indigenous painting art
Image credit: Julian Smith/AAP

From August 1, 2018, Victorian institutions, including universities or museums, are legally required to return Aboriginal ancestral remains to the care of the Victorian Aboriginal Heritage Council (VAHC).

This new Victorian law is an attempt to legislate an ongoing process where Aboriginal and Torres Strait Islander people across the country are fighting to get cultural materials and ancestral remains repatriated to the place they originated from — and, in many cases, were stolen from.

It’s one of the final changes following a two-year grace period since amendments were made to Victoria’s Aboriginal Heritage Act in 2016. This means that all Victorian institutions, businesses and individuals, now have legal obligations to hand over Aboriginal ancestral remains. For universities or public entities who fail to declare or return ancestral remains, the fine is upwards of $450,000.

The hefty penalty will hopefully prevent Aboriginal ancestral remains from being neglected in storerooms, as was the case at Melbourne University in the early 2000s.

Bernadette Atkinson from the Koorie Heritage Trust explains why repatriation is so important: “It’s about keeping [cultural materials and ancestral remains] on country with the traditional custodians, because not only are they the traditional custodians of the land, but this is their history, their artefacts, and it belongs to their country as well.”

Laws around Australia

Beside some general avenues laid out in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, federal laws are pretty vague. This means Aboriginal heritage protections are mainly legislated at the state level.

But many of the current laws are in dire need of reform.

A new bill is being drafted in New South Wales this year, but, for the time being, Aboriginal cultural heritage is still regulated under the NSW National Parks and Wildlife Act 1974, a throwback to a colonial form of expression. The current NSW laws, like those in Queensland and Tasmania, tend to privilege archaeological artefacts and provide significant control to institutions like museums.

These laws tend to use language in ways that deny the realities of ongoing Aboriginal survival and resistance: for instance, a persistent idea of cultural heritage being equal to “artefacts” or “relics” and an absence of acknowledgement of living cultures and communities.

Since the 2016 amendments, Victoria has specific protections in place for “intangible” cultural heritage, which includes oral histories, stories, dances and ceremonies.

Archaeologist and project manager at Aboriginal Victoria, Dr Janine Major, believes the Victorian laws are the most “progressive”, especially through their intention to return control of Aboriginal cultural heritage to Aboriginal Victorians, although this view is not necessarily shared throughout the Victorian community.  

Changing histories: from activism to legislation

Aboriginal educators at the Koorie Heritage Trust, Bernadette Atkinson and Rob Hyatt, explain how a series of political and legal struggles for control over Aboriginal cultural heritage, led to the establishment of the trust in Melbourne in 1985.

“It wasn’t just museum-based, and it wasn’t just anthropologists or academics saying this is how you should look after Aboriginal stuff or protect Aboriginal heritage, but Aboriginal people saying this is how we want to look after our heritage,” Hyatt said.

“The oral stories are actually some of the most important artefacts we have here [at the trust]. Because these stories connect the now, the back in time and further back.”

Senior Indigenous curator at the National Museum of Australia (NMA), Dr Margo Neale, insists that the way many museums interact with Aboriginal and Torres Strait Islander cultures has changed significantly.

She says museums, like the NMA, have working relationships with Aboriginal people where they can now be considered co-curators, rather than a reference or advisory group.

“To me repatriation is all about making institutions, current institutions who find themselves with stuff from before, develop the relationships with the right people and get consent to hold them on their behalf, it doesn’t matter where it is, it’s who owns it, like a guardianship.”

And this is now the case in Victoria. Major says that many ancestral remains will still be located at the museum, but the ownership will change.

“The reality will be, it will be a legal transfer, and those ancestors or objects will be kept for safekeeping at the museum, until the Council has their own storage facility or keeping place, or until council can provenance those, as in find out where they belong,” Major said.

Conflict of interest?

But some people, like First Nations activist Gary Murray, see contradictions in the new laws which he says are clawing back long-fought-for control from regional Aboriginal communities and putting power back in the hands of the metropolitan bureaucracy and the state. Of the VAHC, Murray says it has a “bad name” in the community, lacks accountability, has conflicting interests and has so far done poorly at meeting the expectations of community and at managing successful repatriations.

“Ironically, and I never thought I would say this, I reckon the Museum did a better job when the Heritage Council wasn’t around. I’ll stick to that today.”

These are strong words from someone who in 2004 headed a campaign that took the Melbourne Museum to court over their refusal to return Dja Dja Wurrung barks on loan from the British Museum.

He mentions additional flaws in delays in the process of the VAHC granting Victorian Aboriginal groups “Registered Aboriginal Party” (or RAP) status, something that has come to public attention in the ongoing controversy over the proposed Western Highway duplication in Victoria.

While Murray is dismayed at the current state of Aboriginal heritage protection in Victoria, he says he hopes moves to develop treaty in Victoria will help address failures of the current legislation.

*Kate Ashton is a non-Indigenous journalist student at RMIT.