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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

Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds in Australia


1. Introduction

Aboriginal burial grounds exist all over Australia. Some are known of by non- Aboriginal Australia, and some may not be. Such burial sites may be the holding place of bodies buried many thousands of years ago, or quite recently. For the past two hundred odd years there have also been cemeteries established under the Australian common law for the bodies of people who have died. It is ironic in view of the fact that some of the earliest white settlers used Aboriginal burial grounds to bury their own dead[1] that now in Australia the question of how long bodily remains can stay where they are buried is determined by different sets of laws depending on whether people are buried in Aboriginal burial grounds or non- Aboriginal cemeteries. There is a scheme of legislation in each state and territory and in the Commonwealth which provides for protection of Aboriginal cultural heritage, including burial sites, in situations where they are threatened.[2] Cemeteries are dealt with under an entirely different body of laws.[3] In this article I compare the treatment of the body in the grave in the burial site and the cemetery.[4] In particular, how is disinterment of the body regarded by both sets of laws, and to what can we attribute the difference between them?

How do societies view bodies that have been buried? Is the body “immortal” in the sense that sites of burial and the remains which are still there must be allowed to continue in perpetuity? Do we of non-indigenous Australia have a sense of the sacred in relation to such places, or do we quickly revert to seeing them as “available” for disposal as property? The question I am posing here is not how indigenous people see burial sites and human remains (which is not a question for me to answer) but what is the basis for the distinction which is made by Australian common law between the disinterment and disturbance of indigenous and nonindigenous remains? Another set of questions, which I do not propose to emphasise here, is raised by the position of Aboriginal people buried in cemeteries, who are legally covered by non-indigenous laws.

In non-Aboriginal Australian society death was until recently (and perhaps still is) the last taboo.[5] Increasingly people have their bodies cremated rather than buried – partly to save the expense of burial, but also because of different views about what the dead body means.

It can be argued that non-indigenous society in the guise of the Anglo- Australian common law has seen the body as not being property until it becomes part of the land in which it is buried.[6] Even then the body itself is not property – only the land is. Once that has happened, any property is that of the owner of the land.[7] The sacred nature of the site tends to be lost as the body decomposes and joins the land. On the other hand, in Aboriginal culture, it seems that the site may remain sacred as a burial site forever.

2. Case Studies

The four randomly chosen case studies which follow illustrate the workings of the legal process and the tensions created by attempts to protect burial sites and cemeteries by preventing the disinterment or disturbance of bodies. I consider two burial sites and two cemeteries, all of which were threatened by public or private attempts to use the land. Protection of all these sites has been minimal, regardless of whether or not attempts were made to prevent disturbance.

A. Barkandji People

One of the largest Aboriginal burial sites in New South Wales lies at Lake Victoria in south-western New South Wales.[8] It is estimated that the number of burials there may be as many as 18,000 or more.[9] The area is the land of the Barkandji people and is immensely significant to them. Lake Victoria is also an important part of the water supply for South Australia, controlled by the Murray Darling Basin Commission. Lake Victoria’s water level is kept artificially high by the Commission, and the water level covers a large number of burials and causes significant damage to the sites. In 1993 and 1994 the lake level was lowered and this became apparent. The Barkandji people have campaigned to have the water level kept low, while the Commission wished to keep it high, particularly in view of the drought. Altogether the Barkandji people have three issues of concern in relation to the burial sites in and around Lake Victoria – the disinterring of bodies from graves, the sacred nature of the sites leading to concern about desecration, and actual environmental damage to the area itself.[10] The Barkandji are in direct conflict in relation to the latter two with a statutory authority with governmental power. They may also be in conflict with archaeologists and anthropologists. To resolve these situations, which are quite typical of such disputes, the Barkandji people had to turn to the legislation which deals with their cultural heritage – in this case the National Parks and Wildlife Act 1974 (NSW). The Act provides that the Minister is the person responsible for determining whether a place can be protected from damage as a significant site. The Commission applied under this Act for consent to continue to keept the water level high because of the drought. This would destroy the graves. The Director-General advised the NSW Aboriginal Land Council (NSWALC) that she was obliged to grant the application under the Murray Darling Basin Agreement. The Barkandji people opposed this. The NSWALC sought an injunction in the Land and Environment Court limiting the level of water in the lake and a declaration as to the Director-General’s duty. On 25 November 1994, Bignold J made a declaration that the Director-General was able to refuse an application for consent to destroy burials. The hearing of the injunction was deferred following an undertaking by the Commission not to raise the level of the lake. The parties used mediation in 1996 to come to an agreement on 17 February 1997.[11] The parties are now waiting on an Environmental Impact Statement, archaeological reports and for the Barkandji people’s representatives on the Management Group to agree on a position to be presented. There is a long way to go before it will be clear whether the burial sites will be protected and to what extent.[12]

B. Wamba Wamba People

In 1986 the Murray Downs Golf and Country club proposed developing some land on the former Murray Downs Station as a golf and country club with a bowling green and a club house. The site of the proposed club house was a sand dune where Aboriginal remains including prehistoric skeletons, had been found in the past. Other burial sites existed on the land, and the archaeological evidence showed that Aborigines had lived there over some 30,000 years.[13] It is said to be one of the earliest settled areas in Australia, settled possibly 50,000 years ago.

The local community of Aborigines, the Wamba Wamba people were extremely concerned about disturbance to the burial sites. In early 1988 during construction, human remains were found. They were collected and buried nearby. However at one stage human remains had been placed upon the surface of the fairways of the golf course and some were left on a spoil heap. An archaeological report suggested that the skeletal material should be reburied in a setting similar to the original location, but where it would not be disturbed but the Aboriginal people wished to rebury the remains in the original area, relocating the club house and the bowling green to an area distant from the burial site where there would be no disturbance.[14]

In 1989 the Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 refused to make an emergency declaration of protection of the area under section 9 of the Act. The Wamba Wamba Local Aboriginal Land Council and the Murray River Regional Aboriginal Land Council lodged an application in the Federal Court for a declaration that the area is a significant Aboriginal area under serious and immediate threat of injury and desecration, and a further declaration that the Minister should make an order protecting it. Although Lockhart J noted that “[t]he undoubted historical significance and strength of Aboriginal tradition relating to land with which this case is concerned and land nearby raise questions of political sensitivity, high emotion and spiritual, as well as material, significance”, he dismissed the application on the grounds that the Minister had properly exercised his discretion. Again, the power to determine the significance of the site resided in the Minister.

