Vines, Prue --- "Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds Australia" [1998] SydLawRw 3; (1998) 20 (1) Sydney Law Review 78
[*] Senior Lecturer, Faculty of Law, University of New South Wales.
[1] Griffin, G and Tobin, D, In the Midst of Life...The Australian Response to Death (1982) at 29. They mention Albury NSW as a place where this happened. The use of the burial ground would seem to be either or both a recognition of it as a significant or sacred place and/or a disempowerment and dispossession of the local Aboriginal population, a very strong symbol of colonialism at work.
[2] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); Heritage Conservation Act 1991 (NT); Northern Territory Aboriginal Sacred Sites Act 1989 (NT); National Parks and Wildlife Act 1974 (NSW), s84 (Minister may declare site to be an Aboriginal place), s90 (protection); ss62–4 (mining), ss65–6 (protected archaeological areas); Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld); Aboriginal Heritage Act 1988 (SA); Aboriginal Relics Act 1975 (Tas); Museums (Aboriginal Remains) Act 1984 (Tas); Aboriginal Heritage Act 1972 (WA); Mineral Resources Development Act 1990 (Vic), (restrictions on miners in relation to Aboriginal places), ss45(xii), 46, 58; Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) .
[3] Cemeteries Act 1933 (ACT); Cemeteries Act 1980 (NT); Cemetery Act 1865 (Qld); Cemeteries Act 1958 (Vic); Local Government Act 1934 (SA) Part XXX; Local Government Act 1962 (Tas), ss486A–527; Cemeteries Act 1986 (WA); Local Government Act 1960 (WA), s269. There is also specific legislation for particular cemeteries.
[4] For convenience “cemetery” will be used for the non-Aboriginal burial ground, and “burial ground” will be used for Aboriginal sites throughout this article.
[5] See eg, Littlewood, J, “The Denial of Death and Rites of Passage in Contemporary Societies” in Clark, D (ed), The Sociology of Death: theory, culture and practice (1993). There is a huge literature in psychology and sociology on, denial of death to which this book may offer an introduction.
[6] This has been the traditional view, although except for the dissenting judgment of Higgins J in Doodeward v Spence (1908) CLR 406 at 418, the rule can probably be seen only as obiter dicta. See eg, Haynes’ Case [1572] EngR 94; (1614) 12 Co Rep 113; 77 ER 1389; R v Sharpe (1856–1857) Dears & Bell 160; [1856] EngR 24; 169 ER 959; Williams v Williams (1882) 20 Ch 659; Dowse v Wynyard Holdings Ltd [1962] NSWR 252. The executor’s duty to bury the corpse carries with it a right to deal with the body which may or may not be proprietary. In the United States the view appears to be that there can be “quasi-property” rights held by a surviving spouse or next of kin in a corpse, at least before burial. Pettigrew v Pettigrew 56 A 878 (1904) at 879; Larson v Chase 50 NW 238 (1891) 239; Moore v Regents of University of California 215 Cal Rptr, 3d 709 (1988); (1990) 51 Cal 3d 120; In Australia human bodies are not patentable property: Patents Act 1990 (Cth) s18(2).
[7] As Griffith CJ said in Doodeward v Spence, id at 412: “After burial a corpse forms part of the land in which it is buried and the right of possession goes with the land”.
[8] Pardoe, C, “The Cemetery as Symbol: the Distribution of Prehistoric Aboriginal Burial Grounds in Southeastern Australia” (1988) 23 (1) Archaeology in Oceania 1.
[9] According to Rick Farley, the mediator in the Lake Victoria Agreement, the archaeologists working on preliminary reports for the Agreement are beginning to think this may be the most significant heritage site yet found in Australia.
[10] Chalk, A, “Protecting Burial Sites” (1995) 72 Aboriginal L Bull 34.
