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Western Australia's Aboriginal heritage regime: critiques of culture, ethnography, procedure and political economy.

Abstract: Western Australia's Aboriginal Heritage Act 1972 (WA) and the de facto arrangements that have arisen from it constitute a large part of the Aboriginal "heritage regime' in that state. Although designed ostensibly to protect Aboriginal heritage, the heritage regime has been subjected to various scholarly critiques. Indeed, there is a widespread perception of a need to reform the Act. But on what basis could this proceed? Here I offer an analysis of these critiques, grouped according to their focus on political economy, procedure, ethnography and culture. I outline problems surrounding the first three criticisms and then discuss two versions of the cultural critique, I argue that an extreme version of this criticism is weak and inconsistent with the other three critiques. I conclude that there is room for optimism by pointing to ways in which the heritage regime could provide more beneficial outcomes for Aboriginal people.

Introduction

The main objects and purposes of the Aboriginal Heritage Act 1972 (WA) (the AHA) make it unlawful to disturb Aboriginal heritage sites and objects in Western Australia. The AHA and the de facto arrangements that have arisen from it constitute a large part of the Aboriginal 'heritage protection regime'. The legislation was ostensibly to protect Aboriginal heritage but has come under scholarly criticism and public protest as having negative and destructive effects on the sites and objects the AHA was meant to protect. Thus, many people interested or involved in Aboriginal affairs perceive that the AHA requires reform. In this paper I outline the basis on which reform might proceed by analysing four critiques of the AHA. Although separating out and considering the different critiques can be analytically useful, no author, to my knowledge, has attempted this. Also, while most studies have considered only the negative aspects of the arrangements, I argue that the Aboriginal heritage regime in Western Australia can also offer benefits to Aboriginal people.

I begin by describing Western Australia's Aboriginal heritage regime. Then the four critiques are outlined. I subsequently argue that the 'cultural critique', in its two versions, is inconsistent with the others, and, in its extreme form, is the weakest. By contrast, the critiques of political economy, procedure and ethnography provide a clearer insight for reform of the overall heritage regime. Finally, I consider possible benefits of the heritage regime in terms of what they do offer Aboriginal peoples. By considering both the benefits and the weaknesses of the criticisms, this analysis is intended to contribute to a more nuanced understanding of the benefits and shortcomings of the heritage regime in Western Australia and to point to ways in which reform might develop in that state and elsewhere.

Context of the Aboriginal Heritage Act

Western Australia has attempted to protect the heritage of Indigenous people through the AHA, which makes it unlawful to disturb Aboriginal heritage sites and objects without ministerial approval. The AHA created three new offices: a Minister responsible for the administration of the Act, including deciding on developers' applications to disturb Aboriginal heritage; the Aboriginal Cultural Materials Committee (ACMC), advising the minister on such applications; and the Registrar, who records Aboriginal heritage sites and objects. The law and its offices have given rise to a number of formal and informal institutions and practices in Western Australia amounting to what could be referred to as the 'Aboriginal heritage regime'.

All laws operate in a social context, and the social conditions of Western Australia's Aboriginal population provide part of the AHA's contemporary context. Since the 1829 founding of the English colony in Western Australia, Aboriginal people have fought, been massacred, dispossessed and displaced, have assimilated and struggled against colonisation, and have resisted the state's separation of children of mixed descent from their Aboriginal mothers (HREOC 1997). Aboriginal people continue to live with what is arguably the legacy of these conditions: higher than average levels of imprisonment, illness, malnutrition, poverty, substance abuse and crime, and lower levels of health, employment, housing and education than the rest of the population (Dodson 1991; Langton 2011). The heritage regime is part of a new era, established since the 1970s, dedicated to recognising and ameliorating these conditions but criticised as part of even more efficient methods of control under the label of 'multicultural' policies (Povinelli 2010).

The AHA also operates in a legal context. Other Australian states and territories have enacted similar heritage acts or sections within other acts. Principal among these are the Heritage Act 2004 (ACT), Heritage Objects Act 1991 (ACT), Heritage Act 1977 (NSW), National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW), Aboriginal Sacred Sites Act 1989 (NT), Heritage Conservation Act 1991 (NT), Aboriginal Cultural Heritage Act 2003 (Qld), Torres Strait Islander Cultural Heritage Act 2003 (Qld), Aboriginal Heritage Act 1988 (SA), Aboriginal Relics Act 1975 (Tas.), Aboriginal Heritage Act 2006 (Vic.) and Heritage Act 1994 (Vic.). All these are ostensibly intended to protect Aboriginal heritage.

At a national administrative level, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was designed as a 'safety net' to protect Aboriginal heritage in the event that the legislative provisions of states and territories fail to do so. However, this Commonwealth legislation 'has only been used very sparsely' (Ritter 2006:139). Moreover, it is possible that Aboriginal heritage in Western Australia could be protected by more general heritage legislation (which also covers non-Aboriginal heritage), such as exists at state, federal and international levels. For example, an activist group is currently advocating for Aboriginal heritage on the Burrup Peninsula to be included in UNESCO's World Heritage List.

The final aspect of the legal context is the Native Title Act 1993 (Cth), referred to here as the NTA. The NTA is a federal Act designed to provide legal recognition of traditional rights to, and interests in, the land and sea. it overlaps with some aspects of Western Australia's heritage regime (Ritter 2006). Under the NTA, Native Title Representative Bodies often represent the heritage interests of local Aboriginal groups. Also, while most of Western Australia's heritage regime relates to the AHA, heritage surveys are also conducted in relation to the NTA. Under the NTA, developers wishing to develop land or water that is the subject of a native title claim can come to an arrangement under the 'future act provisions'. The word 'act' here does not refer to legislation, but to an action or development in that area which might or will affect the native title interests of Aboriginal claimants. Thus, Aboriginal native title claimants have a limited statutory right to negotiate with the developer about proposed actions or developments in the area under a registered native title claim. A future act agreement is often reached whereby the developer agrees to undertake, for example, more extensive heritage surveys (though each developer is not obligated to do so). It all hinges on what Aboriginal groups can negotiate with each developer.