C. Camperdown Cemetery, Sydney

In 1948, Camperdown Cemetery in Newtown, a suburb of Sydney, was converted to a park. The relevant legislation there was specific, the Camperdown Cemetery Act 1948 (NSW) and bore no relationship to the legislation which was relevant to the Barkandji and Wamba Wamba peoples’ situations. The Act was intended to, inter alia,

authorise the removal of human remains, headstones, grave enclosures, and other surface structures from parts of the land; to provide for the reinterment of such remains ... to provide for the redesign and reconstruction of a cemetery area within part of the land.

Section 46 of the Act provided for a register to be established of the names of persons buried in the cemetery, which was to be kept available for inspection. A new cemetery area was to be created and in that section the remains and headstones of any person in a “historic grave”, or for whom a perpetual endowment had been paid would be reinterred and the tombstone re-erected. All other headstones and structures were to be removed and disposed of. Some of these were placed around the wall of the new Cemetery. Bodies of historical significance were moved into a smaller area which remained as a cemetery. The tombstones of some other graves were moved into that area as well.[15] They can be seen there today.

Section 4(7) of the Act provided that representatives of any of the deceased who had been buried less than 20 years before, or where the grave had received regular care during the previous five years, or substantial repairs during the previous ten years, could apply in writing within six months of the commencement of the Act to have the remains collected and moved for reburial within the cemetery. The Act refers to the remains being “reverently reinterred”. By section 10 of the Act representatives of the deceased could at their own expense remove the headstone etc and the remains for reinterment, with the permission of the Director-General of Public Health and by giving at least 28 days notice of their intention to the Minister.

The Act provided for the trust to plant trees, lawn and flowers “to effect the conversion of such land into a rest park and garden area” (section 4(8)). It was clearly envisaged that the remainder of the human remains would stay in the ground and the park’s activities would go on above them. The area was grassed over and is now a large park with a children’s playground. The Newtown festival is held there each year. Thus most of the remains were not disinterred, but there was significant disturbance and the sacred nature of the site appears to have been lost.

D. Christ Church Cemetery, Milton, Brisbane

In 1990 Brisbane City Council indicated that it intended to construct a road through an area of land next to Christ Church, Milton. This area of land had been used as a cemetery from about 1862 until 1911.[16] The Church authorities sought a declaration that it was unlawful for the Council to resume the land for that purpose, arguing that the Governor in Council did not have the power to vary the use of the land, which had been established by the Paddington Cemeteries Act (Qld) 1911, and subsequent Acts.

Section 5 of the Act17 placed certain restrictions on the use of that land which was reserved “for such public purposes under the Land Act of 1910 as the Governor in Council shall think fit: provided that, in order to prevent any disturbance of public worship in the church... [the burial ground ]shall be reserved from public use” .The court held that the construction of the road was contrary to the restrictions.[18] One reason was because “preservation of memorials” was one of the “public uses of land” which the Paddington Cemeteries Act preserved from alteration. However the main reason was that “it is beyond doubt that it cannot be used for any purpose, public or otherwise, which is likely to cause disturbance to public worship in the church”[19] (the particular disturbance mentioned was noise caused to present worshippers, not disturbance of the graves themselves). Dowsett J went on to give the reasons – not reasons which related to concern about the sacred nature of the site, but purely legalistic ones:

These reasons are statutory and binding on the Governor in Council and upon the Crown as owner of the land. This inevitably follows from the long line of authority in this country which recognises that interests in Crown land can only be disposed of pursuant to statute.[20]

These four case studies suggest that concern for the dead, their remains, and the sites in which they have been buried is much greater among Aboriginal than non- Aboriginal people. In the one case where protection was given it was not because of the sacred nature of the site but because of a doctrine of statutory interpretation. In the other cases the law shows a similar low level of concern for the sacred or spiritual values of areas where people have been buried. The background to these concerns, and the legal consequences of those perceptions, will be explored in the next two parts of the article.

3. Non-indigenous Bodily Remains

A. Perceptions of the Dead Body and the Burial Site

(i) Mediaeval Christianity and Prayers for the Dead

The English law on the treatment of bodily remains, from which Australian common law derives, was based on “a prevailing belief in the existence of a strong tie between body and personality/soul for an undefined period after death”.[21] The prevailing Christian view in mediaeval times was that that there would be bodily resurrection at the end of time.[22] There was a strong focus on the Last Day (Judgment Day) rather than on the moment of death. The doctrine of purgatory, (which was doctrinally a state of being while the disembodied soul was between death and resurrection, but often in popular culture conceived of as a place),[23] meant that there was a period between death and the Last Day when prayers by the living for the dead could make a difference to the final outcome on the last day. Purgatory was conceived of as a place where people who were not clearly destined either for heaven or hell would wait for judgment. This “ensured that the living and the dead were closely bound by ritual ties”.[24] The survivors had the power to shorten the time the dead spent in purgatory by their prayers. Many wills made provision for masses to be said for the deceased for this purpose.[25] The body was important because at the Last Day it itself would be resurrected. It was therefore not a mere repository for the soul, or for the essence of personality which was of no further interest once life had gone from it, but remained linked to the soul, of religious and social significance long after.[26]

Mediaeval monarchs, popes and many of the aristocracy might have their bodies divided into sections to be buried in different places, to maintain a link between them and the various peoples of those places. For example, Richard I (the Lion Heart) had his heart buried in Rouen Cathedral, his entrails buried in Poitou and his body buried at Fontrevault Abbey. Similarly, Eleanor of Castile’s body[27] was buried at Westminster, but her heart with the Dominicans in London and her entrails at Lincoln.[28] Divided burial was a way of ensuring multiple prayers for the soul of the deceased. Each burial place had monks or priests who would pray for the soul of the dead person whose remains they were guarding.

