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'Everyday archaeology': archaeological heritage management and its relationship to native title in development-related processes.

Abstract: This paper reviews various case studies to examine the capacity for including cultural processes and practices in the design and implementation of development-related cultural heritage projects that demonstrate the maintenance of a body of law and custom consonant with native title. The paper shows that even apparently small cultural heritage projects linked to the development cycle afford an opportunity to gather a range of information that may likewise be of use at a later stage in native title-related matters. It then considers the design of terms of reference for cultural heritage projects that recognise that subsequent use of the results of that study may have to fulfil a larger purpose than may originally have been envisaged. Finally, attention is given to the role of the professional cultural heritage adviser in the context of native title. It is concluded that significant change in the role of such advisers is demanded by these circumstances.

Introduction

Archaeological investigations have played a significant role in the development of native title cases. Prominent among these is the work undertaken on the Miriuwung-Gajerrong case. Here Justice Lee noted that he found the archaeological evidence compelling in helping to establish that there had been a social system in place prior to English assertion of sovereignty. This was consistent with reaching the conclusion that the people who lived in that region had developed and maintained a set of customs and practices central to a finding in favour of native title. He also accepted archaeological evidence demonstrating that a significant shift in seasonal patterns of subsistence and social organisation had occurred that could be attributed to changing economic circumstances deriving from the establishment of the pastoral industry in the Kimberley, the role Aboriginal people played in it, and the changed circumstances that required them to undertake ceremonial activity at a different time of the year (Fullagar & Head 2000).

Numerous other studies and papers have explored, from an archaeological perspective, issues such as the definition of group boundaries using rock-art analysis, interaction of groups through ceremony and exchange (evidenced by analysis of raw materials used in axe manufacture), as well as numerous other types of material culture and the nature and rate of change in Aboriginal society pre- and post-contact and the implications of this for issues surrounding maintenance and transformation of Aboriginal society, and consistency with native title (Fullagar & Head 2000; McDonald 2000; Murray 2000, 2002; Veth & McDonald 2002).

There have been less 'generous' treatments of archaeological evidence in native title as well. Thus, in the Yorta Yorta case, Justice Olney (1998) held that while there was some archaeological evidence that people had occupied the area in question and had an organised pattern of subsistence and economy, the question remained as to whether there was any relationship between those people who had created the archaeological material, and those people who now were asserting native title (see also Riches 2002). In a point of some interest to this paper, Olney also held that an apparently modern concern for various types of archaeological sites documented during development-related investigations was not proof of the maintenance of a body of custom and practice consistent with finding the existence of native title (see also Veth 2000).

Interestingly, however, there seems to have been less emphasis given to exploring the interplay of native title and archaeology in the context of development-related investigations. The undeniable fact is that the vast majority of archaeological study undertaken throughout Australia is situated within the context of the preparation of an environmental impact statement (EIS), or other types of studies linked to development-based imperatives, in which various statutory processes impose a requirement to consider cultural heritage management (e.g. see discussions in Byrne et al. 2001; Godwin & L'Oste-Brown 2002). In many instances, such studies play out in circumstances where native title is a significant issue, and where settlement of Indigenous Land Use Agreements and s31 agreements under provisions of the Native Title Act 1993 often run in parallel with cultural heritage (predominantly archaeological) investigations. Indeed, cultural heritage may not just run in parallel to, but seem a separate issue from, native title. I believe, however, that there are express links between them, something many native title claimants directly assert and which the Native Title Act 1993 certainly countenances. It is of concern, therefore, how little this situation appears to have infiltrated the thinking of some archaeological practitioners, particularly those involved in what is commonly called the 'applied' part of the discipline. There is a clear need for greater appreciation of the intersections already at play.

In this vein, Godwin and Weiner (in press) have commented that:
 Archaeologists themselves are now acknowledging that
 they work in situations where they must take regard of
 the social and political dimensions of their interpretive
 tasks. They are being asked not just to comment on the
 material properties of artefacts and sites but also on the
 social and political conditions under which the research
 is being conducted in the first place ... In other words,
 the organization of the research itself is a social,
 political and cultural act that frames the archaeological
 inquiry as such. It is therefore not limited to the
 accretion of our understanding of the stylistic or
 categorical features of the artefacts as such. The value
 that Aboriginal people place on material culture is
 likely to be very different than that of the archaeologist
 and this fact more and more must be a part of the
 survey rather than an adventitious comment upon it. It
 is noteworthy, however, that few archaeological reports
 prepared as part of the EIS process have included any
 significant methodological acknowledgement of this
 contemporary socio-political act of framing.


