Indigenous heritage protection, native title and regional agreements

Author/editor: Finlayson, J
Year published: 1997
Issue no.: 145


Central to the argument of this paper is a critical examination of the potential to strike local and regional agreements in Victoria between Indigenous and other parties in a context of impending proposed legislative changes to Indigenous cultural heritage (Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984) and property rights (Native Title Amendment Bill 1997).

My intention is to demonstrate that although policy makers might consider legislation as a discrete phenomena, on the ground such distinctions collapse, to be replaced by questions about the source and reproduction of socioeconomic and political power within local communities, and that in settled Australia the impact of these matters is particularly intense. To this end, the paper highlights the terms in which a particular kind of public discourse has been constructed around the native title claim and efforts at site protection of the Yorta Yorta peoples of the Murray Goulburn region of north-eastern Victoria.

The paper examines the construction and dissemination of public information about the basis of the Yorta Yorta peoples' native title claim, and their use of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 as it applies to Victoria under Part IIA, for protection of important cultural sites within the Yorta Yorta native title claim area.

The research concludes:

  • That in this part of north-eastern Victoria, rural elites and conservative political alliances have either deliberately or through ignorance, sought to publicly discredit the application by native title claimants of recourse to legislation to legitimately address concerns over site protection and cultural heritage.
  • That the construction and public reproduction of uninformed and prejudicial dialogue ultimately serves to undermine and discredit legitimate Aboriginal concerns and to deny these matters as being of substantive and general community interest.
  • That newspapers and public radio have been used to promote views antithetical to the legitimate aspirations and actions of the Yorta Yorta peoples over land and heritage matters. Indeed, the position adopted in this paper, is that opponents of Indigenous interests have sought to undermine the legislative system and processes by which issues of land management, cultural heritage and land ownership can be critically examined through due process and procedural fairness.
  • On the evidence of the case study, the research concludes that agreements should have been possible on specific land matters associated with the Yorta Yorta peoples' claim, but that the use of public media to promote misinformation and political cynicism has seriously and unnecessarily polarised the wider community to the extent that litigation is preferred to negotiation.
  • Following analysis of the ways in which rural power elites have strategically employed their resources and network to engage with native title and heritage protection issues in this case study, the paper suggests that similar situations are likely to occur across settled Australia. In part, this is because of widespread public notions that Indigenous people in south-eastern Australia are largely assimilated culturally, if not economically, and consequently, that attachments to country and knowledge of custom and law cannot have survived post-contact settlement.
  • An issue raised by the case study, but not explored in any detail, is the relationship between cultural heritage sites and native title. The case study showed that sites on land under native title claim should have attracted the legislative protection of the Native Title Act 1993 under the future act regime. When the Victorian State Government failed to activate this process, native title claimants resorted to other protective legislation. However, the question of what quality of protection sites will attract under the Native Title Act 1993 (or equally, under an amended Act) remains a moot question. In a climate of review of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984, it is important that legal attention be directed to questions of how inclusive the Native Title Act 1993 is in terms of site protection; not least as an integral aspect of 'traditional laws acknowledged' and 'traditional customs observed'

ISBN: 0 7315 2580 9

ISSN:1036 1774

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