... an article I wrote a couple of years ago ...
Originally published: February 2012, Tasmanian Times
The building of the Brighton Bypass bridge over the Jordan River triggered a fierce battle to protect Aboriginal heritage.
Dozens of protestors were arrested in both 2009 and 2011, and their charges are making their way through the courts now. The construction union put a ban on the works. The Federal Minister for Heritage gave kutalayna National Heritage status. And still the bridge was built.
The Aboriginal heritage assessment was undertaken after building the bridge over the site was inevitable.
“Shouldn’t they have done all of this archaeology before the project even began???” asks ‘Tom of Hobart’, in the comments section of the Mercury.
Aboriginal Heritage Officer Aaron Everett explained, “The way the system works at the moment, the heritage assessments are done too late. After the project has been designed, then the developer has to go and get an Aboriginal heritage assessment done. By then it’s too late. We just get seen as the baddies then. We’d like there to be a broader investment in assessing Aboriginal heritage across the whole of the state, and not leaving it ‘till the last minute and it’s the developer who has to deal with it. I feel sorry for them sometimes”.
The Acts
Everyone seems to agree that the planning system under the Aboriginal Relics Act of 1975 is not working.
The state government have flagged that they want effective Aboriginal Heritage legislation. Brian Wightman, the Minister for Environment, Parks and Heritage, announced last June that “development of new Aboriginal heritage legislation will be a major focus for my Department in 2011-2012.”
Currently, heritage in Tasmania is protected under two Acts. The Historic Cultural Heritage Act 1995 (HCHA) protects non-Aboriginal heritage, and the Aboriginal Relics Act 1975 (the Relics Act) protects Aboriginal heritage.
The Tasmanian Heritage Council, ensures compliance with the HCHA and receives administrative support from Heritage Tasmania, a unit of the Department of Parks and Environment.
The HCHA specifically excludes protecting a place on the ground of it’s Aboriginal history or Aboriginal traditional use. This was recently tested in a case to protect the kutalyana site in the route of the Brighton Bypass when two non-Aboriginal women, Annie Reynolds and Dr Maureen Davey, appealed a Heritage Council decision in the Supreme Court. They claimed that the kutalayna site was of value to the broader Tasmanian community and that the Heritage Council should protect it. The appeal was not successful.
The Relics Act is administered by Aboriginal Heritage Tasmania. This sounds like it might be an Aboriginal body, but its not. It is a unit of the Department of Parks and Environment. The Act has failed to give any real decision-making authority to Aboriginal people regarding their heritage, with decision-making vested in the Director of Parks and Wildlife. Or ultimately, the Minister for Parks and Environment, as occurred when Brian Wightman issued a Permit to Interfere with the kutalayna site. Under the Act, Interfere means to “destroy, damage, deface, conceal or otherwise interfere with” Aboriginal heritage.
Aaron Everett, Sky Maynard and Ambrose McDonald are confronted by the police at kutalayna. Photo courtesy of Jillian Mundy http://www.jillianmundy.com.au
When the Relics Act was written, the mistaken view that there were no Aborigines in Tasmania was still widely held. The legislation was relatively forward-thinking for its time, an era when Aboriginal people were still struggling to have their existence in Tasmania recognised.
Current issues with the Relics Act range from uncertainty for developers, to ongoing destruction of Aboriginal heritage. What the Act does most effectively is identify sites of significance, and then streamline a process to permit their destruction. Review of this legislation has been underway for twenty-one years and it’s up to it’s fifth iteration, but has not yet made it to the stage of being tabled in Parliament.
However that might be about to change. The Greens, Labor, the Aboriginal community, archeologists, developers, are all in agreement. The legislation needs to be more effective, to provide better protection for Aboriginal heritage, to involve the Aboriginal community in decision-making and to identify heritage sites earlier in the planning processes.
Given that it looks like we are getting a new Act to protect Aboriginal heritage, what should be in it?
The 2011 State Labor conference voted unanimously to support a motion, put by Unions Tasmania Secretary Kevin Harkins, to amend the Relics Act. The motion was developed in consultation with the Aboriginal Land Council of Tasmania (ALCT) and called for several amendments to address the inadequacies of the Act. These amendments give us a good guide as to what should be in the legislation.
The first was to remove any reference to the date of 1876, the year that Truganini died and for decades wrongly presumed to be when Tasmanian Aboriginal culture died. The current wording offers no protection for Aboriginal relics created after that date. Nala Mansell, the Secretary of the Tasmanian Aboriginal Centre (TAC) gives an example of the kind of problem this creates. “Lucy Beeton set up the first Aboriginal school on Badger Island. The history behind that is really important to our community. She was buried on one of the islands outside of a cemetery. There’s no laws whatsoever that can protect her grave, because she died after 1876.”
