Aboriginal Heritage in the Process of National Reconciliation

Aboriginal Heritage in the Process of National Reconciliation

Aboriginal and Torres Strait Islander peoples should be aware that this article contains images of people who may have passed away.

The ongoing journey of reconciliation between Aboriginal and Torres Strait Islander peoples and non-Indigenous peoples commenced in January 1788 with the invasion, colonisation, or‘European settlement’ [i] on the Australian island continent. A ‘polite’ arrival landed the British in terra nullius (nobody’s land) at Botany Bay, but soon re-established the convict experiment to Sydney Cove. The Aboriginal people first dispossessed by Europeans were the Gadi Gadi, and it was this process of dispossession that underpinned the foundation and growth of Sydney and the Australia as we know it today. [ii]

Reconciliation Australia identifies that ‘Australia’s colonial history is characterised by devastating land dispossession, violence, and racism…’[iii] The story of colonial arrival and its effects on Aboriginal people have become a prominent part of a national narrative. Australia’s foundation event has affected the national consciousness, resulting in specific historic emphasis on the ‘celebration’ or ‘commemoration’ of Australia Day (26 January).[iv]

Historical acceptance and understanding of the past wrongs and the impact on Aboriginal and Torres Strait Islander peoples is one of five dimensions of reconciliation.[v] This paper examines how Aboriginal heritage planning reform might change the way that we approach reconciliation.


When defined the word reconciliation does not belay its true meaning to Australians, and in fact causes some disquiet. The Oxford English Dictionary defines ‘reconciliation’ as:

an end to a disagreement and the start of a good relationship again… [and] the process of making it possible for two different ideas, facts, etc. to exist together without being opposed to each other [author’s underlining][vi]

Examining these meanings identifies some of the key issues faced in the process of Australian reconciliation. Following the first definition, it is possible that the disagreement will never truly end, notably because of the principle of terra nullius. The second definition suggests an eventual compatibility of dual ideas based on a shifting middle ground. For Australia’s Indigenous people the ‘ground’ has been in place for 60,000 plus years and is unlikely to move rapidly. The unfounded principles of Australia’s colonisation process were recognised as such by the British, notably through the distinctly different approach to colonisation in New Zealand with the Treaty of Waitangi, which was ‘a broad statement of principles on which the British and Māori made a political compact to found a nation state and build a government in New Zealand’.[vii]

All Australians understand reconciliation to mean something quite different from these definitions. Reconciliation is about improving respect and understanding, and unity and equality between Aboriginal and Torres Strait Islander peoples and non-Indigenous peoples.

At its heart, reconciliation is about strengthening relationships… In a just, equitable and reconciled Australia, Aboriginal and Torres Strait Islander children will have the same life chances and choices as non-Indigenous children, and the length and quality of a person’s life will not be determined by their racial background.[viii]

Pathways to Reconciliation

Australia’s pathway towards reconciliation has included several notable milestones. In 1962 Indigenous Australians were granted the right to vote in Commonwealth elections; the 1967 referendum that included Aboriginal Australians in the determination of the population (the census) and allowed the Federal Government to legislate specifically for Aboriginal Australians, followed by the Racial Discrimination Act 1975; the 1972 establishment of the Aboriginal tent embassy in Canberra; the Aboriginal Land Rights (Northern Territory) Act 1976, which was the first attempt to legally recognise the Aboriginal system of land ownership and in 1992 led to the ‘fiction of terra nullius[ix] being overturned with the Australian High Court’s decision on the Mabo Case. In 1998 the first National Sorry Day was held, one year after the tabling of a report about the removal of Aboriginal and Torres Strait Islander children from their families, which led to the 2008 Parliament of Australia’s formal apology to Indigenous Australians for the forced removals of Australian Indigenous children, referred to as the Stolen Generation.

