1999 State Heritage Convention Report

OFFICIAL OPENING ADDRESS

TOWARD A CO-ORDINATED HERITAGE CONSERVATION STRATEGY: LINKING OUR PAST AND OUR FUTURE

By the Hon David K Malcolm AC Chief Justice of Western Australia

I am very pleased to have been invited to deliver the official opening address to the State Heritage Convention. My address is entitled Toward a Co-ordinated Heritage Conservation Strategy: Linking Our Past and Our Future. To many, the concept of heritage conservation can be equated with the role of a museum curator, preserving artefacts, usually buildings, for others to see. It is essentially a backward-looking activity, which is locked into the past. Heritage conservation is however a broader and more dynamic activity. Our "heritage" encompasses so many more aspects of our community than simply our architectural history. Contrary to popular belief, the conservation of our heritage is more closely linked with the present and the future than the past. The object of conservation is to protect our heritage for the generations that will follow us.

Given the fundamental importance of conserving our heritage, there is a need to reinforce the co-ordination of the efforts of the community, community groups, heritage agencies and government. In the last 12months we have seen significant advances made at a Commonwealth level to encourage co-ordination. There is however a great deal more to be done. This morning I would like to address the concept of "our heritage", the divergent methods of assessing heritage value and review the progress that has been made in achieving a unified approach to conserving our heritage. What do we mean when we talk about our "heritage"? It is a term that is used a great deal in discussion over the future of the Commonwealth Constitution and, in particular, the Preamble. The Macquarie Dictionary defines "heritage" as: "That which belongs to one by reason of birth".

Similarly, at common law, the concept of "heritage" is used to refer to those aspects of a deceased estate, which pass to the next of kin. In essence, these definitions relate to an individual's entitlement to ownership of property. "Heritage" can however have a much broader meaning. For example, the Macquarie Dictionary also refers to: "'The culture, traditions, and national assets preserved by one generation for the next". In this broader meaning, it encompasses those things, which we as a community, or a generation, have inherited from the generation before us. It is not owned by an individual but belongs to us all. It is the tangible fabric of our history rather than the intangible historical accounts collected in written volumes. It is history written, rather than written history.

To define the concept does not however define its content. What then is our heritage? What have we received and what do we pass on? Our heritage consists of many things at many different levels. From an anthropocentric point of view it consists, fundamentally, of breathable air, potable water, wilderness and unspoilt agricultural lands. It also consists of those things, which represent a record of our activities including our economic, social and cultural activities. Museum collections hold some of these aspects of our heritage. They cannot however hold everything. In recent times there has however been a realisation that in the context of our natural environment, our heritage is more than those resources, which immediately support our community. It encompasses the global environment. In 1959, Aldous Huxley suggested an experiment to prove how dependent we are on our environment:

"It is perfectly clear, when we come to think of it, that we are indissolubly one with nature and depend completely on the natural environment. Anybody can do a simple experiment to find out how much he depends on the natural environment even though he lives in a world of television and automobiles. He merely has to put a clothespin on his nose and tape up his mouth to find out he can't do without his natural environment for more than about sixty seconds".

The need to maintain water supplies, is a prime example of our dependency on our environment. Living creatures cannot survive without water. A three-day-old human foetus contains 97% water. 1 On average, 65 to 70% or 45 to 50kg of a 70kg man is water. 2 Whilst the dehydration tolerance may differ between species, the rule remains absolute.

Fresh water is also vital to the existence of humankind as a resource for the support of agriculture. The first civilisations were established where water was in abundance. For example, the Euphrates has been manipulated as a resource since 4000BC and the need to regulate its use properly provided the impetus for the creation of one of the first systems of governmental regulations. 3 Even today irrigation is still the cornerstone of world global food security. Agriculture accounts for over 70% of world water consumption. 4

Preservation of our environmental heritage is fundamental to our economic development. The United Nations for example has noted our dependence on our environment in pursuing economic and social change:

"In many third-world nations, environmental pressure threatens to undermine long-term development. Among many countries in transition, decades of disregard for the environment have left large areas poisoned and unable to sustain economic activity in the long term. Among the wealthiest nations, consumption patterns are depleting world resources in ways the jeopardise the future of world development. " 5

The preservation of our global environmental heritage also has a significant role in preserving global peace. The last few decades has seen the arrival on the diplomatic scene of an unprecedented number of new states, as a result of the process of decolonisation, encouraged by the United Nations after WWII 6. International security to developing nations means the establishment of a stable state system and reliable methods of ensuring food supply, health, money and trade 7. The deterioration of an environmental resource through its destruction or degradation, invariably coincides with the political and economic destabilisation of the State that places reliance on the continuous availability of that resource 8. The fact that many environmental resources are scarce promotes competition between States, and has the potential to provoke armed conflict 9. At another level, our heritage encompasses our learning including philosophy, religion, literature, history, politics and science. Much of this heritage is preserved in our libraries. Our artistic heritage is preserved in our galleries. To rely on these repositories however ignores the myriad of other endeavours and activities which we have learnt and developed from the generations before us and those activities which we have enhanced to pass on to future generations.