Aboriginal Heritage Act

The AHA does not explicitly define the word 'heritage'. Nevertheless, a definition can be gleaned from the long title, which stipulates that the AHA preserves 'places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants'. It would thus seem that if Aboriginal people or their descendants have put a place or object to customary or traditional use, that place or object can be construed as 'heritage'.

The AHA protects places and objects possessing such heritage by making it illegal to disturb them without the Minister's approval (Section 17). Developers in Western Australia, whether replacing an existing building in the middle of the capital or building a fence in the outback, could disturb an Aboriginal heritage site or object (either known or unknown). If they are aware that a site or object will be disrupted, but wish to proceed with the development anyway, they must apply for ministerial consent. Such an application is commonly called a 'Section 18'. The term comes from Section 18 of the AHA, which states that the Minister can approve the development regardless of overall destruction or damages to the Aboriginal heritage site. Although most applications for 'Section 18s' are approved, they are often subject to conditions.

These are the important de jure or legal aspects of the AHA. Nevertheless, like most laws, the AHA also brings along with it many de facto arrangements, which constitute a large part of Western Australia's Aboriginal heritage regime. In particular, developers, Aboriginal groups and anthropologists have established an informal set of constantly evolving practices, not specifically legislated for in the AHA, but created with the intention of avoiding violation of the Act.

One of these practices is the informal division of labour--archaeologists record objects while anthropologists record sites. Thus, a midden or stone artefacts, if they are not deemed to be significant to Aboriginal people, are deemed to be 'objects' and are the concern of archaeologists. 'Sites' are deemed to be features of the physical landscape (including sacred sites associated with Dreaming stories)--places Aboriginals have used in ritual or in customs, and places not necessarily important for Aboriginals but important for scholars (such as historians and archaeologists). These are the concern of anthropologists (Dix 1978; Evatt 1998).

This informal distinction between places and things is problematic. The tangible and intangible elements are frequently inter-linked. Many archaeologists record sites and landscapes that contain 'objects' with social significances. For example, an outcrop of jaspilite near Yeelirrie is the 'Anthill Dreaming place', but the site also incorporates 'numerous flakes ... near the base and on the lower slopes' of the outcrop, which may not be important to contemporary Aboriginals (Aboriginal Sites Department 1978:93). There is thus a combination of object and site in the one place. Conversely, objects can be the concern of anthropologists. Among the Mardu, some (sacred) 'stones are revered as metamorphosed parts of the bodies of ancestral beings or as objects owned and carried by them' (Tonkinson 1991:127). In other words, sites and objects are often inter-related.

Regardless of its theoretical validity, a distinction between objects and sites is maintained in practice. The remainder of this paper is concerned only with anthropologists, sites deemed to be 'heritage' sites and the practices associated with them.

Role of anthropologist

Anthropologists are often involved in informal, non-statutory practices, such as ethnographic heritage surveys and subsequent arrangements between developers and traditional owners, as local Aboriginal representatives are called. Basically, a ethnographic heritage survey is undertaken to determine whether there are heritage sites in any given area, usually incorporating fieldwork in that area. Initially, the anthropologist undertakes desktop research to determine if the Registrar, or any other survey or source, has recorded any sites in the area. This is followed by fieldwork.

The fieldwork team for an ethnographic heritage survey usually includes local Aboriginal representatives, a representative(s) of the developer and one anthropologist. Current practice decrees that when a site is identified, the anthropologist takes GPS (global positioning system) co-ordinates, records some of the physical features of the site and some of the cultural aspects of the site (depending on issues of sensitivity), and recommends an 'exclusion zone'--an area surrounding the site which may not be entered. In response, the developer is encouraged but not mandated to, if necessary, alter the development plans to avoid the identified sites, negotiate with local Aboriginal people to come to some kind of agreement or apply for a Section 18. The ethnographic heritage survey in these situations is an informal arrangement which has become accepted as 'the way things are done'.

Currently, 'appropriate' action is to undertake a heritage survey. It is important to recognise that these surveys are not legislated for and the state offices (Minister, ACMC and Registrar) need not become involved if no sites are identified. Rather, the government and other large developers are expected to know that their developments might affect Aboriginal heritage sites under the AHA and act appropriately. Some Native Title Representative Bodies established under the NTA have attempted to codify these practices in the form of regional heritage agreements, which set out 'minimum procedures', particularly for prospectors, but development usually proceeds through private agreements (Ritter 2006:134, 140). This case-by-case principle has prompted Ritter (2006:140), perhaps the foremost scholar of the NTA and the AHA, to critique legal heritage arrangements as an 'ill-fitting pastiche'. But to a certain extent the ad hoc nature of surveys and agreements has allowed both resource interests and Aboriginal people to, as Ritter (2006:132) himself notes, 'adapt to the institutional circumstances in an opportunistic nature'. Thus, the heritage regime is a set of ad hoc practices established by organisations representing Aboriginal people, developers and anthropologists and based around the AHA. So how effective is the AHA and the heritage regime in protecting Aboriginal heritage? To answer this, we could look to criticisms of the AHA, as well as possible benefits.

Criticisms of the AHA

Research has focused on weaknesses in the AHA from the perspective of preserving Aboriginal culture and wellbeing. A common finding is that the Section 18 provisions allow for the legalised destruction of heritage. Critics note that Section 18s are usually approved, allowing the developer to disrupt heritage. For example, in the period 10 February 2001 to 5 September 2007 developers made 581 applications to undertake work that might disturb Aboriginal heritage sites or objects. Of these, 488 applications were considered by the ACMC and the Minister, and the ACMC recommended the Minister refuse only 12. In eight applications, the Minister did not follow the ACMC recommendation and used discretion to allow the disruption of Aboriginal heritage. Thus, of 488 applications considered by the ACMC, heritage was disturbed 480 times. From an Aboriginal perspective, the AHA appears, like other states' heritage laws, to be relatively 'toothless' (Tonkinson 1997:22).

Nevertheless, several factors may mitigate, somewhat, the apparent destruction of heritage. Approvals may be conditional, or stone artefacts may be moved (which will happen anyway when archaeologists pick up stone artefacts to analyse them during surveys), or a rather arbitrary 'exclusion zone' of 500 metres around a site might be slightly breached by a development. The approval may amount to legalised disruption rather than destruction. This may mitigate the apparent legalised destruction of heritage, but the extent is debatable.

