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Indigenous Heritage Management in the Era of Native Title

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AIATSIS Research Publications The right to protect sites: Indigenous heritage management in the era of native title Edited by Pamela Faye McGrath As part of our commitment to free and open access to research and scholarly outputs you are free to download, print, distribute, search or link to this work. • You must provide appropriate acknowledgement of the work. • You may not use the material for commercial purposes. Citing this publication McGrath, P (ed.) 2016, The right to protect sites: Indigenous heritage management in the era of native title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra. THE RIGHT TO PROTECT SITES INDIGENOUS HERITAGE MANAGEMENT IN THE ERA OF NATIVE TITLE The right to protect sites THE RIGHT TO PROTECT SITES INDIGENOUS HERITAGE MANAGEMENT IN THE ERA OF NATIVE TITLE Edited by Pamela Faye McGrath AIATSIS Research Publications First published in 2016 by AIATSIS Research Publications © Australian Institute of Aboriginal and Torres Strait Islander Studies, 2016 © in individual chapters is held by the contributors, 2016 All rights reserved. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (the Act), no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Act also allows a maximum of one chapter or 10 per cent of this book, whichever is the greater, to be photocopied or distributed digitally by any educational institution for its educational purposes, provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) GPO Box 553, Canberra ACT 2601 Phone: (61 2) 6246 1111 Fax: (61 2) 6261 4285 Email: [email protected] Web: www.aiatsis.gov.au National Library of Australia Cataloguing-in-Publication entry is available from www.trove.nla.gov.au ISBN: 9781922102393 (pb) ISBN: 9781922102386 (ebook PDF) Typeset in Minion Pro by Amity Raymont, Australia Printed by SOS Print & Media Group, Australia Cover image: ‘Heart of country, 2013’, © Jacky Green/Licensed by Viscopy, 2016 AIATSIS acknowledges the funding support of the Department of the Prime Minister and Cabinet (PM&C). ACKNOWLEDGMENTS Many individuals have been involved in bringing this book to life. First and foremost, I thank our stable of authors for giving so freely of their time, energy and expertise. Each and every person involved in this project found space in their otherwise busy life to distil their many years of accumulated experience and learning into a format that allows that knowledge to be shared more broadly with the world. These are rare gifts of great value. On behalf of all our authors, I acknowledge and pay respect to the Indigenous Australians whose families, cultures, countries and struggles are mentioned in this volume. We are acutely aware that our professional and academic achievements are utterly dependent on the cultural expertise of Aboriginal and Torres Strait Islander people and their willingness to share aspects of their knowledge and experiences with us. The majority of this project was undertaken between 2013 and 2015 during the period of my employment as a Research Fellow with the Native Title Research Unit at AIATSIS. I thank my colleagues from that time for their assistance and support. Special thanks go to the book’s editor, Kirsten McNeill, and to the AIATSIS Research Publications Officer, Pauline McGuire, for her enduring commitment to seeing this through to the end. Pauline’s considerable experience, skill and sage advice have been invaluable to this rookie editor. I’ve learned a great deal and a firm friendship has been forged along the way. I also thank the National Native Title Tribunal for allowing me to continue to work on the project in order to see it to fruition. Aboriginal archaeologist Dave Johnston also deserves special thanks. Dave is a great advocate of issues related to Indigenous heritage protection, and his passionate interest and advice assisted me to shape the project in its early stages. Just as importantly, his enduring enthusiasm gave me courage and helped generate the momentum I needed to get started. Finally, AIATSIS wishes to acknowledge the Department of the Prime Minister and Cabinet for their ongoing support of the Native Title Research Unit. The funding provided has supported not only this book but also a research project on native title and heritage that has resulted in many other papers, seminars and information resources that have shone a light on the many and complex challenges of Indigenous heritage management in the era of native title. Pamela Faye McGrath March 2016 v CONTENTS Acknowledgements v List of figures ix List of cases and legislation xi Notes on contributors xvi Chapter 1 The fate of Indigenous place-based heritage in the era of native title 1 Pamela Faye McGrath and Emma Lee Chapter 2 The different concepts and structures for heritage protection 26 and native title laws: the nature and pitfalls of public heritage and private rights Carolyn Tan Chapter 3 Future acts, future heritage? The extraordinary scale and unknown 49 impacts of development-related Indigenous heritage management on native title lands Pamela Faye McGrath Chapter 4 Navigating a path through delays and destruction: Aboriginal 77 cultural heritage protection in New South Wales using native title and land rights Janet Hunt and Sylvie Ellsmore Chapter 5 The Aboriginal Heritage Act 2006 (Vic.): a glass half full…? 