Another amendment is to increase fines to those who cause damage to Aboriginal heritage to reflect those in the Historic Cultural Heritage Act. The maximum fine for destroying rock art, for example, is currently $A1,000, whereas the maximum fine for vandalising (non-Aboriginal) historical heritage is $A500 000, or $1M for corporations.
A further amendment calls for all Planning Schemes and Environmental laws to be subject to protection of Aboriginal heritage, saying that Aboriginal heritage must be afforded the same rights of protection as European heritage covered in current Schemes, and another amendment is to create a Tasmanian Aboriginal Heritage Council with the equivalent powers of the Tasmanian Heritage Council.
Consultation
The last amendment called for in the Labor party resolution is to expand the powers of the ALCT under the Aboriginal Lands Act 1995 to cover all issues of Aboriginal heritage. This will enable the ALCT to take a more active role in ensuring protection of Aboriginal heritage.
The introduction to the motion calls for these amendments to be made in consultation with, and by agreement with, the Aboriginal community. Lack of consultation and agreement can mean that good intentions backfire. A classic example of this is flying the Aboriginal flag in Parliament.
Nala Mansell explains that “Nick McKim spoke to us and said ‘I think the Aboriginal flag should be in parliament every day and we should be showing our respect to the Aboriginal flag’. “ Nala, as the State Secretary of the TAC, agreed to conduct a community consultation to see whether the Aboriginal community agreed.
“There were some people saying ‘I think that will be a good idea because it shows that’s on Aboriginal land’ and other people were saying ‘look what the governments done to us and they won’t let us have our land back so why would we let them have the flag?’ so we started writing down what people were saying, but in the middle of that consultation, Michael Polley decided that he was going to go and put the Aboriginal flag up.”
The flag is highly symbolic to the Aboriginal community. “For the government to take that away from us and to have full control and power over where it belongs, it’s a kind of slap in the face …. while they’re in there deciding that ‘yes we’re going to destroy Aboriginal heritage’ they’re making themselves feel better by turning around and looking at our flag and telling themselves that they’re doing the right thing by us because they’re flying the flag, but at the same time they’re doing the wrong thing” explained Nala. According to Clyde Mansell, Chairman of the ALCT “Government continuing to fly the Aboriginal flag in the chamber is a further show of disrespect to Aboriginal people and denies our human right of self-determination”.
The flag episode highlights the importance of consultation with the Aboriginal community in the development of the new heritage legislation. Brian Wightman is in agreement and has said “engagement with the Aboriginal community is a key component of the consultation framework for developing the new legislation”.
An integral part of Aboriginal heritage is land. Tasmania began a process of returning land to the Aboriginal community in 1995. The Aboriginal Lands Act 1995, according to its long title, is “an Act to promote reconciliation with the Tasmanian Aboriginal community by granting to Aboriginal people certain parcels of land of historic or cultural significance.” To enable this, the Aboriginal Land Council of Tasmania (ALCT) was established under the Act, to hold and manage the lands.
In 2005 further parcels of land were transferred to Aboriginal community ownership under the ALCT. This included further land on Cape Barren Island and a 40-year lease at larapuna (Eddystone point). Since then only two small land areas have been returned to Aboriginal community ownership, this was achieved through the federal Indigenous Land Corporation. “The Tasmanian Government has stalled on land return; they have also failed to provide adequate financial support to the Land Council making difficult for the Aboriginal community to enjoy the real benefits of land ownership” said Clyde Mansell.
The State government’s Tasmania Together includes benchmarks to increase land ownership by the Aboriginal community. The benchmark for 2010 was 90,000 ha but to date less than 56,000 ha have been returned. The Tasmania Together’s Progress Board says “The data trend is static and the 2010 target has not been achieved.” Cassy O’Connor indicated a willingness on the part of government to honor those benchmarks and said “It is my role to advocate for land return, in consultation with the community. “
The Tasmanian Greens policy position is to “return to the Aboriginal community further land which is of spiritual, cultural, historic and economic significance.” The Tasmanian Branch of the ALP says in their state platform on Aboriginal affairs “Labor will transfer to the Aboriginal community Crown Land identified as being of significant economic, spiritual, cultural or historical importance to the Aboriginal community.”
All of this indicates that the expectation of the Aboriginal community that more land will be handed back, is a realistic expectation. In the meeting with the Premier, the Aboriginal community are calling for transfer to the ALCT of several further sites of significance including West Point Aboriginal Site (nungu), Sundown Point Aboriginal Site (laraturunawn), Trial Harbour Aboriginal Site (maynpatat), Rocky Cape National Park (pinmatik), Mt William National Park (wukalina), and Eddystone Point Lighthouse & Bay of Fires (larapuna). Note - place names in the Tasmanian Aboriginal language palawa-kani, are not capitalised.