I am referring to those things, buildings and places which have formed part of the development of our activities; a trade union banner at the Chung Wah Association, a note in a bottle on Dirk Hartog Island or a Judge's wig and robes from the tum of the century. These are aspects of heritage, which demonstrate not only what was done but also how it was done.

So far I have spoken about the heritage, which we as a community inherit. It should be remembered however that each individual member of our community may not share a single heritage. The population of Western Australia today has been drawn from some 180 countries from around the world. We live in a city, which accommodates mosques, synagogues and temples as well as the traditional Christian churches and a host of other religions. The adherents are from many different countries. To prefer one particular version of our heritage, and thereby our history, ignores the rich multi-cultural heritage which we enjoy today. It is also blatantly discriminatory. Although it is not strictly correct to talk about "heritages", we should take enormous pride in the diversity of our community and act to preserve all heritages as being aspects of a united, or Australian, heritage. Our multi-cultural history, the tolerance we have developed and the strength of our unity in diversity is something that we must protect, enhance and pass on to future generations.

An understanding of what our "heritage" is, and what it encompasses, also gives an understanding of why should we conserve our heritage. The conservation of our heritage establishes and maintains a link between our past and our future. We, as a generation, have a responsibility to future generations to ensure that those links are not broken. Our role is however greater than simply acting as guardians. We also add to the heritage we have inherited and our actions shape the heritage of future generations. In all cases, we must take care to enhance, rather than destroy, the heritage, which we pass on. It is this final aspect that the 1973 Hope Committee's Enquiry into the "National Estate" referred to as being:

"(T)he supreme justification for conservation of the National Estate, [that] is, the deep feeling of most Australians that their descendants have the right to at least as many options in the cultural and natural environment as they have themselves." 10

The Committee also emphasised the unique nature of many of the aspects of our heritage as being a justification for its conservation:

"It must also be remembered that any loss of the National Estate is essentially never retrievable. Whether it is the destruction of an historic building, a group of buildings or a townscape, or the alienation to other uses of a natural area and its associated ecosystems, the process can never be reversed to restore what has gone." 11

It is clear that in developing strategies for the conservation of our heritage individual heritage areas cannot be isolated. All those aspects of our heritage, which I have discussed, are interrelated.

In contrast to our history, the development of formal strategies to manage and conserve our heritage is relatively new. The National Trust of England was first incorporated in 1895 but did not receive statutory recognition until 1907 by way of a special Act of Parliament. The National Trust of Scotland was established in 1930. The National Trust organisations in New South Wales, South Australia and Victoria were only established in 1945, 1955 and 1956 respectively. The National Trust in Western Australia was incorporated in 1959 12. At that time, its principle aims and objectives were framed very broadly. They were:

"1. To restore and preserve historic buildings and those of outstanding architectural merit, and, where possible, to keep them in use, or at least open for regular inspection by the public.
2. To safeguard the beauty and interest of the countryside and coastline in the forth of wildflower patches, stands of timber, primitive reserves, national parks, aboriginal relics and places of importance as the breeding grounds of native birds, animals and plants.
3. To stimulate and encourage public interest in places and things of national or local importance by reason of educational, historic, architectural, traditional, artistic or other special interest. " 13

When the Trust was given statutory recognition in 1964 under the National Trust of Australia (WA) Act 1964 (WA), these objectives were enhanced and incorporated into the Act. On its face, the position that was created under this Act was ideal for the management and conservation of our heritage in this State. The aims and objectives incorporated many of those aspects of our heritage, which I have already discussed. Outwardly, the Trust had been created as a central agency for heritage conservation and had the ability to co-ordinate those conservation efforts as a whole. In practice however, the Trust's aims and objectives limited it to acting on a building-by-building approach, lacking the ability to fix a co-ordinated policy for heritage conservation. 14

The most significant step in the development of a co-ordinated or holistic approach to heritage conservation, was the publication in 1973 of the Report of the Committee of Enquiry into the National Estate, or The Hope Report. The concept of "the National Estate" was first utilised in 1972 by the then Leader of the Federal Opposition, the Hon Gough Whitlam QC MP in a Labor Party policy speech. 15

The term was not defined. Shortly after the election of the Labor Government in 1972, a Committee of Enquiry was established, to be chaired by the Hon Justice Hope, to enquire into the National Estate and develop strategies for its management and conservation. In its recommendations, the Hope Committee settled upon a broad definition of the National Estate, dividing it into four parts: the natural environment; the man-made or cultural environment; the archaeological or scientific areas and cultural property. 16 This division was adopted and enhanced in s.4(1) of the Australian Heritage Commission Act 1975 (Cth).

