The effect of the

Abstract

Laws relating to religious freedom and to protection of cultural heritage exist in many jurisdictions in Australia, USA, Canada and New Zealand. On the face of it, these laws could be used to provide legal protection for places by reason of their perceived sacredness to Indigenous peoples in those countries. However, despite differing forms of jurisprudence in each of the four countries, all have demonstrated doctrinal difficulties in applying such laws to the concept of Indigenous sacred places. This thesis examines one reason for this, namely the way in which these laws reflect “Western liberal” assumptions derived from a separation of spheres into private and public. In such perceptions, religion and the sacred belong in the private sphere. As a result, religious freedom jurisprudence is premised on privatised concepts of religion and has failed to deal with those common Indigenous notions of the sacredness of places themselves, notions which raise issues beyond individual conscience and manifestation of beliefs. By contrast, laws relating to cultural heritage are designed to preserve heritage for the public and the legislative models that have developed in all the four countries are designed for the public sphere. These laws assume and apply principles reflecting objectivity, neutral secular public values and public judgment.

Such laws too do not cope with Indigenous sacred places whose significance is a matter of particular religious belief. This thesis is an analysis of those key legal models and doctrines in religious freedom and heritage protection jurisprudence that reflect a division of private and public spheres and which cause problems for Indigenous sacred places. Behind some of the pressure to restrict the sacred to a private sphere is a desire to limit its intrusion on private and government property interests. The competition for space between such property interests and the sacred is a recurrent theme in the analysis and has contributed to the shaping of the public–private dichotomy and the relevant laws. Note: This thesis deals with the law as at the end of 2009.

Thesis (Ph.D.)--University of Western Australia, 2011

Laws relating to religious freedom and to protection of cultural heritage exist in many jurisdictions in Australia, USA, Canada and New Zealand. On the face of it, these laws could be used to provide legal protection for places by reason of their perceived sacredness to Indigenous peoples in those countries. However, despite differing forms of jurisprudence in each of the four countries, all have demonstrated doctrinal difficulties in applying such laws to the concept of Indigenous sacred places. This thesis examines one reason for this, namely the way in which these laws reflect “Western liberal” assumptions derived from a separation of spheres into private and public. In such perceptions, religion and the sacred belong in the private sphere. As a result, religious freedom jurisprudence is premised on privatised concepts of religion and has failed to deal with those common Indigenous notions of the sacredness of places themselves, notions which raise issues beyond individual conscience and manifestation of beliefs. By contrast, laws relating to cultural heritage are designed to preserve heritage for the public and the legislative models that have developed in all the four countries are designed for the public sphere. These laws assume and apply principles reflecting objectivity, neutral secular public values and public judgment.

Such laws too do not cope with Indigenous sacred places whose significance is a matter of particular religious belief. This thesis is an analysis of those key legal models and doctrines in religious freedom and heritage protection jurisprudence that reflect a division of private and public spheres and which cause problems for Indigenous sacred places. Behind some of the pressure to restrict the sacred to a private sphere is a desire to limit its intrusion on private and government property interests. The competition for space between such property interests and the sacred is a recurrent theme in the analysis and has contributed to the shaping of the public–private dichotomy and the relevant laws. Note: This thesis deals with the law as at the end of 2009.