The Report of the Working Group on Human Remains Chairman: Professor Norman Palmer FSA Secretary: James Dowling Contents ________________________________________________________________________________ Chapter 1 Establishment and terms of reference 2 Human remains in English museum collections 3 Origins and destinations 4 Evidence submitted to the Working Group 5 Progress and parallels 6 Contemporary law in England and Wales 7 Consent 8 Associated objects 9 Ethics, principles and obligations 10 The problems requiring solution 11 Resolving the conflict 12 Recommendations 13 Statement of dissent from Neil Chalmers Appendix 1 Powers of disposal for museums 2 Law on human remains in museum collections – a working survey 3 Repatriation of Human Remains and the Human Rights Act 4 Case summaries relating to human remains 5 International Agreements 6 Professional and Institutional Approaches to Human Remains 7 Terms of reference 8 Draft Code of Practice for the Treatment, Care and Safe Keeping of Human Remains in English Museums and Collections 9 Working Group on Human Remains submissions 10 The Native American Graves Protection and Repatriation Act (NAGPRA): A detailed analysis 1 Chapter 1: Establishment and terms of reference ________________________________________________________________________ Establishment, membership and background 1. The Working Group on Human Remains in Museum Collections (Working Group) was established in May 2001 by the then Minister for the Arts, the Right Honourable Alan Howarth CBE MP, under the chairmanship of Norman Palmer, Barrister, Professor of the Law of Art and Cultural Property at University College, London, Chairman of the Illicit Trade Advisory Panel, Chairman of the Treasure Valuation Committee, with the following terms of reference: • to examine the current legal status of human remains within the collections of publicly funded museums and galleries in the United Kingdom; • to examine the powers of museums and galleries governed by statute to deaccession, or otherwise release from their possession, human remains within their collections and to consider the desirability and possible form of legislative change in this area; • to consider the circumstances in which material other than, but associated with, human remains might properly be included within any proposed legislative change in respect of human remains; • to take advice from interested parties as necessary; • to consider the desirability of a statement of principles (and supporting guidance) relating to the care and safe keeping of human remains and to the handling of requests for return; if the Working Group considers appropriate, to draw up the terms of such a statement and guidance; and 2 • to prepare a report for the Minister for the Arts and make recommendations as to proposals which might form the basis for a consultation document (to be used for 1 consultation under the Regulatory Reform Bill). 2. The decision to set up the Working Group followed recommendations made in a report on Cultural Property: Return and Illicit Trade, by the Select Committee on 2 Culture, Media and Sport (Select Committee), published in July 2000. That report recommended that: • there should be discussions with a view to preparing a statement of principles and accompanying guidance relating to the care and safe keeping of human remains and to requests for return; • there should be better access to information on holdings of human remains; and • the Department for Culture, Media and Sport (DCMS) should undertake a consultation exercise on the terms of legislation to permit the trustees of national collections to remove human remains from their collections. 3. The Government welcomed the Select Committee’s recommendations, but felt that, prior to any consultation, it would be helpful for the Working Group to examine the whole issue comprehensively. 4. A further event leading to the establishment of the Working Group was a meeting between the Prime Minister of Australia, John Howard, and the UK Prime Minister, Tony Blair, in London in July 2000. After that meeting the following statement was issued: ________________________________________________________________________ 1 Since enacted as the Regulatory Reform Act 2001. See generally paras 279, 462. 2 Seventh Report of the House of Commons Select Committee on Culture Media and Sport, Cultural Property: Return and Illicit Trade (18 July 2000) paras 153-166, 199 (xiv)-(xvi). 