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

Abstract

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.