Despite the broad approach adopted by the National Trust and the Hope Committee, the statutory protection given to heritage places and objects in Western Australia is somewhat fragmented. This fragmentation is aggravated by the overlay of Commonwealth legislation dealing with the same or similar subject matter. Each legislative scheme provides a different definition of "heritage" and a different range of powers for its enforcement. For example, I have already noted the very broad definition of those items falling within the National Estate in the Australian Heritage Commission Act. At the same time, the Commonwealth World Heritage Properties Conservation Act 1983 (Cth), in adopting the definitions of cultural heritage" and "natural heritage" established by UNESCO, limits the concept of "cultural heritage" specifically to monuments, cave dwellings or other architectural places.

At the State level, I have already noted the objects and aims of the National Trust of Australia (WA). The Heritage of Western Australia Act 1990 (WA) on the other hand limits our heritage to "places". For example, that Act refers to "cultural heritage significance" which is defined in s. 3(1) as:

"[I]n relation to a place, the relative value which that place has in terms of its aesthetic, historic, scientific, or social significance for the present community and future generations; "

In many respects, the National Trust Act and the Heritage of Western Australia Act are complementary. For example, the National Trust is empowered to purchase or lease property in order to conserve and protect its heritage value. The Trust however lacks enforcement powers where action is taken which endangers a heritage property. The Heritage Act on the other hands allows for the imposition of fines and other penalties where damage is done to a heritage property. With regard to community involvement in heritage issues, the National Trust has the ability to represent a range of community interests throughout its membership whereas the Heritage Council does not have a broad community membership base. There is fertile ground between these two Acts for closer co-ordination in heritage conservation.

In contrast to the ability of the National Trust to draw on the opinion of its membership in evaluating our heritage is the Aboriginal Heritage Act 1972 (WA). The short title of the Act is:

"An Act to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants, or associated therewith, and for other purposes incidental thereto."

The definitions of those places and things to which the Act applies are very broad. Section 5 of the Act for example defines those places, which are given protection under the Act as:

(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of aboriginal descent;
(c) any place which... is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
(d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.

The operation of the Act extends also to objects which are of sacred ritual or ceremonial significance17. It is an offence for a person to excavate, destroy, damage or alter any Aboriginal site 18. The Act obliges the owner of any land, which incorporates an aboriginal heritage site to give notice of any proposed use, which may interfere with that site to the Minister for Aboriginal Affairs. 19 The Minister may consent to or decline to consent to the proposed use. 20 The Supreme Court of Western Australia in Bropho v State of Western Australia 21 has held that these provisions do not allow Aboriginal people to object to consent being granted by the Minister. The Aboriginal community is therefore effectively excluded from decisions in respect of particular Aboriginal sites.

One of the most significant aspects of heritage conservation, which must be understood before we can move forward in developing conservation strategies, is the interest and concern of the community as a whole. Many of you will have seen recent news reports of violent clashes over the future of old-growth forests in the State's south. 22 Many more of you may remember the level of protest over the development of Hepburn Heights in the city's northern suburbs. While characterised as "environmental", they represent conflict over strategies to manage our natural heritage. The proposal of different strategies by Government or conservation groups has the potential to polarise the community. Some sectors will adopt an "all or nothing" approach to resolution of issues.

It must be acknowledged that in formulating strategies for heritage conservation, be it our natural, built or multicultural heritage, that planning will affect an enormous number of our community. As I said in my opening remarks, the concept of "heritage" in this context means a collective inheritance - an inheritance, which we all have a right to enjoy, and an obligation to preserve. We, as a community, are also the people who will enjoy our heritage. The community therefore plays a significant role in determining whether something is of heritage value and whether the community can afford to conserve or lose that thing. Current conflicts demonstrate however that the community is not always of one mind on these issues.