I believe this also applies in the context of native title. There seems to be limited understanding that the structures under which archaeologists routinely operate, the everyday practices they adopt, the very definition of that which they seek to document as cultural heritage and the conclusions they reach regarding it might have profound implications, not just for cases that end up as part of the native title determination process where common law precedent is set but also in other circumstances. If they do have such awareness, it does not seem to be well reflected in the 'terms of reference' offered and accepted for the kinds of cultural heritage projects in which they are involved. Perhaps we should not judge too harshly: recent cultural heritage legislation in Queensland and the guidelines deriving from it only serve to demonstrate that many legislators and public servants charged with managing cultural heritage have opaque processes and understandings for accommodating the intersection between cultural heritage management and native title.

In this paper I want to explore the issues raised by Weiner and myself above (and which we explore through a different lens elsewhere; see Godwin & Weiner, in press; Weiner et al. 2002). Firstly, I wish to provide some examples of how apparently straightforward cultural heritage investigations undertaken as part of statutory processes (such as an EIS) might afford opportunities for groups to demonstrate practices that may prove to be of value to them in varied native title negotiations and legal proceedings. I will then turn attention to how the initial structuring and conduct of investigations might be of crucial importance as the provisions of the Native Title Act unfold in development-related contexts. I then offer some suggestions as to how we might take cultural heritage management forward in circumstances where there is constructive and effective interplay between resource/infrastructure development, native title and cultural heritage management.

Process and practice

Many native title claims assert that the ownership and management of cultural heritage is one of the rights being asserted (e.g. McCarron-Benson 2004). The High Court has held that native title comprises a bundle of rights (Strelein 2003). Arguably, cultural heritage sites/landscapes and associated practices (within the rubric of ongoing laws and customs) is one of the strands that, together with other asserted rights, make up this bundle. The bundle of rights, and individual elements of that bundle, can be eroded or severed in various ways. Governments have the right by virtue of sovereignty to take various actions that can affect native title generally or in particular ways. The passage of legislation that is inconsistent with the continuation of a native title right will sever that right in all areas where the legislation has play. The authorisation of a particular activity, where that activity has been granted in a way that is consistent with provisions of the Native Title Act, may also either extinguish or suppress one or more strands of the bundle of rights asserted, or held by, claimants or determined holders, to the extent of any inconsistency between the activity and the rights asserted or held. It may also be deemed that the native title party has voluntarily ceded rights.

While cultural heritage practitioners may be able to do little about legislation or the grant of particular activities and future acts once passed or authorised, they can certainly take steps to ensure that, in those areas where they do have some role to play, native title holders or claimants are given the greatest possible opportunity to demonstrate that they have maintained, and wish to maintain, a body of custom and practice that is consistent with their native title rights and interests. Practitioners can be proactive in creating a process that affords native title parties the greatest opportunity to demonstrate that they have neither voluntarily ceded native title rights nor otherwise allowed those rights to be eroded.