111 Graham Atkinson and Matthew Storey Chapter 6 Conservation, commodification and Indigenous heritage in 137 Queensland Richard J Martin, Andrew Sneddon and David Trigger vii Chapter 7 From missionaries to Mabo: place-based heritage management and 159 native title in Torres Strait Ian J McNiven and Garrick Hitchcock Chapter 8 Aboriginal heritage in South Australia: protection, knowledge, power 187 Rod Lucas and Deane Fergie Chapter 9 Sacred bodies and ore bodies: conflicting commodification of 221 landscape by Indigenous peoples and miners in Australia’s Northern Territory Gareth Lewis and Ben Scambary Chapter 10 From Weebo to Walmadan: making sense of Aboriginal heritage 253 protection (de)evolution in Western Australia Liz Vaughan Chapter 11 Murujuga National Park: co-management of cultural heritage through 285 a future act agreement Jo McDonald Chapter 12 Aboriginal cultural heritage protection in Tasmania: the failure of 315 rights; the restorative potential of historical resilience Emma Lee viii LIST OF FIGURES Figure 3.1 The location of the right to negotiate, as illustrated by 55 the location of native title determinations and registered applications, 31 March 2015 (NNTT 2015c) Figure 7.1 Map of Torres Strait 168 Figure 9.1 Map of northern regions of the Northern Territory with 223 locations of mine sites discussed Figure 9.2 Map of AAPA site records, mines and mining tenure in 231 the northern regions of the Northern Territory Figure 9.3 J Green, Redbank, acrylic on linen, 2012 233 Figure 9.4 Sacred Site 5760-21 viewed from the west prior to 236 damage, c.2004 (photo: AAPA) Figure 9.5 Sacred Site 5760-21 viewed from the west after damage, 236 December 2011 (photo: Gareth Lewis, AAPA) Figure 9.6 Sacred Site 5760-21 split by the collapsed wall of Masai 237 pit, viewed from the east mine, August 2011 (photo: Gareth Lewis, AAPA) Figure 10.1 Aboriginal man removed by police during a community 269 protest to prevent Woodside Energy Ltd from accessing James Price Point to commence vegetation clearing, north of Broome, Western Australia (photo: Rod Hartvigsen) Figure 10.2 The proposal for a gas hub to be built at Walmadan saw 271 extended community protests, intensifying in 2011 as Woodside brought machinery onto country (photo: Rod Hartvigsen) Figure 10.3 Statistics from January 2011 to May 2014 express a 275 74 per cent decline in the number of heritage places the ACMC has accepted as sites under the WAAHA as a percentage of the number of heritage places assessed ix Figure 11.1 The Dampier Archipelago on the coastal Pilbara 287 Figure 11.2 An Aboriginal engraving of a pearling lugger on the 288 pastoral station Inthanoona (photo: Alistair Paterson) Figure 11.3 The Dampier Archipelago (including Burrup) national 297 heritage listed area Figure 11.4 The Murujuga National Park showing land tenure 300 (DEC 2013, Map 1) Figure 11.5 Murujuga Aboriginal Corporation circle of elders, Rangers 307 and Land and Sea personnel and University of Western Australia researchers during consultation on country in the Dampier Archipelago (photo: Ken Mulvaney 2014) x LIST OF CASES AND LEGISLATION Cases Australia AB on behalf of the Ngarla People v. Western Australia (No. 4) [2012] FCA 1268 Aboriginal Areas Protection Authority v. OM (Manganese) Ltd (unreported), Court of Summary Jurisdiction of the Northern Territory, Oliver SM, 2 August 2013 Akiba on behalf of the Torres Strait Islanders of the regional sea claim area v. Queensland (No. 2) [2010] FCA 643 Anderson v. Director-General of Department of Environment and Conservation [2006] NSWLEC 12 Anderson v. Minister for the Environment, Heritage and the Arts [2010] FCA 57 Barkandji Traditional Owners #8 v. Attorney General of New South Wales [2015] FCA 604 Bodney v. Trustees of Museum [1989] WASC 7959 Carriage v. Stockland Development [2004] NSWLEC 553 Chapman v Luminis Pty Ltd (No. 2) [2000] FCA 1010 Chapman v. Luminis Pty Ltd (No. 3) [2000] FCA 1120 Chapman v Luminis Pty Ltd (No. 4) [2000] FCA 1121 Chapman v. Luminis Pty Ltd (No. 5) [2001] FCA 1106 Cheedy v. Western Australia [2010] FCA 690 Coffs Harbour and District Local Aboriginal Land Council v.
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