When people died they were normally buried either in a churchyard or inside the church itself, facing east-west with the head lying to the west. This position was thought to be facing the coming of the Lord on the Last Day, so the body could rise to greet Him. However, the luxury of individual burial and of having someone to pray for you individually in perpetuity depended on great wealth. Throughout Europe very poor people were buried in graves which remained open until enough bodies or coffins had been deposited.[29] In France some of these graves contained as many as 1500 bodies.[30] There was always the problem of making room for new bodies in very crowded churchyards, and bodies were frequently disturbed accidentally while another was being buried. One English churchyard of less than 0.2 of a hectare ( less than half an acre) had some 5,000 bodies buried in it between 1100 to 1900.[31] In such places bones would be collected from the graves to make room for more bodies and these bones would be exhibited loosely, (or in France in patterns as “presentoirs”) round the edges of the cemeteries in “ossuaries” or “bonehouses”.[32] In such circumstances disinterring or at least disturbance of remains was an inevitable event for nearly everybody.

(ii) The Decline of Purgatory and the Memory of the Dead

In the fifteenth and sixteenth centuries the time for weighing up the person/soul moved towards the time of death rather than the Last Day – this is the period of “the good death” or “the art of dying”. With the rise of Protestantism in the Reformation[33] and the demise of purgatory, prayers for the dead became suspect. The buried body became less significant. While the doctrine of purgatory was transcendant, burial services might be repeated for the dead many times. With the Reformation this stopped. The change in England was quite profound. Before the Reformation masses were said for the dead every day in every church. Every Sunday the priest would read out “the bead roll”, the names of the dead benefactors of the church for whose souls the people should pray. There was a shift from wills which called on the Virgin Mary and the Saints to intercede for them, to wills which expressed their absolute faith in the saving power of Jesus Christ. The former expressed the Catholic doctrine, preparing for purgatory. The latter was the Protestant doctrine. Similarly, instead of leaving money for 30 offices for the dead (“a trental”), people began to leave in their wills a request for thirty sermons[34] – not directed at prayers for their own souls (whose fate was already determined) but at developing the faith of others. The dissolution of the monasteries meant there were fewer clerics available to look to the dead. Henry VIII passed an Act in 1529 forbidding the payment of masses for the dead, although the doctrine of purgatory was still regarded as correct. In 1547 chantries (the places where prayers for the dead were carried out) were confiscated and proceeds went to the Crown.[35]

Death thus became the end in a way which it had not been before. The ascendance of evangelical protestantism continued. Hugh Latimer, who was burnt at the stake by Mary Tudor as a protestant heretic argued for his views in this way:

When one dieth, we must have bells ringing, singing, and much ado: but to what purpose? Those that die in the favour of God are well; those that die out of the favour of God, this can do them no good.[36]

The Calvinist belief in predestination emphasised this point and prayers for the dead, while not forbidden, gradually disappeared. The body of the deceased had less spiritual relevance as the bodily resurrection receded in importance.[37] The body had become a mere receptacle for the soul.

Protestantism has frequently been linked with the rise of individualism.[38] Protestantism’s emphasis on an individual’s relationship with God, without the need for the Church’s intervention meant that religion was no longer supreme over all secular affairs. Rather: “In religion ... [they] intensified, purified, and even spiritualized the fundamental problem of God’s purpose and His relationship with man. In ordinary life, they removed the visible signs of the spiritual.”[39]

One of the results of this (and this was more emphasised in England than in other parts of Europe) was that the Protestants’ emphasis on faith and predestination over charity undermined respect for the charitable work of priests and monks, part of which was their work of praying for the souls of the dead.

The fact that England became a profoundly Protestant country was important for the cultural and legal significance of bodily remains because in England the Protestant church was the Established church. Its links with the State were real and impacted on the development of the law. Catholics continued to believe in purgatory and the connections with the dead for some time, and such views may have persisted in popular culture for a time, but these views were less likely to be reflected in the law because they were peripheral to it.

“The tomb stood for the dead, marked their resting-place, and lent them a voice”.[40] But few graves had tombstones or markers until the seventeeth century. The lack of tombstones made it easier for bodies to be moved, bones to be dug up and so on. Such tombs as did exist were tombs only of very wealthy or historically significant people. Most people died and their bodies went into oblivion. The increase in tombs in the seventeenth century marked a change to a view of death which emphasised the memory of the deceased – no longer were the dead present, to be prayed for as souls with a relationship to God, but instead they were to be remembered as individuals. The tomb assisted with the memories, and was accepted even during the Reformation when the greatest zeal for getting rid of “papish” practices existed. For example, an Act of 1550 was passed in England “for the abolishing and putting away of divers books and images”.[41] It prevented “superstitious” books and images being used in churches, but specifically allowed images on tombs to remain and in 1560 a Royal proclamation was issued against the desecrating of monuments and tombs, to prevent “extinguishment of the honorable and good memory of sundry vertuous and noble persons deceased”. This was both a development of individualism and presaged the move towards secularism which will be discussed later.

(iii) The Bodysnatchers

Between the seventeenth and eighteenth centuries the dead body began to be seen as a commodity, although taking a body was regarded as offensive rather than as theft.[42] The assumed legal position was that a dead body could not be property.[43] By the nineteenth century in England there was a thriving trade in dead bodies caused by a scarcity of corpses available for dissection. There is an interesting parallel here between the interests of science and the revulsion apparently felt by the populace about the digging up of bodies and the conflicts between archaeologists and Aborigines about burial grounds which turned largely on whether bodies should be treated as specimens (of a vanished race) or as sacred parts of the culture of a living people. In both cases, science is seen as antithetical to the sacred, and in both cases, science appears to treat the dead as completely severed from the living, thereby disempowering the living survivors.

The bodies disinterred by the bodysnatchers (ironically also termed the “resurrectionists”) were of the newly dead, and were wanted by the medical profession for the purposes of dissection. People clearly were repulsed by the thought of their newly dead loved ones’ bodies being disturbed. In order to avoid bodies being robbed there was a period where coffins were sold with sophisticated locks to keep out graverobbers.[44] Sometimes guards would be posted at cemeteries to prevent grave robbery, and whole communities of the poor would organise watches over the graves. The state of churchyards was such that bodies, particularly of poor people, could easily be removed. One incident where a bodysnatcher was seen leaving a graveyard with bodies in sacks led to a public riot with people digging up their relatives’ graves, and when many of the coffins were found to be empty, an outpouring of panic, with some people removing the coffins of their relatives (those which still had the corpse in them) and taking them elsewhere. Richardson argues that at the time there continued to be a popular view of the dead as maintaining a strong tie between personality and body for some time after death. The tie did not continue on for ever, so the theft of a newly dead body was a much greater issue than the digging up of a body which had been dead for some time.[45] She also argues that there was a disjunction between official religious views, particularly in Protestant England, that once the body died there was no further connection with the soul or personality, and the common people’s views, which tended to retain the belief in some kind of connection. For example, she cites the belief that a corpse could indicate whether a will read in its presence was false. The sanctity of the grave was clearly important to these people, particularly where the death was recent or the deceased was closely related. The Anatomy Act of 1832 put a stop to the trade in dead bodies, but it in fact did this by providing that the bodies of people dying in institutions (mostly Poorhouses) could be made over to anatomists for dissection:

In the course of the first century of the Anatomy Act’s application, almost 57,000 bodies were dissected in the London anatomy schools alone. Less than half a percent came from anywhere other than institutions which housed the poor.[46]

However, those bodies which actually made it to the grave became less likely to be removed from it.