West Point Aboriginal Site (nungu) includes a cremation site, hut depression site with eight depressions in a village setting, and stone arrangements. The area is being damaged by vehicles and motor-bikes. There are also shacks nearby which are supposed to be removed under the Crown Lands Shacks Act 1995. Removal of shacks has often been an emotive issue with one owner of a shack on a crown land lease saying to a Parliamentary enquiry “I have no qualms about them giving the land back to the Aboriginals but I do not see why it should be coming out of the pockets of the few shack holders they are taking the shacks from. Why can’t we be compensated properly so that we can eventually get a shack somewhere else? Why should we be footing the bill? I really can’t understand why.”
Sundown Point Aboriginal Site (laraturunawn) has been a target for vandalism including several cases where slabs of engraved rock were removed. Two that were taken in the 1980s have been recovered but one taken in 1998 is suspected of being smuggled out of the state and sold internationally. The art has also been vandalized by being carved into, and painted on.
Trial Harbour Aboriginal Site (maynpatat) is close to the settlement and in need of protection.
All three areas are protected sites under the Relics Act, as well as State Reserves because of their Aboriginal heritage. According to ALCT they are a high priority to be managed for that heritage and should be returned to “the rightful custodians both in recognition of the cultural significance of the areas and as way of achieve proper protection.”
Rocky Cape National Park (pinmatik) is an area which reflects Aboriginal life on the north-west coast when caves were first occupied about 8,000 years ago. Clyde Mansell of the ALCT explains “Aboriginal occupation and use of the area began shortly after seas reached their current level about 10,000 years ago.
The richness of the area’s resources is shown by the vast cave middens that reveal the accumulated materials of 8,000 years of continuous occupation. These provide one of the largest and most complete records of the lifestyle of coastal Aboriginal people anywhere in Australia. The middens indicate that at various times seals, and fish were major items of food. These were supplemented by other game and by edible plants such as grass tree and fern. Middens also reveal a range of tools used for gathering and preparing food and for other cultural activities. It is appropriate that these caves be transferred to Aboriginal people.”
Nala Mansell being arrested at kutalayna. Photo courtesy of Jillian Mundy http://www.jillianmundy.com.au
The length of their association with Tang Dim Mer (one of the Aboriginal names for the area) gives it special significance to today’s Aboriginal community, who maintain an ongoing presence at Rocky Cape. The area is visited frequently for cultural, spiritual and recreational purposes, and the Aboriginal community is actively involved in planning for its management.
The Aboriginal community in October each year conducts the Rocky Cape Festival. The festival includes cultural foods and sporting activities such as spear throwing. About sixty people attended the festival in 2011.
Mt William National Park (wukalina), Eddystone Point Lighthouse & Bay of Fires (larapuna) is an area where, prior to being moved away from their traditional landscape, Aboriginal people used the summit of Mt William as a lookout for sealers’ boats and for lighting fires as a signal to the Aboriginal women living on the islands.
At Deep Creek there are large middens, which are evidence that the Aborigines who occupied the area ate a variety of shellfish, including, mussels, warraner, muttonfish, limpets and periwinkles. There is also a burial site at Deep Creek, which holds the remains of Aboriginal women.
The area of Mt William National Park, including Stumpys Bay, Deep Creek and the Eddystone Point lighthouse provide a link for Aboriginal people to their ancestral and traditional homelands and an opportunity of maintaining a continuing participation in many cultural activities such as fishing, hunting and gathering. The ALCT say that “in particular Deep Creek holds very significant cultural and heritage values that need to be protected and maintained”.
The greatest threat to Aboriginal heritage sites is access. The National Parks and Wildlife Service draft report on the Arthur Pieman conservation area explains “Although Aboriginal heritage values are constantly influenced by natural environmental change, many sites are significantly impacted by recreational vehicle use. Countless areas have not been fully surveyed or researched. The majority of Aboriginal sites are located in sandy areas already impacted or vulnerable to vandalism, vehicle use and consequent erosion and crushing. Some middens are used as hardened areas to traverse dunes or as vehicle jumps.
Shacks have also been constructed on midden sites.”
Peter Sims, in his report Rock Art Vandalism in Tasmania lists drowning rock art (under hydro dams), destroying signage, taking rock art from its site and mounting it in museums, adding fake petroglyphs to sites, misuse of sites by cattle grazers and vehicle use as examples of vandalism. He attributes the vandalism to unsettled hostilities remaining since colonial conflict over land. He calls this “an expression of anti-Aboriginal sentiment and resentment” a view reinforced by Aaron Everett’s comment “They say racism is supposed to be decreasing, but I don’t see that. It’s just as bad now as it’s always been, maybe just more covered up.”
