Abstract: This paper reviews various case studies to examine the capacity for including cultural processes and practices in the design and implementation of development-related cultural heritage projects that demonstrate the maintenance of a body of law and custom consonant with native title. The paper shows that even apparently small cultural heritage projects linked to the development cycle afford an opportunity to gather a range of information that may likewise be of use at a later stage in native title-related matters. It then considers the design of terms of reference for cultural heritage projects that recognise that subsequent use of the results of that study may have to fulfil a larger purpose than may originally have been envisaged. Finally, attention is given to the role of the professional cultural heritage adviser in the context of native title. It is concluded that significant change in the role of such advisers is demanded by these circumstances.
Archaeological investigations have played a significant role in the development of native title cases. Prominent among these is the work undertaken on the Miriuwung-Gajerrong case. Here Justice Lee noted that he found the archaeological evidence compelling in helping to establish that there had been a social system in place prior to English assertion of sovereignty. This was consistent with reaching the conclusion that the people who lived in that region had developed and maintained a set of customs and practices central to a finding in favour of native title. He also accepted archaeological evidence demonstrating that a significant shift in seasonal patterns of subsistence and social organisation had occurred that could be attributed to changing economic circumstances deriving from the establishment of the pastoral industry in the Kimberley, the role Aboriginal people played in it, and the changed circumstances that required them to undertake ceremonial activity at a different time of the year (Fullagar & Head 2000).
Numerous other studies and papers have explored, from an archaeological perspective, issues such as the definition of group boundaries using rock-art analysis, interaction of groups through ceremony and exchange (evidenced by analysis of raw materials used in axe manufacture), as well as numerous other types of material culture and the nature and rate of change in Aboriginal society pre- and post-contact and the implications of this for issues surrounding maintenance and transformation of Aboriginal society, and consistency with native title (Fullagar & Head 2000; McDonald 2000; Murray 2000, 2002; Veth & McDonald 2002).
There have been less 'generous' treatments of archaeological evidence in native title as well. Thus, in the Yorta Yorta case, Justice Olney (1998) held that while there was some archaeological evidence that people had occupied the area in question and had an organised pattern of subsistence and economy, the question remained as to whether there was any relationship between those people who had created the archaeological material, and those people who now were asserting native title (see also Riches 2002). In a point of some interest to this paper, Olney also held that an apparently modern concern for various types of archaeological sites documented during development-related investigations was not proof of the maintenance of a body of custom and practice consistent with finding the existence of native title (see also Veth 2000).
Interestingly, however, there seems to have been less emphasis given to exploring the interplay of native title and archaeology in the context of development-related investigations. The undeniable fact is that the vast majority of archaeological study undertaken throughout Australia is situated within the context of the preparation of an environmental impact statement (EIS), or other types of studies linked to development-based imperatives, in which various statutory processes impose a requirement to consider cultural heritage management (e. …