THE COLLECTOR AND THE COLLECTION PROCESS

At issue was the ownership and repatriation of three art works on bark made in 1854 by members of the ‘Murray and Loddon Tribes’ on the pastoral station Fernyhurst near present-day Boort in central northern Victoria. Two are etchings on the smoke-blackened inside of small pieces of bark from the Yellow or Grey Box, a type of Eucalypt common in the area. One etching shows a series of men dancing in a corroboree or ceremony, together with a watching audience; the other appears to show three men hunting a kangaroo (but the interpretation of this piece is contested). The third item is a piece of curved Red Gum bark, shaped with a narrow neck at one end and decorated with red and white ochre. This piece was used by dancers in an emu dance ceremony; similar pieces are recorded by nineteenth-century settler-observers as having been discarded at the end of the dance and as having no continuing ceremonial significance.³

The bark etchings are the earliest known from southern Australia, and the emu piece is the only such item to survive from southeastern Australia.

The three items formed part of a much larger collection of Aboriginal material culture gathered by the squatter pastoralist on Fernyhurst, John Hunter Kerr, in 1854. Kerr, who had emigrated from Scotland in 1839, acquired the station on the Loddon River in late 1849 and remained at Fernyhurst until 1861. By the mid-1840s, well before Kerr settled on the property, virtually all the land in the region had been occupied by squatters. As elsewhere, European settlement decimated the indigenous population. Fernyhurst was on the edge of Dja Dja Warrung country, and people from that tribal group moved across the land and occasionally camped close to Kerr's station hut. By the mid 1850s, the remnants of other peoples who had earlier settled around the Native Protectorate at Franklinford to the south, and around the Lake Boga mission in the north, were also moving across Fernyhurst and occasionally camping, seeking rations and casual employment. Kerr, a young single man and a ‘gentleman squatter,’ was keenly interested in his new country and a sensitive observer of the Aboriginal people and what he saw as the ‘great changes’ being wrought to their culture and way of life.

Much Aboriginal-settler interaction on the frontier occurred out of reach of the historical record. Unusually and fortuitously, there remain several types of evidence about interactions between Kerr and the Aborigines on Fernyhurst. An autobiographical memoir by Kerr was anonymously published in Edinburgh in 1872, 11 years after he left the station. A pen and ink drawing of the matriarch of the Goulburn tribe, one of a number of drawings that he made of Aboriginal people, is held by the Dixon Library, Sydney. Kerr also photographed many of the people, using the new technology of collodion wet plate negatives, and 33 of these photographs taken in the 1850s survive in public collections. And we can deduce much from the extent and comprehensiveness of the collection of Aboriginal material culture exhibited under Kerr's name in the Sandhurst and Melbourne Exhibitions in 1854, and sent on to Paris in 1855.⁴

It is worth expanding briefly on what these pieces of evidence indicate, because crucial to what follows is the argument that these items were gathered by Kerr with the active cooperation and involvement of the people he called his “Aboriginal neighbours.” In his autobiography, Kerr outlines how he employed Aboriginal people as shepherds, drovers and guides. He claims to have been “always on friendly terms” with them, and it seems that the relationship went beyond that of an employer with his employees. Kerr was invited to join in the men's hunting expeditions, and he was honored by being invited to attend many of their ceremonies, including corroborees and the ceremonies surrounding the burial of an elder. He observed and noted family relationships within the tribes, commenting that “Queen Jellibung,” whom he sketched, was the matriarch of five generations. He wrote about the people's work, trading routes, daily life, and beliefs; and he visited the camp to distribute food and to care for those who were sick.⁵

His photographs depict families, groups of men and women, children, and individuals over a period of some years. They are clearly the result of a series of negotiations between the photographer and his subjects, and indicate both the active involvement of the Aboriginal people in the making of the images and a sensitive engagement by Kerr in the lives of the people around him. Sometimes the picture-taking was a negotiated arrangement. On at least one occasion, Kerr recalls, the men negotiated “a considerable present” from him before they permitted him to take a series of daytime pictures of them decorated and posed as if at a corroboree. Kerr kept the photographs at Fernyhurst, and brought them out years later to show the people as they revisited the station.⁶

The material brought together by Kerr for display in the Sandhurst Exhibition at Bendigo in September 1854 showed the richness and complexity of Aboriginal cultural life as he had seen it, in a way unique for Australian collections at the time. Most European collectors of the nineteenth century focused on men's tools and weapons. Although Kerr's collection included such items—spears and spear throwers, shields, waddies, boomerangs and “native tomahawks”—he also collected tools used by women, children's playthings, and examples of women's work. He showed a basket woven from grasses, and collected a partially completed possum skin cloak to demonstrate how the skins were prepared for use. He also collected three items of ceremonial significance: the bark piece representing an emu and kangaroo rat skins and emu feathers, “used in Corrobberys.”⁷

The type of art that Kerr collected—representational drawings etched on smoke-blackened bark, probably by the artists' thumbnail—was usually done by men on the inside of their bark shelters. The two etchings collected by Kerr are on small pieces of bark, too short to have been used as shelter: They appear to have been especially commissioned and prepared by two different artists for the Sandhurst Exhibition. As a whole, the Fernyhurst collection presented a community where children played, women collected food and wove grasses into attractive containers, and men hunted, decorated their homes and participated in complicated ceremonies.

