) is therefore functionally useless in making rights claims. What this means is that recognising how archaeology and human rights relate goes beyond the recognition of Indigenous ownership of cultural heritage, and superficial statements about the importance of Indigenous heritage to Indigenous people. For archaeologists, the starting point for a meaningful engagement with human rights might therefore be to identify the historical narratives or management paradigms that control knowledge and authorise expertise and power over decision-making that impede people’s access to their cultural heritage.
As I explained in my approach to human rights as presented in Chapter 3, understanding people’s rights aspirations requires an account of what it is that people wish to do with their cultural heritage, and why. An engagement with human rights based on a sophisticated understanding of how cultural heritage is used in rights claims is where I see archaeology benefiting. This work has already begun, as I discussed in Chapter 2. However, a phenomenon that emerged in the results was that the content of rights claims was often confused with the objective. In Chapter 10, I demonstrated how cultural heritage may at once be the object over which people make a claim and the medium through which they assert broader claims. For instance, in the La Trobe/TALC matter, control over the artefacts was significant both in that it could dictate what the safe keeping and proper use of excavated artefacts entailed, and because it imparted some social capital to the owner. To hold the artefacts in storage for the purpose of scientific research lent credence to
22 A common means in Australian CHM practice of storing cultural heritage material salvaged from sites impacted by development.
151 archaeologists’ roles as experts on the past, while a TALC victory legitimised Tasmanian Aboriginal land and identity claims. This was perhaps one reason why Tasmanian Aboriginal people sought to have their cultural heritage “removed from the clutches of science” as Mansell stated (Ryan, 2012, p. 322). At the time, Smith (1999) characterised the affair as an example of the failure of appeals by archaeologists to have their ‘scientific rights’ recognised, but there is a social context to both sides’ claims. TALC’s assertions need to be grounded in the history of the interaction between the broader discipline of archaeology and Tasmanian Aboriginal people up to that point, as I outlined in the preceding results. Jones’ research had been used to support the characterisation of Tasmanian Aboriginal people as a ‘dying race’ (Smith, 1999, p. 28), and his assertions were made primarily on data collected from artefactual material. For TALC it was perhaps not simply a matter of principle – the stories told by even commonplace artefacts of the archaeological record could threaten their identity as Aboriginal people. In other words, while on the surface, the conflict was understood by some to be over the ‘ownership’ of cultural material, what was really at stake, as it has been since the 1850s, was the power to dictate the narrative regarding Tasmanian Aboriginality. The power of that narrative lies in its role in determining the legitimacy of Tasmanian Aboriginal cultural identity, and how the measure of legitimacy could be used to either support or obstruct wider rights and social justice claims made by Tasmanian Aboriginal people.
Throughout the interactions between Aboriginal people and archaeologists in Tasmania, which I described in Chapter 10, the rights claims being made were also often calls to practise heritage in ways that promote, even privilege, an Indigenous voice. Had Australian archaeologists been equipped with the theory to recognise cultural rights claims and their role in obstructing those claims during the 1980s, Australian archaeology as a discipline may have ‘matured’ sooner than it did. This is where it is possible to build on the work undertaken in Indigenous archaeology to incorporate human rights. Archaeologists who are concerned with the socio-political aspects of heritage in Indigenous people’s lives, and who understand matters such as the effects of colonial legacies, as well as having an appreciation of the injustices and inequalities experienced by Indigenous people (e.g. Colwell- Chanthaphonh et al., 2010; Lilley, 2009; McNiven, 2016; Nicholas, 2010, p. 11; Smith &
152 Jackson, 2006; Smith & Wobst, 2004; Wallis & Gorman, 2010), are, consciously or unconsciously, seeing “rights in heritage” (Logan, 2012, p. 242), such as the right to be culturally distinct, to protect that distinctiveness, and to fight dispossession and exclusion (Wiessner, 1999, p. 60). This also means that a rights-based approach to heritage sees cultural resources as useful beyond being signifiers of the past, and instead recognising that they are a resource that people can call on in realising their aspirations. This immediately creates a value for cultural heritage that far outstrips that assigned to it by virtue of its antiquity, rarity, research potential, or any other metric archaeologists use to evaluate it.
Examples such as the foregoing are why I see a meaningful engagement with rights as going beyond an adoption of international treaties or other legal principles and towards an understanding of aspirations by local heritage owners and custodians. UN instruments and domestic laws are all useful means of encapsulating rights ideas but looking at rights only in those terms does not account for the intent of rights claims, and the social contexts in which they are made. If nothing else, all my results demonstrate that different kinds of rights claims tend to overlap. Advocating solely for Indigenous rights to own or control heritage material or places will therefore only achieve one part of the broader aspirations people may have.
From the results in Chapter 12, it is clear that Aboriginal-led land management is not only a means of achieving good conservation outcomes; it is also a means for people to determine their cultural identity, and assert their presence as bearers of rights specifically relating to that identity. Borrowing from Nussbaum’s (1997, 2007) work, and being concerned with fully identifying what people wished to achieve through heritage management, rather than focusing solely on the specific objects of contention, I was able to identify rights processes that Indigenous people initiated, such as the TALC example above. This was an important facet of the case study because it demonstrated how rights claims occur outside known rights frameworks. This observation may seem to be stating the obvious, but it presents a parallel to the way we conceive of rights claims and the genesis of what we understand to be rights in the present. I suggested that Aboriginal resistance to colonisation was an expression of the desire for freedom, self-determination, and even to maintain a unique
153 cultural identity. When the attitude amongst Western countries toward Indigenous peoples shifted toward protectionism, Aboriginal people on the Bass Strait islands re-oriented their claims to be articulated within those emerging social and legal frameworks. However, such adjustment did not make the claims new or novel. They were simply a reiteration of the principles that had been defended since 1803, albeit using the language and means of the English legal system.