The High Court's decision in the case of Yanner v Eaton (1999) makes it clear that traditional practice is not necessarily compromised by the introduction of new technology or new circumstances. Thus, one can hunt traditional foods and consume or share such food based on traditional custom, and this is consistent with native title whether the act of hunting is performed using modern weapons and transportation. Similarly, Western Australia v Ward (see Fullagar & Head 2000) shows that integration into new economic modes may require significant shifts in seasonal residence patterns and the timing of major ceremonies, but this has not destroyed the religious beliefs and rituals which underwrite this. Thus, it is acceptable to adapt, and in some measure transform, one's custom and practice without negatively impacting on the fundamentals central to native title: that a group has sustained a body of law and practice that is commen-surate with native title. One of the challenges confronting the Federal Court is to determine the point at which adaptation and transformation have reached the point where traditional custom and practice can be considered to have been ceded, or either so eroded or transformed by post-contact social, cultural and economic change in a particular regional setting that they are inconsistent with a finding that native title exists. Similarly, one can seek to manage one's cultural heritage consistent with native title but this may, given recent development pressures and various statutory requirements, require adaptation to those new pressures and requirements. There is no set script for how this may be done. A couple of different examples will suffice to demonstrate what can be achieved. One development proponent proposed to install infrastructure along an easement approximately 5 m wide from the Century Mine, through Doomadgee, to Point Parker on the coast due south of Mornington Island, a route running for a distance of 230 km. In previous circumstances such studies would never have been undertaken. How was this handled? Through the auspices of the Carpentaria Land Council, the development proponent negotiated directly with the Waanyi and Gangalidda people regarding the conduct of the necessary cultural heritage investigations. A formal agreement that provided for the groups to conduct the studies was concluded between the parties. Principal among its provisions were that: the studies were to be undertaken under culturally appropriate governance structures; selection of people to be involved in the studies was to be in accordance with that governance structure; they were to select technical advisers they wished to work with in documenting cultural places and values; they would have appropriate control of the information generated from this study; and intellectual property was in their domain and would only be used as agreed between themselves and the development proponent for management purposes. Construction would be undertaken under the auspices of a Cultural Heritage Management Plan, monitored at all stages by the groups. Thus, a contractual arrangement for a contemporary development was reached that enshrined various 'traditional' practices.

Importantly, although the legislation in place at that time (Cultural Record Landscapes Queensland and Queensland Estate Act 1987) had a very narrow definition of cultural heritage, with an exclusive focus on material culture, this was not adopted in this particular study. Rather, a far broader (but more realistic) definition was included in the agreement in which all places of traditional significance were to be recorded. In this case, legislation was viewed purely as representing the lowest common denominator rather than setting the terms of reference to be implemented. It is an interesting development now that those with a legal background, rather than those with a humanist training, are assuming an increasingly significant role in the negotiation of agreements, and particularly where they are acting for proponents. There is a discernible trend towards the use of legislation defining those terms of reference, rather than necessarily a commitment to best practice. (1) In these circumstances, the limitations of cultural heritage legislation will give increasing concern for those who have an interest in seeing heritage issues handled in ways that are culturally appropriate rather than purely and strictly legislatively sanctioned. That is, reducing the process to one that is limited to only those things that legislation prescribes, but which fails to countenance that such matters really should sit in some larger cultural base, potentially curtails or removes the chances for Aboriginal groups to be creative in setting in place measures that allow them to implement culturally sanctioned practices linked to native title while ensuring compliance with legislative and regulatory requirements.

In regards to the project described above, Aboriginal personnel that were chosen by the larger groups met one major criterion: the larger group saw them as having the necessary linkages to the country by birth, totemic association and knowledge of country. Crew membership changed not on the basis of equity of distance, number of days or amount of pay, but primarily on who the appropriate people to be conducting the work and making decisions about that section of country were. Rates of pay were, in part, linked to a person's ritual status. A team varying in size between four and six people inspected the entire easement. This number is not to be taken as an indication of the number of people traditionally responsible for sections of country, nor of the traditional owners' preferred level of participation. Rather, it represented a (sometimes) reluctant compromise based upon commercial considerations, the narrow infrastructure corridor and the fact that site avoidance was the preferred management strategy.

Numerous other groups across Queensland strike similar agreements and take an active role in managing their cultural heritage in the context of development actions, assuming the role of principal consultants with archaeologists slotting into the role of professional heritage advisers. This appropriately sets the groups as the direct managers regarding their cultural heritage, with archaeologists acting to provide information on which the groups can draw in their decision making. For the last ten years in Central Queensland, many groups have insisted that they apply for the permits required under the 1987 Cultural Record Act. While the particular projects were not necessarily associated with areas where native title existed, it was seen as a general means of exercising the rights being asserted in their native title claims.