The Hope Committee acknowledged the need to balance the public interest in conservation as against the private interest in industrial, commercial or other projects. While a dollar value can be easily fixed to the cost and profits of industrial projects, the public interest defies quantification 23. I would suggest that the balance is even more difficult to achieve if one takes into account the public interest in ensuring that Australia maintains its position as one of the leading industrialised nations and guarding against rampant unemployment. As the Hope Committee report said:

"Losses [of our heritage], and their effects are essentially long term, difficult to predict with certainty, and difficult to evaluate either in financial or social terms of cost. Environmental costs, in the present state of ecological knowledge, are even more unpredictable, as is the possible cost of repair." 24

I would add that any potential loss of employment is also difficult to quantify. This need for balance between development and conservation has also been acknowledged at an international level, particularly in the area of the conservation of natural resources. It has been encapsulated in the concept of "sustainable development". In 1987 the United Nations published the report of the Brundtland Commission entitled Our Common Future. The Report defined the concept as being:

"Development that meets the needs of the present without compromising the ability of future generations to meet their own needs." 25

While the term has achieved a significant level of use with regard to the environment, it has application across all aspects of our heritage. Resolution of competing claims in any assessment of the value of conserving aspects of our heritage is difficult. It will however require two key elements; community input into any decision-making process and the co-ordination and integration of the needs of competing groups.

The organisation of this Convention goes a long way to achieving these goals. The organisers should be warmly congratulated for succeeding in bringing together representatives from the full range of heritage perspectives. As I have highlighted in my opening remarks, there is a desperate need for an over-arching or unifying philosophy in the coordination of heritage conservation, a process which the Hope Committee sought to achieve but still remains to be firmly established.

A great deal has already been achieved at the Commonwealth level. Early last year, the Council of Australian Governments ("COAG") initiated a review of the co-ordination of State and Commonwealth Government roles in the management and conservation of heritage places. A product of that review was the in-principle approval by COAG of the development of a National Heritage Places Strategy. 26 The development of a national strategy by the Commonwealth was a demonstration of leadership by the Commonwealth Government in the conservation of heritage places.27 In his address to the National Heritage Convention in Canberra in August last year, the Federal Minister for the Environment, Senator the Hon Robert Hill acknowledged that the development of a co-ordinated strategy at the Commonwealth level faced a number of obstacles. For example, at the time of the passage of the Australian Heritage Commission Act 1986 (Cth), there was doubt expressed over whether the Commonwealth had the power under the Commonwealth Constitution to enact legislation, which purported to cover those aspects of our heritage acknowledged in the Act. 28 That question remains unresolved.

In addition to the constitutional limitations, which a Commonwealth regime may face, the sheer number of heritage places and items, which would fall within such a regime, has the potential to be unmanageable. Senator Hill highlighted the extent of the States' legislation and expertise in protecting heritage places as forming a solid basis for ongoing management. 29 The role of the Commonwealth is however crucial as having the authority to encourage or cajole the States into the formulation of a unified common standard. As Senator Hill said:

"[T]he establishment of principles and standards which are endorsed by governments at all levels, and by the community, is essential to the development of a comprehensive and seamless heritage protection and management system for Australia. This system should allow for approved and appropriate heritage protection at all levels of government." 30

The National Heritage Convention in Canberra last year, represented an acknowledgement that the development of heritage conservation strategies by various agencies could no longer be developed in isolation from the. community and from each other. The challenge to delegates to that Convention was to resolve upon strategies to achieve comparative standards across heritage areas and to integrate Commonwealth and State regimes. 31 The outcome of the Convention was a significant step forward in unifying heritage conservation practices. The Convention Communique adopted the Australian Heritage Places Principles 32. Principle 1 provides that:

"Recognising our responsibilities to past and future generations, the Australian community will conserve its heritage through cooperation and respect between all communities and governments."

The Principles also recognised a number of the elements of heritage conservation strategies, which I have noted including, community involvement in assessing heritage value 33 and the need to acknowledge the range and diversity of heritage values. 34

The Australian Heritage Standards adopted by the Convention encouraged the development of legislative and administrative processes to achieve a significant level of protection for heritage places. I note that in many respects, the Standards are broader than that proposed in earlier documents such as the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance.