This observation is a reminder that the origins of rights ‘ideas’ probably do not to lie in international agreements or ‘mainstream’ law. Rather, people use whatever means are available to them to articulate their aspirations. If non-archaeologists are forever clarifying the meaning of rights principles in non-archaeological contexts, adding more detail and substance through ever more complex claims, then the same should apply for cultural rights claims that involve archaeologists. In Tasmania, these claims came directly to archaeologists in the form of demands to change the way archaeology was conducted, and the way that it looked at the past. The principle of Indigenous ownership and control of cultural heritage, along with the requirement for informed consent and the importance of the Indigenous voice, are well-established in Australian archaeological practice now, but I question whether we recognise the agency that Indigenous people have had in creating these norms.
Thus we need to ask whether Indigenous cultural rights are viewed by archaeologists as sets of statements written into international agreements and domestic heritage law, or whether they are recognised as the products of capable and knowledgeable Indigenous actors working across multiple, sometimes foreign frameworks to achieve their aims? To me, the latter is the preferable approach. On that basis, the priority for understanding rights shifts away from the recognition of principles and toward being able to understand the actual claims people are making. I think that by not doing this we run the risk of delaying the development of standards of practice, which is counter-productive at the very least. More importantly, by being insensitive to the intent of rights claims, we may overlook how we influence the outcomes that can be achieved, and therefore inadvertently obstruct their progress.
154 To be able to recognise broader rights claims being articulated through heritage, archaeologists need to be attentive to the emergence of those claims as early as possible. Practically speaking, this means that a rights-based approach to practice does not resist unfamiliar ideas or challenging claims. Despite the watershed place of the UN DRIP, it would be a mistake to assume that the definition of what Indigenous rights entail is not evolving, just as it has always (see Mazel, 2009). Archaeologists will continue to be presented with rights claims involving cultural heritage, but the question is whether they will recognise them as such. As I recounted in Chapter 5, at Tasmania’s settlement the rights claims that Tasmanian Aboriginal people made were unrecognisable to a majority in non-Indigenous society because Indigenous land rights and self-determination were not established rights norms. Yet the kernel of those claims represented what we would now see as universal human rights. The implication is, therefore, that rights claims may begin as people simply acting according to and asserting their values, even if those actions are illegal, appear confrontational, or impinge on some societal norm.
The parallel for archaeologists is that the same pattern occurred in Tasmania in relation to cultural heritage rights. Tasmanian Aboriginal people made claims outside any benchmark for an understanding of cultural rights at the time, yet such claimed rights later became principles of best practice once we had developed the language and concepts necessary to understand them. Langford’s 1983 critique of archaeology is now recognised as providing the impetus for significant change in the discipline (McNiven & Russell, 1995; Ross, 2020; Smith, 2006; Sullivan, 2008), because it raised ideas that have become standard in the archaeological discourse: ideas such as control, de-colonisation, de-authorisation of the scientific voice, rights, power, and social justice. The reason why Australian archaeologists were still divided on the now seemingly simple issue of ownership of cultural heritage (e.g. Allen, 1983) may simply be because these concepts had yet to enter the lexicon of heritage management. The lesson from this is that being attentive to human rights entails an ability to recognise nascent claims or emergent principles that challenge the status quo. I would even take this a step further to suggest that a truly rights-sensitive approach even seeks out and interrogates challenging claims, viewing them as the cutting edge of how we might progress our standards of practice.
155 Good heritage practice is good human rights practice A further, and in this context, fortunate observation I make of my results is that embedding the foregoing insights in heritage practice can be partly achieved by employing the views on heritage work advocated by scholars such as Byrne, Smith, Campbell, and Harrison that I discussed in Chapter 2. This is in terms of how we might see heritage as social action within a politically and historically constructed landscape. As I noted in Chapter 2, Indigenous archaeology recently engaged with rights in this way (e.g. Nicholas, 2018; Nicholas & Smith, 2020), but not in a truly articulate or comprehensive manner. What might now occur is an acknowledgement that the reason behind the promotion of archaeology ‘for Indigenous people’ is that it is more likely to be supportive of Indigenous rights aspirations. I would suggest, however, that such support can only be fully realised through the adoption of an Indigenous archaeologies methodology, combined with an ability to recognise how human rights are expressed through heritage. That is to say, if we accept that heritage-making is a constant process of imbuing landscapes with meaning (Byrne, 2008a, 2008b), and acknowledging that people’s cultural experience is a process of memorialisation in place (Chow, 2014), then it makes sense that claims concerning cultural heritage, particularly such as those in Tasmania, are an extension of memories of near-extinction, assimilation, and dispossession of lands and heritage.