Thus it is possible to conclude that many bodies were disinterred from cemeteries and many more were disturbed in England, and that this was accepted except where the bodies concerned were of the newly dead. Those who were newly bereaved or closely related were most concerned.

(iv) The Movement to Secularism

As we have seen, Protestantism seems to have been significant in establishing a separation between the living and the dead body. Elton suggests that “[t]he natural consequence of this ... was not so much to sanctify the world as to personalize and secularize religion”,[47] and, I would suggest, in turn, the treatment of bodily remains. The age of enlightenment also emphasised a dualistic notion so that body and soul were seen as separate. Stone[48] suggests that there was a general decline in religious enthusiasm in the late seventeenth and eighteenth centuries, partly as a reaction against puritanism when the monarchy was restored. With this change in spiritual values it is possible to see a change in the treatment of the dead in that memories of the dead became very important, leading to what Aries calls the modern “cult of tombs and cemeteries”.[49] Before the seventeenth century even where there were tombs they tended to be depersonalised, “a display of family pomp and position” rather than about the individual. But later tombs carried portrait busts of the individual with their own features, a commemoration of the individual himself or herself.[50] As death became less acceptable memorials of the dead increased in importance and became more common among less wealthy individuals. According to Aries this arose not from any view of the afterlife but from a desire to visit the dead. “People went to visit the tomb of a dear one as one would go to a relative’s home.”[51] The dead body was losing its religious significance, although it retained its emotional, secular significance to its relatives and friends. But this significance was very much related to the recency of the death and the closeness of the emotional relationship between the dead and the living.

At the same time control of cemeteries and burial changed from religious to secular. The old cemeteries were nearly all church property. Modern cemeteries tended (from about the eighteenth century) to be owned by secular bodies. The modern cemetery was being developed as a concept in North America (and then in Europe) shortly after that time and was largely a secular institution, less a sacred burial site than a pleasant garden.[52]

(v) Attitudes to Death and Bodily Remains in Non-indigenous Australia

“Australia’s earliest cemeteries were remarkable for three things: they were public; they were Anglican; and they were so quickly forgotten.”[53] The present Sydney Town Hall is set on top of a cemetery which opened in 1792. Another major cemetery, used between 1819 and 1868 is now the site of Central Railway Station in Sydney.[54] The pattern of cemetery use in Australia moved in quick succession from ad hoc control to church-based to control by local government authorities on a secular basis. The move from monumental graveyards to lawn cemeteries also followed the pattern seen in England and America.

Australia is like other Western countries in its resistance to the concept of death and its desire to nullify it and pretend it doesn’t happen.[55] Australians are relatively irreligious, and religion has a strong influence on ideas about death. If Australians are religious they are most likely to be Christian and more likely to be Protestant than Catholic.[56] This religious viewpoint is likely to result in less concern about bodily remains than the Catholic one, although the Catholic church has withdrawn its resistance to cremation. Modern cemeteries in Australia are run by secular organisations, and the modern cemetery looks as much like an ordinary lawn as possible. One reason for this is that “[o]ne of the very real problems associated with cemetery management is that after a few years the people most intimately concerned with a particular grave often cease to be interested in its preservation”.[57]

Cremations have become the most common method of disposal of the body in Australia.[58] In the late nineteenth and early twentieth centuries there were concerted campaigns, particularly in England and Australia to persuade people to cremate rather than bury their dead. The arguments used included the fact that cremation eliminates the danger of being buried alive, the unhealthy nature of graveyards, and an emphasis on the decomposition of the body in the ground. They also argued against the concept of the resurrection of the physical body and emphasised a “purely spiritual future after death”.[59] These arguments must have been persuasive, but which ones were most persuasive is difficult to say. The predominance of cremation may arise from various factors, one of which is the relative expense of cremation and burial.[60] Does the increased willingness of Australians to be cremated (leaving aside expense) mean that they are less convinced of the need for a body for resurrection, more likely to see the soul as entirely separate from the body, less likely to believe in an afterlife at all? Or does it mean that they have better ways of remembering, such as videotapes and photographs? There are relatively few studies of why people cremate rather than bury, but one English study suggested that people are more likely to be buried if they are young, the parent of young children, young children or babies, died suddenly or violently, were actively religious or they or their family were “one that perceived religious or spiritual risk in death”.[61] Cremations were more likely with members of dispersed families, urban dwellers, when death came with old age, or if the person or their family assumed there was no spiritual risk in death, were not religious, or believed there was no life after death.

I have not discussed the impact of multiculturalism on Australian attitudes to death for a number of reasons. First, because it is still too soon for recent immigration from Islamic and Asian groups to have had much impact on the law in this area. Second, the attitudes to death which I have been discussing are Western European attitudes, and as such are representative of a large number of European immigrants to Australia. Finally, since the common law’s shape continues to show a strongly Anglo-Celtic stamp I have emphasised the English experience, which has the strongest links with the law in Australia

B. The Legal Framework

(i) Control of Burial and Cemeteries

The burial of bodies is restricted in non-indigenous Australia by health regulations and cemeteries legislation. In New South Wales, for example, the Public Health Regulations provide in section 34 that bodies may only be buried in public cemeteries or in a private cemetery or place approved by the local authority or on private land with an area greater than five hectares and the local authority has approved the location. Bodies may not be buried on land if that would “make likely” the contamination of drinking water or domestic water supply. It is thus relatively rare for people to be buried outside public cemeteries. Cemeteries in most Australian jurisdictions are governed by Local Government legislation.[62] For example, in New South Wales the Local Government (Control of Cemeteries) Act 1966 establishes local councils as controllers of public cemeteries, but each cemetery may also have legislation of its own,[63] which must be considered in looking at the rights of bodies buried there.