In contrast to the range of definitions of heritage, which apply in Western Australian and the Commonwealth legislation, the Convention adopted, as part of the Standards, a model to assist in the identification of things or places of heritage significance. The model is cast in terms, which make it applicable across many different areas of heritage conservation, and lends itself to a much broader co-ordination of conservation strategies. For example, the model provides for the assessment of heritage value according to inter alia:

1. Importance to the course or pattern of our cultural or natural history.
2. Importance in exhibiting particular aesthetic characteristics valued by a community or cultural group.
3. Importance in exhibiting a high degree of creative or technical achievement at a particular period.
4. Strong or special association with a particular community or cultural group for social, cultural or spiritual reasons. This includes the significance of a place to Indigenous peoples as part of their continuing and developing cultural traditions. 35

Importantly, with regard to determining the conflict between development and conservation, the Standards encourage the development of a process, which ensures that all competing claims are given equal weight and consideration. In particular, clause 7.1 of the Standards provides that heritage, land and environment planning systems will: "Ensure stakeholders are adequately consulted and have the opportunity to comment on planning and development decisions affecting heritage places." 36

While a great deal has been achieved at a Commonwealth level, Senator Hill's comments indicate the burden remains on the States to do the groundwork to ensure the development of a co-ordinated strategy. It is in this respect that this Convention has the potential to achieve the next great step forward in developing an over-arching strategy for heritage conservation. I encourage all delegates to work together to achieve this goal. After all, if we as a community fail to achieve the optimum level of heritage conservation, we not only lose things, which we value but those things, which the generations before us and after us value. We must strive to maintain this link between the past, the present and the future as it is a link that we cannot re-forge.

ENDNOTES
1 Furon R., The Problem of Water: A World Study, (1963), p. 8
2 Ibid, p. 42
3 Hager R., "The Euphrates Basin: In Search of a Legal Regime", (1990) 3 Georgetown Int'l Envtl. Law Review 207 at 207
4 Postel S., "Saving Water for Agriculture", in Worldwatch Institute, State of the World 1990, (1990) at p. 39
5 United Nations, United Nations Yearbook 1995.. Special Fiftieth Anniversary Edition, (1995) at p. 354
6 See for example the Charter of the United Nations Articles 86-91 and the Declaration on the Granting of Independence to Colonial Countries and Peoples GA Res 1514 (XV) UN GAOR (1960)
7 Ayoob M., "The Security Problematic of the Third World", (1 990) 43 World Politics 257, p. 259
8 Handl G., "Environmental Protection and Development in the 3rd World: Common Destiny Common Responsibility", (1 988) 20 Int7 Law and Politics 603 at p. 605
9 Thomas C., The Environment in International Relations, (1992), at p. 3
10 Committee of Enquiry into the National Estate, Report, (1974), Parliamentary Paper 195, at para 1.40
11 Ibid at para 1. 61
12 Second Reading Speech of the Hon David Brand MLA on the National Trust of Australia (WA) Bill 1964, Vol. 168, New Series, Western Australian Parliamentary Debates at p. 1458, 13 October 1964
13 Cited by the Hon David Brand MLA, ibid at p. 1459
14 Payne M., "The Concept of the National Estate and Protection of Places with Cultural or Heritage Significance under the Heritage of Western Australia Act 1990" in National Environmental Law Association - WA Branch, 7he Heritage of Western Australia Legislation One Year On, Conference Proceedings, (1992) at p. 9
15 Committee of Enquiry into the National Estate, Report, (1 973) at para 1. 1
16 Op cit. Recommendation 6, p. 334
17 Section 6, Aboriginal Heritage Act 1972 (WA)
18 s. 17, Aboriginal Heritage Act 1972 (WA)
19 s. 18(2), Aboriginal Heritage Act 1972 (WA)
20 s. 18(3), Aboriginal Heritage Act 1972 (WA)
21 (1991) 5 WAR 75
22 See for example Rechichi V., "Tempers Flare in Forrest Clash", West Australian, 21/4/99, p. 35
23 Op cit, at para 1.56
24 Op cit, at para 1.58
25 World Commission on Environment and Development and the Commission for the Future, Our Common Future, (1990), p. 87
26 Senator the Hon Robert Hill, Minister for the Environment, Opening Address to the National Heritage Convention, 6 August 1998
27 Ibid
28 See McIntyre G. "Other Legislation Protecting Places of Cultural and Heritage Significance in Western Australia" in National Environmental Law Association Conference Proceedings,op cit, pp. 14 et seq
29 Ibid
30 Ibid
31 Ibid
32 Australian Heritage Commission, National Heritage Convention: Key Outcomes, (1998), p. 10
33 Australian Heritage Places Principles, Principal 4
34 Ibid, Principle 6
35 Australian Heritage Standards, "Box 1" reproduced in Australian Heritage Commission, Key Outcomes, op cit at p. 33
36 Australian Heritage Standards, Clause 7.1