By recognising this trope of heritage as memory and acknowledging a view of heritage that accounts for other ways in which it might be valuable to people, it makes sense that Aboriginal people may seek to control cultural material or places. The same rule applies to breaking apart the conservation ethic in favour of socially constructed measures of heritage significance. The act of dispelling notions that social values are frivolous and mutable while scientific values are valid, immutable and legitimate (e.g. Smith & Campbell, 2017) is, to me, the same as breaking down the assumption that archaeologists are apolitical in relation to heritage (as per Jackson & Smith, 2005, p. 309). To return to the TALC/La Trobe example, in hindsight this would mean that we would not see Aboriginal claims as the only ones that might invite scrutiny. Taking this approach in that case would have meant that archaeological knowledge creation was posed less as an immutable social good and more as an interest that potentially impinged on an Indigenous right to self-determination in relation
156 to heritage, and also in the broader political and social senses. Indigenous archaeology, therefore, becomes less about trying to produce something of value to Indigenous people through existing ways of working (although this is still a consideration) and more about understanding the role of heritage in Indigenous lives.
To continue the last point, the results in Chapters 10 and 12 demonstrate how a failure to examine the core assumptions at work in a particular discourse meaningfully exposes that discourse to scrutiny, especially when it begins to impinge on people’s ideas about their rights. For me, the vision of wilderness that is popularly endorsed in Tasmania represents an incomplete way of viewing a landscape, and while it is left unexamined, its tenets reflect what was considered to ‘be’ heritage before that term underwent redefinition. Similarly to how heritage practice formerly centred on preserving physical remnants of the past in a static state (Smith, 2006, p. 17), by advocating ‘wilderness restoration’, Rogers and Mackey (2015) also imagine a form of ‘past perfect’. Those trying to reconnect with ecological systems seek a ‘human perfect’ (see Castree, 2003, p. 6) and often look to imagined ideas of past and present Indigenous connections with the land as their point of reference. This closely mirrors how heritage can be “called upon to serve as a novel vehicle for national pride, spiritual recovery, and reconciliation” (among other things) in the pursuit of a ‘future perfect’ (Meskell, 2015, p. 485 cf. Davison 2008).
Mobilisations of heritage and environmental discourses such as these, while seeking the preservation of memory (which is what heritage-making is), still impinge on others’ freedoms to make their own judgements about what is right and wrong in relation to the substantive elements (i.e. the landscapes and objects) that those discourses involve. It is essentially still preferencing one heritage over another. The desire to find oneself in nature may be innate, but in the instances I described, it occurs as a cultural monologue (cf. Vincent & Neale, 2017, p. 315). Behind this desire for connection to nature is the belief in its having an intrinsic value, and a set of ethical principles arising from that valuation (Ritter, 2014, p. 2).
157 This echoes the view in the heritage field that “the ‘stuff’ that UNESCO and ICOMOS had traditionally defined as heritage – places, sites, things, and so forth – are inherently and intrinsically of value” (Smith & Campbell, 2017, p. 5). The inherent value of sites and objects was assumed to be universally recognisable, whereas ‘intangible’ values, or those held by human beings, tended to be treated as unquantifiable because they are mutable and contingent. Whereas in the heritage field it was possible to deconstruct similar ontological assumptions to the point where they were recognisable as being the products of largely Western ideals and ways of constructing heritage (Byrne, 1991), the same reflexive study does not appear to have occurred in relation to wilderness. Despite the attempts by Hawes et al. (2018), the underlying moral judgements behind the application of wilderness have not been questioned.
While I admit I am preferencing my own valuation of human flourishing above a perceived value of nature-based experiences, the point is that value sets often encapsulated in the ‘wilderness’ trope are themselves anthropogenic. Accepting that values are socially constructed does not diminish them – after all, human rights are similarly constructed. Whereas heritage managers who lean toward social constructivism as the basis of their epistemology may recognise all values as personally contingent, the conservation discourse often seems to rely on intactness, beauty, rarity, and so on not being artificial value judgements attached to observations of the natural world, but inherent properties of things that can be objectively measured to determine their importance. Presumably, these properties also underpin arguments for the universal applicability of that importance. For this reason, I am still compelled to question the extent to which the vision of wilderness endorsed by The Wilderness Society and others in the Tasmanian context aligns with that espoused by the TAC in practice. I should make clear that I do not mean that wilderness can only be valued insofar as it has instrumental purpose to humans. Rather, that by identifying the outcomes wilderness preservation has, such as biodiversity protection, climate change mitigation, and the aforementioned opportunities for human interactions with nature (Kormos et al., 2017, p. 1), people can make their own value judgements about those things. There is no need to assume a universal moral code, which leaves room for reconciliation with Indigenous people’s rights to perform actions that noticeably impact upon nature.
158 The assumption, or imposition of universal morals is why Indigenous connections to landscape are often invoked in support of intrinsic value arguments as some kind of mythical, spiritual, ‘intangible’ value set, incorporating an ‘innate environmentalism’ (Vincent & Neale, 2017, p. 305), which non-Indigenous people might hope to emulate (e.g. Thompson, 2018 also Suzuki in Anderson, 2005). It is true that Indigenous ecological knowledge and ontologies can be “superbly consistent” (Rose, 2005, p. 302) with biology and other associated sciences in seeking to understand the interconnectivities of the natural world, as well as environmentalists’ desires to preserve them. However, rather than being applied as a means of informing land management strategies, Indigenous ontologies are often consigned to a category of obscure systems of belief, rather than accepted as ‘real’ knowledge (Head, 2007, p. 840). I (and others, see Rose, 2004, p. 201) would query the extent to which non-Indigenous proponents of intrinsic value are motivated by their desire to allay their “intensely awkward and unresolved … anxiety” (Anderson, 2005, p. 270) about determining their own place in nature, and so use Indigenous people as the benchmark for an idealised state of the human/nature relationship. Indigenous people variously feature in what Anderson (2005) calls “a false logic of purity – of a people thought to once live close to nature, and as such more ‘authentically’”. In attempting to position the Western world in relation to nature in this way, Indigenous people are simply forced back into the mould of the ‘Noble Savage’. Thus, for instance, Mackey and Rogers (2015) make the specious statement that “in many cases around the world, wilderness areas only remain intact because they are under Indigenous stewardship”. Statements such as this commend Indigenous interests only insofar as they preserve this idealised version of wilderness, which Mackey and Rogers deem authentic and intact.
