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Mansell, Michael --- "The War of the Dead" [2007] IndigLawB 46; (2007) 6(29) Indigenous Law Bulletin 19

The War of the Dead

by Michael Mansell

In acceding to the claim, the NHM has recognised the legitimacy of the claimant group and the arguments for repatriation. It seems to me, therefore, to be inconsistent to deny the rights of the claimant community to determine the treatment of their ancestors once that decision had been reached.[1]

While there had been an increasing trickle of repatriations of Aboriginal and Torres Strait Islander human remains by overseas museums, the powerful British Natural History Museum (‘NHM’) bucked the trend. It held the line, refusing to give up anything. Therefore, the announcement by the Natural History Museum in November 2006 that it had agreed to repatriate the remains of 17 Tasmanian Aboriginal dead not only brought joy to Tasmanian Aborigines who had campaigned for decades for that outcome, but it signalled a massive shift in repatriation policy by a prominent museum. The capitulation by NHM would undoubtedly influence other UK institutions such as Oxford and Cambridge, as well as the Royal Scottish Museum, which have each toed the NHM refusal line.

True to form however, NHM were not going down without a fight: its scientists, the Museum stated, would conduct invasive tests of the remains before handing them over.[2] The Museum acknowledged that the Tasmanian Aboriginal Centre (‘TAC’) had repeatedly advised that testing was prohibited. Hopes that the Aboriginal dead in overseas institutions were to at last receive a dignified repatriation were immediately dashed.

At the heart of disputes between scientists and museums on the one hand, and indigenous peoples on the other, is whether the dead are to be treated as mere ‘objects’ or as dead people. The Museum stated that

the decision to return the Tasmanian remains, following a short period of data collection, is a commonsense one that balances the requirements of all those with an interest in the remains.[3]

In other words, the interests of the scientists in wanting to grope the Aboriginal dead were seen as equal to the cultural obligations of Aboriginal people.

Museums and other institutions around the world are reported to be holding hundreds, if not thousands, of Aboriginal remains. The Natural History Museum alone recorded in 2002 that it holds the remains of 461 Aboriginal people.[4]

Australian law provides for Aboriginal and Torres Strait Islanders to have a legally enforceable right to claim human remains from any institution within Australia. Section 21 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) provides:

[T]he Minister ... shall:
(a) return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition...

Many Australian museums and universities have handed remains over to Aboriginal communities. Many institutions in Britain have also repatriated human remains to Australia in the last decade or so; many doing so as a result of political pressure being brought to bear by Aboriginal groups. Others have sat out the storm, believing these groups were unlikely to keep up the public fight from the other side of the world.

In 2000, Prime Minister John Howard struck a political deal with British Prime Minister Tony Blair for the establishment of a working party to examine all issues relating to repatriation of Aboriginal remains, with the implied demand that Aboriginal remains had to be given up by Britain. The British Human Tissue Act 2004 (UK) was in the preliminary stages of development at the time, and section 47 of that Act was eventually adjusted to provide museums with discretion to de-accession any of its human remains collections.

The British Government’s Working Group, chaired by Professor Norman Palmer CBE, undertook a consultation which ultimately produced the ‘Guidance for the Care of Human Remains in Museums’ (‘the Guidance’),[5] intended to make repatriation smoother. The NHM decision to hand Tasmanian Aborigines the 17 remains was subsequently forced by continual political pressure from the TAC. The new law and standard provided the means by which the NHM could legally repatriate.

The TAC strongly objected to testing of the remains and sought the support of Prime Minister Howard. To its credit, the Federal Government also opposed testing of the remains.

Following frantic, yet futile, exchanges of correspondence between the TAC and NHM through December 2006 and January 2007, legal proceedings were initiated by the TAC. Norman Palmer CBE directed the TAC to a New Zealand case, Re Estate of Tupuna Maori,[6] in which Greig J had granted Letters of Administration relating to the remains in favour of the applicant Maori. The decision provided a new string to the bow in preventing testing of Aboriginal dead against the wishes of the descendants.

In re An Application by the Tasmanian Aboriginal Centre Inc,[7] Underwood CJ granted Letters of Administration to the TAC, effectively granting rights over the estate of the 17 dead. As there were no assets to speak of, the remains became the whole of the estate. The relevance of the grant was that the TAC were about to launch proceedings in the High Court in London, seeking an injunction preventing NHM from carrying out tests on the 17 dead. The Tasmanian Supreme Court appointment of the TAC as Administrator of the estate of the 17 introduced a new legal argument that NHM had to deal with, namely that if the Tasmanian Order was registered in London, it had the effect of an Order by a British court.

While it is true that at common law there is no property in the dead,[8] after examining Australian and English authority, the Tasmanian Chief Justice found that there is a form of property in remains (such as a licence to bury) and that a grant of administration may be made to ascertain the estate. The discretion was exercisable in favour of the Aboriginal applicants in this particular case because there was evidence that the remains, ie the subject of the estate, were under threat by NHM, and that the TAC intended to launch proceedings concerning the 17 dead in the British High Court on the Monday following the Tasmanian application’s Friday hearing.

The London legal team acting for the TAC was formidable. Led by ex-pat Geoffrey Robertson QC,[9] urgent interim injunctions were initially granted, but the terms of the continuing Order did not prevent NHM carrying out invasive testing. The matter was set down for trial but was eventually mediated.

The victory by Tasmanian Aborigines against the relative power of NHM and other institutions holding Aboriginal remains was, in a sense, a pyrrhic one. While legal proceedings were slowly advancing, the NHM took full advantage of its possession of the remains to conduct tests even while the case was under way to stop them. The mediated outcome did prevent NHM doing all tests it threatened to do, but the damage was done. In the name of science, the museum advised TAC lawyers that it intended to pull teeth from jawbones, dismantle a skeleton, chisel pieces of bone and crush them to extract DNA samples.