(ii) Characterising the Exclusive Right to Burial – How Long Can I Stay?

When people are buried they often have a contract giving them an “exclusive right to burial” which is said to be a right “in perpetuity”. The “exclusive right” refers to the fact that the cemetery authority cannot bury anyone else in that same plot. If this is a right in perpetuity does this mean the body can never be disturbed? The meaning of “in perpetuity” is perplexing. In Gilbert v Buzzard[64] a husband wished to bury his wife in an iron coffin to deter graverobbers. One of the concerns of the cemetery authorities in opposing this was that an iron coffin would not deteriorate at the same rate as a wooden coffin. There was an interesting discussion on whether the decomposition of the body ends the perpetual nature of the licence, and William Scott said:

The process of nature will resolve [bodies] into an intimate mixture with their kindred earth, and will furnish a place of repose for other occupants of the grave in succession....[T]he legal doctrine certainly is, and remains unaffected, that the common cemetery is not res unius aetatis, the exclusive property of one generation now departed; but is likewise the common property of the living, and of generations yet unborn, and subject only to temporary appropriation.[65]

He was not allowing disinterment per se, but merely recognising the short term nature of the law’s consideration of the deceased. The doctrine of temporary appropriation has been rejected in the United States at common law,[66] and the legislation of some Australian cemeteries, for example, that of Rookwood Cemetery, expressly rejects it.[67] However, the doctrine of temporary appropriation is not a doctrine allowing disinterment of bodies, but an expression of the ability of the cemetery authorities to bury another body in the same grave at a later date. In fact some cemeteries expressly reserve this period to 25 years or longer, while others guarantee never to disturb the body.[68] In Beard v Baulkham Hills Shire Council[69] a Mrs Sherwood had paid for four adjoining graves in the Castle Hill cemetery in 1949, apparently for her four children. Her son was buried in one, a daughter and spouse were buried in another one, and another daughter was buried at Rookwood. In 1983, the last daughter, Cora Beard, was buried in one of the remaining graves. Within a fortnight of the burial the son’s wife had demanded that the body be disinterred.

The problem for the son’s wife was the general rule of cemeteries that once buried a body should not be disturbed. Young J held that the right of burial is a contractual rather than a proprietary 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”.[70] Young J also referred to the health authorities’ refusal to permit a body to be disinterred before seven years had passed, and said the court has no power (except for post-mortem examination) to order a disinterment against the views of the health authorities. Despite the fact that the body had been buried in breach of the contract with Mrs Sherwood the body could not be disinterred. Similarly, recently in England, it has been held that the Home Secretary has an absolute discretion whether to allow exhumation or not, and the court could not order exhumation of a body which had been interred in the wrong place.[71]

Ordinarily, bodies can only be exhumed on the authority of a Coroner for the purposes of post-mortem examination. It is an offence to disinter a body without such permission.[72] At common law for a private individual (rather than a government body) to disinter or exhume a body was a misdemeanour.[73] For example, in R v Lynn in 1788 the defendant had entered a burial ground, dug up a coffin and taken a body out of it for the purposes of dissection. The court rejected an argument that disinterring a body was not an indictable offence at common law:[74]

The Court said that common decency required that the practice should be put a stop to. That the offence was cognizable in a Criminal Court, as being highly indecent, and contra bonos mores; at the bare idea alone of which nature revolted. That the purpose of taking up the body for dissection did not make it less an indictable offence.[75]

In Haynes’ case as far back as 1614[76] the digging up of bodies was described as an “inhuman and barbarous felony”. In New South Wales Donaghy v Carroll[77] was a case where an injunction was granted to prevent a body being disinterred from a grave for the purposes of reinterment in another cemeteries. The judge gave no reasons for his decision, but the English cases had been referred to in argument and he apparently accepted them.

The various cemeteries Acts also make it an offence to disinter a body without a coroner’s order or other permission from the health authorities.[78] For example, the Gore Hill Memorial Cemetery Act 1986 (NSW) provides:

10(1) The trustees or any person or body of persons shall take due care not to unearth or disturb – (a) the remains of any person who is buried in; (b) the ashes of any person which are contained in an article which has been placed in or on; or (c) any monument over the grave of or in respect of a person in or on, the cemetery land.

In New South Wales the Conversion of Cemeteries Act 1974,[79] as well as the specific legislation for each cemetery, control changes to cemeteries and disinterment of bodies from cemeteries. Generally human remains will not be disinterred unless construction or some other procedure is going to disturb them anyway, but the existence of the legislation itself suggests a tacit acceptance of the primacy of the living over the dead and a willingness to disturb human remains if it appears necessary.

Section 6 of the Conversion of Cemeteries Act 1974 provides that Councils may resolve to convert a cemetery to a park. The Council is required by section 6(2) to give two notices in newspapers in the local area, in Sydney and in New South Wales. Section 7 allows people to make objections and the council to consider those objections. The Act then provides for the Council to apply to the Minister to have the cemetery declared a public park in the nature of a rest park (section 9). The application must consider a number of items (section 8) The Council must maintain the cemetery as a rest park and by section 12(2) not “use the conversion land or permit it to be used for any other purpose” unless the Act allows it. The council is then required to do the conversion and erect a memorial indicating “the sacred nature of the area” (section 13(3)) and other things. Monuments may be removed but section 16 provides that remains are not to be disturbed:

16 (1) The Council, the Commonwealth War Graves Commission or any person or body of persons shall take due care not to unearth or disturb the remains of any person who is buried in, or the ashes of any person which have been placed in or on, the conversion land. (2) If any remains or ashes referred to in subsection (1) are unearthed or disturbed, the council shall cause those remains or ashes to be reverently interred anywhere in the conversion land. (3) Nothing in this section prevents the removing of any remains or ashes pursuant to section 15 (3).