Who is the community? Despite my view that wilderness discourse provides a parallel to the way archaeologists have previously viewed cultural heritage, Tasmanian Aboriginal support of the TWWHA’s wilderness designation arguably suggests that such nomenclature, and associated classification, need not necessarily be an impediment to Indigenous rights as others might claim. In other words, ideas cannot be easily sorted into categories of positive and negative in terms of their relation to Indigenous rights, and my concerns about compatibility may not
159 be warranted. Moreover, raising the matter here necessitates consideration of what ‘intra- community’’ conflict means in terms of human rights. The supposition that archaeology may support Indigenous rights is contingent on all members of an Indigenous community whose rights are in question share the same beliefs about what their rights entail. It may be the case that archaeologists, as outsiders, conceptually create the communities they wish to serve in the pursuit of preserving human rights. The extent to which people may see themselves as separate from other groups is then elided under the greater cause of Indigenous rights. This is effectively what I have done in describing the conflict in Chapter 8, which may understandably be viewed by some as being continuation of Tasmanian Aboriginal people’s fight to retain their land and culture, as opposed to an Indigenous ‘intra- community’ dispute.
This is perhaps why, in my view, precisely who Indigenous archaeology as a discipline seeks to serve remains unclear. If we combine Indigenous archaeologies methodologies with a human rights-based approach to archaeology, should the intent be to promote and uphold Indigenous rights universally, or the interests of a particular group of Indigenous people? Moreover, does bringing human rights to the table create more conflict than it might be intended to resolve? Even in matters of highly localised politics, the principle of individual self-determination at the heart of human rights presumably poses a threat to the collective cohesion of ideas. If we seek to approach politics from the same direction as we might approach rights, viz. through the promotion of individual agency, do we unwittingly expose the individuality inherent in people’s rights aspirations? In other words, by asking “who speaks?” (Epstein, 2011, p. 345), we may find that all speak – and there are inevitably conflicting voices.
Human rights intuitively comprise a balance between personal freedoms and the common good. However, this does not elucidate who might be the beneficiaries from archaeologists’ actions in relation to Indigenous cultural rights. Although the TAC’s efforts in the 1970s may have expanded the norms concerning the legitimacy of claims to Tasmanian Aboriginality, they also laid the foundation for other people to explore and assert their own identities, which could expand those norms further. Now this pattern manifests as the contest over
160 whether the constituency of people who have rights in Tasmania’s Aboriginal cultural landscape should be consolidated or expanded. The argument pivots on gaining the right to decide what is Aboriginal heritage, thus excluding others from the landscape by making it unknown and unfamiliar to them. The TAC’s promotion of palawa kani language, and more acutely, the insistence that it is “the only Aboriginal language in lutruwita today” (Tasmanian Aboriginal Centre, n.d.) contains the assertion that the TAC is the only legitimate vehicle for cultural re-construction. Whereas non-Indigenous people are encouraged to learn and adopt palawa kani place names, Tasmanian Aboriginal people who feel they do not have ‘access’ to the language may find themselves alienated from those places and that process of cultural connection. This may appear appropriate to people who do not recognise indigeneity claims outside the TAC as legitimate. Nonetheless, it sheds light on why local place names are now being progressed, and the names that are accepted under the dual-naming policy grow indelible as they are reproduced on maps and signage. In taking a rights-based approach to the cultural landscape in contention, the question then becomes one of “whose rights matter?”.
The apparent impasse created by the example above makes it difficult for outsiders to find a reliable indicator of the positivity of their input into Indigenous rights outcomes. Whether the Tasmanian Government is in the process of making instrumental moves that serve its interests, while at the same time diluting Indigenous rights, or is engaging in behaviour consistent with current international Indigenous rights norms, depends on who one views as comprising the community of Indigenous people in Tasmania. Whether having a greater number of people eligible to make rights claims through broadened criteria for Aboriginality is preferable to the possibly more vigorous advocacy that the TAC would provide, albeit for a smaller constituency, depends on one’s predilection for utilitarianism, and again, who they believe should hold those rights.
If an organisation rises out of the conflict to gain status as the pre-eminent Aboriginal representative body in Tasmania, will cultural or political rights outcomes be the worse for it? Whereas TRACA has a demonstrated interest in cultural rights, Michael Mansell’s most recent campaigns centre on increased Aboriginal representation in Federal Parliament
161 (Ford, 2017), the creation of an Aboriginal ‘seventh state’ (Grant, 2017), and a Treaty Commission for Tasmania (Bailey, 2020). Of course, TRACA’s cooperative stance toward the Tasmanian Government does not automatically imply that Tasmanian Aboriginal people will have less protections from government. TRACA members remained vocal in their criticism of processes relating to the future of TWWHA management (Lee & Hamilton, 2016) and were quick to remind the Government of its obligations relating to the report of the UNESCO Reactive Monitoring Mission (Lee, 2016). Strategies of resistance to and cooperation with the state are evidently not mutually exclusive and can also change over time (Lee, 2019), just as the shift in relation to wilderness has occurred, but in Tasmania, the question still remains: which Indigenous rights will ultimately be won?
