BY LUCAS LIXINSKI

This post is one in a two-part special series looking at the report of the parliamentary inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia. See the first post by Hannah McGlade here. These posts also appear on Indigenous Constitutional Law.

In mid-October 2021, the Joint Standing Committee on Northern Australia delivered ‘A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge’ (‘A Way Forward’, or ‘Report’). This Report makes recommendations to change Australian law to better safeguard First Nations identities and interests. These efforts, while laudable, deserve closer scrutiny, and their implementation requires careful consideration of some of the Report’s assumptions. In this post, I argue that too much faith is being placed on the reconceptualisation of First Nations heritage as intangible cultural heritage, which may backfire in practice unless it is done with more careful consideration than the Report currently suggests.

‘A Way Forward’ is the culmination of a lengthy governmental response to the actions of the Rio Tinto mining company that led to the destruction of sacred heritage of the Puutu Kunti Kurrama and the Pinikura peoples in the Juukan Gorge, Western Australia. After multiple rounds of consultations and submissions to government, the Joint Committee issued a preliminary report last year, which prompted another round of submissions and consultations, leading to the final report: ‘A Way Forward’.

While the Report has been criticised for not focusing enough on the actions, liability and responsibility of Rio Tinto, and focusing instead on the actions of government, it offers a wide range of recommendations on how to prevent the future destruction of First Nations heritage, in Western Australia or elsewhere, in the name of economic development. I will devote the remainder of this post to three of the Report’s recommendations: (1) the centralisation of authority over Indigenous heritage decision-making; (2) the introduction of a new way of conceptualising heritage on the back of international best practice, namely via the concept of Intangible Cultural Heritage (ICH); and (3) the promotion of heritage as a pathway for truth-telling. I will first outline the way these three issues are discussed in the report, and then analyse them more closely through the prism of intangible cultural heritage as a potential conceptual and legal tool to untie the Gordian knot of Indigenous heritage safeguarding in Australia.

The Report and its implementation

Centralisation of authority over First Nations heritage decision-making

The Report recommends that the federal Parliament ‘legislate a new framework for cultural heritage protection at the national level.’ This framework, it recommends, should be ‘co-designed’ with Indigenous peoples themselves. The intention of the new national framework is to largely dislocate competence away from states and territories. It should also ensure, consistently with international law, that Indigenous peoples are always in control of their heritage throughout the process, and at its conclusion. While co-design as an idea is not without its problems, and there have been strident criticisms made of recent government co-design processes, the report stresses the need for shared decision-making.  This idea is ahead of the curve in most co-design discussions worldwide of which I am aware, and in some respects even ahead of international human rights standards in the United Nations Declaration on the Rights of Indigenous Peoples, which is relatively weak on the issue of control when it comes to heritage.

The dislocation of competence away from the states is largely based on the finding in the Report that states ‘have failed’, and ‘will continue to fail without overarching legislative framework’. That failure is largely attributable to how ‘states have prioritised development over the protection of cultural heritage-including through the enactment of site-specific development legislation intended to further dispossess Aboriginal and Torres Strait Islander peoples.’ As a result, it is time for the federal government to intervene and assert control of this legislative area. And international law offers an ideal pathway, as per the Tasmanian Dam case (incidentally, also about an international cultural heritage treaty).

The concept of Intangible Cultural Heritage

The central element of the international law response in the Report is its recommendation that ‘the Australian Government ratify [and presumably implement] the Convention for the Safeguarding of the Intangible Cultural Heritage 2003.’ This treaty (‘ICHC’), to which the vast majority of countries in the world are parties, introduces a new concept in the cultural heritage arsenal: intangible cultural heritage, This concept means (in the words of the Convention itself) living heritage ‘transmitted from generation to generation, [which] is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity’. The ICHC is the latest major cultural heritage treaty, and therefore in some respects the high watermark of cultural heritage safeguarding in the world, aiming to change how heritage is defined and managed through seeing it as a set of ongoing relationships.