Aboriginal Heritage in NSW

These major milestones in Australian political and legal history are supplemented by smaller steps at the NSW state level. The inclusion and protection of Aboriginal heritage within the state’s planning system occurred in 1974, and for the wider community established the connection between living Aboriginal communities and sites of traditional Aboriginal cultural value, notably as a consequence of the NSW Sites of Significance survey(1973–1987).[x]

The NSW Aboriginal Lands Rights Act 1983 and associated establishment of the NSW Aboriginal Land Council as the ‘State’s peak representative body in Aboriginal Affairs’[xi] reflected the growing involvement of Aboriginal people in the recognition and management of their history and heritage.

Current Legislative Position

In NSW Aboriginal cultural heritage may be ‘conserved’ and ‘protected’ under both the Heritage Act 1977 and the National Parks and Wildlife Act 1974 (NPW Act). This paper considers the framework for management under the latter, notably because the NPW Act underpins the majority of Aboriginal heritage management in NSW. The objectives of the NPW Act are sound in that it aims to conserve objects, places or features of cultural value within the landscape ‘of significance to Aboriginal people’.[xii] Implementation is directly connected with two definitions under the Act—Aboriginal ‘objects’ and Aboriginal ‘places’.

Aboriginal places are declared under Section 84 of the NPW Act and have ‘special significance with respect to Aboriginal culture’.[xiii] This process can afford statutory protection to intangible aspects of Aboriginal heritage and the connected cultural landscape. This is in contrast to the definition of Aboriginal objects, which only refers to tangible heritage:

[Aboriginal objects are] any deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.[xiv]

Practical application of this definition only relates to physical items, such as a stone artefact, an art motif, or a culturally derived scar on a tree. The definition expressly excludes any intangible aspect or social, spiritual, aesthetic values associated with the object, such as its landscape context, the tradition of use, or items which hold cultural value, but the use did not change the object, such as a birthing tree or spring. Intangible events and aspects of high cultural significance, such as songlines, places connected with traditional Ancestral Creation pathways, or any aesthetic value, fall outside of this rigid definition.

A dichotomy exists between the listing process for Aboriginal ‘objects’ and Aboriginal ‘places’. Listing an Aboriginal object on the NSW Aboriginal Heritage Information Management System (AHIMS) is relatively simple and can be achieved using the AHIMS application on a device. The process for having an Aboriginal place declared is laborious to the extent that only 132 places have been listed across the whole of NSW since 1974 (a period of 45 years).[xv] Aboriginal intangible values may also be listed under the NSW Heritage Act; there are 34 state listed Aboriginal ‘sites’—many possess historical, post-1788 connections. Only two Aboriginal sites/places are listed under both the NPW Act (as places) and the Heritage Act (as State Heritage Items)—these are the Baiame Cave, and the Kinchela Aboriginal Boys’ Home.

The separation of Aboriginal places and Aboriginal objects is problematic for many Aboriginal people because it forces a division between tangible and intangible values. This leads directly to the issue that ‘tangible heritage is emphasised at the expense of intangible heritage’, possibly because physical items can be easily quantified and comprehended by non-Aboriginal people.[xvi]

Critical Conservation Issues

Statutory protection for ‘listed’ Aboriginal sites and places is problematic. Simply, under the NPW Act if due process is followed then a listed Aboriginal object can be ‘harmed’—the Aboriginal community has no authority or ability to prevent or stop an impact, unless further (expensive and lengthy) legal recourse is taken. Unless listed as an Aboriginal place, there is no ability to recognise or protect the associated intangible connections or cultural landscape. The difficulty in identifying and listing Aboriginal places means that for many Aboriginal intangible values the point of identification (to non-Aboriginal people) is too late within the planning cycle. Further, certain legislative processes under the NSW Environmental Planning and Assessment Act 1979, such as the former Part 3A, and current State Significant Development/Infrastructure, turn off certain statutory provisions under both the NPW Act and Heritage Act.

The consequence is that Aboriginal heritage is often under threat from development pressures, and current planning processes do not provide adequate protection or review to allow for the identification of key Aboriginal sites, places and landscapes. Two recent cases reflect the varying outcomes for Aboriginal cultural heritage, and notably intangible heritage—Calga sand mine, and the Shenhua Watermark open cut coal mine.