[11] Lake Victoria Framework Agreement. The parties to this agreement were the Murray Darling Basin Commission, the NSW Department of Land and Water Conservation, the South Australian Water Corporation, NSW National Parks and Wildlife Service, the NSW Aboriginal Land Council, the Barkandji people, and Landholders local to Lake Victoria. The agreement’s objects are to: Clause 2.1. Address the full range of archaeological, cultural and resource management issues; 2.2 guarantee appropriate long-term protection of Aboriginal and other sites (this includes burials, other sites of Aboriginal cultural significance, and historical sites); 2.3 facilitate to the optimum extent practicable the use of Lake Victoria as a presently critical component of the Murray-Darling Basin Commission’s water regulation infrastructure; 2.4 provide a role for the Barkandji people in the on-going management of the Lake.
[12] According to Rick Farley there is a significant split amongst the six members appointed to the Barkandji management group as to whether the site would be better protected by permanently raising the water level, or permanently lowering it. The Elders of the community were meeting to try to resolve this in 1997. This disagreement is preventing the development of an Aboriginal position, and hence making it impossible to get an Aboriginal view on the matter.
[13] There is a real debate about using the term “prehistoric” in relation to Aboriginal matters, particularly as one definition of prehistoric means that any Aboriginal remains over 200 years old are regarded as prehistoric. Some archaeologists argue that no living people should have jurisdiction over fossil remains, although they are willing to accept their jurisdiction over recent remains: see Layton, R (ed), Conflict in the Archaeology of Living Traditions (1989).
[14] Wamba Wamba Local Aboriginal Land Council and Murray River Regional Aboriginal Land Council v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and Murray Downs Golf and Country Club Ltd (1989) 23 FCR 239.
[15] People whose tombstones and/or bodies lie here include Edmund Blacket, the colonial architect; Mary Reiby; the early magistrate Charles Windeyer; Alexander MacLeay (the first speaker in the original Legislative Council of 1843); Eliza Donnithorne (the jilted bride who was the model for Miss Havisham in Dickens’ Great Expectations), William Henry Moore (the first free solicitor in New South Wales) and Sir Thomas Mitchell (Surveyor-General from 1828). The cemetery was clearly of immense historical significance.
[16] Of this cemetery the Brisbane Courier newspaper had said: “any shallow hole there suffices for a grave, and coffins are piled one upon another and covered with only a few inches of earth, in a manner revolting to humanity”: extracted in Griffin and Tobin above n2 at 49. This is reminiscent of descriptions of European churchyards from early modern times.
[17] The Paddington Cemeteries Act 1911 (Qld) had been repealed but the repealing Act provided that the repeal did not affect any “right, privilege, obligation or liability accrued, acquired or incurred under [the repealed] Act”.
[18] Harrison v Brisbane City Council [1990] 1 Qd R 129.
[19] Id per Dowsett J at 134.
[20] Ibid.
[21] Richardson, R, Death, Dissection and the Destitute (1987) at 7.
[22] Aries, P, The Hour of our Death, transl by Weaver, H (1981); Aries, P, Western Attitudes Towards Death, transl by Ranum, P (1974); Aries, P, “The Reversal of Death: Changes in Attitude Towards Death in Western Societies” in Stannard D (ed), Death in America (1975).
[23] Binski, P, Mediaeval Death (1996) at 183ff.
[24] Gittings, C, Death, Burial and the Individual in Early Modern Europe (1984) at 22.
[25] The traditional tripartite division of the deceased’s property for the purposes of inheritance in the scheme known as “legitime” provided property (“the dead’s part”) to ensure that masses were said for the soul of the deceased. The three parts were “the dead’s part”, “the widow’s part” and “the bairns [children’s] part”.
[26] But, at the same time, the body was regarded as the seat of sin, and the church insisted on its separation from the soul. Indeed, canon law till around the eleventh century regarded dead bodies as tainting church property and tried to keep them away from the church: Aries, The Hour of our Death, above n22 at 45ff.