Assuming that the wrong decision had been arrived at in at least some of the 480 occasions, what has been the problem? Scholars have raised four areas of criticism in relation to the AHA's negative impact on Aboriginal culture and wellbeing. These are political economy, administration and procedure, ethnography, and culture. Even though in most publications several or all of the critiques are at least implied, it is worthwhile, for the sake of analysis, to separate them out, considering each in isolation.

Political economy

The political economy perspective holds that development (particularly resource) interests and political power are closely aligned and inimical to Aboriginal heritage. Resource extraction, in particular petroleum (oil and gas), iron ore, nickel and alumina, has boosted Western Australia's economy generally by providing employment, taxation revenue and infrastructure. However, resource development--involving prospecting, building mines and associated infrastructure can infringe upon Aboriginal 'heritage development'. Examples of this approach can be found in several authors' works. 'Within the political of the resources industry', Ritter (2006:125) writes, Aboriginal 'heritage has proven to be a highly volatile issue because of its potential to impede development'. Similarly, Moore (1999:236) observes that in 'a state so dependent upon the extraction of mineral resources' there is pressure for the Minister to value development above heritage. (For Moore, this political economy has ramifications for ethnographic practice, and this is an example of how, as discussed below, the various critiques overlap.) As more evidence of political economy, one need only point to scandals of the 1970s and 1980s. For example, in the Noonkanbah and the Swan Brewery (Chaloner 2004:134-42; Churches 1992) controversies, pro-development members of government actively sought to promote development interests over Aboriginal heritage. In sum, the critique argues that the AHA as drafted and as implemented provides less protection to Aboriginal interests than it should, because of the perceived pressure on the government to favour expansive development.

Law: administration and procedure

The critique on procedural and legal grounds is more complex. With regard to the powers of the Minister, as stipulated in Section 18, the Minister can decide (in the 'interest' of the broader community) which Aboriginal sites can be destroyed or damaged (McDonald 1981:232; Moore 1999:235). The process is not transparent, as the Minister does not need to provide any detailed rationale for decisions (Dillon 1983:500). On the basis of these observations, the argument has been made that the AHA has effectively 'become a checklist of procedures to be undertaken before a rubber stamp can be placed on a development proposal, absolving both government and developer of any responsibility' for disturbing heritage sites (Chaloner 2004:v).

Critics have also focused on the composition of the ACMC, which advises the Minister. Some ACMC members are appointed by the Minister, so the committee is perceived not to be independent of the Minister. The quorum for an ACMC meeting is five members. Two of these must be ex officio members, the other three could be appointed by the Minister. Furthermore, no position on the ACMC is reserved for Aboriginal representatives, unlike the requirements of the Northern Territory and Victorian Aboriginal heritage committees (Evatt 1998). In practice, there have been Aboriginal members of the ACMC, but this is not formalised, and at least one activist, the late Robert Bropho, accused the Aboriginal members 'of having White interests at the forefront of their thinking' (Churches 1992: 9).

A personal criticism of the ACMC, but one which is shared by others, is that it is difficult to obtain much detail on the workings of the ACMC and the Minister's decision making. The bits and pieces of data evident in this paper were only obtained with difficulty through information gained in parliamentary question time. Nevertheless, the significance of the ACMC should not be exaggerated. It merely provides advice that the Minister does not always heed.

Another point of criticism on legal/procedural grounds is the lack of a role for Aboriginal people; they are conceived of as 'mere "informers"' (Saylor 1995). While a developer can appeal a ministerial decision (Saylor 1995), the AHA provides Aboriginal people with no authority for special appeal to the ACMC or the Minister (Kerwin and Leon 2002). The lack of access among Aboriginal groups or an individual to equitable legal advice and financial resources can also mean they lack adequate representation when confronting a major developer. Thus, the role of Aboriginal people expected under the AHA seems limited to providing information during ethnographic surveys (Ritter 2003:199; Saylor 1995).

Other criticisms on procedural/legal grounds focus on sites. The registrar had registered more than twenty-four thousand sites at 30 June 2007 (Department of Indigenous Affairs 2007). There is disagreement among scholars on the definition of 'site'. Some scholars suggest that 'site' is 'very broadly defined' (McDonald 1981:228; Moore 1999:234). Perhaps this ambiguity allows for recognition of a wider variety of sites. Others suggest the definition is limited--the AHA gives 'limited recognition to custom and tradition' compared to other Australian states/ territories (Evatt 1998:4) and serves largely for the 'conservation and preservation of selected tangible objects' (Dix 1978:90-1), as opposed to their continuing ritual and other use by local Aboriginal people.

Part of the problem probably relates to the definition of 'importance' with regard to sites. Each definition of 'site' in the AHA hinges on notions of 'importance' (and 'significance', which is treated as a synonym), either for the state in general or for Aboriginal people in particular. Defining 'important' for the 'State' of Western Australia (which represents Aboriginal and non-Aboriginal populations) creates problems because it reflects a larger and more culturally diverse population than just the Aboriginal population, with, most probably, a wider range of views about what should be considered 'important'. It would be less ambiguous if it could be argued that things important to Aboriginal people are important to the state, and vice versa.

We could limit our enquiry on 'importance' to Aboriginal people. For many Aboriginals, potentially all land could be considered important and thus a 'site', even though some areas are more (or less) important. Yet the level of importance is not necessarily shared by all members of an Aboriginal group. Furthermore, as with the Coronation Hill and Hindmarsh Island affairs, it is argued that values within Aboriginal communities are not static but are 'continuously changing', so a site might increase or decrease in importance (Dix 1978:85-6). Finally, determining the extent and exact location of a site is complicated. For example, Dix (1978:84-5) recalls a case in which an exploration company wished to drill in a location where a mythological creature went underground. A question arose; how deep is it possible 'to drill without interference?' Similar problems arose in relation to Coronation Hill (Weiner 1997:7). Thus, aside from 'site' itself, the law is felt to be inadequate to stipulate what 'important' means in the context of Aboriginal heritage.