The Calga Aboriginal Cultural Landscape[xvii] is associated with significant aspects of Dreaming stories and belief systems of Baiame, Bootha and Daramulan, and Aboriginal women’s traditions. Despite the identification of a highly significant Aboriginal women’s site and its connected cultural landscape, planning approval for an extension to an existing open cut sand mine was granted under Part 3A. The only option available to prevent permanent impacts was a hearing in the NSW Land and Environmental Court (LEC). In November 2015, approval for the Calga Sand Quarry extension was overturned by the NSW LEC.[xviii] Amongst other aspects the LEC found the intangible values of the cultural landscape were instrumental to the functioning of the site:

…for Aboriginal people the significance of individual features is derived from their interrelatedness within the cultural landscape. This means that features cannot be assessed in isolation and that assessments need to consider the feature and its associations in a holistic manner.[xix]

Consequent to the LEC determination was listing of the whole cultural landscape on the State Heritage Register.[xx] The process has been instrumental in Aboriginal conservation, rights and recognition. The Darkinjung Local Aboriginal Land Council stated:

Decisions such as this highlight just how strong our voice is and how committed we are to protecting our land and the Aboriginal history of the Central Coast.[xxi]

A very different outcome for Aboriginal heritage has occurred for the Gomeroi Traditional Custodians within their traditional Country, at Mount Watermark, on the Liverpool Plains. The Shenhua Watermark project is a ‘proposed open-cut coal mine… 3km west of the village of Breeza’. [xxii] The mine was given state government planning approval despite being identified by the local Aboriginal population as containing sacred sites, with significant Aboriginal heritage places and connected traditions. [xxiii] Various challenges were mounted at the state and federal levels, including an application (in April 2015) to the Federal Environment Minister under Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwlth) (ATSIHP Act).  The application for protection of the scared sites was refused in August 2019:

The Minister made this decision despite acknowledging the “immeasurable” cultural value of the sacred places and objects under direct threat of destruction and desecration… The Minister acknowledged that the development of the mine would destroy or desecrate the Significant Areas, but concluded that the mine’s potential economic and social benefits outweighed their heritage value.[xxiv]

The decision to impact the Mount Watermark cultural landscape has greatly affected the local Aboriginal community. Gomeroi elder Auntie Dolly Talbott expressed deep hurt and loss at the decision:

When we heard of the Minister’s decision, there was a high level of confusion and disbelief. Does our culture, our spiritual and sacred places of Aboriginal heritage, mean nothing in this country? … If this mega-mine proceeds, our interlinked sacred places will be completely destroyed and obliterated from the landscape. We will no longer be able to read our Country, share our sacred places with our children and grandchildren. Our ancestors’ footprints, their legacy to us, will be lost – lost forever.[xxv]

The ongoing loss of key Aboriginal heritage cultural landscapes, places and their inherent values continues to impact Aboriginal communities today, just as the impact of the colonial First Fleet did in 1788.

Heritage In Reconciliation—New Directions

Recognising, recording, reporting and understanding Aboriginal heritage values, traditions and history is a powerful agent in the process of reconciliation and commences a dialogue that can address the ‘great Australian silence’. [xxvi] The identification, connection and re-connection between Aboriginal people and their heritage directly reflects aspects of reconciliation.[xxvii]

The key to the situation is a long-term vision for Aboriginal heritage, underpinned by strong legislation that allows Aboriginal people to determine what is significant and should be retained. In 2013 the NSW government established a new direction for Aboriginal heritage legislation. In 2018 a draft standalone Aboriginal cultural heritage legislation, the Aboriginal Cultural Heritage Bill,[xxviii] was developed. The objectives of the draft bill are:

(i) to recognise that Aboriginal cultural heritage belongs to Aboriginal people and accordingly establish a legislative framework that reflects Aboriginal people’s responsibility for and authority over Aboriginal cultural heritage, and

(ii) to recognise Aboriginal cultural heritage as a living culture that is intrinsic to the well-being of Aboriginal people…