[27] Wife of Edward I, she died in 1290. She is the Eleanor of the Eleanor Crosses, set up by her grieving husband all along the route her funeral cortege followed. As well as a response to the difficulties created by travelling monarchs who died away from the seat of power and could not be adequately embalmed, the role of divided burial also seems to have been the expansion of influence, and for Royal and Papal burials it was an expression of the largesse of the deceased. Thus the buried body remained influential.
[28] Boase, T S R, Death in the Middle Ages: Mortality, Judgement and Remembrance (1972) at 60.
[29] Above n24 at 72.
[30] Aries, The Hour of our Death above n22 at 56.
[31] Above n24 at 140.
[32] Aries, The Hour of our Death above n22 at 54, 58.
[33] I am using the term Reformation loosely here to refer to the rise of Protestantism. In England it has a formal date because of Henry VIII’s decision to sever himself from the Pope by a number of Acts, notably in 1534 by 25 Hen VIII c 19: An Act for the submission of the clergy to the King’s Majesty.
[34] Brigden, S, London and the Reformation (1989) at 380–392.
[35] 1 Ed VI, c 14 (1547) An Act whereby certain chantries, colleges, free chapels and the possessions of the same be given to the King’s Majesty : “...considering that a great part of superstititution and errors in Christian religion hath been brought into the minds and estimation of men by reason of the ignorance of their very true and perfect salvation through the death of Jesus Christ, and by devising and phantasing vain opinions of purgatory and masses satisfactory to be done for them which be departed, the which doctrine and vain opinion by nothing more is maintained and upholdent than by the abuse of trentals [requiem masses], chantries and other provisions made for the continuance of the said blindness and ignorance”.
[36] Above n24 at 40.
[37] The German Protestants referred to masses for the dead and indulgences as “Tottenfresserei”, “feeding on the dead” – a scathing denunciation of the practice: Ozment, S, Protestants: The Birth of a Revolution (1992) at 14.
[38] Although it is not clear whether the rise of individualism made protestantism more likely or the other way around: Tawney, R H, Religion and the Rise of Capitalism (1938); Ozement, ibid; Elton, G R, Reformation Europe 1517–1559 (1963) at 279ff.
[39] Elton, id at 278.
[40] Above n23 at 71.
[41] 3 & 4 Edw VI c 10 ( 1550).
[42] Above n21 at 55.
[43] Blackstone, W, Commentaries on the Laws of England, 1765–69, vol 2, 428–9; Haynes’ case [1572] EngR 94; (1614) 12 Co Rep 113; 77 ER 1389; R v Sharpe (1856–1857) Dears & Bell 160; [1856] EngR 24; 169 ER 959.
[44] For example in Gilbert v Buzzard (1821) 3 Phill Ecc 335; 161 ER 1342, the corpse was put into an iron coffin which was designed in such a way that the lock could not be reopened once the coffin had been closed.
[45] Above n21 at 7.
[46] Id at 271.
[47] Elton, above n38 at 278.
[48] Stone, L, The Family, Sex and Marriage in England 1500–1800 (abridged edn, 1977) at 153.
[49] Aries, P, Western Attitudes towards Death above n22 at 68.
[50] Above n48 at 154.
[51] Aries, Western Attitudes Towards Death above n22 at 72.
[52] See French, S, “The Cemetery as a Cultural Institution” Stannard, above n22.
[53] Griffin and Tobin above n1 at 32.
[54] Mary Reiby, an ex convict who became a successful business woman in the colony of New South Wales, was buried in this cemetery at Devonshire Street, and her remains were moved to Camperdown Cemetery when the Devonshire Street cemetery was built over.
[55] Aries points out in “The Reversal of Death: Changes in Attitudes Towards Death in Western Societies” above n22 at 151, that children before the twentieth century knew very little about sex but a great deal about death, and today it is the other way around.: “It is not the children who are born in cabbages, but the dead who disappear among the flowers.” There is an extensive literature on the denial of death: for a starting point in sociology see Clark D above n5. The psychological literature is also extensive, much of it traceable from Kubler-Ross, E, On Death and Dying (1969).
