Excavations, Surveys and Heritage Management in Victoria Volume 6 2017 Excavations, Surveys and Heritage Management in Victoria Volume 6 2017 1 Excavations, Surveys and Heritage Management in Victoria Voume 6, 2017 Edited by Caroline Spry Elizabeth Foley David Frankel Susan Lawrence with the assistance of Ilya Berelov Shaun Canning Front cover: Participants of the Bakang Dyakata, or Traditional Aboriginal Earth Oven, Project (photograph by Alice Mora) Excavations, Surveys and Heritage Management in Victoria, Volume 6, 2017 Melbourne © 2017 he authors. All rights reserved. ISSN 2208-827X 2 Contents Editorial note 5 Papers A late-Holocene Aboriginal hearth from Point Nepean, Victoria, Australia: Maximising insights from minimal impacts David homas, Dan Turnbull, Birgitta Stephenson, Xavier Carah, Oona Phillips and Barry Coombes 7 Mapping Aboriginal meeting places: Preliminary investigations of the Taçon Songline Hypothesis on the Western Victorian Volcanic Plains, Australia Phillip Roberts 19 An evaluation of survey and subsurface testing strategies for cultural heritage management in Melbourne’s western and northern fringes, Victoria, Australia Gary Vines, Martin Lawler and Asher Ford 29 he identiication, recording and management of Aboriginal places in Victoria, Australia: A Registered Aboriginal Party perspective Darren Griin 41 Aboriginal cultural heritage legislation in Victoria, Australia: Leader or follower? Jamin Moon 51 Investigating the late nineteenth-century archaeology of civic buildings beneath the new Murray Art Museum Albury, New South Wales, Australia Sarah Myers and Sarah Mirams 57 Excavations of the former St Peter’s Diocesan Grammar School at Parliament House, Melbourne, Australia Ian Travers 69 Will I get a job? A survey of skills and knowledge for professional archaeology in Victoria, Australia 79 Anita Smith and Matthew Meredith-Williams 3 Contents Abstracts Modelling sites and landscapes in the central Murray River valley Jessie Birkett-Rees, Jillian Garvey, Darren Perry and Jacqui Tumney 87 Investigating the extraction of silcrete in northwest Victoria: Preliminary indings from recent work at Berribee Quarry, northwest Victoria Jillian Garvey, Darren Perry, Tinawin Wilson, Bengi Basak Selvi and Austen Graham 88 Rockin’ the Dreamtime: he intersection of Indigenous oral history and archaeology to interpret Berribee Quarry within the Central Murray River landscape. Darren Perry, Tinawin Wilson and Jillian Garvey 89 he potential for sourcing Victorian silcrete: Progress and pitfalls in pXRF analysis Alex Blackwood and Andy Herries 90 An unusual ground stone artefact from Bannockburn, near Geelong in southwestern Victoria Ebbe Hayes, Richard Fullagar, Caroline Spry, Petra Schell and Meg Goulding 91 he Irish Ascendancy on Little Lonsdale Street: Excavation of the home and business of Peter Mansergh and family Barry Green 92 he Mansergh assemblage: More questions than answers Laura Campbell and Jacinta Bauer 93 A new approach for the archaeology of Chinese sites in Australia Melissa Dunk 94 4 Editorial note he papers included here were presented at the sixth Victorian Archaeology Colloquium held at La Trobe University on 3 February 2017. As in previous years, we would like to thank all the participants whose attendance testiies to the importance of this ixture within the local archaeological calendar as an important opportunity for consultants, academics, managers and Aboriginal community groups to share their common interests in the archaeology and heritage of Victoria. he sixth volume of Excavations, Surveys and Heritage Management in Victoria includes a variety of papers that span Victoria’s Aboriginal and European past. his year there is a particular focus on aspects of method and approach. Gary Vines, Martin Lawler and Asher Ford consider issues related to surveys and subsurface testing, while Darren Griin provides a perspective from his experience working within Registerd Aboriginal Parties. Jamin Moon’s historical review of heritage legislation gives additional background informing Griin’s discussion. Some of the issues raised by Moon are dealt with by Anita Smith and Matthew Meredith-Williams as they consider the requisite skills required by archaeology and cultural heritage graduates. Several reports deal with speciic sites. David homas, Dan Turnbull, Birgitta Stephenson, Xavier Carah, Oona Phillips and Barry Coombes illustrate the value of a close analysis of a site and excavation, in this case linked to an historical perspective provided by Traditional Owners. Phillip Roberts makes use of a range of ethnographic sources in his discussion of ceremonial sites and systems in Victoria. A variety of structures and associated material culture are seen in reports on historical sites by Sarah Myers and Sarah Mirams in Albury, and by Ian Travers’ study of an area in central Melbourne. In addition to these more developed papers, we have continued our practice of publishing the abstracts of other papers given at the