New legislation in Queensland should only serve to reinforce such arrangements; however, there is a degree of 'reaction' setting in, and in other states the processes applied to cultural heritage management in the context of development have not shifted in this direction at all. In some measure this reflects the historical background of cultural heritage management. In the eastern states, at least, the legislative drivers came from professional archaeologists looking to protect what they saw as their primary resource from the depredations of amateurs and uncontrolled legislation (see discussion in Colley 2002). The development of EIS legislation in the mid-1970s, and the integration of cultural heritage (in the form of archaeology) as a core element of such studies, also played a role (Byrne et al. 2001). Consultant archaeologists forged links with companies who specialised in preparing environmental studies, and took a central role in this process. Aboriginal people were, and in considerable measure still are, (2) marginal to the management process emanating from these statutorily derived mechanisms. The shift that took place in Central Queensland, with Aboriginal groups assuming a primary role, was in part the result of the atmosphere created by the Mabo decision, while there was also a vacuum from inadequate cultural heritage legislation and the under-resourced regulatory process in the state. The successive drift to an agreement-oriented approach had been a response by Aboriginal groups and developers to find a means of resolving and formalising arrangements where it was apparent that Aboriginal groups needed to be afforded an increased and structurally meaningful role in the exercise. (3)

It is worth noting that the scale of a project need not be a limiting factor by which groups can be afforded a primary and culturally derived role in management of this sort of exercise. The project described previously was not huge in terms of the scale of the impact or area to be affected. Similar arrangements have been set in place on larger projects, such as gas pipelines, coalmines and dams, to name just some categories of development.

The anthropology of archaeology

Here I draw on three case studies, one from Central Queensland and the other two from Queensland's Gulf Country. The general issues raised have been, and increasingly are being, documented elsewhere. As was noted in the introduction, archaeologists increasingly need to situate their work within the social and political framework of the Aboriginal groups with whom they work. Archaeology, and the material culture central to it, is not divorced from the social, cultural and political round of contemporary Aboriginal society. (4) An excellent example of this can be found in the work of Jones and White (1988) in examining the significance of the Ngilipitji quarry in eastern Arnhem Land, depicted in the film Spear in the stone. The quarry was (and is) widely known throughout this region as the source of spear points prized for the power inhering in them, and material from the quarry was a vital element of the region's vibrant exchange network. Donald Thomson visited the quarry and collected numerous specimens of the fine points made there in the 1930s. Jones and White made special arrangements to visit the quarry with its owners and to visually record them quarrying material and then knapping it. The arrangements for this filming required extensive negotiations because there was real concern that Balanda (white people) could unwittingly disturb the spiritual essence of the site and perhaps capture some of its mali in the course of filming it. This would have had dire consequences for Yolngu and white people alike.

In recent fieldwork associated with the project alluded to earlier and with Gangalidda people on other development-related projects, various types of scarred trees were identified. Two are of particular interest here. The most common were trees where sugar bag, or the honey of the native bee, has been extracted at some stage in the past. The Gangalidda know this resource as gambirlarri. (5) Trees of this sort have been found cut with steel axes or stone axes, while others are indeterminate. Sugar bag is a traditional resource, attested in this case by the use of a stone axe to cut open the tree so that the honey could be extracted. Use of this resource continues today, as it is a much-valued food among the Gangalidda. The clear use of a steel axe in one case points to this continuation. As such, these trees provide a material demonstration of the continuity of use of this resource from the pre-European past to the present day. While use of a steel axe indicates processes of transformation in some aspects of Gangalidda culture, the maintenance of the cultural practice is of importance in the context of native title. Moreover, of itself the transformation of culture, in this case material culture, does not terminally weaken an argument for cultural maintenance. Of rather more concern is that it was a traditional practice, and that the cultural context within which that practice took place has been maintained. In this case, maintenance is clearly attested to by the common knowledge of the resource, how it is obtained, and the language terms for it.

Numerous examples of a tree that provides bark used in the preparation of burnija were also recorded. This is term used in relation to tobacco, and more particularly chewing tobacco. In this case, the bark (garluwa or garlu) is cut from a coolibah tree (birirri), and then carefully burnt to make ash (julugwa or garlarra). This is then mixed with the tobacco to make a plug, which is then chewed. Trees that were recorded in these surveys had clearly been cut with steel axes. This clearly points to these trees being of relatively recent origin, unsurprising as this practice continues in Doomadgee today. However, the practice of mixing tobacco and bark ash in this way is likely a transformation of an older, traditional custom associated with the use of pitjuri, native nicotine obtained from Duboisia hopwoodii. The leaves of this plant were mixed with bark ash, which acts as a catalytic agent for the absorption of the nicotine, to make a wad, which was either chewed or otherwise placed behind the ear where blood vessels close to the skin surface could absorb the nicotine, inducing euphoria. WE Roth, in his ethnographic work in the region in the 1890s, noted the adaptation of this method of preparation with tobacco being a direct replacement for pitjuri (see Watson 1983). Thus, the presence of trees that are now dead but that were cut with a steel axe, and the continued practice of this method in Doomadgee today, has antecedents in a practice described in the 1890s and stands as testimony to the maintenance (although somewhat transformed) of this tradition. The preservation of a range of language terms associated with the practice only serves to heighten this point.