[56] For example, in the 1981 Australian Census 26 per cent of people recorded themselves as Catholic; 43 per cent recorded themselves as some form of Protestant denomination. 10.8 per cent said they had no religion and 10 per cent did not answer: Mol, H, The Faith of Australians (1985) at 6. Later censuses have not required an answer to the question about religion.
[57] Griffin and Tobin above n1 at 71.
[58] Rookwood Necropolis, the largest burial ground in the Sydney area, by December 30 1996 had had a total of 610,975 burials and 203,063 cremations. But at the present time the rate of cremations is much higher than the rate of burial, being, in the Sydney area, some 65 per cent of disposals of bodies. These figures were obtained from the Rookwood Necropolis Joint Community of Necropolis Trustees Office by telephone on 26 March 1997. Lee Squires told me that the rate of cremations had risen steadily from 1925 till it plateaued in the 1960s. The percentage of disposals by cremation range between 62 per cent to 67 per cent in the Sydney area. Australia and England both have rates of cremation much higher than the United States or France.
[59] Cooke, S, “Death, Body and Soul the Cremation Debate in New South Wales 1863–1925” (1991) 24(97) Australian Historical Studies 323 at 329.
[60] In 1997 at Rookwood, burial in the Catholic part of the cemetery varies according to the site. The charge is $1375 for the lawn cemetery with plaque, and for a land only plot varies from $990 to $1045. By contrast, cremation costs $550. It should be noted that the disposal costs are only a small part of funeral costs.
[61] Jupp, P, “Cremation or Burial: Contemporary Choice in City or Village” in Clark above n5 at 191.
[62] Cemeteries Act 1933 (ACT); Cemeteries Act 1980 (NT); Cemetery Act 1865 (Qld); Cemeteries Act 1958 (Vic); Local Government Act 1934 (SA) Part XXX; Local Government Act 1962 (Tas), ss486A–527; Cemeteries Act 1986 (WA); Local Government Act 1960 (WA), s269.
[63] For example, Necropolis Act 1901(NSW) (Rookwood), Enfield General Cemetery Act 1944 (SA); Klemzig Pioneer Cemetery (Vesting) Act 1983 (SA).
[64] Above n44.
[65] Id at 357 (emphasis added).
[66] For example, Wilson v Read 68 Atl 37.
[67] Necropolis Act 1901 (NSW), s24(3).
[68] For example, the Public Cemeteries Regulations (ACT), r15A provide that the duration of exclusive rights in the Gungahlin cemetery is only 25 years. By contrast, Enfield General Cemetery Act 1944 (SA) makes the period 99 years (each has a possibility of renewal for the same period).
[69] (1986) 7 NSWLR 273. Young J accepted the law as to rights to burial to be as he had stated in his article 21 years before, that is, it is an irrevocable assignable licence: (Young, P W, “The Exclusive Right to Burial” (1965) 39 ALJ 50. His interest there was in whether the right to burial in perpetuity is an easement or an interest in land or a licence.) It appears clear that it is not ownership of the soil of the grave plot, and that it is not an interest in land: Dowling, A, “Exclusive Rights of Burial” (1992) 43 (3) Northern Ireland Legal Quart 288, but Reed v Madon [1989] 2 All ER 431 said it might be equated to property. See also Magnusson, R, “The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions” (1992) MULR 601; Mathews, P, “Whose Body? People as Property” (1983) CLP 193; Mortimer, D, “Proprietary Rights in Body Parts: the Relevance of Moore’s Case in Australia” [1993] MonashULawRw 10; (1993) 19(2) Mon ULR 217. Young J held that such a right is only a contractual right which once the body is buried carries with it an “irrevocable licence, so far as that body was concerned, for it to remain, at least until the natural process of dissolution”. This means the mother had a contractual right under s452G Local Government Act to have any person she nominated buried, subject to the terms and conditions of the cemetery. The contractual right would have been repudiated by the burial of Mrs Beard in the plot.
