Memorandum submitted by the Foundation
for Aboriginal and Islander Research Action (FAIRA)
SUMMARY OF RECOMMENDATIONS
This submission is made on behalf of the Foundation
for Aboriginal and Islander Research Action (FAIRA), Australia
and will primarily address issues surrounding the return of human
remains and significant cultural property[1];
In summary, FAIRA recommends that the British
Government:
1. acknowledge the ownership rights of Aboriginal
and Torres Strait Islander communities, individuals and organisations
over their human remains and significant cultural property held
by museums, galleries, universities and other collecting institutions
in the UK.
2. consider repatriation as a first option
in relation to human remains, in particular named and known individuals
in British collections, when requested, and that national policy
and or legislation be drafted to this end.
3. encourage museums to enter into dialogue
with requesting communities and respect community wishes in terms
of display, study and return of significant cultural property
and human remains.
4. determine whether British national, and
other, collections of Aboriginal and Torres Strait Islander human
remains and significant cultural property were acquired legally.
5. develop intergovernmental agreements to
facilitate the return of human remains and significant cultural
property.
6. take immediate steps to ensure that UK
museums, galleries, universities and other holding institutions
are obligated to provide Aboriginal and Torres Strait Islander
communities with open access to information about their holdings
of Aboriginal and Torres Strait Islander human remains and cultural
property. To this end, FAIRA recommends that when funding is made
available to institutions it is made on the condition that collections
and their relevant documentation are made accessible on request.
7. investigate and address the discrimination
faced by Aboriginal and Torres Strait Islander people in being
denied access to their human remains and significant cultural
property and related information held in UK institutions.
8. welcome the MGC Report: Restitution and
Repatriation: Guidelines for good practice, but to also recognise
that this should be regarded as a first stage document and that
further guidelines should be developed with the involvement and
input of indigenous groups or other relevant stakeholders.
9. take steps to immediately adopt the 1970
UNESCO Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Cultural Property and the
1995 UNIDROIT Convention on Return of Stolen or Illegally Exported
Cultural Objects. As the 1970 UNESCO Convention is not retroactive,
FAIRA urges the British Government to develop national policy
or legislation based on the UNESCO Convention and UNIDROIT to
apply to cultural property illegally removed during the colonial
period.
10. support the United Nations Draft Declaration
on the Rights of Indigenous Peoples in its current text, in particular
Articles 12, 13, 14, and 15 which relate to the protection of
indigenous cultural heritage.
1. INTRODUCTION
2. The Foundation for Aboriginal and Islander
Research Action (FAIRA), is a Brisbane based Aboriginal organisation
funded by the Federal Australian Government via the Aboriginal
and Torres Strait Islander Commission (ATSIC).
3. FAIRA undertakes research to document
and catalogue Aboriginal and Torres Strait Islander human remains
held in British and European institutions and to assist indigenous
communities with repatriation issues. FAIRA has been prominent
in campaigning, over the last 25 years, for the rights of Aboriginal
and Torres Strait Islander communities to have their human remains
and significant cultural property repatriated from institutions
within Australia and overseas.
4. Since the European colonisation of Australia,
Aboriginal and Torres Strait Islander human remains and cultural
property were collected by European institutions. Human remains
were collected from burial sites, cemeteries, massacre sites,
hospital morgues and in a variety of other contexts, some violent.
Opposition by Australia's indigenous population to the collecting
of such items is well documented throughout this history and continues
today.
5. Human remains were predominantly collected
in order to measure and quantify human diversity and to prove
pre-conceived notions of a racial hierarchy, now abandoned. The
study of these remains therefore contributed not only to the dispossession
of Aboriginal and Torres Strait Islander people, but to colonial
ideology and the well-documented oppression of indigenous Australians
that resulted.
6. The pre-eminent rights of Aboriginal
and Torres Strait Islander communities over their human remains
and cultural property is an essential pre-requisite for the exercise
of basic human rights and fundamental freedoms. The rights to
freedom of religious expression and practice and the importance
of control over cultural heritage to the identity and future of
indigenous communities are fundamental. The circumstances and
implications of the dispossession of communities and the consequent
study of indigenous human remains are contributory factors in
a need for a resolution to the current attitude of some UK institutions
which deny indigenous people their rightful heritage.
7. FAIRA welcomes the convening of this
Committee and hopes that, in this International Decade of Indigenous
Peoples, the British Government will act positively and recognise
the rights of Aboriginal and Torres Strait Islander peoples to
their human remains and items of significant cultural property
held in UK institutions.
8. ACCESS TO
INFORMATION AND
ARCHIVES
9. Approaches made to various British institutions
by FAIRA and other organisations and researchers about their collections
of Aboriginal and Torres Strait Islander indigenous human remains
have been met with a variety of responses. Some institutions have
fully co-operated in providing detailed catalogue listings and/or
access to archives, while others have denied access to information
or refused to disclose details of their holdings; some have simply
ignored repeated requests.