Aside from the question of importance, it is also crucial to understand for whom the AHA protects Aboriginal heritage. The long title of the AHA stipulates that the preservation of heritage is 'on behalf of the community', so the fundamental principle is that the heritage is protected for the sake of Western Australians, not just local Aboriginal people.

This seems to accord with judicial interpretations. The AHA also instructs a committee which advises the responsible minister to 'evaluate' sites 'on behalf of the community' (Section 39(la)). In the Supreme Court case related to the Swan Brewery affair (Western Australia v Bropho (1991) 5 WAR 75), Judge Anderson found that 'the provisions of the Act were passed for the benefit of the whole community' (Saylor 1995:9-10).

Community interest could be interpreted in 'simple economic terms', but it could also be argued that Aboriginal heritage is in the state's interest (Berndt 1969:37-8; Chaloner 2004:14-15). Regardless, the AHA has been interpreted as preserving the heritage of Aboriginal people for the 'community' or 'state', presumably including Aboriginal people. According to its wording, the AHA is actually more concerned with the rights of the 'general community' than the rights of Aboriginal people specifically.

Another criticism is that there is inadequate protection of sites. The AHA makes little provision for protection of sites, and in any case the large number of sites and their remoteness make invigilation of sites difficult to provide, meaning they can be disrupted (Crawford 1979:471; Wright 1979:380). Furthermore, after sites have been disturbed there is inadequate enforcement of law (Evatt 1998). Particularly in remote areas, where the disruption may have occurred years previously, the statute of limitations may become an issue. Hence, to date there have only been five successful prosecutions when disturbance has occurred.

Finally, Chaloner (2004:241-2) argues that the AHA is self-contradictory, guaranteeing the rights of Aboriginal people in relation to important sites, yet allowing these rights to be infringed upon. Put another way, approval of Section 18 applications may contradict Section 7, which states that 'in relation to a person of Aboriginal descent who usually lives subject to Aboriginal customary law...this Act shall not be construed ... so as to take away or restrict any right or interest held or enjoyed in respect to any place or object to which this Act applies.' Thus, the AHA guarantees Aboriginal rights over sites in Section 7 but can take them away through Section 18. However, Section 7 seems to say that the overall effect of the Act is not to diminish the rights of relevant Aboriginal people. So in the absence of the AHA, Aboriginal people may have rights under native title determinations or under the NTA's future acts regime or under some private arrangement or under their own 'mainstream' property rights or under common law rights. These rights, Section 7 apparently asserts, are not diminished by the AHA. Section 18 exemptions have the effect of removing the additional protection to Aboriginal heritage provided by the Section 17 offences, so there is no actual contradiction in the Act's own terms. Further, it would not be accurate to describe any benefit the AHA gives to traditional owners as 'rights'. So the idea that the AHA is self-contradictory, in the manner suggested by Chaloner, is problematic.

Ethnography

Aside from issues associated with procedure and administration, critiques of the AHA also focus on the process of recording sites--ethnography. The ethnographic critique invites us to look critically at a practice which employs many anthropologists. One aspect of the ethnographic critique is that important information is not being passed to the anthropologists. This can happen when Aboriginal informants are unwilling or unable to divulge important cultural information to anthropologists (Campbell-Smith 1995:72; Crawford 1979:471; Dix 1978:88-9). Also, anthropologists might be concerned to find 'secret sacred' sites associated with the knowledge of older initiated men, but overlook 'secret sacred' sites associated with women's knowledge. Anthropologists might also overlook different kinds of site such as a stone quarry or a midden because members of the survey team, accustomed to thinking that anthropologists only look for 'sacred sites', do not inform the anthropologist about them.

Similarly, important information can also be missed if the right people are not consulted or when the Aboriginal informants are not necessarily representative. The informants may be Aboriginal people who are not associated with important sites. Or it may be that women or younger men have not been consulted. In one documented case (Liberman 1980:129), informants were 'part-European' and not 'traditionally-oriented'. Or they might be younger men, not Elders (Chaloner 2004:143). Thus, disputes over the heritage value of a site can sometimes be traced to the selection of informants.

Another related aspect is 'rapid ethnography'. Currently, consulting is conducted because a developer wants to use the land (Dillon 1983:501). Also, the surveys are often undertaken in a short time--they have become a form of 'rapid ethnography' (Birckhead 1999). Research is thus done 'in the shadow of a bulldozer's path' (Berndt 1984:16). Trigger (cited in Moore 1999:247) has argued that long periods of time need to be spent in the field--typically ethnography requires one year to participate and observe through the seasons and annual ritual. Yet Brunton (cited in Moore 1999:247) argues that long-term association makes anthropologists indebted and emotionally tied to the people they live with--in other words, they lose their independence of judgment. With so many planned developments and so few anthropologists, long-term association might limit the number of sites recognised and retard the progress of developments where there is no threat to heritage. Finding anthropologists willing to commit to long periods in the field, and developers with sufficient resources to sustain long-term research, might also be difficult. Whether preferable or not, the dilemma of rapid versus long-term ethnography has been well documented (Birckhead 1999).

A further issue is the independence of the anthropologist. Legally, the anthropologist must be thought of as an independent expert. The anthropologist is constructed as being a neutral, objective observer, located between the developer and the Aboriginal group. If this principle does not override pressure or sympathy, the anthropologist's report is of little legal value either to the Aboriginal people or to the developer. Nevertheless, these days most anthropologists question the idea that anthropologists can objectively record culture (Clifford 1986).

A related issue is whether anthropologists are captive. In other words, the context in which the anthropologist works provides different experiences, concerns and demands, and ultimately perhaps yields different understandings. Moore (1999:236) has focused on the anthropologist as consultant who is 'at the mercy of nature and the economics of the resource development industries'. As Austin-Broos (2008) notes, anthropologists have become part of an economy - in this case, one centred on mining. According to Moore (1999:236), there is a pressure for anthropologists to be 'someone from industry'. To do a heritage survey, the mining company commissions a local Aboriginal organisation, which, in turn, usually hires an anthropologist or uses one who is 'in-house' (that is, an employee of an Aboriginal organisation such as a Native Title Representative Body). The criticism here is that anthropologists will not make findings that are adverse to the company (Morgan et al. 2006). Furthermore, ethnographers I spoke to fear litigation and may face payment of court-awarded damages if a site they have identified as a heritage site is subsequently proven not to be so. Capitalist relations--such as the indebtedness of the consultant to the employer--are thus significant.