[70] Donaghy v Carroll [1910] NSWStRp 80; (1910) 11 SR (NSW) 9. This case held that this was the rule and granted an injunction on this basis apparently without investigation of the English authorities which it simply accepted.
[71] Reed v Madon [1989] 2 All ER Ch D 431 at 440.
[72] Coroners Act 1956 (ACT); Coroners Act 1974 (NT); Coroners Act 1980 (NSW); Coroners Act 1985 (Vic); Coroners Act 1958 (Qld); Local Government Act 1962 (Tas), s526; Coroners Act 1920 (WA).
[73] R v Lynn [1788] EngR 257; (1788) TR 733; 100 ER 394; R v Sharpe [1856] EngR 24; 7 Cox CC 214; [1857] Dears & Bell 160; [1856] EngR 24; 169 ER 959; Foster v Dodd (1867) LR 3 QB 67; see also Williams v Williams [1882] UKLawRpCh 60; [1882] 20 Ch D 659; and R v Price [1884] UKLawRpKQB 17; 12 QBD 247.
[74] Part of the argument was an assertion that the only statute which forbade digging up of bodies was 1 Jac 1, c 12, which made it an offence to dig up a body for the purpose of witchcraft. That statute was repealed by 9 Geo 2, c 5.
[75] R v Lynn [1788] EngR 257; (1788) TR 3; 100 ER 394 at 395.
[76] [1572] EngR 94; (1614) 12 Co Rep 113; 77 ER 1389.
[77] Above n70.
[78] Canberra Cemeteries Act 1933 (ACT), s16; Local Government (Cemetery) Regulations 1995 (SA) r20; Public Health Regulations 1991 (NSW) r36;
[79] The other jurisdictions have similar provisions: Cemeteries Act 1933 (ACT), s18; Cemeteries Act 1952 (NT), s36; Cemetery Act 1865 (Qld); Local Government Act 1934 (SA), ss587–588; Local Government Act 1962 (Tas), s520; Cemeteries Act 1958 (Vic), s44; Cemeteries Act 1986 (WA), ss35–39 (includes a redevelopment scheme for cemeteries).
[80] For example, St George’s Church of England Hurstville Cemetery Act 1961 (NSW); Botany Methodist Church Cemetery Act 1924 (NSW); Gladesville Mental Hospital Cemetery Act 1960 (NSW); Another example is that in Queensland, when the Paddington Cemeteries Act of 1911 provided for “The Resumption of Certain disused cemeteries at Paddington, near Brisbane, and for the conversion of the same to other Public Uses.”
[81] Above n14 at 249–250.
[82] [1981] HCA 50; (1981) 149 CLR 27.
[83] Id at 36.
[84] Berndt, R M and C H, The First Australians, (1967) at 136.
[85] Watson, I, “Law and Indigenous Peoples: the Impact of Colonialism on Indigenous Cultures” (1996) 14 (1) Law in Context; Cross Currents 107 at 107, 109.
[86] Mattingley, C and Hampton, K (eds), Survival in our Own Land; ‘Aboriginal’ Experiences in ‘South Australia’ since 1836, told by Nungas and others (rev edn, 1992) at 71. See also Yununpingu, G (ed), Our Land is Our Life (1997) and Smyth, D, Understanding Country (1994) Issues Paper for Council for Aboriginal Reconciliation.
[87] House of Representatives Standing Committee Inquiry, referred to by Janke, T, in Our culture, Our Future; Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, (1997) Australian Institute of Aboriginal and Torres Strait Islander Studies at 29.