The draft bill redefines the meaning of Aboriginal cultural heritage in NSW. The revised meaning sought to include intangible heritage, recognising and accepting that Aboriginal heritage often combines tangible and intangible aspects within a cultural setting:

For the purposes of this Act, Aboriginal cultural heritage is the living, traditional and historical practices, representations, expressions, beliefs, knowledge and skills (together with the associated environment, landscapes, places, objects, ancestral remains and materials) that Aboriginal people recognise as part of their cultural heritage and identity.[xxix]

The intent of the new approach is that Aboriginal heritage and significant cultural landscapes can be identified up front within the planning system. Application of the definition should lead to better-informed land use decisions and improve conservation of Aboriginal places and values. However, this will only occur if adequate policy, assessment guidelines, education, rigorous and consistent review and direction is provided by the regulator. Had such an approach been applied to either the Calga or Mount Watermark cultural landscapes, it is possible that alternative compatible land uses could have been proposed and lengthy legal proceedings avoided.

Heritage practice and archaeology hold a central place within the proposed processes.[xxx] Recording and conserving cultural landscapes needs to seek a new direction, one which is invested in Aboriginal community engagement. The development of historical and social narratives, notably focusing on the recent past and connecting with the deep past, will provide a voice for Aboriginal people still coming to accept their recent history. The telling of stories and traditions, with connection to landscape and place, will generate intergenerational equity within Aboriginal communities and allow Aboriginal people to voice their experience of contemporality.

Outside Aboriginal communities, the telling of these narratives will present a mechanism for outlining past wrongs, feeding into the process of reconciliation, and thereby acknowledging Australia’s past through education and understanding.

[i]      Official term used by the Australian Government, Our Country, History, viewed 13 November 2019 <https://www.australia.gov.au/about-australia/our-country>.

[ii]     GML Heritage, Site of First Government House—Conservation Management Plan, vol. 2, report prepared for Sydney Living Museums, February 2017, p 18.

Karskens, G 2009, The Colony: A History of Early Sydney, Allen & Unwin, Crows Nest, p 33.

McBryde, I 1989, Guests of the Governor: Aboriginal Residents of the First Government House, The Friends of the First Government House Site, Sydney.

[iii]      Reconciliation Australia 2019, What is Reconciliation?, viewed 13 November 2019 <https://www.reconciliation.org.au/what-is-reconciliation/>.

[iv]     Australia day was only gazetted as a public holiday on 26 January in 1994. Reconciliation Australia equates celebration of this day to asking Indigenous people to ‘dance on their ancestors graves’. Wahlquist, C, ‘Celebrating Australia Day on 26 January like dancing on graves, says reconciliation body’, The Guardian, viewed 13 November 2019 <https://www.theguardian.com/australia-news/2018/jan/18/celebrating-australia-day-on-26-january-like-dancing-on-graves-says-reconciliation-body>.

[v]     Reconciliation Australia 2019, The Five Dimensions of Reconciliation, viewed 13 November 2019 <https://www.reconciliation.org.au/what-is-reconciliation/>.

[vi]      Oxford English Dictionary.

[vii]      New Zealand History 2019, ‘Treaty of Waitangi, The Treaty in Brief’ viewed 19 November 2019 <https://nzhistory.govt.nz/politics/treaty/the-treaty-in-brief>.

[viii]      Reconciliation Australia 2019, ‘What is Reconciliation?’, viewed 13 November 2019 <https://www.reconciliation.org.au/what-is-reconciliation/>.

[ix]      Justice Jagot, 20 October 2017, The Rule of Law and Reconciliation,  The Opening Address to the Law Society of New South Wales Young Lawyers’ Conference, viewed 13 November 2019 <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-jagot/jagot-j-20171020>.

[x]      Kijas, J 2005, Ray Kelly, and the NSW Sites of Significance survey, Department of Environment & Conservation, Hurstville.

[xi]     About NSWALC, viewed 13 November 2019 <http://alc.org.au/>.

[xii]      National Parks and Wildlife Act 1974, Section 2A, Objects of the Act.

[xiii]     National Parks and Wildlife Act 1974, Section 84, Aboriginal places.