10. Such restrictions do not appear to apply
to scientists wishing to study Aboriginal and Torres Strait Islander
human remains. FAIRA believes that, in practice, such gate-keeping
policies discriminate against indigenous communities and effectively
protect holdings institutions from disclosing collection details.
11. Archives are a rich resource of information
for indigenous communities about their cultural heritage from
which they should not be denied access.
12. FAIRA is dismayed that leading UK institutions
deny access to information, a practice which runs contrary to
ethical codes of such professional organisations as the Museums
Association and the Museum Ethnographers Group, amongst others.
All institutions, but particularly those receiving public funds,
have an obligation to provide details of their collections and
allow access to archives and associated documentation.
13. FAIRA welcomes the proposed Freedom
of Information Act which may assist indigenous communities in
gaining access to information about their cultural heritage held
by British museums and institutions.
14. Recommendations:
14.1 FAIRA urges the British Government
to take immediate steps to ensure that UK museums, galleries,
universities and other holding institutions are obligated to provide
Aboriginal and Torres Strait Islander communities with open access
to information about their holdings of Aboriginal and Torres Strait
Islander human remains and cultural property. To this end, FAIRA
recommends that when funding is made available to institutions
it is made on the condition that collections and their relevant
documentation are made accessible on request.
14.2 FAIRA urges the British Government
to investigate and address the discrimination faced by Aboriginal
and Torres Strait Islander people in being denied access to their
human remains and significant cultural property—and related
information—held in UK institutions.
15. HUMAN REMAINS
AND REPATRIATION
16. In Australia, museums and universities
were at first reluctant to allow access to information and return
Aboriginal and Torres Strait Islander human remains to communities
of origin. After many years of lobbying by various indigenous
communities most Australian museums have now developed policies
and programs to address such requests.
17. Requests for repatriation in Australia
has not led to the "emptying" of museum collections
as many curators had claimed. In fact, repatriation can benefit
both the museum and community to which the human remains and or
significant cultural property was returned. Significantly, dialogue
between museums and communities about repatriation issues has
forged stronger and mutually beneficial links between these parties
which has flowed into other spheres of museum interest and exhibition.
18. An important step in the development
of relevant Australian museum policies has been the recognition
of the pre-eminent role of Aboriginal and Torres Strait Islander
communities in the ownership, control and management of their
human remains and significant cultural property. For example,
the Australian Government (see Attachment A) acknowledges:
18.1 the ownership rights and obligations
of Aboriginal and Torres Strait Islander communities, individuals
and organisations, over significant cultural property held by
museums, galleries, universities and other collecting institutions
in Australia and overseas.
19. FAIRA recognises indigenous ownership
of their own cultural heritage as a basic human right. FAIRA notes
that an assertion of global ownership of Aboriginal and Torres
Strait Islander heritage continues to be repeatedly used by holding
institutions to retain remains. Such an argument is stated, for
example, in the recent Museums and Galleries Commission: Restitution
and Repatriation Guidelines for Good Practice (see below).
20. Museums do not provide supporting evidence
to justify this assertion of global ownership. To the contrary,
the onus of proof is placed on indigenous peoples to prove their
legitimacy and "status". Despite the historical context
in which human remains were collected, there is no obligation
placed on holding institutions to prove their legitimate ethical
or legal title to contested items. Under Australian law it has
been illegal since 1913 to export human remains and other items
of anthropological interest without a permit.
21. Recommendations:
21.1 FAIRA urges the British Government
to acknowledge the ownership rights of Aboriginal and Torres Strait
Islander communities, individuals and organisations over their
human remains and significant cultural property held by museums,
galleries, universities and other collecting institutions.
21.2 FAIRA requests the British Government
to determine whether its national collections of Aboriginal and
Torres Strait Islander human remains and significant cultural
property were acquired legally.
21.3 FAIRA strongly recommends that repatriation
be considered as a first option in relation to human remains,
in particular named and known individuals, in British collections
and that national policy/legislation be drafted to this end.
21.4 FAIRA suggests the development of intergovernmental
agreements to facilitate the return of human remains and significant
cultural property when requested by Aboriginal and Torres Strait
Islander communities.
21.5 FAIRA recommends the British Government
to encourage museums to enter into dialogue with requesting communities
and respect community wishes in terms of display, study and return
of culturally sensitive cultural property and human remains.
22. MUSEUM AND
GALLERIES COMMISSION
REPORT: RESTITUTION
AND REPATRIATION
23. FAIRA welcomes the Museum and Galleries
Commission Report: Restitution and Repatriation: Guidelines for
good practice and appreciates the efforts of the Museums Association
in encouraging the development of these guidelines and best practice
policy by British museums.
24. However, FAIRA believes there are a
number of significant points that the report has not addressed
sufficiently, and questions the validity of many of the arguments
put forward by the report to favour the retention of remains and
cultural property (and see above).