[88] Wootten, H, Significant Aboriginal Sites in Area of Proposed Junction Waterhole Dam, Alice Springs Report to Minister for Aboriginal Affairs under s10(4) of the Aboriginal And Torres Strait Islander Heritage Protection Act 1994 (1992) at 31 quoted in Goldflam, R, “Between a Rock and a Hard Place: the Failure of Commonwealth Sacred Sites Protection Legislation” (1995) 74 (3) Aboriginal L Bull 13 at 14.
[89] Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409 – the Minister must appoint a reporter who should identify the area precisely, the Aboriginal tradition under threat and the nature of the activity constituting the threat: Willheim, E, in “Hindmarsh (Kumarangk ) Island: Norvill & Milera v Chapman, Tickner & Ors (1996)” 78 (3) Aboriginal L Bull 24, says at 28 “The effect of the [Full Federal] Court’s decision [in Norvill] is to impose onerous burdens on those involved at each stage of the process.”
[90] Chapman v Tickner (1995) 55 FCR 316. See also Aboriginal Sacred Sites Protection Authority v Maurice; re the Warumungu Land Claim (1986) 10 FCR 104, where secret business was considered as an aspect of public interest immunity and WA v Minister of Aboriginal and Torres Strait Islander Affairs (1995) 54 FCR 144 (secret business must be disclosed before a protection order can be made – this was confirmed on appeal).
[91] See the cases referred to at n90.
[92] Turnball, P, “Ramsay’s Regime: the Australian Museum and the Procurement of Aboriginal Bodies, c 1874–1900” (1991) 15 (2) Aboriginal History 108.
[93] Id at 110.
[94] Id at 113.
[95] Monaghan, D, “The Body Snatchers” The Bulletin 12 November 1991 at 30.
[96] Wettenhall, G, “The Murray Black Collection Goes Home” (Dec–Jan 1988/89) Australian Society 19.
[97] Pardoe says about 370 skeletons from Lake Victoria were held in museums, above n8 at 5.
[98] Above n96. There were difficulties with this because the Murray Black collection was stored not in complete skeletons, but as collections of skulls, scapulae, tibia etc: Richardson, L, “The Acquisition, Storage and Handling of Aboriginal Skeletal Remains in Museums: an Indigenous Perspective” in Layton above n13. There is an enormous literature discussing the ongoing issue of the return of burial remains which have been removed and placed in museums all over the world. The issue is vitally significant to indigenous peoples all over the world. See eg, Symposium in (1992) 24 (1) Arizona State LJ.
[99] Pardoe, C, “Sharing the Past: Aboriginal Influence on Archaeological Practice: a Case Study from NSW” (1990) 14 (1–2) Aboriginal History 208, fn at 222.
[100] See eg, Veth, P, “Archaeological Ethics in Western Australia: the Formalisation of Aboriginal Consultation” (1991) (1) Australian Aboriginal Studies 63; and see generally, Layton above n13.
[101] Heritage Conservation Act 1991(NT), s4 defines “archaeological object” to include human remains. The Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld), s5 defines “burial remains” as excluding: “(a) human remains buried under the authority of the law of Queensland or other State of the Commonwealth of Australia or of a Territory or (b) human remains in or from a place recognized as a burial ground for the interment of remains buried as referred to in part (a). The Aboriginal Heritage Act 1988 (SA), s3 defines ‘aboriginal remains’ as “the whole or part of the skeletal remains of an Aboriginal person but does not include remains that have been buried in accordance with the law of the State’. Section 2(3) of the Aboriginal Relics Act 1975 (Tas) defines ‘relics’ as including: (c) the remains of the body of such an original inhabitant or of a descendant of such an inhabitant who died before the year 1876 that are not interred in – (i) any land that is or has been held, set aside, reserved, or used for the purposes of a burial ground or cemetery pursuant to any Act, deed or other instrument; or (ii) a marked grave in any other land”. The Mineral Resources Development Act 1990 (Vic), s4 refers to an “Aboriginal object”. The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), s3 defines “relic” as including “skeletal remains ... but does not include the body or the remains of a body interred in a cemetery, burial ground, or place of burial after the year 1834”. Part II of the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth) applies directly to Victoria. The Aboriginal Heritage Act 1972 (WA), s4 defined human remains similarly.