Section 15(3) refers to the removal of remains by relatives at their own expense and with the permission of the health authorities for reburial or cremation. Special legislation, like that for Camperdown Cemetery, is almost always passed where disinterment is required.[80]

(iii) Conclusion

The social and legal perceptions of these matters can be summed up as showing a relatively low weight given by the common law and non-indigenous Australian society generally to the rights of the dead to stay where they have been buried without disturbance. While there is a general rule that bodies should not be disturbed it is fairly easily overturned if it is seen as expedient. In particular it is clear that the rights of the living are seen as predominant. It is also fairly clear that there is a relatively short period during which relatives of the deceased will see themselves as custodians of the dead, if at all. Thus, the greatest concern has been reserved for cases involving the newly dead. Within two or three generations at the most, links seem to be lost, and many non-indigenous Australians would simply not know where relatives who are further generations distant were buried.

4. Aboriginal Bodily Remains

A. Perceptions of the Dead Body and the Burial Site

(i) Aboriginal Views

Some awareness of Aboriginal views can be garnered from looking at the cases where they have fought to protect burial sites, and how they have argued their case. For example in the Wamba Wamba case, Lockhart J said :

Aboriginal tradition requires that burial places remain peaceful and tranquil and must not be walked on or otherwise intruded upon by human beings. They are the places which Aboriginals believe are the place of the spirits waiting to be called back, and, if the spirits are disturbed, the Aboriginal people believe that they will suffer because of the failure to care for them. There is no doubt that the Aboriginal community are disturbed and distressed by the actions of the second respondent and will continue to be disturbed if the club house and bowling greens are constructed on their proposed sites even if the northern bowling green is moved to a different site or not constructed at all on any part of the land of the second respondent.[81]

Similarly in Onus v Alcoa of Australia Ltd,[82] where the issue of the standing of the Aboriginal people to sue in relation to disturbance of their land was raised, Gibbs CJ said: “The appellants claim not only that ... they are the custodians of the relics according to the laws and customs of those people. They claim that the relics are of cultural and spiritual importance to them ... .” [83]

Another way this has been put (by non-indigenous writers) is this: “All members of a tribe, a clan, a totemic “country”, are united spiritually by ties which cannot be severed at death: for all are part of one whole, sharing a common past and a common future within the ever-present Eternal Dreamtime.”[84]

An indigenous writer put it like this:

The law, land and peoples are one integrated whole ... Indigenous views on human rights and the land are entwined and inseparable from our natural environment. The overriding idea is a love of the land, a relationship of custodianship between the land and indigenous peoples.[85]

The relationship between Aboriginal people and their dead is therefore very different from the present attitudes of non-Aboriginal Australians who are highly unlikely to see themselves as custodians of the dead.

The relationship of Aboriginal people to the land is profoundly important: “Our traditional view of the land is spiritual. The Goonya [non-indigenous] view is commercial. To our people land is the life force to be revered, maintained with sacred rituals and held in trust from one generation to the next.”[86]

This view was confirmed by the Aboriginal and Torres Strait Islander Social Justice Commissioner Submission to the Culture and Heritage Inquiry.[87] The relationship to the land is strongly linked to their view of human remains in burial sites.

One difficulty with asking Aboriginal people to tell others how they see burial grounds is that this information may be secret, and therefore it is inappropriate to talk about it to non-Aboriginal people:

Aborigines, working under long inherited laws of protection through secrecy, prefer not to mention the existence of a sacred site, let alone its significance, until it is almost on the point of being destroyed ... [and] unless ... the release of that knowledge is perceived, ultimately, to be the only way to protect an area.[88]

This issue is raised clearly by the need under much of the legislation to give a high level of information before the decision whether a site is significant can be made by the Minister.[89] The question has to be asked, however, how much do we really need to know? We need to know that it is significant to the people concerned as a group; some evidentiary onus may need to be satisfied, but that does not necessarily mean that non-Aboriginals must be told all the substance of secret matters. In the Hindmarsh Island (Kumarangk) case[90] this issue was squarely raised. In that case the Minister granted a declaration that the site was significant, largely on the basis of the report of the secret women’s business, whose details he, being a man, had not read. Although the court quashed the declaration, it held that the requirement that the Minister consider the evidence does not mean that the Minister must have read every word of every document. However, although this appears to have reduced one of the hurdles it is by no means a guarantee that secret business can be kept secret. It is far more common for secret business to have to be revealed before there can be protection given by the common law.[91]

(ii) Conflicts with Science: The History of Removal of Indigenous Bodily Remains In Australia

There is a long history in Australia of interference with graves and the bodily remains in them on the basis that “science” requires it. Scientific pretensions were useful to European collectors – they were able to consider the collection of Aboriginal remains as responsible science rather than irresponsible desecration.

Museums in Australia played a significant role in collecting remains of deceased indigenous people. From the late 1860s there was particular interest in the idea of a Darwinian, survival of the fittest, ordering of races. There was a concerted programme of disinterring of Aboriginal remains which was directed by Museums such as the Australian Museum in Sydney.[92] Paul Turnbull points out that at the time in the

climate of debate stimulated by ideas of human evolution which, from the 1860’s, seemed to many to imbue older concepts of racial difference with a new order of explanatory coherence and power ... By virtue of their geographical isolation and supposedly harsh material circumstances, Australian and Tasmanian Aborigines were viewed as arguably the world’s most distinct and morphologically unsophisticated races of man... .[93]

The Museum Directors paid for bodies and indeed even directed collectors to take them from Aboriginal Burial grounds. A pamphlet published by the Australian Museum in 1887 said:

SKELETONS of Aborigines are much wanted... . In cases where whole skeletons cannot be procured, the skulls, along with the lower jaw, will prove of great interest and value.... Skulls of Aborigines found suspended around native dwellings are of little value, but authentic skulls may be obtained from the graves of the natives of each tribe.[94] (My emphasis.)

Thousands of Aborigines had their bodies disinterred from their graves.[95] Recently there has been some argument about the return of such bodies from various museums. Some have been returned and reburied by their people, but there is still some argument about this from physical anthropologists and some museums.

