Journal article

Are courts colourblind to country? Indigenous cultural heritage, environmental law and the Australian judicial system

24 Nov 2017

The protection of cultural and spiritual landscapes and materials is fundamentally important to maintaining Indigenous culture. Indigenous cultural heritage is an ‘ongoing part of Aboriginal existence which is vital to Aboriginal well-being’. In recent years, the advocacy work of Indigenous traditional owners, community groups and academics has led to greater public awareness of the importance of Indigenous cultural heritage, as well as some positive legal reforms. However, legal protection of cultural heritage has often been, and continues to be, ineffective. One of the key reasons for this ineffectiveness is a piecemeal approach to protection of Indigenous cultural heritage. Such an approach manifests a distinction between ‘the environment’ and Indigenous heritage. This seems extraordinary given that ‘it is extremely difficult, if not impossible, to protect [an Indigenous heritage] site without also protecting the surrounding environment’. Further, what the State recognises or defines as cultural heritage worthy of protection and recogition does not necessarily accord with what Indigenous peoples consider to be their cultural heritage. Importantly, Indigenous worldviews emphasise holistic relationships, rather than reductionist approaches.

In light of a number of significant recent cases, this article focuses on the role of the courts in the protection of Indigenous cultural heritage. The courts are the place where cultural heritage and related legislative provisions are being tested, and judicial understandings of cultural heritage can make a substantial difference in outcomes. The purpose of this article is to provide both a judicial and academic perspective on these issues. In asking whether courts are ‘colourblind to country’, we are asking whether courts can see the whole of country, rather than compartmentalising it in line with Eurocentric ideas and artificial legal constructs. We are also suggesting that courts (both collectively and individual judicial officers) can reach across jursidictional boundaries to enhance their understandings of Indigenous cultural heritage.

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