[102] Except for WA which amended its Aboriginal Heritage Act in 1995 to remove the archaeological emphasis (by No 25 of 1995).
[103] Ellis, B, “Rethinking the Paradigm: Cultural Heritage Management in Queensland” (1994) 10 Ngulaig at 10. See also Ward, G, “The Federal Aboriginal Heritage Act and Archaeology” (1985) No 2 Australian Aboriginal Studies 47.
[104] See Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s21E; Heritage Conservation Act 1991 (NT), s4 (archaeological place, ss33, 39 (protection)); National Parks and Wildlife Act 1974 (NSW), s84 (Minister may declare site to be an Aboriginal place), s90 (protection); ss62–4 (mining), ss65–6 (protected archaeological areas); Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld), s33; Aboriginal Heritage Act 1988 (SA) Part 2, Div 2 (Protection of Aboriginal sites, objects and remains); Aboriginal Relics Act 1975 (Tas), s7; Aboriginal Heritage Act 1972 (WA), s15; Mineral Resources Development Act 1990 (Vic) (Aboriginal place as defined in Cth Act above, restrictions on miners in relation to Aboriginal places ss45(xii), 46, 58); Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), ss15–19.
[105] Museums (Aboriginal Remains) Act 1984 (Tas) provides that Aboriginal remains become the property of the Crown, but that the Minister is to notify elders of the Aboriginal community, and the property shall vest in them. See also Auty, K, “Aboriginal Cultural Heritage: Tasmania and La Trobe University” (1995) 76(3) Aboriginal L Bull 20.
[106] WA v Bropho (1991) 5 WAR 75 per Anderson J; see also Saylor, D, “Aboriginal Cultural Heritage Protection in WA: the Urgent Need for Protection” (1995) 76 (3) Aboriginal L Bull 9.
[107] Some of these are referred to in Elizabeth Evatt’s Report: Review of the Aboriginal and Torres Strait Islander Heritage Act 1984, 21 June 1996, chapter 5. See also Janke, above n87 and Langton, M et al, Valuing Cultures; Recognising Indigenous Cultures as a Valued Part of Australian Heritage (1994), AGPS Canberra.
[108] Fourmile, H, “The Queensland Heritage Act 1992 and the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld): Legislative Discrimination in the Protection of Indigenous Cultural Heritage” (1996) 1 Australian Indigenous Law Reporter 507. See also, Fourmile, H, “Aboriginal Heritage Legislation and Self-Determination” (1989) 7(1–2) Australian-Canadian Studies 45.
[109] National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW), assented to on 16 December 1996.
[110] In deciding, the Minister must consider a report from the Director-General of the National Parks and Wildlife Service who must consult with local Aboriginal Land Councils, the New South Wales Aboriginal Land Council and any Aboriginal owners or body representing Aboriginal that the Registrar considers relevant. The Minister is not to make a determination that the lands are of cultural significance unless he considers that they are at least as significant as the lands already listed in the Act.
[111] For example, Norvill & Milera v Chapman & Ors; Tickner v Chapman & Ors, (unrep) Full Federal Court, 7 December 1995 (the Hindmarsh Island secret women’s business case); Aboriginal Sacred Sites Authority v Maurice (1985–86) 10 FCR 104; Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 54 FCR 144 (confirmed on appeal). See also, an account of one of the few successful claims for protection under the Commonwealth Legislation, where secret information was considered: Keely, A, “Two Laws Meet: the Significance of Junction Waterhole” (1992) 56 (2) Aboriginal L Bull 14.
[112] Aboriginal Heritage Act 1988 (SA). A Heritage council made up entirely of Aboriginal people exists, and the Minister must accept the traditional owner’s decision as to what is of cultural signficance.
[113] Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409 per French J at 446.