One way for archaeologists working in Tasmania to resolve this question might be simply to agree to the proposition that some of the people currently claiming Indigenous rights are not Indigenous. However, this option is not possible for me under my chosen paradigm of promoting individual autonomy in rights (and therefore identity) claims. Furthermore, this would appear to me to be an act in which an archaeologist arbitrates on indigeneity, which is immediately problematic, in that we would be self-authorising yet another form of expertise. In the other hand, it remains the case that taking an inclusive position similarly arbitrates the matter and is similarly self-authorised through taking part in actions (such as Aboriginal heritage assessments) with those people I recognise as Indigenous. The riposte “whose rights matter more?” remains valid. Practising archaeology in Tasmania has consequences for people’s rights either way. Archaeologists cannot easily extricate themselves from such quandaries by simply seeking to support Indigenous rights in a broad sense, while ignoring conflicts that occur at the local level.
Meaningful engagement with human rights is concerned with the outcomes that affect people. Archaeologists cannot take a narrow view and focus only on rights as they relate to heritage, seeking to insulate themselves from typically more difficult matters of politics and social cohesion. As Henriksen (2003) argues, the complexity of issues faced by Indigenous people often leads to disengagement from social scientists, but the argument for “staying
162 out of politics” appears indefensible now that we no longer view engagement with the social lives of people as ‘unscientific’ (Wright, 1988).
Furthermore, Kirsch (2002) argues that attempts at neutrality typically end up supporting those who hold greater power in a conflict. The Wilderness Society and Tasmanian Greens have promoted this stance by adopting palawa kani and supporting the APCA appeal in the name of the cultural rights of “The Aboriginal community of Tasmania” (Gooch, 2018). To the non-Indigenous public, this definition of the community would appear to include anyone in Tasmania claiming Aboriginal identity, but in reality is consistent with the position put forth by the TAC that this does not include what it sees as ‘non-Aboriginal organisations’ (Maloney, 2021). For archaeologists, ‘expert’ actions hold political weight and do social ‘work’, even if they are not intended outcomes. Every heritage assessment that is conducted and every report that is filed, accrues social capital for the community with which the participants are affiliated. To carry on with business as usual and ignore ‘Indigenous politics’ is still an act that effects a rights outcome one way or another. And thus, avoiding Indigenous politics is, itself, a form of politicking.
Unfortunately, as I outlined in Chapter 2, much of the literature regarding cultural rights conflicts only deals with Indigenous people’s interactions with the structures of the state, the discourse of archaeology, and the forces of colonisation, but rarely engages with conflict occurring in more localised fields of power. In the absence of such guidance, taking an approach that asks what people envisage in terms of their rights and identity claims actually allows us to engage with these difficult questions in ways that we may previously have avoided. If we recognise that heritage is always positioned within power relations and is therefore always contested (Baird, 2014, pp. 149-150), we can navigate conflicts of this nature to some degree. We can appreciate that at a minimum, we recognise that Aboriginal heritage in Tasmania is valued by all people who claim Aboriginality, despite some people not recognising another’s Aboriginality (cf. Colwell-Chanthaphonh, 2009, p. 161). We might then broaden the view to account for how history and politics have shaped the current situation to form a fuller understanding of where and why claims to identity originate (cf. Baird, 2014, p. 142).
163
Ultimately, I must acknowledge that action (and equally, inaction) supports one or another claim to indigeneity, and one set of rights aspirations either way. I am inclined to believe that, based on how I understand identity to work (as I explained in Chapter 2), combined with what I know of Tasmanian history (Chapter 5) and what I have observed of how people relate to cultural heritage in the present (Chapter 8), I do not see a lack of documentary evidence as grounds to deny someone’s Indigeneity. Perhaps understanding our role in conflicts is more about being honest about how much our own morals and worldviews guide us, while remaining able to unpack and defend them.
Summary Taking on a rights-based approach is clearly not as simple a task as selecting an Indigenous group and advocating their rights. Nor can it equate to a vague commitment to Indigenous rights in a broad sense. From the outset of this work, I had been aware that turning conflicts into matters of human rights often makes their resolution more difficult (e.g. Zalasińska & Piotrowska, 2012). This means that archaeologists bringing rights-based approaches into their work might only add an unneeded burden for Indigenous people navigating their way through such conflicts. One of the criticisms of Indigenous archaeology is that ultimately it remains an exogenous framework imposed onto Indigenous people for their own benefit (Thorley, 1996, p. 11), most ironically, as Thorley points out, as a means of fostering their self-determination. I do not think there is any persuasive way to refute this claim, and the same has been said for human rights (Ignatieff & Gutmann, 2001). The key point is probably whether the application of either is in response to Indigenous demands, or intended as a means catharsis, primarily for non-Indigenous people. Yet human rights do not always have to be used to solve situations involving inequality, or to reconcile conflict, as might be readily assumed to be their primary purpose. In the next and final chapter, I explain how human rights can serve as a frame of reference for archaeological practice that promotes Indigenous agency and self-determination.