On one survey associated with the redevelopment of the Doomadgee dump, a very small patch of wallaby grass was also identified in close proximity to existing rubbish pits. Women use this grass in traditional weaving. The grass (grass is generically called garnda, while burrari refers to grass used to make string) is generally available in sufficient quantities immediately after the wet season. It is then picked, stripped into string and then woven into bags, which are used to collect fruit and other items. (6) The identification of this small patch of grass focused the concern of the senior women that a well-known collection area for wallaby grass might be affected by the proposed development. This location was checked during the survey and found to be well outside the development area, though the women remained concerned that the Doomadgee Aboriginal Community Council might clear the area inadvertently and thus deprive them of the only easily accessible source. The point being made here is that the grass source was important in allowing the women to exercise a traditional method of manufacture, the items so produced then being used for other traditional pursuits.

I now turn to matters more common for archaeologists: dealing with stone artefacts. The case comes from Central Queensland, an area of great contact violence and later dispossession and displacement of the Aboriginal people who resided there (Reynolds 1981; Godwin, in prep.). Here, extensive cultural heritage investigations associated with the development of new coal reserves in the Blackwater area were undertaken. The work was carried out in conjunction with the Ghungalu and Kangoulu people, claimants for that area. The study area, situated on eastern tributaries of the Comet River to the south of Blackwater, has the single greatest concentration of cultural material, and the greatest diversity of cultural remains, observed anywhere in the entire Bowen Basin, an area of over 80 000 [km.sup.2] (L'Oste-Brown & Godwin n.d.).

The survey of the area proceeded with six representatives of the claimant groups being involved. On its conclusion they reported to their elders at general meetings on the results of the survey, noting the large amounts and diverse nature of the material. The elders then concluded that this was an extremely significant area for their people.

Following the survey and the subsequent meeting, a general inspection of the area by the elders was arranged. On arrival, the nest of a native bee was observed, and the bees buzzed around people for the duration of the visit. This was interpreted in the following fashion: the native bee is the yuri ('meat' or totem) of a senior Ghungalu person who is one of acknowledged apical ancestors for their claim, and now, as he is long deceased, one of the 'old people'. (7) The presence of the nest and bees was a demonstration that he was there, watching over the area and watching the behaviour of his descendants, and served to reinforce the conclusion already reached about the area, namely that it was of great cultural significance and that the traditional owners charged with responsibility for the survey had to take these actions with the greatest vigilance.

In another example, a young Murri person behaved in a way that was seen as disrespectful at another artefact scatter. He was required to smoke himself, as a punishment but also to ensure that the 'old people' did not pursue and torment him. He duly submitted to the ceremony. In other cases where people sickened this was at least partially attributed to their having handled or otherwise dealt inappropriately with cultural material, or because people undertook survey work on country that was not theirs by right of tradition. In all cases it was seen as retribution from the 'old people' for the disrespect shown to them by such actions.

Development-related archaeological surveys in which Aboriginal people are able to consider and interpret the results are in some ways new processes and of themselves are not 'traditional'. But they assume a whole different meaning if viewed as more than the documentation of a body of material evidence, and outside of the 'scientific paradigm'. In my experience, responses along these general lines are common in much of settled Australia, and elsewhere too. Aboriginal people are interpreting the richness of artefactual remains, the nature of those remains and the consequent evidence of high-density settlement sites or particular activities as significant in and of themselves. They reason that any site so rich in resources as to afford repeated occupation must have been special and 'sacred' in the sense that evidence of fecundity is interpreted as religiously and totemically significant. In these cases, the material culture is seen as a footprint of the 'old people', and means have been found which integrate it into the cosmology and the ritual practices of the group. It is in exploring these links that archaeologists can situate their work in cultural and social frameworks, and which considers issues of cultural maintenance and transformation. Further, the specific project does not need to be in an area where native title is an issue for these observations and practices to be potentially valuable to native title claimants (see also Byrne et al. 2001; Harrison 2003).