[114] This Act also includes Part IIA – Victorian Aboriginal cultural heritage.
[115] Chapman & Barton v Tickner, Minister for Aboriginal and Torres Strait Islander Affairs (1995) 55 FCR 316; and similar conclusions in the appeal to the Full Federal Court of that case Norvill & Milera v Chapman & Ors; Tickner v Chapman & Ors, (unrep) Full Federal Court, 7 December 1995; Aboriginal Sacred Sites Authority v Maurice (1986) 10 FCR 104; Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 54 FCR 144 (confirmed on appeal).
[116] Evatt, E, Review of the Aboriginal and Torres Strait Islander Heritage Act 1984 (1996), Minister for Aboriginal and Torres Strait Islander Affairs, Canberra.
[117] Id at ch2.
[118] Id at 2.19.
[119] For example, Saylor above n106; Tehan, M, “To Be or Not to Be (property): Anglo-Australian Law and the Search for Protection of Indigenous Cultural Heritage” [1996] UTasLawRw 11; (1996) 15 (2) U Tas LR 267; See also both articles by Fourmile, above n108.
[120] Hancock, N, “How to Keep a Secret” (1995) 77 (3) Aboriginal L Bull 4.
[121] See Fourmile above n108; Couvalis, G and MacDonald, H, “Cultural Heritage, Property and the Position of Australian Aboriginals” ( 1996) 14 Law in Context: Cross Currents 141; Lipman, Z and Don, K, “Aboriginal Joint Management of National Parks: Why NSW Still has a Long Way to Go” (1993) 60 (2) Aboriginal L Bull 6.
[122] See above n103.
[123] Commonwealth v Tasmania [1983] HCA 21; (1983) 57 ALJR 450.
[124] Id at 539, quoted in Evatt, above n116 at 8.6.
[125] Palyga, S, “Proposals a Backward Step” (1996) 31 (11) Australian Lawyer 7, criticises Evatt’s recommendations on the basis that they will prevent objective assessment of cultural heritage issues. This criticism seems misconceived, as cultural heritage issues must always be determined by some cultural group – there can be no absolute objectivity, and creating an objectivity which is based on the western tradition, as Palyga seems to want, would in this context be no objectivity at all. Evatt’s proposals are not that significance would be determined by those who seek it, but that a body of Aboriginal people would evaluate it – this is itself a compromise between the western traditions of law and Aboriginal cultural heritage, and possibly fails to deliver either. However, it seems more acceptable than the present position.
[126] [1908] HCA 45; (1908) 6 CLR 406 at 412.
[127] Riding, J, in “Without Ethics and Morality: a Historical Overview of Imperial Archaeology and American Indians” (1992) 24 (1) Arizona State LJ 11 at 14; a similar view is taken by Watson, I, when she says “The Australian government has yet to look squarely and honestly at the way in which colonialism remains entrenched...” in “Law and Indigenous Peoples: the Impact of Colonialism on Indigenous Cultures” (1996) 14(1) Law in Context: Cross Currents 107 at 115.
[128] In recognition of this problem, the Aboriginal Heritage Amendment Act 1995 (WA) was designed to protect places or objects which are currently (“past or present”) used by Aboriginal people.
[129] New South Wales has just released a Green Paper on cultural rights which emphasises selfdetermination. The National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW), assented to on 16 December 1996, and the 1995 amendments to the WA Aboriginal Heritage Act are all moves in the right direction.
[130] Hindmarsh Island Bridge Act 1997 (Cth).
[131] The ATSIC Indigenous Reference Group on Cultural and Intellectual Property, Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, 16–17 September, 1997 are based on the Principles and Guidelines for the Protection of Indigenous People’s Cultural Heritage elaborated by Erica Irene Daes, Special Rapporteur, UN Economic and Social Council: Study of the Protection of the Cultural and Intellectual Property of Indigenous Peoples (1993). They include this principle: Janke above n87.