164 Chapter 14 Conclusion: Toward a model with human rights as a frame for the relationship between archaeology and Indigenous people
Introduction The discussion in the previous chapter demonstrated an imperative for archaeologists to engage with human rights and suggested some approaches that could be taken toward that objective. This concluding chapter offers an answer to the research question that can also serve as an approach to human rights. The defining aspects of this approach are that it is based primarily in the local-level actions and assertions people make. It is not constrained by litigious, simplistic views of what human rights are, but instead looks to what people want, and places that knowledge in a rich social context, creating ‘thick’ descriptions of what is occurring. Importantly, it also extends that view back onto archaeology and archaeologists, as actors with significant social capital and the ability to affect rights outcomes. Finally, its foundation lies in a modern understanding of how heritage is created and passed on, and what this implies for the way it should be managed.
Take a non-prescriptive attitude to rights The first facet of how I see human rights best approached is through the maintenance of a non-prescriptive attitude towards what rights entail, along the lines of the one I outlined in Chapter 3. This approach should allow archaeology to recognise rights claims about heritage even before the ideas behind them become norms. Being able to respond to emergent ideas is useful because, for instance, although the intent of Indigenous claims over heritage may be visible today in the context of Indigenous rights, this does not mean the concept of heritage rights has finished evolving. Langford’s and TALC’s assertions both occurred outside an established framework for such rights to heritage, as they predated both the UN DRIP and Smith’s (2006) work by a decade. Yet as I demonstrated, their claims for cultural heritage-specific rights were effectively calls to adopt standards of heritage practice that would become de rigueur in later years. This mirrors the process whereby Aboriginal people at the time of initial European settlement made claims that, at the time, did not reflect any established rights standards, but which would later become internationally accepted concepts in Indigenous rights. To me, this suggests that by accepting ideas only after they
165 become widely accepted, we forgo an opportunity to assist people to advance new and sometimes challenging ideas. Worse, we risk obstructing the progress of ideas that will become norms in the future.
Dispensing with assumptions about what things might be ‘right’ and ‘good’ also allows a more sophisticated view of the ways in which people adopt discourses about heritage and land, more sophisticated than we might otherwise have been able to do. I believe we can do better than to look only at certain structures of power and meaning as good/bad, beneficial/obstructive and so on. The ways in which cultural heritage is variously talked about in the APCA and the TWWHA by Aboriginal people shows this not to be the case. Similarly, the strategies for advancing rights claims may take either a form of resistance and exclusion or be more inviting and seek greater engagement with the ‘other’ (which may be archaeologists). Either way, we have to recognise them as meaningful and defensible claims to different ideas of rights.
Promote Indigenous agency and maintain reflexivity My results demonstrate how often conflicting rights claims are being made all the time. Rather than being overwhelming, however, this situation means that we do not necessarily need to look to international standards for guidance on human rights. Instead, it reinforces the idea that the surest means of determining what people’s rights aspirations may be (if we intend either to support or to avoid obstructing them), is to give people the latitude to make their claims in their own terms. For archaeologists, appreciating and then promoting people’s agency to assert their aspirations for what they see as rights allows us to continue to develop our understanding of the various ways in which heritage practice interacts with broader rights ideas. This can only improve our relationship with people who claim rights relating to heritage. Moreover, it allows such claims to progress and evolve, expanding ideas of what rights, including heritage rights, can be. As I have demonstrated, Indigenous people have always, and continue to, create rights change in their favour. More than once in Tasmania, archaeology had to be brought along on the journey of such change. If we wish to support these agents of change we might best concern ourselves with how we influence people’s ability to resolve their own conflicts and promote their own rights claims. I say this
166 because often archaeology has only obstructed these processes, sometimes while rhetorically supporting Indigenous rights. Rights Based Approaches, therefore, become less about advocacy and more about examining archaeology’s role in the advancement or obstruction of rights change. More about keeping one’s own affairs in order, and less about solving other people’s problems for them. Rather than a set of end-states to be attained, it might entail thinking about how archaeologists and other heritage managers continue to wield considerable power in relation to Aboriginal heritage in Australia, both in terms of policy setting and of explaining and interpreting material culture and the past. In turn this might mean we have an ethical imperative to monitor where the knowledge we create is used, the Windschuttle example in Chapter 9 being a warning signal.
Without diverting into discussions on the ethics of advocacy, for me another question this situation raises is the extent to which rights-aware archaeologists might comment on other discourses on heritage (be it known as natural, cultural or intangible, or any other label). We might at least use the knowledge we have gained from our interactions with Indigenous people over the last few decades to inform and influence other conversations about landscapes and the past. Where, for instance, we see incomplete descriptions of cultural landscapes being perpetuated as in the TWWHA examples, or misinformation/alternative interpretations of the past being leveraged to support destructive narratives such as extinction, we might see providing public comment as a matter of Indigenous rights as well as professional duty. Thus, responses to Windschuttle such as that by Murray and Willamson (2003) are acting on those lessons, turning archaeology’s authorised status into a support for Indigenous rights from the periphery. By ‘the periphery’ I mean seeing our work as extending past the work we do in archaeology and heritage and accepting a broader role in society and politics. This would entail an admission that our work has considerable social and political weight, and so a professional imperative arises to understand and react to that fact. It would also mean that an understanding of theory on the social and political role of heritage is essential, a matter to which I return at the end of the chapter.