The point of the above discussion is not that these are novel observations. Rather, they are observations of the normal everyday maintenance of traditional practices and beliefs which might be potentially significant in relation to a particular project. Over time, when all 'actions' are compiled, they stand to add substantially to a body of information that does say a considerable amount about the continuity of cultural activities. This is directly linked to issues associated with native title. But for this long-term outcome to be achieved, two vital ingredients are needed: consistency in approach to the collection of data; and provision for the creation of suitable databases to allow the compilation and manipulation of such data. These need to be accessible to, and controlled by, those who would require such information in pursuit of their native title interests.

Section 39 arbitration and terms of reference

In certain circumstances, cultural heritage investigations may figure prominently in negotiations surrounding native title. The ultimate outcome of such negotiations may not be an agreement but a decision on compensation imposed by an arbitrator. This is the case, for instance, in 'right to negotiate' processes that can lead to arbitration under s39 of the Native Title Act 1993. It is instructive to examine the matters the arbitrator is required to consider in relation to the native title applicants' interests:

In s39(1) the arbitral body is required to take account of the following:

(a) the effect of the act on:

(i) the enjoyment by the native title parties of their registered native title rights and interests; and

(ii) the way of life, culture, traditions of any of those parties: and

(iii) the development of the social, cultural and economic structures of any of those parties; and

(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act ...

The Act goes on to state in s39(3) that the arbitral body must consider:

(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

These clauses seem to offer the elements for more informed terms of reference for cultural heritage studies in general, and particularly so where native title is at issue. They also situate cultural heritage studies in a broader definition of that term--and squarely in the mix of issues that will directly influence the arbitrator's decision. As a general observation, however, it is my experience that many such studies take place in the absence of any terms of reference, or where the terms of reference are deficient when measured against these requirements. This includes cases where native title conditions might involve a trajectory that ends in an arbitrated decision. This means that the resultant cultural heritage study, often concluded well in advance of recourse to arbitration, may well be silent on a range of matters directly pertinent to the deliberations of the arbitral body. It leads to one of two outcomes: either the submission placed before the arbitral body is simply silent on potentially key issues, or an expensive challenge and retrofit of the study is required.

In the former case, the native title parties lose an opportunity to assert their interests, and to advance the best-possible case to the arbitrator for reasonable compensation. In the latter case, two things can be expected. Firstly, the proponent will likely have funded the initial cultural heritage investigation. Now locked in a decidedly adversarial process, it is highly unlikely that they will want to provide additional funding to assist in developing an argument potentially detrimental to their interests. Not unreasonably, they will also ask why such things were not considered in the original design of the study. Secondly, the question will be asked as to why such things are only being raised at a very late stage in the process, and of apparent changes to the log of interests and effects submitted by the claimants to the arbitrator.

The obvious solution is to adopt a more proactive strategy. This would involve tracking the possible trajectory of a particular process through to its conclusion. The terms of reference can be couched in terms that will best address the worst-case scenario that might emerge from any particular trajectory. It might also involve a more generally reflective process, irrespective of the size or apparent significance. For instance, to what extent does a piece of work offer some opportunity to demonstrate particular practices or to add to a body of knowledge that might at some later stage prove of value to native title parties in asserting their rights? How does one plan to deal with this? What special or additional requirements might be needed or warranted in this case?

Conclusion

Implicit in the preceding discussion is a significant shift in the perceived role of professional advisers involved in cultural heritage management, including archaeology, in two distinct ways. Archaeologists as cultural heritage managers will not, and cannot, just practise archaeology. Their work will inevitably be situated in larger processes such as native title. They need to be aware of this and it is something to which they can make a significant contribution. It will, however, require them, and others, to think beyond the apparent confines of a particular discipline's interest. It also will require exploration of and forging of links with other disciplines that either do not exist or are strained (Godwin & L'Oste-Brown 2002; Godwin & Weiner, in press).