Colloquium, illustrated by a selection of the slides abstracted from the PowerPoint presentations prepared by participants. hese demonstrate the range of work being carried out in Victoria, and we hope that many of these will also form the basis of more complete studies in the future. All papers were refereed, and we would like to thank those who assisted with this task. Caroline Spry managed this process and the sub-editing of this volume. Layout, as in other years, was undertaken by David Frankel. We were pleased to announce at this year’s Colloquium that previous volumes of Excavations, Surveys and Heritage Management in Victoria are now available to download for free via La Trobe University’s institutional repository, Research Online ( < http://hdl.handle. net/1959.9/558330 > ). We hope that this will encourage the dissemination of this valuable research in the broader community, both in Australia and internationally. he 2017 Colloquium was generously supported by major sponsor, Ochre Imprints, as well as other sponsors (Australian Cultural Heritage Management (ACHM), Biosis, Green Heritage, Heritage Insight) and supporters (ArchLink, Extent, the Department of Archaeology and History at La Trobe University). he editors and authors acknowledge the Traditional Owners of the land and heritage discussed at the Colloquium and in this volume, and pay their respects to their Elders, past and present. 5 Aboriginal cultural heritage legislation in Victoria, Australia: Leader or follower? Jamin Moon¹ Abstract he paper presents a brief summary of the evolution of Indigenous cultural heritage legislation, with a particular focus on Victoria. Using a quantitative textual analytical model adapted from comparative law and elsewhere, the trajectory of these laws are mapped through time. he results demonstrate an increasing overall strength in Australian cultural heritage legislation and a relationship between events in broader Aboriginal afairs and improvements in cultural heritage law. More speciically, in some jurisdictions, such as Victoria, the results also demonstrate slowly increasing Aboriginal power to determine cultural heritage outcomes. It is postulated that this increasing power engenders a cultural ‘thirdspace’ within which new cultural heritage management objectives, methods and outcomes will continue to drive a ‘hybridisation’ of cultural heritage laws — Aboriginal approaches to cultural heritage management enshrined within the context of the Western legal system. his emergent hybridisation is interpreted as an indicator or symptom of the decolonisation or transcolonisation of the mind within Western legal systems. Introduction Developments in Indigenous cultural heritage legislation in Victoria have not occurred in a vacuum. he strengthening of the global Indigenous rights movement has been a driver for multiple changes in Western heritage legislation in settler states. In turn, these changes impact the practice of cultural heritage management, prompting further legislative change. Legislation, rather than stiling innovation, can perpetuate and facilitate this ongoing process, resulting in better cultural heritage management over time and, in some settler states, an increase in the incorporation and recognition of Indigenous peoples’ priorities for their cultural heritage. As such, historical developments in cultural heritage legislation map settler state attitudes toward Indigenous people through time, and can act as a proxy or indicator for processes of colonisation and decolonisation in settler states. ¹ Department of Archaeology and History, La Trobe University, Bundoora Vic. 3086; jbmoon@students.latrobe.edu.au his paper discusses the historical development of heritage legislation and associated policies and practices, moving from a broader Australian perspective to a primary focus on Victoria. It is argued that Indigenous cultural heritage legislation operates in the cultural space between coloniser and colonised, and therefore that legislative approaches have the potential to enable and facilitate a contested “thirdspace” (Johnson 2008:44–45; Lefebvre 1991) in which Indigenous and non-Indigenous heritage worldviews can intermingle and create new hybrid approaches to cultural heritage management. he approach to the analysis of legislation adopted here employs a mixture of quantitative and qualitative methods. he quantitative method is a standard approach used to measure comparisons between laws in comparative legal studies, economics, media studies and elsewhere (Berelson 1952; Franzosi 2008:xxi; Reitz 1998:617–636). It involves choosing six elements of cultural heritage law, each of which demonstrates diferent components that generally appear within such legislation: the type of heritage protected; method of heritage protection; presence or absence of regulated heritage management processes; Aboriginal statutory powers; review mechanisms; and ofences and penalties. Each element was mapped against the evolving language of