24.1 For example, one such argument favouring
retention is its:
"Importance for better cross cultural understanding
in the United Kingdom and internationally of past and present
cultures" (p.12).
25. FAIRA believes that the retention of
human remains and significant cultural property against the wishes
of Aboriginal and Torres Strait Islander communities is not only
a prime example of a complete lack of cross-cultural understanding,
but contributes to the promulgation of cross-cultural misunderstanding.
As the Kelvingrove Museum has shown, successful and informative
exhibits can be developed which encompass repatriation as a theme
and which promote cross-cultural understanding in the modern world.
26. FAIRA believes that best practice guidelines
about issues concerning Aboriginal and Torres Strait Islander
human remains and significant cultural property can only be validly
developed in conjunction, and through discussion, with such groups
or their representatives.
27. Recommendation
27.1 FAIRA urges the British Government
to welcome the MGC Report: Restitution and Repatriation: Guidelines
for good practice, but to also recognise that this should be regarded
as a first stage document and that further guidelines should be
developed with the full involvement and input of indigenous groups
or other relevant stakeholders.
28. INTERNATIONAL
LEGAL INSTRUMENTS
29. The issue of cultural property lodged
in overseas holding institutions has been the subject of debate
in the United Nations and other fora. Various Conventions are
relevant to this issue, including the 1970 UNESCO Convention on
the Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Cultural Property and the 1995 UNIDROIT Convention
on Return of Stolen or Illegally Exported Cultural Objects.
30. The UNESCO Committee for Promoting the
Return of Cultural Property to its Country of Origin or its Restitution
in Case of Illicit Appropriation has been highlighting the issue
of the repatriation of cultural property since 1978. This is the
only body on an international level with a mandate to deal with
claims for cultural objects taken during the 18th and 19th centuries
of colonial expansion and European colonisation overseas.
31. The United Nations Office of the High
Commissioner for Human Rights is developing a United Nations Draft
Declaration on the Rights of Indigenous Peoples with Articles
12, 13 and 14 relating to the protection of indigenous cultural
heritage.
32. Recommendations:
32.1 FAIRA urges the British Government
to take steps to immediately adopt the 1970 UNESCO Convention
on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Cultural Property and the 1995 UNIDROIT
Convention on Return of Stolen or Illegally Exported Cultural
Objects. As the 1970 UNESCO Convention is not retroactive, FAIRA
also urges the British Government to develop national policy or
legislation based on the UNESCO Convention and UNIDROIT to apply
to cultural property illegally removed during the colonial period.
32.2 FAIRA strongly urges the British Government
to support the United Nations Draft Declaration on the Rights
of Indigenous Peoples in its current text, in particular Articles
12, 13 and 14 which relate to the protection of indigenous cultural
heritage.
33. ESTABLISHMENT
OF EXPERT
INDEPENDENT REVIEW
COMMITTEE
34. FAIRA understands that at present, where
requests are taken seriously, the primary responsibility for decisions
regarding the retention or return of indigenous cultural property
lie with the governing body of the relevant museum. However, there
is a need for an independent impartial advisory and review body
which could offer advice on ethical, moral and legal issues surrounding
such requests for return. FAIRA argues that holding institution
decisions are not, by their nature, independent or impartial.
35. Recommendations:
35.1 FAIRA urges the British Government
to take steps in establishing an independent and impartial body
with specific responsibility for providing information and expert
advice on cultural property, repatriation and illicit trade issues
to all levels of government, holding institutions, and claimants
alike.
35.2 This body would co-ordinate laws, programmes
and policy at all levels of government and would offer advice
to government, museums, galleries, universities and other institutions,
and claimants alike, on issues of restitution and illicit trade.
This body would, as part of its tasks, assist indigenous peoples
with access to information about their human remains and significant
cultural property, and in lodging claims for the repatriation
of such items in collections throughout the United Kingdom.
35.3 This body would establish a national
programme to identify and document the location in UK holding
institutions of indigenous human remains and significant cultural
property and that the Government allow access to this information
to requesting governments, organisations and indigenous communities.
ACKNOWLEDGEMENTS
Aboriginal and Torres Strait Islander Commission,
Canberra, Australia
Dr Cressida Fforde, Australian National University,
Canberra, Australia
Dr Kieran Hotchin, Environment Australia, Canberra,
Australia.
REFERENCES
Daes, E 1997. Protection of the Heritage of
Indigenous People, a report by the Special Rapporteur of the Sub
Commission on the Prevention of Discrimination and Protection
of Minorities. United Nations Study Series 1997.
Fforde, C 1997. Controlling the Dead. An Analysis
of the Collecting and Repatriation of Aboriginal Human Remains.
Unpublished PhD thesis, University of Southampton.
Legget, J 2000. Restitution and Repatriation:
Guidelines for Good Practice. Museums and Galleries Commission.
1 Significant cultural property refers to human skeletal
remains, other human tissue, burial artefacts, and objects of
religious and cultural significance. Back
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