Expert witnesses in legal proceedings are, of course, 'servants' of the particular court. But far from sitting in some objective vacuum, archaeologists/cultural heritage managers will, and do, assume a function of ensuring that the interests of a particular party are best met and advanced. This may move them more towards the role of advocate. In turn this could mean that it is somewhat difficult to act for any one party (Aboriginal group or proponent) and claim a natural independence--there is a real case of potential for a conflict of interest.

This reflects what is fast emerging in Queensland, at least. Thus, proponents are recognising that they cannot appoint a technical adviser to conduct a study, which under current legislation should primarily be aimed at documenting the significance of cultural places to Aboriginal parties, and expect that Aboriginal people will presume that such a person is acting with total independence. This must be particularly so in circumstances where native title is at issue and where it is possible that matters may result in an adversarial process. Thus, now it is common to engage a person to provide them with advice, assist in structuring the process, and also to act as sounding board on which possible strategies can be explored as matters unfold. The Aboriginal party engages their own technical advisers to work with them in documenting their cultural heritage. Such persons bear a great responsibility in ensuring that the process in which they are engaged is undertaken in a fashion that will best allow their clients to assert their lawful rights and interests, remembering that now as never before what they do will potentially have profound long-term implications for those clients. Potentially, this could include, but not be limited to, the recognition of native title, the provisions and conditions of negotiated regional land-use agreements, authorisation of future acts, and the provisions of arbitrated decisions and the scale of such provisions. This, to my mind, tends to move what we, as archaeologists, do a little on from the 'everyday'.

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NOTES

(1.) I have now had several cases where some parties have challenged the need to resource production of reports documenting the results of cultural heritage investigations. They argued that as the Aboriginal Cultural Heritage Act 2003 makes no express provision for the production of reports as part of the management process, there is no requirement for this, despite what I would have thought was an obvious need both for themselves and others such as regulatory agencies, not to mention Aboriginal groups.

2. It is true that Aboriginal groups in some circumstances enter into agreements regarding cultural heritage that formally involve them in fieldwork, and providing assessments of cultural values. A brief examination of the consultation guidelines recently issued by the NSW Department of Environment and Conservation will make plain that while there is a requirement to consult, and this might see Aboriginal people employed on projects, decision making resides elsewhere, and that such decisions can be made unilaterally.

(3.) Some might say ant! role rather than an increased one; see L'Oste-Brown et al. (1998:291) where we quantitatively documented the appalling situation where, until the early 1990s, there was little to no role for Aboriginal people in the management process.

(4.) At a recent conference I attended some social anthropologists questioned whether the interest that Aboriginal people display in 'archaeological' material/places found during EIS-related research with archaeologists can equate with their interest in and concern for sacred, religious and ceremonial places that are the bread and butter of anthropologists. This issue has been addressed elsewhere (see Godwin & Weiner, in press). Changing attitudes towards tjuringa, admirably documented in Anderson (1995), might constitute another point of entry in considering this issue--for instance, to what extent is the attitude of others towards material culture influential in defining the Aboriginal response?

(5.) The orthography used is provided in Nancarrow (n.d.).

(6.) A small cottage industry also sees some items sold to teachers in the local school and to the occasional tourist.

(7.) The term 'old people' is generic in nature and in Central Queensland, at least, applies to all ancestors who have passed away and now returned to their country to watch over and manage that country. They can assume both a benign and malevolent role depending on circumstances. People take special care to act appropriately so that 'old people' will not have reason to discipline someone. Talking to country on arrival is common to introduce newcomers to the 'old people'. The 'old people' often visit camps to see who is on country and to watch over them. Smoking using sandalwood or other rituals is sometimes practised when leaving country to make sure the 'old people' do not accompany the traveller.

Luke Godwin

Central Queensland Cultural Heritage Management

Luke Godwin is Director of Central Queensland Cultural Heritage Management. He is active in cultural heritage management in Queensland and New South Wales, with particular reference to resource extraction and large-scale infrastructure development. A significant component of his practice is the provision of strategic advice on project design and management to a wide range of Aboriginal organisations and development proponents.
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Author:Godwin, Luke
Publication:Australian Aboriginal Studies
Geographic Code:8AUST
Date:Mar 22, 2005
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