Indigenous cultural heritage legislation and scored out of three according to its strength and frequency (1 = weak, 2 = moderate, 3 = strong). For example, element four (i.e. Aboriginal statutory powers) were assigned one point for membership on advisory committees, two for mandatory consultation, and three for statutory decisionmaking powers. his provided a total possible rating for each law of 1–18. Combined with qualitative studies of diferent settler state heritage policies adopted through time and historical events in Indigenous afairs, both within and outside the heritage space, a picture emerges of the relative inluence of such events on Aboriginal heritage legislation, as well as the inluence of Aboriginal heritage legislation on cultural heritage management, and vice versa, through time. hese time periods can be divided into three distinct phases of heritage law: the Trade, Archaeological and Aboriginal Rights Periods. 51 Jamin Moon Trade Period (1900–1965) Archaeological Period (1966–1990) he irst Indigenous cultural heritage laws enacted during this period were generally concerned with regulating the trade of Indigenous artefacts and facilitating early archaeological research. In some cases, such as the Northern Territory, they also focused on the protection of burial sites or the regulation of burial practices. Indigenous places were not recognised, and, in most cases, were not even mentioned. hese early laws relect two expected observations. he irst is that Western governments were concerned with deining Indigenous cultural heritage as a tradeable commodity within a Western capitalist system, and regulating it within the capitalist market; and second, Western governments were concerned to allow archaeological research to progress, for the beneit of the ‘public good’ and the academy. hese laws relected what Western people felt were the most important aspects of Indigenous heritage: movable objects and human remains. Absent from any discussion in designing these laws were Indigenous voices or concepts. hese approaches are consistent with the objectives of colonisation. Heritage legislation was used as another means to subjugate Indigenous populations, primarily by deining Indigenous heritage within a narrow Western framework, thereby assuming ownership of that heritage, and ignoring Indigenous perspectives. his approach also had the efect of removing the traditional decisionmaking authority of Aboriginal people. he irst Australian legislation in 1940 in the Northern Territory (Native Administration Ordinance 1940) was concerned with regulating the movement and trade of ceremonial objects, and the regulation of Aboriginal burial ceremonies. Later legislation in South Australia in 1965 (Aboriginal and Historic Relics Preservation Act 1965) focused on regulating trade. It also prevented Aboriginal people from engaging in such trade without Government permission, and failed to protect ‘relics’ outside declared reserves. he law does not just relect what is occurring within the archaeological or cultural heritage management space, it also reveals general settler priorities in other areas of society. During the 1950s in Australia, when the irst Aboriginal heritage laws were being developed and debated, Aboriginal people were not counted in the oicial census, were still being moved to reserves and were also subject to having their children removed. Settler state Indigenous heritage law, therefore, was not merely a relection of the general attitudes of the time, but was an active tool in achieving colonial objectives. his is not to ignore global events, such as the creation of the United Nations and the development of human rights instruments following World War II. A discussion of these associated global events, however, is beyond the scope of this paper. he irst recognisably modern heritage legislation, which was enacted across Australia between 1966 and 1980, was heavily inluenced by academic archaeology and its practice. he language of relics, sites, artefacts, excavation and survey entered the legal lexicon for the irst time. he Trade Period laws, along with new laws in Queensland (Aboriginal Relics Preservation Act 1967) and New South Wales [National Parks and Wildlife (Amendment) Act 1969], and debates within Victoria, provided the context for the irst Victorian law in 1972. hese laws were heavily inluenced by external social and legal factors. For example, the environmental movement of the 1960s and 1970s in Western nations led to a focus on the impact of land-use and development on natural heritage, which created an emphasis in cultural heritage on protecting sites, and gave rise to an emergent cultural and natural heritage management industry from the late 1970s onward which was increasingly focused on heritage management rather than protection. Social movements, such as the Aboriginal land rights movement, inluenced the development of state land rights laws in South Australia (Aboriginal Lands Trust Act 1966), Queensland [Local Government (Aboriginal Lands) Act 1978], the Northern Territory (Aboriginal Land Rights Act 1976) and, to a very limited extent, Victoria (Aboriginal Lands Act 1970). During this period, the commodiication of Indigenous cultural heritage continued in the application of Western signiicance values on protecting sites and places. However, the primary purpose of heritage laws enacted during the Archaeological Period was no longer the regulation of Western trade in artefacts — although this element was still present — but the regulation of land development. his was a distinctly anti-free market direction, no doubt associated with 1960s and 1970s environmental movements, which resulted in emergent environment protection laws and also curbed unsustainable development. he clear focus of legislation enacted between 1965 and 1990 in all Australian states was archaeological. Places and relics were aforded protection from development and a local cultural heritage management industry burgeoned. Victoria’s Archaeological and Aboriginal Relics Preservation Act 1972 had as its focus the protection of ‘relics’ as deined by Western archaeological tradition, and emphasised the protection of sites and the regulation of trade, much like the 1965 South Australian act. hese laws directly led to the rise of a nascent cultural heritage management industry. New legislative impositions on corporations to account for the heritage impacts of their activities created a professional cultural heritage management class, which then began to lobby governments to its own ends. his prompted further archaeological innovations in heritage legislation, leading 52 Aboriginal cultural heritage legislation in Victoria, Australia: Leader or follower? to more sophisticated cultural heritage management methods featuring in later heritage law. Aboriginal Rights Period (1991–present) he biggest changes in cultural heritage legislation were to emerge in later iterations, from 1990 onwards. From the late 1960s, the Indigenous rights movement gathered strength largely out of advancements in the global human and Indigenous rights movements. Aboriginal people in Australia were gaining new rights to resources, land and power. In Australia, multiple land rights movements leading to state-based land rights legislation reached an apex with the Mabo decision [Mabo v he State of Queensland [No 2] (1992)], which led to the Native Title Act 1993 (Cwlth). his in turn forced changes in Australian state heritage laws to accommodate Aboriginal, and particularly Traditional Owner, decision-making rights in cultural heritage legislation for the irst time. Legislation inluenced by these social and legal developments during and ater the 1990s includes the Queensland Aboriginal Cultural Heritage Act 2003 and the Victorian Aboriginal Heritage Act 2006. Both pieces of legislation gave explicit recognition to Traditional Owners for the irst time in cultural heritage law in eastern Australia. Using the quantitative textual analysis method discussed previously, Figure 1 maps the emergence and strength of six key variables in Aboriginal cultural heritage legislation. hese include Indigenous decisionmaking and consultation provisions in Australian cultural heritage laws, over time, relative to signiicant events in the Indigenous rights sphere. he numbers on the let of the graph correspond to the 1–18 rating system outlined above, where 1 is relatively weak in the six elements and 18 is relatively strong. he irst line is the 1967 referendum on including Aboriginal people in the census. his event coincided with the creation of the irst heritage laws in the same year in Queensland, followed by New South Wales, Victoria, Western Australia and Tasmania, and subsequently South Australia. he second is the Mabo decision. he upward trend in Indigenous recognition in heritage legislation ater this date is quite marked, with some notable exceptions (principally the Northern Territory and Tasmania, while Western Australia’s upward movement was due to legislative improvements other than improving Aboriginal rights). he current situation he recognition of Aboriginal power in Western legal systems in previous colonial nations is a critical development in terms of decolonisation. No colonial power enacts laws giving Indigenous peoples the power to make decisions which may slow or impact on land development and Western economic systems. In Australia, the 1990s signal the beginning of an emergent trans-colonial settler state, at least in terms of its relationship with Indigenous cultural heritage and Indigenous peoples. In Australia, Traditional Owners — where these Figure 1: Map of the emergence and strength of six key variables in cultural heritage legislation since 1940: the type of heritage protected; method of heritage protection; presence or absence of regulated heritage management processes; Aboriginal statutory powers; review mechanisms; and ofences and penalties. 