167 Ask the difficult questions To enable the approach I am promoting and to understand what people want to do in terms of their rights and heritage in the wider socio-political context of their claims, I suggest the adoption of methods like those I espoused and employed in my research. As I argued in Chapter 4, I support approaches to archaeological practice that incorporate an interrogative engagement with Indigenous people, utilising quite directed lines of questioning. For day-to- day archaeology, I would promote a model of fieldwork that does not commence with excavation but is prefaced with a conscious effort to determine people’s aspirations, the issues and obstructions they encounter, and the conflicts that exist before any archaeological work takes place. This would represent an extension of the work of Pocock et al. (2015), in realising the meaning of place before trying to discern it through analysis of the material, but with the added eye to meaning in a framework of human rights. Doing so would support our understanding of how and why people use heritage in broader rights claims, and thus influence our response to those actions. In turn, this allows us to approach or even invite conflict as a means of testing ideas and seeing new perspectives rather than remaining dogmatic about practice and policy and inadvertently ignoring the claims of minorities within minorities. Similarly, this approach might assist non-Indigenous archaeologists from adopting the language and attitude of deficit, whereby the presence of a problem, which is typically implied as having been caused by Indigenous people or that Indigenous people are helpless to overcome, tends to form the basis of the interaction (Davis, 2012, p. 48; Fogarty et al., 2018). A strengths – or assets – based approach based on the knowledge, experience and capacities that Aboriginal people bring to the table, is preferred (Fogarty et al., 2018; Hammond & Zimmerman, 2012; Mathie & Cunningham, 2003).
Such a call may appear to add significantly to the work archaeologists already do in seeking community support, and gaining ethical clearance, for research projects, and many archaeologists are not trained in ethnography. It also means that Indigenous engagement in heritage practice on its own is not enough to ensure that its outcomes meet Indigenous people’s desires. Nor is it adequate to attach a rights imperative to existing ways of operating. If in reference to Indigenous heritage archaeologists make no mention of what
168 Indigenous people might want to do with their heritage, beyond the immediate need to protect it from harm, the question arises as to how interested or cognisant archaeologists are of these matters. Such a lack suggests that talk about Indigenous rights is possibly just a means of avoiding awkward questions about archaeologists’ rights to be there, excavating and otherwise interfering with cultural heritage in the first place. Moreover, ‘ethnographic archaeology’ (Meskell, 2012) is not necessarily burdensome, because it is not intended to be yet another set of essential research methods. Instead, it is a means to inquire a little more about what is occurring before we commence our work. As Lilley (2009, p. 57) argues, doing so is not a matter of completely abandoning our own worldviews, and accepting and being open to learning from other people’s experiences is simply the basis of ethical practice. I would argue that any attempt to gain a contextual understanding of our working environment, through whatever means, is preferable to the status quo of making no attempt at all, because it might start to elucidate similar issues to the ones I have discussed.
In terms of how far the obligation extends for archaeologists to adopt such an approach, they are not normally equipped by training with the knowledge or theory to think about rights outside heritage, or indeed even within heritage. However, if we at least recognise that heritage plays a fundamental part in human flourishing and we care about that flourishing, then we may identify a concomitant duty in our work (Hodder, 2010, p. 876). In practice, a response from archaeologists to human rights could take many forms. It could mean addressing the instances where heritage law contravenes professional ethics (Soderland & Lilley, 2015), or it could mean continuing the work of those such as McBryde, mentioned towards the beginning of the thesis. At the basest level, if we purport to have a commitment to Indigenous people’s rights, we have an imperative to deconstruct the colonial structures that continue to disempower and disconnect Indigenous people from their heritage.
Practise ‘good’ heritage Another reason why I do not see gaining a broader understanding of our work as particularly onerous is because it is partly achieved through looking at heritage in a modern way. By understanding how heritage is constructed (i.e. through collective memory), we
169 begin to uncover what questions of human rights places and things might hold for people. A sound comprehension of a place’s significance to people should make it easier to understand and even predict rights claims that might occur in relation to that heritage. By taking a view of landscapes as imbued with meaning and significance rather than containing discrete nodes – ‘sites’ – of particular value, we can perceive rights that run through those landscapes irrespective of current tenure, use or physical disturbance.
The corollary to this is that being conversant with the broader cultural heritage literature is then also an ethical imperative for archaeologists. As I have shown throughout the results chapters, ideas of rights are as contingent on people’s memories of the past as they are on their aspirations for the future, in exactly the same way as heritage is constructed and passed on. Both are also remembered in place and object. It is therefore not tenable, in human rights terms, to look at heritage purely through a scientific, archaeological lens.
However, such a corollary further entails that engagement with cultural heritage literature and theory must be part of the core of undergraduate archaeology instruction. The same could also be said for adoption of Indigenous archaeologies methodologies. This will vary across universities, but despite many of the leaders in this engagement being the Australian archaeologists I have cited in this work, many of their ideas still appear to me to be too far in the periphery of what is taught as ‘Australian Indigenous Archaeology’. In the same way, what this means for ‘trained’ archaeologists and those employed in the largely unregulated heritage consultancy field needs to be considered. Again, there are some who are already pioneering best practice, but this is by no means the status quo. Such assertions provide considerable scope for further exploration outside this thesis.