Yet other issues may mitigate this effect. First, the developer may not be a large mining company or even a capitalist enterprise, strictly speaking. Struggles over heritage between Aboriginal groups and miners sometimes represent 'David and Goliath' battles between cash-strapped community organisations and multinational companies. However, large multinationals have been under significant shareholder pressure to show they are 'friendly' to the environment and 'Indigenous' populations. Anecdotal evidence also suggests that smaller developers, as much as the large multinationals, exert pressure to lower heritage standards.

Moreover, not all heritage applications come from the mining industry. In 1992-93 most applications were not from mining. Of 43 Section 18 applications, 37 percent were for mining, 26 percent were for residential/ commercial and 37 percent were for government infrastructure. In September 2010 alone the ACMC considered applications from mining companies as well as a power company, the government roads department, a town council and an airport corporation (Department of Indigenous Affairs 2010). The AHA seems to have the most impact on the mining industry, perhaps because this industry is undertaking most of the development in areas where there are still recognisable Aboriginal sites. However, focusing only on mining provides a narrow understanding.

Second, the developer is perhaps the most influential, but not the only, party with whom the anthropologist interacts. As Campbell-Smith (1995:3) has demonstrated, anthropologists have 'multiple and potentially conflicting responsibilities' to their peers (other anthropologists), Aboriginal informants, Aboriginal organisations, the Department of Indigenous Affairs and developers. Although payment ultimately comes from the developer in most cases, the direct employers of the consultant are frequently Aboriginal people or representative organisations. If the anthropologist makes findings adverse to the commissioning organisation, s/he might expect not to be hired by that organisation in the future.

Influence or pressure also emanates from peers. Some anthropologists have seen themselves as voices for the powerless, not the powerful, and as advocates and defenders of Indigenous-people's interests (Keen 1999). Indeed, there is often 'a desire to be viewed as "radical"' (Morton 1998:362) or, if not radical, anthropologists 'saw it as their task to defend and advocate' for Aboriginal groups (Austin-Broos 2011:143). Given the popularity of advocating Aboriginal interests and given that mining companies, in particular, are unpopular, supporting the position of the developer risks social disapproval from other anthropologists, a drop in social status and possibly a lesser chance of peer-selection for future employment. Nevertheless, some might turn their backs on this status issue, preferring the money and alternative status that might come from being 'someone from industry' (Moore 1999).

Third, the position of the anthropologist may allow some 'insulation' from the commissioning body. As Moore (1999:248) suggests, university-or museum-employed anthropologists who undertake contract ethnographic surveys can be more shielded from 'industry' pressures. For some anthropologists, surveys are but one source of income. So it would be an exaggeration to see the anthropologist as merely captive to the mining company.

Culture

Cultural critiques are motivated by a deep concern for the damage conquest and colonisation have brought to Aboriginal communities. One version of the cultural critique stresses the incommensurability of 'white' and 'black' worlds; the other version of cultural critique stresses their encapsulation within white or state ways of thinking and practicing.

Considering the incommensurability version first, this holds that the experience of Aboriginal people is radically different. Some classic statements on the topic of 'country' give some indication of what 'lived experience' refers to. Stanner (1972:271) noted that there is a 'oneness' between a living person and inanimate objects, as when an Aboriginal person 'tells you that the woolly-butt tree, his totem, is his wife's brother'. Munn (1970:146-7) describes how a person, his ancestors, his body and his country are all linked. More generally, Rose (2005:302) argues that Western ways of thinking differentiate humans from other living beings, whereas Aboriginal subjectivity is located also in other species and perhaps even in the country itself.

The next premise of the cultural critique of incommensurability is that Western notions like 'heritage' fail to do justice to this. For instance, the AHA defines heritage in terms of places and objects. Heritage is seen as consisting only of 'bones and stones', and, as the argument goes, reduces cultures to curios and objects or condemns them as static (Kerwin and Leon 2002). In this vein, Dillon (1983:496) criticises the AHA's treatment of heritage as ethnocentric. Ritter (2003:196) also observes that 'Suggesting any definition of heritage requires a compartmentalisation of Indigenous culture that may be neither appropriate nor possible on its own terms'; for these reasons, Ritter doubts whether a definition of heritage 'should even be attempted'. What ties these ideas together is an opinion that the traditional Aboriginal cultures, to which the AHA addresses itself, do not have a Western concept of heritage.

It is further argued that laws like the AHA, while allegedly ameliorating the damage, in fact impose non-Aboriginal values onto Aboriginal culture (Dix 1978:91; Kerwin and Leon 2002; Ritter 2003:196n). The AHA 'frames Aboriginal interests in land as a heritage and scientific issue rather than one concerning indigenous people and either their economic or custodial relationship to land' (Campbell-Smith 1995:17). Thus, it will fail to protect values that matter to Aboriginal people. As Ritter (2003:203) notes, 'Indigenous feelings' and understandings regarding land, sea and so on are 'alien and unknowable to non-Indigenous society on their own terms'. Thus, the incommensurability position posits that Australian law such as the AHA is unable to reflect or comprehend Indigenous conceptions. Protecting heritage is said to be impossible on the premise that Aboriginal feelings about land cannot be encapsulated in the term 'heritage'.

The incommensurability version of the cultural critique also holds that Aboriginal life is formalised and codified in the heritage protection process, disempowering Aboriginal people. Ritter (2003:203) argues that documentation of sites means that dynamic, oral Aboriginal knowledge becomes a static, ahistorical written document. This 'changes their nature' and is a 'further colonisation' (Ritter 2003:205-6). More generally, codified knowledge about Aboriginal 'sites and places' stops them from being 'beyond control' (Ritter 2003:207), making it easier to govern Aboriginal people. So as more 'heritage' sites are identified, Aboriginal people are divested of more power. The AHA is 'an instrument for the ongoing colonisation and subjugation' (Ritter 2003:208). The heritage regime thus changes beliefs and practices so that they become more controllable.