53 Jamin Moon are able to be determined — are now largely in control of decisions about their cultural heritage in Victoria, Queensland and New South Wales. South Australia is now changing its heritage laws to address the same issues. Tasmania’s aborted Aboriginal Heritage Protection Bill 2013 would have followed a similar path. he relative strength of some Australian heritage laws in recognising Aboriginal decision-making rights is perhaps the necessary counterpoint to the relative weakness of Australia’s answer to treaties — the Native Title Act and various state and territory land rights legislation — in cultural heritage protection terms. his can be contrasted with Canada, where modern treaties potentially provide much greater Aboriginal decision-making rights, and cultural heritage legislation is generally weaker. Legislation driving innovation? A key question arising from the study of how cultural heritage legislation follows and reacts to changes in the external political, social, economic and academic landscape, is whether legislation is a driver or follower of innovation. It can be argued that, while legislation is both, it primarily facilitates change. Heritage legislation’s primary contribution is its creation of a contested space within which new cultural heritage management practices evolve and can be tested. he revolutionary change in colonial Western legislation is clearly the legal empowerment of the colonised. But in terms of cultural heritage protection, this may not be the most important outcome. New laws are not only beginning to incorporate Indigenous decision making, but also Indigenous concepts of ownership and recognition, and Indigenous concepts of heritage. For example, Victoria now explicitly — albeit in a limited and primary manner — recognises intangible Aboriginal heritage values. New South Wales is moving to legally protect Aboriginal languages. hese changes in law will force changes in how practitioners treat Aboriginal cultural heritage in the future. Changes in Aboriginal cultural heritage legislation in Victoria since 2006 are forcing changes and innovations in cultural heritage management practice in this state. Cultural heritage management practice itself is beginning to change and will continue to evolve over time, as it is driven by increasing legislative power for Aboriginal people in legislative processes — and, for example, the realisation in Victoria that Aboriginal people will be signing of on the work of professional heritage consultants. Cultural heritage practitioners in Victoria are no longer writing just for industry and Government, but for an audience of Traditional Owners. his in turn will also lead to further innovation in future laws, which again will force change in practice — in an endless feedback loop. Changes in law have not only resulted in a more formal 54 acceptance of Indigenous worldviews and priorities, but also in improvements to cultural heritage management practice. Victorian legislation now requires practitioners to consult with Aboriginal people properly, broadly and comprehensively, which it did not in the 1970s, 1980s nor 1990s. Similarly, it now explicitly requires best practice cultural heritage management and regulates the practice of cultural heritage management more closely than before. Victorian and other heritage legislation now includes hitherto ignored (by legislation) concepts for consideration, such as cultural landscapes and cumulative impacts, requiring practitioners to raise their eyes from the sites on the ground to consider the broader land impacts of proposed developments. Industry has needed to adapt to this new environment, and, as a result, has forced legal changes itself. Legislation will continue to change and continue to require new practices, driving innovation by necessity, if not for any other reason. Conclusion he eventual result of these changes in Victoria is an emerging hybridisation of cultural heritage management law and practice. his hybridisation is emerging from the cultural thirdspace that exists between Western and Indigenous cultures. It is within this thirdspace that cultural heritage practitioners, Indigenous peoples, archaeologists and cultural heritage policymakers are required to work, act and react by Victorian heritage legislation. Hybridisation, and therefore trans-colonisation, if not decolonisation, is of course not limited to the cultural heritage management sphere, nor is it limited to Victoria. It can be seen in other areas where Western and Indigenous cultures are forced to interact, either by law or necessity. Native Title is an example of such a system — although to a weak extent. It seeks to recognise Aboriginal land ownership concepts within a Western legal framework. New Zealand has recently used the Western legal system to provide a river with individual, human rights in a clear hybridisation of Maori and Western law [Te Awa Tupua (Whanganui River Claims Settlement) Act 2017]. Victoria’s Koori Court system and other similar Aboriginal sentencing