[xiv]     National Parks and Wildlife Act 1974, Section 5, Definitions.

[xv]      A search of the DPIE NSW Heritage registers for all listed Aboriginal Places in NSW returned 132 records, search undertaken online, 13 November 2019.

[xvi]      Australia ICOMOS Inc 2013, The Burra Charter and Indigenous Cultural Heritage, Practice Note, Australia ICOMOS Inc, Burwood, VIC, p 4.

[xvii]      Calga Aboriginal Cultural Landscape. NSW State Heritage Register, viewed 13 November 2019 <https://www.environment.nsw.gov.au/heritageapp/ViewHeritageItemDetails.aspx?ID=5064142>.

[xviii]     NSW Caselaw, NSWLEC 1465, viewed 13 November 2019 <https://www.caselaw.nsw.gov.au/decision/564a9ec2e4b003c5681fabbe>.

[xix]      NSW Caselaw, NSWLEC 1465, findings at line 220, viewed 13 November 2019 <https://www.caselaw.nsw.gov.au/decision/564a9ec2e4b003c5681fabbe>.

[xx]      Hull, S, NBN News, ‘Calga Aboriginal Landscape Heritage Listed’, 1 October 2019, viewed 13 November 2019 <https://www.nbnnews.com.au/2019/10/01/calga-aboriginal-landscape-heritage-listed/>.

Fiji Times, ‘Calga Cultural Landscape Heritage Listed’, viewed 13 November 2019 <https://fijitimes.net.au/calga-cultural-landscape-heritage-listed/>.

[xxi]     Tina West, Chairperson—Darkinjung Local Aboriginal Land Council, ‘Calga Sand Quarry extension rejected—significant outcome for Darkinjung LALC’, viewed 13 November 2019 <http://www.darkinjung.com.au/101>.

[xxii]     Mining Technology, ‘Shenhua Watermark Coal Project, New South Wales’, viewed 14 November 2019 <https://www.mining-technology.com/projects/shenhua-watermark-coal-project-new-south-wales/>.

[xxiii]     Chan, G, The Guardian, ‘Shenhua coalmine planning works “could desecrate Indigenous sacred sites”’, 27 January 2019, viewed 14 November 2019 <https://www.theguardian.com/australia-news/2019/jan/27/shenhua-coalmine-planning-works-could-desecrate-indigenous-sacred-sites>.

[xxiv]     EDO, ‘Gomeroi woman in legal challenge to Environment Minister’s decision not to protect areas of “immeasurable” cultural value, 27 August 2019, viewed 13 November 2019 <https://www.edonsw.org.au/gomeroi_legal_challenge>.

[xxv]      EDO, ‘Dolly Talbot speaking about the impact of the Minister’s decision’, 27 August 2019, reproduced with the permission of Auntie Dolly Talbot, viewed 13 November 2019 <https://www.edonsw.org.au/gomeroi_legal_challenge>.

[xxvi]      ABC Radio Nation, ‘WEH Stanner and the Great Australian Silence’, 26 March 2009, viewed 13 November 2019 <https://www.abc.net.au/radionational/programs/latenightlive/weh-stanner-and-the-great-australian-silence/3143396>.

[xxvii]     Australia ICOMOS Inc 2013, The Burra Charter and Indigenous Cultural Heritage, Practice Note, Australia ICOMOS Inc, Burwood, VIC.

[xxviii]      NSW Department of Planning, Industry and Environment, Draft Aboriginal Cultural Heritage Bill 2018, viewed 13 November 2019 <https://www.environment.nsw.gov.au/research-and-publications/publications-search/draft-aboriginal-cultural-heritage-bill-2018>.

[xxix]      NSW Department of Planning, Industry and Environment, Draft Aboriginal Cultural Heritage Bill 2018, Part 1, Section 4.

[xxx]      Owen, T, and Veale, S. 2015, ‘No intrinsic value in archaeology? Constructing agency and social value from archaeology’, Proceedings of Fabric. The Threads of Conservation. Australian ICOMOS Conference.