Put another way, according to the incommensurability version of the cultural critique, the state recognises heritage in ways that frustrate Aboriginal people, as well as anthropologists. One example of this is the appeal to essentialised images of Aboriginal life. Particularly in native title, but also present in heritage claims, is a pressure to present Aboriginal societies as static, bounded entities at one with nature and having strong continuities with the ancestors in the form of traditions and heritage. A better arrangement, this critique implies, would be one in which traditional owners, though not necessarily native title holders, were empowered to make decisions about activities on land without having to justify those decisions in narrow 'heritage' terms. But this begs the question of what term or terms would replace 'heritage'.

A more extreme take on the cultural position of incommensurability is that all attempts to protect heritage are deleterious. This position draws on ideas of governmentality and neoliberalism. With governmentality, the basic idea is that state programs, ostensibly designed to improve people's lives, in fact allow the state to infiltrate mundane and private aspects of life and make people more easily governed. With neoliberalism, the idea is that all policy can be reduced to numbers and statistics. The state is progressively privatised and the market determines all values, to the extent that other factors, such as quality of life, are lost (Povinelli 2010).

The apparent concern for Aboriginal welfare could be seen, using Bourdieu's terms (in Wacquant 2009:289), as the Left hand of the state, which manifests in 'public education, health, housing, welfare, and labor law' and other 'social functions' such as a heritage protection regime; this cannot be understood without consideration of the Right hand, which is charged 'with enforcing the new economic discipline via budget cuts, fiscal incentive, and economic deregulation' and, in relation to the AHA, land for development and mining. Both 'hands' of the state are ultimately tied up with the 'penal treatment' of marginal people dislocated in the capitalist system (Wacquant 2009:289).

Thus, using Povinelli's (2002) 'cunning recognition' approach, we could see the AHA as a product of a liberal, multicultural regime. Such regimes are ostensibly concerned with laws and rights in order to embrace cultural difference within the nation. The 'recognition' of 'heritage' that such a regime provides is 'cunning', as it makes Aboriginal people (and anthropologists who represent them) construct their beliefs and practices so that they are recognisable to the government. Even if Aboriginal people have the ingenuity to succeed in doing this, often their claims for legal or other rights are unsuccessful. 'Cunning recognition' describes how the state and other bureaucracies present a self-serving picture of Aboriginal culture. Cowlishaw (1986) also argues that this vision of Aboriginal as traditional, black and ancient stands in contrast the reality of 'black' resistance. Thus, it is argued that 'white' ways of knowing create an artificial representation of Aboriginal life.

The cultural critique of the West Australian heritage regime from an incommensurability perspective, which I have outlined, has several weaknesses. First, Aboriginal people are not only victims of this process. It is possible that Aboriginal people can use the 'cunning' or 'essentialised' idea of a timeless, traditional society to their own ends. Knowing what anthropologists or developers are looking for, some Aboriginal people have become proficient at providing this kind of picture. For example, in order to convince the developer or the ACMC of the value of a site, it might be more effective to appeal to the picture of a timeless society bound up in traditional ways and in harmony with nature. For instance, I witnessed one ethnographic heritage survey in a semi-urban area in which traditional owners wished to express their concern about the replacement of a water bore. They had numerous reasons to be concerned, including the possibility that the replacement would only encourage more housing development in the general area. Nevertheless, it was strategic to present their case in terms such as 'our ancestors would have used that area over there for camping'. This is similar to what Spivak (1985) calls 'strategic essentialism'--a marginalised or disempowered group using an essentialist identity formerly associated with oppression (for example, 'in essence, the Aboriginal is an ancient hunter-gatherer steeped in the way of his ancestors') but for a specific political purpose (for instance, to disrupt a development plan, or protect a site).

In as much as this is a form of essentialism, it could be argued that my objection in fact confirms, rather than refutes, the cultural critique. But it should be noted that, first, Aboriginal people are not merely passive subjects in this process, but can be seen to advance their own ends by 'buying in', temporarily at least, to a static 'living museum' view of culture. Even if, contrary to my argument, it is not a temporary measure, it could nevertheless be seen that, to a certain extent, non-Aboriginal and Aboriginal Australia have together constituted what it is to be Aboriginal or not. Put another way, 'cunning recognition' and 'strategic essentialism' could be seen as two sides of the same process.

Second, the cultural critique of the heritage process relies on an idea of radical distinction between non-Aboriginal and Aboriginal culture, an idea which has limited application today. The adherents to the cultural position do not explicitly state this radical distinction; however, their arguments are predicated on it. We can see it apply in certain contexts. For example, in the 1970s in Western Australia the last traditionally living Aboriginal people, who had never met non-Aboriginal people, made contact with non-Indigenous Australians. it seems undeniable that these people looked at the world in a radically different way, despite their acquisition and use of items of material culture derived from the wider society. Yet, today, many Aboriginal people have high levels of familiarity with non-Aboriginal Australian culture--and this is an increasing trend. Many Aboriginal people are, for example, more fluent in English than in an Indigenous language. Some live in 'mixed' or hybrid worlds in and around 'white' and 'black' cultures. For example, in the majority of Indigenous births in 1998 in Australia, only one parent was Indigenous (Birrell 2000:65). More specifically, in the 2006 census more than half of the Indigenous people in Perth (Western Australia's capital) were partnered with non-Indigenous people, while outside of Perth the figure was about a quarter (Heard et al. 2009:4). Thus, radical difference applies in increasingly few contexts.

Third, even if there is such a wide cultural gulf, denying meaningful interaction is problematic. What I am calling 'the cultural position of incommensurability' requires an extreme relativism or particularism--the idea that each culture has values and understandings that can only be understood with reference within a single cultural world. Relativism or particularism has had a long debate with universalism as to the possibility and extent of cultural commensurability and interaction (Kahn 2003; Madden 2006). With specific reference to Aboriginal Australia, some research indicates that there is a great deal of communication across the cultural divide. Even if we grant that the distinction of two worlds, Aboriginal and non-Aboriginal, could once have been maintained, it is currently relevant in increasingly limited contexts. Interaction is a reality as neither 'black' nor 'white' societies are bounded or closed systems (Morton 1998:370). Moreover, the interaction can be 'positive'. The primary example of this is intercultural marriages and the mixed families they create. Racism and misunderstanding may characterise the relationship between two different worlds in some contexts, but this is certainly not the only story. Further, within both Aboriginal and non-Aboriginal worlds, opinion varies greatly with regard to heritage. Not only in the Coronation Hill and Hindmarsh Island cases but in more recent controversies in Western Australia, there have been pro-development 'blacks' opposed to pro-heritage 'whites'.