courts across Australia and Canada incorporate concepts of Aboriginal justice into the Western criminal justice system in another example of hybridisation (Marchetti and Daly 2004). Aboriginal cultural heritage management legislation is now facilitating the development of emergent hybrid Aboriginal cultural heritage management systems. his relects Indigenous worldviews and priorities within an increasingly lexible and receptive Western legal system. Legislation therefore necessarily drives, facilitates and reacts to innovation. his emergent hybridisation is, however, by no means rapid nor without problems. Registered Aboriginal cultural heritage legislation in Victoria, Australia: Leader or follower? Aboriginal Parties (RAPs) in Victoria, like the earlier Aboriginal community co-operatives under the previous commonwealth legislation (Aboriginal and Torres Strait Islander Heritage Protection Act 1984), are working within the modern Western economy. Wherever this occurs, attendant issues of conlicts of interest and balancing heritage and economic outcomes necessarily follow. Positive outcomes will progress more eiciently where Aboriginal, industry and heritage practitioners acknowledge their own conlicts, and properly recognise and work positively with the statutory role of RAPs. Finally, government also must provide suicient resources to RAPs concomitant with their increasing statutory power. As O’Faircheallaigh (2008:32) notes in his study of Native Title agreements in Western Australia mining, many such agreements fail to adequately protect Aboriginal heritage because Aboriginal organisations are economically less powerful than industry, and therefore do not have the same bargaining power. his structural power imbalance is somewhat ameliorated in Victoria by the statutory heritage decision-making powers aforded by the Aboriginal Heritage Act, but not the economic imbalance. Government must at least attempt to equalise this by resourcing RAPs to promote sustainable and practical cultural heritage management outcomes. Government and the academy could also facilitate more opportunities for all actors to regularly engage in active debate about Aboriginal cultural heritage management. It is incumbent upon all involved in the cultural heritage space in Victoria — Aboriginal people, heritage professionals and policy makers — not to sit back and spectate. We all need to be active players in improving how heritage is protected and managed in law and in practice. Victorian Aboriginal heritage law, consistent with global trends, engenders a cultural thirdspace within which Aboriginal and Western heritage priorities, aspirations and values collide. his thirdspace is an area within which new cultural heritage management theory, practice and law will continue to evolve. Now that we are within it, we should use it to advantage. Acknowledgements he author would like to thank Dr Anita Smith as well as the anonymous reviewers for their very helpful and constructive comments on a drat of this paper. Dr Caroline Spry assisted greatly with its publication and I thank her for her work in facilitating the Colloquium. References Aboriginal and Historic Relics Preservation Act 1965 (SA). Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwlth). Aboriginal Cultural Heritage Act 2003 (Qld). Aboriginal Heritage Act 2006 (Vic.). Aboriginal Lands Act 1970 (Vic.). Aboriginal Land Rights Act 1976 (NT). Aboriginal Lands Trust Act 1966 (SA). Aboriginal Relics Preservation Act 1967 (Qld). Archaeological and Aboriginal Relics Preservation Act 1972 (Vic.). Berelson, B. 1952 Content Analysis in Communication Research. Glencoe, Illinois: he Free Press . Franzosi, R. 2008 Content analysis: Objective, systematic and quantitative description of content. In R. Franzosi (ed.) Content Analysis: Sage Benchmarks in Social Research Methods (Volume 1), pp. xxi–xlx. London: Sage. Johnson, J. 2008 Indigeneity’s challenges to the white settler-state: Creating a thirdspace for dynamic citizenship. Alternatives: Global, Local, Political 33(1):29–52 . Lefebvre, H. 1991 he Production of Space. D. NicholsonSmith (Trans.) Massachusetts: Blackwell, Malden. Local Government (Aboriginal Lands) Act 1978 (Qld). Mabo v he State of Queensland [No 2] (1992) 175 CLR 1. Marchetti, E. and K. Daly 2004 Indigenous courts and justice practices in Australia. Trends and Issues in Crime and Criminal Justice 277:1–6. Australian Institute of Criminology, Australian Government. Retrieved 6 April 2017 from < http://www.aic.gov.au/ media_library/publications/tandi_pdf/tandi277.pdf >. National Parks and Wildlife (Amendment) Act 1969 (NSW). Native Administration Ordinance 1940 (NT). Native Title Act 1993 (Cwlth). O’Faircheallaigh, C. 2008 Negotiating cultural heritage? Aboriginal–mining company agreements in Australia. Development and Change 39(1):25–51. Reitz, J. 1998 How to Do Comparative Law. American Journal of Comparative Law 46(4):617–636. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (New Zealand). 55