Final words The approach to archaeology I advocate here is founded in an understanding of how human rights and culture inter-relate, how people’s social and cultural positioning informs their rights claims, and how heritage is incorporated into those claims. Most importantly, it understands our role in those processes through an appreciation of the power wielded by archaeologists and the knowledge they produce. My approach avoids situating
170 archaeologists merely as an audience to rights change and instead aims to make them aware of where history places them in relation to the lives of Indigenous people. What I am advocating does not so much treat rights as a tool, but as a framework for understanding why people act the way they do. Primarily, it relies on an understanding of what people want for their lives and futures, sought through asking these questions directly. As such, the methods I promote have been focused on action and outcomes as opposed to the subject of claims. Most importantly, my approach is open to all voices. By shaping archaeological practice in this way, we might be well placed to achieve the aims we set for ourselves of fairer, more inclusive, meaningful archaeology. This approach also recognises that Indigenous people are capable, effective agents of rights change (Davis, 2012, p. 47). We may be eager to do what we can to effect change, but the more important point for us to consider is how we might obstruct such change through our ignorance of what is really at stake.
To return to the research question: what do human rights mean for archaeologists working with Indigenous people? To summarise this thesis, the answer is that rights are a valuable means of focusing our attention on practices that affect the lives of Indigenous people, not least our own practices. The key, however, is putting a concern for Indigenous interests together with an understanding of how our knowledge production and positioning can affect people’s pursuit of those interests. Essentially this is just a combination of extant approaches from an Indigenous archaeologies methodology, reviewing heritage literature, and adopting a rights-based heritage practice. From the Indigenous archaeologies methodology, we gain the broad imperative for archaeology to be done by and for Indigenous people, and to engage with Indigenous groups on an equal footing. Yet archaeology needs to move beyond its disciplinary confines into the broader discourse impinging on our discipline’s interests in cultural heritage. In this sense, by taking rights- based approaches to heritage, we begin thinking more seriously about how our work influences the outcomes that Indigenous people experience.
I suspect that much of what I have presented in this thesis may not come as new information to most Indigenous people. Ironically, one of the key issues I have tried to
171 address is the way in which ideas progressed by Indigenous people do not receive recognition until non-Indigenous academics miraculously discover them. That the foundations of workable approaches to Indigenous rights already exist but want for engagement is an indictment on our field. In response, my aim has been to weld these foundations into a robust and readily usable framework. Arguably, archaeologists who have established long-term working relationships with Indigenous people form this kind of knowledge incidentally.
To me, the significance of human rights is derived mainly from how our understanding of rights affects the way we ‘do’ archaeology, or perhaps how we should ‘do’ archaeology. Again, to learn what this is, we need only look to the lessons learnt from past interaction with Indigenous rights movements and keep listening in the present. In closing, what I am suggesting is that by combining the principles behind the Indigenous archaeologies methodology with a conscious engagement with practice as necessarily rights-based, while taking a very broad socially-couched view of what heritage is and why people value it, we might ensure the ‘work’ archaeology does is conducive to the progress of Indigenous rights claims in any context.
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203 Appendix 1: Institutional Human Research Ethics Approval
Project Title: Facilitating the Rights of Indigenous People in World Heritage
Chief Investigator: Mr Silas Piotrowski
Supervisor: Prof Ian Lilley, Hon. Prof Annie Ross
Co-Investigator(s): None
School(s): School of Social Science
Approval Number: 2016001378
Granting Agency/Degree: Research Higher Degree
Duration: 31st December 2019
Comments/Conditions:
• Project Description, 17/10/2016 • Participant Information Sheet & Consent Form – Government employee and others, 17/10/2016 • Participant Information Sheet & Consent Form, 17/10/2016 • AHC Gatekeeper Approval, 01/07/2016 • Confirmation of Candidature, 15/07/2016
Note: if this approval is for amendments to an already approved protocol for which a UQ Clinical Trials Protection/Insurance Form was originally submitted, then the researchers must directly notify the UQ Insurance Office of any changes to that Form and Participant Information Sheets & Consent Forms as a result of the amendments, before action. Name of responsible Committee: University of Queensland Human Research Ethics Committee B This project complies with the provisions contained in the National Statement on Ethical Conduct in Human Research and complies with the regulations governing experimentation on humans. Name of Ethics Committee representative: Dr. Frederick Khafagi Chairperson University of Queensland Human Research Ethics Committee Registration: EC00457
14/11/2016 Signature ______Date ______
204
Project Title: Facilitating the Rights of Indigenous People in World Heritage 22/05/2017 - AMENDMENT
Chief Investigator: Mr Silas Piotrowski
Supervisor: None
Co-Investigator(s): None
School(s): School of Social Science
Approval Number: 2016001378
Granting Agency/Degree: Research Higher Degree
Duration: 31st December 2019
Comments/Conditions:
Amendment - Updates to and simplification of participant information and consent form. Participant Information Sheet and consent form amended, 03/07/2017
Note: if this approval is for amendments to an already approved protocol for which a UQ Clinical Trials Protection/Insurance Form was originally submitted, then the researchers must directly notify the UQ Insurance Office of any changes to that Form and Participant Information Sheets & Consent Forms as a result of the amendments, before action. Name of responsible Committee: University of Queensland Human Research Ethics Committee B This project complies with the provisions contained in the National Statement on Ethical Conduct in Human Research and complies with the regulations governing experimentation on humans. Name of Ethics Committee representative: Dr. Frederick Khafagi Chairperson University of Queensland Human Research Ethics Committee Registration: EC00457
18/07/2017 Signature ______Date ______
205