Fourth, the cultural approach tends to emphasise continuity in historical experience (that is, of an ongoing colonisation) rather than change. Hence, Kerwin and Leon (2002) note that the English 'discoverer' of Australia, Captain Cook, had 'no words to describe the Aboriginal landscape', and they see this as relevant to explaining the heritage situation today. But it is anachronistic to assume that an eighteenth-century style of colonisation applies today. Furthermore, the 'frontier' model of violent relations between black and white worlds is an accurate historical depiction in many contexts, even recent contexts (Cowlishaw 1994), but it does not tell the whole story. Thus, the culture critique overlooks the changing contexts of Aboriginal and non-Aboriginal interaction.

The fifth point is that while translation is never perfect, it is, nevertheless, possible. As Geertz (1973) demonstrates, a perfect translation or interpretation is impossible, but it may not be needed. At a pragmatic level Aboriginal people want some sites, often termed sacred or secret, to remain unknowable. Yet, without actually understanding the deeper significance of a certain tree, one can say that a tree is a heritage site and can provide the tree with what little protection the AHA affords. In practice, anthropologists put squares and circles on 'white' maps of Australia, the recta-message of which is 'don't disrupt anything in these areas, because if you do you may break the law'. Even if a non-Aboriginal person does not understand the significance of these areas, at least the areas can be protected under the banner of heritage site. As Tonkinson (1997:16) points out, anthropologists translate a lot more than just this, but the bare minimum may be sufficient and even preferable where the knowledge is culturally sensitive.

The final problem is that, by denying the value of the heritage regime, the culture argument allows no scope for Aboriginal and other activists to protect what they see as 'heritage'. The idea of 'heritage' can be deployed by Aboriginal people in certain circumstances. In relation to planned developments in the Burrup Peninsula, Aboriginal author and activist Sally Morgan, for example, sees Indigenous feelings for land being compromised by the development, and frames the struggle to stop the development as 'Fighting for Cultural Heritage' (my emphasis, Morgan et al. 2006). Other activists who wish to protect the area call for World Heritage Listing (my emphasis). 'Heritage' is thus used by people wishing to preserve Aboriginal culture and wellbeing. At the very least, they can appeal to or deploy this concept even if they think the meaning of land is unknowable within a white system. Even within the cultural critique, there is an understandable desire to protect Aboriginal heritage, as when Ritter (2003:208) regrets the 'obliteration of Aboriginal heritage' caused by the AHA. Denying that 'Aboriginal heritage' is meaningful also denies the possibility of protecting it.

More generally, the cultural argument regarding incommensurability of the two cultures holds that non-Aboriginal involvement in heritage preservation is destructive. One basis of the argument is that the words 'heritage', 'land', 'site', 'object', 'Aboriginal', 'Indigenous', 'law' (as opposed to 'Law'), 'health' and 'education' are absent from traditional Aboriginal languages. But if white or Aboriginal people cannot use these concepts within an Aboriginal context, then, obviously, there is no scope to discuss or address these issues. The inevitable outcome of this position is that the only possibility is an entirely new set of terms and power relations--in other words, a revolution.

Similar cultural arguments can also lead us to the opposite conclusion. That is, rather than incommensurability, the cultural critique can also assert that Aboriginal worlds are encompassed in non-Indigenous culture. For example, in order to possess heritage, Aboriginal people must construct themselves as a certain kind of person --an 'Indigenous' type, tied up with the land, living the way of the ancestors and so on. In other words, the Aboriginal heritage produces a certain kind of Aboriginal subject. Indeed, taking one line of argument for the determinative implications of the state, Aboriginal people's own sense of identity and personhood is transformed (Kapferer 1995; Smith 2008; Trouillot 2001). As a result, every Aboriginal or Indigenous person possesses an identity that has been transformed by the state.

The intertwinement of the state and Aboriginal subjectivity is an idea that is at once obvious and profound. Using this idea, we could consider 'sacred' sites, such as Dreaming places, as now having significance for Aboriginal people, not just the state, as 'heritage'. In other words, the way Aboriginal people would consider a sacred site has been so transformed by the experience of the state, that they see the world in state-like ways. The site is transformed into 'heritage' in the eyes of Aboriginal people. Conceptualised as such, the transformation of the Aboriginal person is mostly one-way and deleterious--he or she has been encapsulated by the state. Such a conceptualisation also leaves little room for critique. Indeed, the need for critique is somewhat obviated by the cultural intertwinement idea because intertwinement holds that 'black' and 'white' people have been transformed into similarly constituted subjects--that is, people with a similar notion of self and the world.

Sites where heritage is said to exist are merely a product of the state's way of seeing the world. Such sites do not correlate with an Aboriginal culture derived from pre-contact. In defence of the idea of cultural integration, it might be asserted that Indigenous (Aboriginal) socio-cultural forms continue to exist alongside the exogenous (white/ state) social-cultural forms (Smith 2008:202). However, it is difficult to ascertain how we would know these Indigenous 'socio-cultural forms'. In fact, taking a similar line, Bourdieu (1999:53) has argued that scholars cannot escape adopting ways of thinking created by the state--these scholars thus cannot properly understand it. If it is asserted that the state transforms subjects and encapsulates their ways of thinking, it seems unlikely that one can escape this.

In sum, the cultural approach argues that non-Indigenous and Aboriginal worlds are either incommensurable or intertwined. Either way, there is little scope for improving or transforming the AHA, aside from a revolutionary decolonisation of Australia.