Private collectors were at work also. Joseph Laxton Shellshear studied brain size as an index of race. He had a collection of Aboriginal and Chinese skeletons which are now held by the Shellshear Museum in the University of Sydney. The Murray Black collection was a group of skeletons collected from burial sites along the Murray River by a person ironically named George Murray Black. He was engaged by Melbourne University and the Institute of Anatomy in Canberra to collect what became one of the largest collections of Aboriginal skeletons (or indigenous skeletons of any nation) in the world.[96] This collection of over 1600 skeletons is particularly important for this article because the remains were in areas which have recently been sites of legal argument about Aboriginal burial sites in Southeastern Australia. Many of the bodies around Lake Victoria (Barkandji people) were disinterred and form part of the Murray Black collection.[97] Most of these skeletons have now been returned and reburied.[98]

Recently there has been increasing acceptance by archaeologists and other scientists who study Aboriginal people, that the Aboriginal people themselves should decide where human remains are held. For example, one archaeologist said:

I am opposed to reburial of any skeletal remains. The value of these to archaeology and understanding the past is inestimable. However, as I have argued elsewhere, it is not my decision. By accepting Aboriginal ownership and control of their ancestors’ bones, I accept their decisions on the disposition of those remains.[99]

He and others have moved towards a much greater level of consultation with Aboriginal people in relation to any archaeological work.[100] For example, the Council of Australian Museums Associations launched a new policy in 1993 which recognises that indigneous Australians have the primary rights over their cultural heritage.This increasing acceptance will ultimately affect the legal framework which is used to regulate the treatment of human remains in burial sites. It indicates a shift from a view of the culture relating to the burials as prehistoric or dead to a view that accepts the burials as part of a living, present culture.

B. The Legal Framework

(i) The States All the Australian jurisdictions now have some legislation concerning Aboriginal remains, which is variously defined. The National Parks and Wildlife Act 1974 (NSW) section 5 defines “relic” as including Aboriginal remains which in turn are defined as:

the body or the remains of the body of a deceased Aboriginal but does not include (a) the body or the remains of a body buried in a cemetery in which non- Aboriginals are also buried; or (b) a body, or the remains of a body dealt with or to be dealt with in accordance with the law of the State relating to medical treatment or the examination, for forensic or other purposes, of the bodies of deceased persons.

The other States and Territories also define Aboriginal remains to exclude those buried in non-Aboriginal cemeteries.[101] An examination of Aboriginal people’s views about burial sites and the dead indicates that this separation may create another sets of problems, since it is possible to imagine that “non-Aboriginal” cemeteries which hold Aboriginal people’s remains might become the focus of the same sort of feelings as Aboriginal burial grounds do now.

The legislative regimes in the States and Territories are not consistent. Most of them evince a strongly archaeological focus.[102] It has been said:

The promulgation of Aboriginal relics legislation was seen as an opportunity for those trained or influenced by the archaeological discipline to undertake basic research ... so confident were [they] that they were unselfconscious of their manipulation of cultural heritage programs to follow the pathways of the ‘map’ provided by their paradigm.[103]

The legislation generally provides for the protection of “relics” or “sites” at the discretion of the Minister. Protection of burial sites in most jurisdictions is therefore under the control of the Minister.[104] Property such as human remains and artifacts is defined as Crown property, and while some relics and human remains are being returned it is largely as a matter of grace and favour.[105] Indeed in relation to the Western Australian Act it has been held that the Act was passed not for the benefit of the Aboriginal community concerned, but for the whole (non- Aboriginal) community.[106]

The New South Wales legislation is illustrative. It is indicative of the views of the legislators that protection of Aboriginal remains and burial sites is covered under the National Parks and Wildlife Act 1975. The Act provides for the protection of “Relics and Aboriginal places” in Part 6.

Section 84 provides that the Minister may declare a place to be “of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act”. By section 85 the Director-General of the National Parks and Wildlife Service is made responsible for the proper care, preservation and protection of such an area and any relics etc on it. Section 86 creates a number of offences relating to relics (which includes human remains), while section 88 allows the Australian Museum to have custody of relics. By section 90 destruction of a relic or Aboriginal place is made an offence, for which imprisonment for six months is the maximum penalty.

While the Act does seek to protect the remains or the site, it is clear that the determination of whether the site is significant is not made by Aboriginal people, and that the Minister has enormous discretion as to whether or not to declare a site significant. There is no direct mention of burial grounds, and bodily remains are defined quite separately from “significant sites”.

Aboriginal groups have made representations that make it clear that this legislation and others is not satisfactory.[107] For example, the Queensland legislation has been characterised as legislation which makes it easy to destroy indigenous heritage.[108] In particular Aboriginal groups criticise the discretionary nature of the Minister’s power – even where a site is regarded as significant, Ministers are not forced to act to protect them. In New South Wales the National Parks and Wildlife Act has been amended “to provide for Aboriginal ownership of land of Aboriginal cultural significance reserved or dedicated under that Act”.[109] Once lands are considered to be of such significance Aboriginal people will have much greater control than they have had. However, the Minister is still the final decision-maker as to whether the lands are of cultural significance, albeit in consultation with Aboriginal bodies.[110] This causes particular problems in relation to secrecy, in that secret information may have to be released, in order to establish the significance of the site, and that very release of information may itself threaten Aboriginal tradition.[111] The only jurisdiction in which the Minister must accept the views of Aboriginal people as to whether the area or object is of significance is South Australia.[112]

(ii) The Commonwealth

Where state legislation is not helpful, the Commonwealth legislation is intended to take over. The Commonwealth legislation is intended to be the last resort, and should not be used unless the State Act is unhelpful.[113] The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)[114] section 3(1) provides:

‘Aboriginal remains’ means the whole or part of the bodily remains of an Aboriginal but does not include: (a) a body or the remains of a body (i) buried in accordance with the law of a State or Territory; or (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or (c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post-mortem examinations.

A major difference here between the State and Territory legislation and that of the Commonwealth is that bodily remains which are buried in an Aboriginal burial ground are not included in the human remains definition in the latter legislation. The bodily remains legislation requires persons who discover remains which they think are remains of an Aboriginal person to notify the Minister, giving particulars and their location. By section 20(2) the Minister, having received such a report, and being “satisfied that the report relates to Aboriginal remains, he shall take reasonable steps to consult with any Aboriginals that he considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains”. The possibilities provided by section 21 are to return them to Aboriginal people who are traditional custodians, deal with them “in accordance with any reasonable directions of [such traditional custodians]”, or, if there is no such Aboriginal person, the remains may be transferred to a prescribed authority for safekeeping.

Burial sites are protected separately as “significant Aboriginal areas” which are defined in section 3 as:

(a) an area of land in Australia or in or beneath Australian waters; (b) an area of water in Australia; or (c) an area of Australian waters; being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.