Some Australian jurisdictions have already incorporated the concept of intangible heritage, making direct reference to the ICHC and raising productive concerns about subsidiarity and federalism, but the federal government has so far resisted ratification. The Report seeks to offer another incentive to overcome that resistance. Ratification of the ICHC, the only cultural heritage treaty to make direct reference to Indigenous heritage (a topic to which I return below), would offer a pathway for greater participation of Indigenous communities in control over their heritage, partly because of this definitional shift that sees heritage as living and contemporary rather than just physical remnants of the past, and partly because the treaty itself insists on the centrality of community participation.

Truth-telling

The third recommendation of the Report is that government creates a ‘model for a cultural heritage truth telling process that may be followed by all Australians – individuals, governments and companies – as a part of any process to engage with Aboriginal and Torres Strait Islander peoples and their cultural heritage.’ This call aligns closely with one of the final asks of the Uluru Statement from the Heart, and connects to the growing recognition of the role of cultural heritage in offering pathways to make sense of past and ongoing harms. Telling the truth about the harm done to Indigenous heritage is a means of contributing to an overarching narrative of the harm of colonisation on Indigenous peoples, and a pathway to trigger reparations through, for instance, the return of heritage removed, but not destroyed, from Indigenous communities.

Bringing the recommendations into reality

These three recommendations showcase a willingness to leverage international law as a pathway to bypass malfunctioning sub-state structures, and to promote aspirations of Indigenous peoples that exist outside of the state. In doing so, they live up to one of the promises of international human rights law: to offer redress to people and peoples when the nation-state fails them and is unwilling to, on their own, make things right.

Specifically, the push for federal legislation resets the baseline for the management of Indigenous heritage against plural and mismatched levels of state and territory safeguarding, and the Report recommends the inclusion of a uniform definition of heritage that will connect tangible and intangible elements of Indigenous heritage. To make sense of what this definition will include, and incorporate international best practice on intangible cultural heritage, the ICHC offers a definition of intangible heritage, and the Report puts a lot of hope in what intangible heritage can do in terms of recognising a different relationship to heritage, and more Indigenous control. The move to international law also feeds well into the shift in authority to the federal government. Finally, the recognition of intangible heritage values associated with heritage would bring to light heritage truth by creating a pathway to acknowledge deep cultural harm beyond what has so far been possible. ICH can help catalyse a shift in the conversation by stressing that heritage is living, ongoing, and transforms, as opposed to the static version that most of Australian law (and certainly Australian federal law) assumes heritage to be.

An incidental effect of this shift to intangible values associated with Indigenous heritage, and the recognition that heritage is living and ever-changing, is that it can help undo static takes on culture that still unfortunately pervade native title claims in Australia. The High Court of Australia itself acknowledges that Indigenous cultures are not static (most recently in the case of Love and Thoms v Commonwealth in 2020), but that kind of reasoning is still to shift much of the established thinking in the field. In other words, acknowledging that Indigenous culture not only does change, but is fundamentally and definitionally supposed to change over time, means that we divorce ourselves from a paradigm that conditions native title to an obsolete (and absurd) idea of Indigenous “traditional” relationships with the land, in which “traditional” somehow means (a white man-dictated) pre-colonial way of life.

The transformative potential and limitations of Intangible Cultural Heritage

Despite the remarkable potential of these recommendations, centred on the idea of intangible cultural heritage as the key to unlock Indigenous control, too much seems to hinge on a relatively under-explored recommendation: that the ICHC be ratified. The three recommendations I discuss in this post should coalesce to promote greater Indigenous control over their identities and heritage, with the state a mere facilitator whose role is to correct power imbalances between heritage holders and mining companies (or any others seeking to exploit heritage). That goal is valuable, but not one that the ICHC can deliver on its own. There is a danger, then, that too much is being asked of the ICHC.