Benefits of Western Australia's heritage regime

Little research has been undertaken concerning the possible benefits of the current regime for Aboriginal people. From a standpoint of defending Aboriginal cultures and economies, the benefits of Western Australia's heritage regime might include increased incomes and transmission of culture to younger generations. Ethnographic heritage surveys, for example, provide an income for Aboriginal members of the survey team, who usually earn the same daily rate as anthropologists. They can also provide an opportunity for local Aboriginal people to join the survey team and return to 'country' and become (re-)acquainted with it. In other words, cultural engagement in the heritage regime, although asymmetrical, can be mutually beneficial.

Western Australia's heritage regime can, in certain contexts, also empower Aboriginal people. There are different ways of using the heritage regime. The regime was initially precipitated by the AHA, but more proximately created by Aboriginal people, anthropologists, archaeologists and developers. In specific instances, at least, we have to ask who uses it when and in what context. An ethnographic heritage survey can be used by Indigenous people articulate in English to delay development and force the developer to negotiate. Aboriginal people can withhold information or refuse to undertake surveys, which can hinder the developer {Moore 1999:237).

On the other hand, heritage can be identified by the Minister as a potential hurdle to economic growth in order to justify accepting a Section 18 application. As Tonkinson {1997:22) notes, states' heritage laws 'have been effective in forcing developers, local authorities, planners, etc. to initiate the necessary clearance research rather than run the risk of expensive delays'. But the interaction is not necessarily adversarial. As Chaloner (2004:21) observes, there has been much negotiation 'quietly going on in the background' between mining companies, in particular, and Aboriginal groups. This can take the form of ad hoc private contracts (Ritter 2006:125). However, the Aboriginal people might be negotiating from a weakened position (O'Faircheallaigh 2007). Given all these ambiguities, a more balanced assessment of the AHA is that it both empowers and disempowers.

Conclusion

In summary, all four critiques hold that the AHA and the heritage regime are flawed. The political economy approach sees the interests of capital (developers) and state (Western Australian Government) as closely connected, undermining attempts to protect Aboriginal heritage. The procedural critique focuses on several distinct features of the legislation and formalised procedures. The ethnographical critique argues that anthropologists who record Aboriginal heritage represent the interests of the powerful {mining companies) over the relatively powerless (Aboriginal people). Although these critiques point out weaknesses from the perspective of Aboriginal wellbeing, they also imply practical ways in which the heritage regime could be changed. For example, the ministerial prerogative might be replaced by a civil procedure in which a judge hears submissions from different parties.

The cultural critique, at least in extreme forms, offers little direction for future reform of the AHA and the heritage regime. The idea of incommensurable cultures denies that 'heritage' is meaningful to Aboriginal people and maintains that attempts to protect 'heritage' actually contribute to cultural destruction. As demonstrated, the cultural critique of incommensurability is inconsistent with the other critiques {which see heritage as beneficial, but find that attempts to protect it are flawed). The cultural critique of integration holds that Aboriginal subjectivity has been transformed and encapsulated by the state. Heritage and the process of the heritage regime, it should follow, do not relate to any pre-contact connection Aboriginal people might have had with the landscape. Rather, they are state effects--ways in which the state encompasses Aboriginal subjects. Heritage, as construed by the AHA and heritage regime, is merely a state construction. Both forms of the cultural critique thus offer little in the way of future reform--unlike the other three critiques.

The four critiques are united in their aim of limiting damage done by the Aboriginal heritage regime to Aboriginal people. Distinguishing these four approaches may allow for a clearer analysis of Indigenous heritage legislation and regimes in other Australian states and perhaps internationally. The applicability of each approach, of course, will depend on the context, so the precise findings of this paper, that the cultural critique is of limited relevance, pertain only to Western Australia.

The nub of the problem here relates to the proposition that the state structures thought to the extent that even protest against state structures has to be framed with the structures themselves. In other words, whether adherents acknowledge this point or not, it seems to me that the cultural position holds that the state maintains and/or creates the parameters within which Aboriginal ways of being, and even resistance to the state, can operate. I am sure that heritage activists would disagree with this proposition, as the portrayal of the determinative effect of state structure leaves little room for local agency. However, my reason for disagreeing with the proposition is that we can equally interpret the AHA and surrounding practices without assuming this point. If this is accurate, it will allow us to more profitably concentrate on dimensions such as political economy, ethnography and, particularly, legislation.

Nevertheless, even if this point cannot be sustained, it is hoped that laying out a clear analytical framework will promote further study of this topic. It has been suggested that one area which might be further investigated is the relationships between the political economy, procedural, ethnographic and cultural critiques. One such relationship is that, accepting the critiques for the sake of the argument, the political economy critique (of the pervasiveness of economic interests in government) arguably flows through to the ethnographic critique (ethnographers do not adequately represent the interests of Aboriginal people) and to the procedural critique (the Minister is driven by development interests). Teasing out these relationships would strengthen our analysis of the AHA, but would require much more detail than can be allowed within the constraints of this paper.

Acknowledgments

This paper was first presented as a paper for the 50th Anniversary Symposium of the Anthropological Society of Western Australia, 30 October-1 November 2008. In the preparation of that paper, Guy Wright, Greg Acciaioli, Bob Tonkinson, Kyle Edwards, Philip Dobson, Nic Peterson, Sam Rosenfield, Philip Moore, Bill Kruse, Stephen Bennetts and Peter Randolph generously provided crucial assistance. I am also indebted to anonymous peer reviewers of this paper, and particularly my colleagues John Morton, Ray Madden and Nick Smiths for their patience and profound insights. With all this assistance rendered, references to 'personal communications' became too numerous and so were deleted. And, although this paper feels to me like a collaborative effort, the issues discussed are contentious, divisive and complicated, so the shortcomings must stand as mine alone.

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Nicholas Herriman

La Trobe University

Before taking a lectureship in Anthropology at La Trobe University, Nicholas Herriman took part in several ethnographic heritage surveys in Western Australia. He is the author of The Entangled State, a study of sorcerer killings in Indonesia. He has recently published articles in Anthropological Forum, the Asia Pacific Journal of Anthropology and the Australian Journal of Anthropology. Nicholas also podcasts on iTunes U as the 'Audible Anthropologist', in which he provides short introductory lectures on anthropology.

<n.herriman@latrobe.edu.au>
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