3 The Australian and British Governments agree to increase efforts to repatriate human remains to Australian indigenous communities. In doing this, the Governments recognise the special connection that indigenous people have with ancestral remains, particularly where there are living descendants. The Australian Government appreciates the efforts already made by the British Government and institutions in relation to assisting the return of human remains of significance to Australian indigenous communities. We agree that the way ahead in this area is a cooperative approach between our Governments. Our Governments recognise that there is a range of significant issues to be addressed in order to facilitate the repatriation of indigenous human remains. Addressing these issues requires a coordinated long-term approach by Governments involving indigenous communities and collecting institutions. Consultation will be undertaken with indigenous organisations as part of developing any new cooperative arrangements. Significant efforts have already been undertaken by individuals and particular organisations in this area. More research is required to identify indigenous human remains held in British collections. Extensive consultation must also be undertaken to determine the relevant traditional custodians, their aspirations regarding the treatment of human remains and a means for addressing these. The Governments agree to encourage the development of protocols for the sharing of information between British and Australian institutions and indigenous people. In this respect we welcome the initiative of the British Natural History Museum which has catalogued the 450 indigenous human remains in its collection and provided this information to the Australian Government. We endorse the repatriation of indigenous human remains wherever possible and appropriate from both public and private collections. We note that several British institutions have already negotiated agreements with indigenous communities for 4 the release of significant remains. In particular, Edinburgh University, following extensive consultation with the Australian Government and indigenous organisations, has recently completed repatriation requests of a large collection of remains. Our Governments look forward to continuing to address this issue in a cooperative and constructive spirit. 5. The membership of the Working Group was: • Mr Tristram Besterman, Director, The Manchester Museum, and former convener, Museums Association Ethics Committee; • Sir Neil Chalmers, Director, The Natural History Museum; • Dr Maurice Davies, Deputy Director, Museums Association; • Mrs Hetty Gleave, Solicitor, Hunters, and Chair, ArtResolve; • Sally MacDonald, Manager, Petrie Museum of Egyptian Archaeology, University College, London; • Dr John Mack, Keeper of Ethnography, The British Museum; • Professor Sir Peter Morris, Nuffield Professor of Surgery at the University of Oxford and President of the Royal College of Surgeons; • Professor Patrick O’Keefe, Adjunct Professor, Research School of Asian and Pacific Studies, Australian National University; 5 • Dr Laura Peers, Lecturer in Ethnology and Curator of the Pitt Rivers Museum, University of Oxford; and • Professor Dame Marilyn Strathern, Professor of Social Anthropology at the University of Cambridge. Professor Caroline Forder, Professor of European Family Law, University of Maastricht, was a member of the Working Group between May 2001 and July 2001. 6. The Working Group met on 16 occasions and invited evidence, receiving 47 written submissions and nine oral submissions. A list of the organisations and individuals who made these submissions appears as Appendix 9. All written evidence is available on the web at http://www.culture.gov.uk/cultural_property/wg_+human_remains.htm. Meetings with representatives of other governments 7. The Hon Philip Ruddock, (then) Minister for Immigration and Multicultural and Indigenous Affairs accompanied by HE Mr Michael L’Estrange, the Australian High Commissioner, and by members of the staff of the High Commission, visited the DCMS on 11 December 2001 and was received by the Minister for the Arts and the Chairman of the Working Group, at a meeting at which the work of the Working Group was discussed. 8. Mr Martin Matthews, the Chief Executive of the New Zealand Ministry for Culture and Heritage, and Mr Rob Hole from the New Zealand High Commission, sat in as observers for the first part of the fifth meeting of the Working Group. Other consultation 9. In the course of a visit to Australia in 2002, the Chairman accepted invitations to discuss the work of the Working Group with the UK Deputy High Commissioner, the Federal Minister for Immigration and Indigenous Peoples, the Commissioner for 6 Tasmania of the Aboriginal and Torres Strait Islander Commission (ATSIC), the Legal Adviser to ATSIC and other officers, members of the Tasmanian Aboriginal Centre Inc (TAC), officials of the Commonwealth Government, officers of the Australian Museum and other museums, and Justice Alan Goldberg of the Federal Court of Australia