The dangers of Indigenous only cultural heritage

First, despite the reference to Indigenous peoples in the preamble of the ICHC, the treaty is not only about Indigenous heritage. Nor should it be. Yes, the Australian engagement with the treaty (or the very idea of intangible cultural heritage) has so far restricted this form of heritage to Indigenous peoples, but, in my view, that is a mistake with very problematic consequences. To make all intangible heritage Indigenous means that we separate living heritage from other segments of the population. It would be akin to saying that the non-Indigenous Australian population has no living heritage of their own, which is clearly wrong. But, from the perspective of Indigenous peoples themselves, consequences can be dire: to have only their heritage translated as intangible means that it becomes easier to separate and insulate Indigenous identity (and corresponding claims) to the special, and separate, realm of ‘culture’, a realm in which non-Indigenous Australians would not participate and therefore about which they do not need to care. While Australia should ratify the ICHC, it should make it clear that intangible heritage is not only Indigenous, lest we continue to pigeonhole Indigenous peoples in the same box of ‘venerable, but ultimately powerless’ culture in which current static Indigenous heritage has locked them. In an effort to highlight the distinctive and essential contribution of Indigenous Australians, we should not render them elusive and therefore easily discardable.

The Intangible Cultural Heritage Convention still needs to be implemented

Second, the ICHC is still a fairly programmatic instrument. There is significant scope for national governments’ discretion in the implementation of the treaty, so ratification itself will not solve the problem. The treaty does not give a clear answer, for instance, on what countries need to do to make sure they are safeguarding ICH in their territories in terms of financial and other support to communities. Nor does it make explicit how state authorities should deal with potential conflicts between heritage interests and economic development, which are at the root of the Juukan Gorge debacle. Therefore, the ICHC alone, without a clear eye for implementation that takes into account best safeguarding practices around the world, will not get us far enough.

The Intangible Cultural Heritage Convention does not prescribe consultation with Indigenous peoples

Lastly, while the ICHC makes the inclusion of communities central to the processes of identifying and safeguarding intangible heritage, that recognition is not without its problems. Connected to the point in the previous paragraph, there is no strict guidance on what community involvement means for the purposes of ICHC compliance. In other words, the treaty sets a relatively low bar, and alone it will not create sufficiently strong legal levers to prompt the shift in control for which the Report calls. To use an anecdote I have discussed elsewhere, one of the first things China inscribed on the international list created by the ICHC was Tibetan Opera. Part of the requirement for inscription on the international list is the consent of involved communities. At first glance, it seems like the listing of Tibetan Opera is a great stride in the recognition of the Tibetan community. However, upon reviewing the documentation that China offered on the Tibetan community’s consent, it transpired they had not consulted anyone in Tibet about the matter, and instead used the authority of someone in Beijing whose position was fully funded by the central government. It would be akin to having a white bureaucrat in Canberra giving consent on behalf of an Indigenous community for the listing (and consequently the narratives and meanings) of Indigenous Dreaming Stories in the Northern Territory. These requirements in the ICHC are now much tighter in international practice, but the Tibetan Opera example demonstrates that there is still room for some manipulation, especially if co-design is not done properly. The Report wishes to go much further, and aligns with better practice in this area, but we cannot hinge too many hopes on the ICHC itself.

Concluding remarks

“A Way Forward” promises to reinvent Australian law’s relationship to Indigenous cultural heritage, and potentially cultural heritage more broadly. It relies on the powers of the federation, alongside international law, to bring about reform. While I do hope all these changes can come to the benefit of First Nations people in Australia, we need to be careful with the faith placed on international law and best practice. There is a lot of potential, there, but it needs to be done right. Nevertheless, there is exciting work ahead, if only government can do it with eyes wide open and keeping Indigenous voice and truth very much at the centre of the process.

Lucas Lixinski is a Professor at the Faculty of Law & Justice, UNSW Sydney.

Suggested citation: Lucas Lixinski, ‘An Intangible Way Forward: The Juukan Gorge Inquiry and the Future of First Nations Heritage Law in Australia’ on AUSPUBLAW (10 December 2021) <https://auspublaw.org/2021/12/an-intangible-way-forward-the-juukan-gorge-inquiry-and-the-future-of-first-nations-heritage-law-in-australia/>