Government-to-government negotiations on repatriation can be integral to returning remains, but are only helpful where they are at the behest of the Aboriginal claimants. The Australian Government and ATSIC officials had colluded in the lead-up to the finalisation of the Guidance so that the relevant Aboriginal group to whom remains ought to be returned would be those nominated by the Australian Government. The TAC had been informed by one of Mal Brough’s advisers that the TAC was ‘not recognised’ by the Howard Government as always being the relevant body to deal with Tasmanian Aboriginal remains.[10]

The TAC wrote to the Prime Minister on 8 December 2006, thanking Mr Howard for his help, but making clear that

Tasmanian Aboriginal people do not need the consent of your Government to continue our long struggle to get our peoples remains returned[11]

and that already

Oxford, Leverhulme Institute [at Cambridge University] and Royal Scottish Museum all indicate the involvement of OIPC without TAC consent amounts to a conflicting claim.[12]

By maintaining a tight hold on the reigns, the TAC was able to benefit from the ‘appropriate’ help from the Australian Government. While the TAC achieved its main objective of having the remains of the 17 dead returned, it was unable to establish a legal precedent that other indigenous groups could rely on.

It must be said that since the 1980s, attitudes toward repatriation of indigenous dead have changed. Many scientists now promote repatriation, often championing the cause of indigenous peoples. But this is not universal. British museums have long held the view that they are at the centre of world culture and that widespread repatriation would threaten the existence of the museums. While Britain was not alone in plundering the graves and cultural objects of the peoples whose lands it has invaded, it was, among the worst.

Museums in the United Kingdom have long hidden behind British law in refusing to give up their collections. In 1983, a proposed amendment to the British Museum Act 1963 (UK) that would have enabled repatriation of human remains was unsuccessful because the museums contended that, even though many human remains were grave robbed, remains were integral to the integrity of its collections. In the course of the debate in the House of Lords, Lord Jenkins of Putney dissented, pointing out:

The integrity of the museum is important ... [b]ut the integrity of this country in the world is more important.[13]

To date, many scientists have failed to articulate their case. They are content to rely on the possession of human remains by museums as somehow legitimising their actions. They want to argue their case simply by playing the ‘possession’ trump card. Their reliance on this ‘bargaining chip’ is acknowledgment in itself of the weakness of their moral stance.

However, not all British museums are this unethical. In 2003, the Manchester Museum acted on the advice of its Director, Tristram Besterman, to repatriate human remains to Queensland. Mr Besterman asked the Foundation for Aboriginal and Islander Research Action delegate Bob Weatherall if there was

any objection to the museum's carrying out an exhaustive morphometric examination and possible physical sampling of the remains.[14]

After Mr Weatherall’s advice that it would be ‘unacceptable to the claimant community’,[15] Mr Besterman confirmed that

[t]o have proceeded with data sampling at that point appeared to me to be ethically indefensible, so no further research was undertaken on the remains.[16]

It remains to be seen whether the Aboriginal victory in the case of the 17 Tasmanian dead will open the doors for other Aboriginal groups. Despite there being no legal precedent, the lessons from the battle include that:

1. Aboriginal groups need to press their case for repatriation and should apply for an external grant of aid to do so.

2. The application for administration of the estate is not straight forward and may depend on the relationship between the applicants and the deceased. Importantly, the court will require evidence about the deceased and an explanation as to why the discretion to make the grant should be exercised.

3. The terms of any grant made should be framed to enable the Aboriginal or Torres Strait Islander group to seek possession of the remains without any physical interference, and prevent actions that may infringe cultural sensitivities.

A workshop at the Human Rights and Equal Opportunity Commission in Sydney is being organised for 29 October 2007 to discuss repatriation of indigenous remains. Guest speaker will be Mark Stephens, who was instrumental as solicitor in the Tasmanian success against the NHM. Mark will be willing to share his legal expertise and general advice to all present. We recommend community people with an interest attend, as well as lawyers and professionals interested in taking advantage of this rare opportunity to hear from such an accomplished lawyer with a commitment to social justice.

The war for repatriation is far from won.

Michael Mansell is the Director of the Tasmanian Aboriginal Centre Inc.


[1] Evidence of Tristram Besterman, Transcript of Proceedings, TAC & Michael Mansell v Natural History Museum.

[2] National History Museum, ‘Human Remains to be Returned from Natural History Museum’s Collection’ (Press Release, 17 November 2006).

[3] Ibid.

[4] Natural History Museum (Department of Palaeontology), ‘Listing of Human Remains’ (March 2002).

[5] See Professor Norman Palmer FSA, ‘The Report of the Working Group on Human Remains’ (2004) and Department for Culture, Media and Sport, ‘Guidance for the Care of Human Remains in Museums’ (2005).

[6] Re Estate of Tupuna Maori, Warrior (Unreported, High Court of New Zealand, 19 May 1988)

[7] [2007] TASSC 5.

[8] Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

[9] Mark Stephens of Finers Stephens Innocent was invaluable. This firm had acted for some high rollers including CNN. We were quite amazed that such a firm would take such an interest in a small Aboriginal group like us.

[10] Note on file with Author.

[11] Letter from the Tasmanian Aboriginal Centre to Prime Minister John Howard, 8 December 2006.

[12] Ibid.

[13] Jeanette Greenfield, The Return of Cultural Treasures (1989) 122.

[14] Besterman, above n 1.

[15] Ibid.

[16] Ibid.


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