Under the Act the Minister who has received an application in relation to a significant site may make a section 9 declaration for emergency protection, or a section 10 declaration which may be made after investigation. To do this, he or she must be satisfied that the area is a “significant Aboriginal area”, and that it is “under threat of injury or desecration”. In order to establish this, it has been held that full disclosure of secret business may be required so that the Minister can weigh all the considerations.[115]

The Act has recently been reviewed.[116] The review showed that there have been 99 areas for which applications for protection were made, in 75 applications. Four declarations have been made under section 10, of which two were later overturned by the Federal Court. Only one site remains protected by a section 10 injunction, the other declaration having been revoked.[117] The profile of the typical case is very like the Wamba Wamba case outlined above:

Criticisms made of the Act are similar to those made of the state and territory legislation.[119] It does not take account of the secret nature of Aboriginal cultural knowledge.[120] It does not take sufficient account of Aboriginal and Torres Strait Islander perceptions of significant sites,[121] it still shows the marks of an archaeological focus,[122] nor does it ensure that Aboriginal and Torres Strait Islander people will be consulted. Management of the sites is not vested in those communities, but remains with the Minister. On top of these problems the role of the Act as a last resort has led to complicated relationships between the state and territory legislation and the Commonwealth legislation, which has not worked in favour of declaring protected sites.

The fundamental problem seems to be an inability to see the issue of significance as one which should be determined by Aboriginal people themselves. Evatt recommended that the issue of significance should be determined by an accredited agency of Aboriginal people. She noted that in the Tasmanian Dams case,[123] Brennan J (as he then was) said:

The phrase ‘particular significance’ ...cannot be precisely defined. All that can be said is that the site must be of a significance which is neither minimal or ephemeral, and that the significance of the site may be found by the Aboriginal people in their history, in their religion or spiritual beliefs, or in their culture. A group of whatever size who, having a common Aboriginal biological history, find a site to be of that significance are the relevant people of the Aboriginal race for whom the law is made... .[124]

Similarly, the question of whether the site has been injured or desecrated is one which can only be answered by reference to Aboriginal people’s views. Despite some criticism of this view,[125] it remains the only viable way to deal with the issue of significance within the context of self-determination.

Is a burial site forever? Is the relationship to the land so important that burial sites are more important to Aboriginal people who therefore see bodily remains as becoming part of the land, in a way which has no parallel in non-Aboriginal culture? A case like Gilbert v Buzzard appears to view the land as a “holding medium” – once the body has decomposed it has disappeared, and the land is no longer a burial ground – it has lost that character. This is confirmed by the doctrine referred to by Griffiths CJ in Doodeward v Spence[126] when he said “after burial a corpse forms part of the land in which it is buried and the right of possession goes with the land”. This does not appear to be true for Aboriginal people, who might see the decomposition of the body not as disappearing but as merging, becoming part of the land, and therefore as having no end as the land continues to be the place of the dead with whom the living have a relationship.

When discussing the disinterment of non-Aboriginal remains from cemeteries, there is some sense that the views of the people concerned and the relevant lawmakers are fairly consonant with each other. This is patently not true with respect to the treatment of Aboriginal burial grounds. What we have here is a situation where the dominant culture has developed legislation, ostensibly to protect the oppressed, but which still shows the signs of the first people able to get government protection for such sites, the archaeologists. It has been said that “archaeology ... developed in the context of colonialism”.[127] The legislation continues to show this influence in its use of the term like “relics” and its emphasis on archaeological significance, rather than on significance to Aboriginal people living now.[128]

5. Conclusion: The Way Forward

The material considered indicates that buried bodies are seen very differently by non-indigenous and Aboriginal Australians. It is possible to trace the development of the relatively confined view of bodily remains both in Western traditions generally and in the common law. The view is confined in terms of the size of the family (which kin are interested in bodily remains), and in terms of time-frame (for how many generations they will be interested). The view is also narrow legally, in that the body is defined as separate from the soil in which it is buried, and after decomposition seems to have legally and culturally “disappeared”.

By contrast, the Aboriginal view, in so far as it can be understood by non- Aboriginals, shows a broader scope. The size of the family and the time frame are clearly much greater than in the western tradition. The number of generations elapsed does not seem to alter the sacred nature of the site of burial. The view of the site as a sacred site does not seem to depend on the fact that there are remains to be seen, although the existence of bones will make the urgency of sacred treatment clearer (as in the Wamba Wamba case). The land itself appears to take on a sacred character, which is not necessarily dependent on the body, so that the body when decomposed would seem not to have “disappeared” or “evaporated” but to have “merged” into the land.

However, characterisation of the Aboriginal view is far less important than conceding the right of Aboriginal people to determine when a site is significant in terms of tradition or not. The failure of the heritage protection legislation is largely due to a failure to give Aboriginal people autonomy in this decision process. This failure exists partly because the dominant legal culture has not recognised the difference between its view of human remains and the views of Aboriginal people. While it is possible to see some congruence between the views of non-indigenous Australians and the law regarding cemeteries, it is not possible to see the same congruence between the views of Aboriginal people and the law regarding their burial grounds. This has been exacerbated by the archaeological focus of the cultural heritage schemes which fails to recognise the living nature of the culture of which such burial grounds are a part.

The criticisms arising in the Evatt report and the demands of Aboriginal people have led to some recent recognition that Aboriginal people must have more control over such sites.[129] However there have also been some backward steps. In the Commonwealth context the Evatt report is itself being reviewed by a parliamentary committee, rather than its recommendations being carried out, and the House of Representatives Standing Committee into Aboriginal and Torres Strait Islander Affairs has downgraded the priority of its inquiry into cultural heritage. At the same time in 1997 specific legislation was passed to prevent the Minister from making a heritage declaration preventing the Hindmarsh Bridge from being built.[130] The Indigenous Reference Group on Cultural and Intellectual Property has said:

Indigenous people’s ownership and custody of their heritage must continue to be collective, permanent and inalienable, as prescribed by the customs, rules and practices of each people, and where ownership is not currently recognised the national law should provide for such recognition.[131]

The treatment of burial sites and cemeteries is only one aspect of cultural heritage practice in Australia. Until legislation and practice conform to the principles of self-determination and ownership of both non-indigenous and indigenous cultures in Australia instead of only to non-indigenous cultural norms, the Aboriginal heritage legislation in Australia will continue to fail.

[*] 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); ss624 (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), ss3539 (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); ss624 (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.

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