Community Attitudes
During the Brighton Bypass protest, several newspaper articles had the capacity for public comment. People who submit comments tend to be those who feel most strongly about the issue. However the comments were insightful regarding the more extreme views held in the community. Some were supportive, others were asking genuine questions.
Two themes were very specific to Aboriginal heritage. They were claims that the Aboriginal identity of the modern Aboriginal community is not legitimate, and that the artefacts and site are of no value (reader warning, the next section re-posts some offensive comments as examples).
Tim MacLeavy of Riverside asked on March 6 “Why does everyone refer to these people as Aboriginal when clearly they are not. They may have a small amount of DNA from the original Aboriginal tribes of Tasmania But to call these people by that name degrades the true Aboriginal race. They are no different than any other Tasmanians from mixed backgrounds and ethnicity and should be treated accordingly.”
Or Vaughn Heath of Hobart on March 6, “Not only are these aborigines white they should be thankful to the whites because if it wasn’t for the whites they wouldn’t be here they have white ancestors.”
These comments are typical of common misunderstandings born of ignorance, or perhaps as Peter Sims says, the unsettled hostilities remaining since colonial conflict over land. What non-Aboriginal people often don’t realise, is that just because someone outside the Aboriginal community has difficulty telling who is Aboriginal just by looking at people, the same is not true within the Aboriginal community, where Aboriginal identity is very strong.
The final response to the public consultation regarding the Brighton Bypass heritage site, noted that although peer reviews had indicated that the site may not be 40,000 years old (although it also may be), it is at least 24,000 years old. This somehow got translated to “The disturbing thing about the whole saga is the absolute rubbish being spouted about this site being 40 000 years old. The TAC is spreading misinformation based on a now discredited archaeological report that was so flawed it is worthless. The report carries absolutely no weight and the government knows it, which is why it approved the works” as posted by “Lonnie Geoff” on April 15.
Or “There is some question that perhaps there’s some ‘artifacts’ on this site, which appears like it was a communal rubbish dump, and which this hunter gatherer nomad society may well have left a fairly even blanket of their trash on,” posted by “dear Shane” on April 16.
“Idiocy” says on April 12“This malcontent white people are not fighting to protect a rubbish dump, they are fighting to protect 4% of a rubbish dump.”
This kind of response is not new to Aaron Everett, who said “When we try to educate the community about sites, well, you know, we cop a lot of racist rubbish. Those people who they just call a midden a tip or a rubbish dump. They can’t see why it’s important. They not educated.”
Protecting sites
Keeping sites out of public knowledge then becomes the most effective strategy for protecting them. This is why information on Aboriginal heritage is so sensitive to the Aboriginal community. Data on all known sites is kept on a database called the Tasmanian Aboriginal Site Index (TASI). Access to and use of data from the TASI is subject to strict protocols that are managed by Aboriginal Heritage Tasmania and TALSC.
Aaron Everett wants management of the TASI database by the Aboriginal community. “All that information about Aboriginal sites – a lot of that information we actually gave to them.” He is concerned that the information is not used for the purpose for which it was intended. “Some of our elders, they don’t want us to hand over any information about our culture, because it gets used against us. An example is kutalayna. We brought that to people’s attention, we allowed the archeological excavations. We thought that by letting people know how significant it is that it’d be protected. But that’s not how it went, is it?”
Clyde Mansell explains, “When you consider the fact that the biggest destruction of Aboriginal Heritage is caused by road construction and the State Government is usually the proponent for these types of activities, it is not hard to speculate why the Government doesn’t want to change the current legislation. This would interfere with their ability to issue permits to destroy.”
The Brighton bypass road was already built up to either side of the site before the final assessment process that resulted in the inevitable approval to “interfere” with Aboriginal heritage was granted. The consultations with the Aboriginal community are too late and do not give Aboriginal people a real voice. Our approach to Aboriginal heritage needs to be more systematic, and include ongoing, respectful dialogue with the Aboriginal community.
To value Aboriginal culture you don’t have to BE Aboriginal. There is a role for non-Aboriginal people to value Aboriginal culture by working with the Aboriginal community, by learning to be comfortable with our own cultural identity, and living alongside the Aboriginal community.
Sorting out the Heritage Legislation, and the next stage of land hand backs, is an opportunity to take another step in healing some of the “unsettled hostilities”. It’s an idea whose time has come.
Linda Seaborn is a non-Aboriginal woman who supports Aboriginal rights. She was a participant in the Oyster Cove land claim in 1987, the Rocky Cape land claim in 1991 and the campaign to protect kutalayna in 2010-2011.