By what process was this collection gathered? Surprisingly, perhaps, Kerr does not mention his collecting activities in his memoirs. (This book was anonymously published; it may have been written in conjunction with his wife, and it contains some scathing comments about Melbourne society in the 1860s. It seems as if Kerr did not wish to leave too many clues to his identity in the work.) We have to turn to the collecting context at the time for further information about the collecting process. By the 1850s in Victoria, European collectors could generally obtain items made by Aboriginal people only through purchase or negotiated exchange, as the makers had come to recognize that these items had a tangible, commercial value to the collector. Even 10 years earlier, members of the Melbourne Mechanics Institution had been lamenting that Aboriginal items that once could be acquired without cost now had to be purchased; and this situation continued, with payments in cash or in kind being made by the collector.⁸

I noted above that Kerr and the Dja Dja Warrung were used to bartering and negotiating with each other. I also noted that Kerr moved freely within the Aboriginal camp and was in regular conversations with the men, as well as knowing the women and children. It is most likely, then, that the comprehensive 1854 collection was acquired by Kerr with the active involvement of the men, women, and even children at Fernyhurst and in exchange for some mutually acceptable payment. Much of the collection was photographed at Fernyhurst before it was taken to the Bendigo Exhibition, displayed beside the wall of a station building, at a site that was well-known to the Aboriginal people. There is no evidence of any resentment among the people toward Kerr for making this collection; nor is there any suggestion that the people feared Kerr and stopped coming onto the land after 1854. In fact, it seems as if visits continued until Kerr moved away and that he had continuing contact with some of the men even during the 1860s.

I labor this point rather because of the claims made in 2004 that Kerr “stole” these items, and that they were taken away without the peoples' consent.

The Fernyhurst collection was displayed in Bendigo and at the Melbourne Exhibition in late 1854. It was then shipped to Paris via London, as part of the Victorian contribution to the Exposition Universelle de Paris of 1855. No evidence survives about how Kerr intended the collection to be disposed of in Europe, but we might surmise that he intended it to be kept together and to go to a museum. Of all the exhibitors of indigenous material from Australia in Paris, only Kerr thought to record the name of the people group who produced it.

Only three items of this large collection are known to have survived. They were acquired for the Economic Botany collections of the new Royal Botanic Gardens in Kew; and two works, one bark etching and the emu piece, were later transferred to the collections of the British Museum. Museum Victoria borrowed them for the Etched on Bark 1854 exhibition, and they went on display in Melbourne 150 years after they had first been collected and displayed.

CONSULTATION, THE COURT CASE, AND CLAIMS OF THEFT AND DESECRATION

The impetus for the exhibition was the rediscovery of a bark etching in the Kew collection by a researcher there, its links with the two pieces held by the British Museum, and the opportunity to display the three pieces together with other nineteenth-century Kulin barks in Museum Victoria's collection. In line with Museum Victoria's regular practice, relevant Aboriginal organizations were consulted about the proposed exhibition. The Museum's Aboriginal Cultural Heritage Advisory Council (ACHAC) was consulted before any approach was made to the lending organizations, and informal consultation occurred with members of Aboriginal Community Councils in the year before the exhibition opened. At his request, Gary Murray, then a member of ACHAC, read the exhibition text and suggested an additional display element. The exhibition was opened by Terry Garwood, chairman of ACHAC, who expressed his appreciation to the museum for bringing the works to Melbourne for display. Many Victorian Aborigines spent considerable time in the exhibition, interested in the glimpse it presented of a particular frontier moment, and moved by the evidence of the survival of a wide range of traditional cultural practices in Victoria twenty years after colonization.

Six weeks after the exhibition opened, Gary Murray, who was also the chair of the North West Regional Aboriginal Cultural Heritage Board, and a prominent member of the Dja Dja Warrung, called for the Australian prime minister to ask the British government to return the bark etchings to Australian permanently. “If the barks go back to England we will be dispossessed a second time,” he said.⁹

The first of the emergency declarations was lodged on behalf of the elders of the Traditional Owners 9 days before the exhibition closed. It was lodged by an inspector under subsection 21C of the federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984, an act that aims to protect Aboriginal places and objects “believed to be under threat of injury or desecration.” Section 21 was drafted originally to protect cultural sites discovered in the process of road works or other development. This part of the act applied only to Victoria and provided significant decision-making responsibilities to specified local Aboriginal communities. Under the act, an emergency declaration lasts for up to 44 days, and further provisions to protect indigenous heritage may follow if necessary, including temporary and permanent declarations, and/or compulsory acquisition, once the emergency declaration lapses. The emergency declaration claimed that the three cultural heritage objects would be “under threat of injury or desecration” if they were returned to England without the written consent of the Dja Dja Warrung people who claimed ownership of the objects.

The museum immediately met with the representatives of the Dja Dja Warrung traditional owner group to try to resolve the issue and suggest a variety of ways that the material, and other Victorian Aboriginal material held overseas, could be made more accessible to Aboriginal communities in the future. Over many years Museum Victoria has built up good cooperative relationships with Victoria's Aboriginal community; there are a wide range of partnerships with regional groups; the museum has assisted in the establishment of local Keeping Places; and it has been at the forefront of the movement to repatriate human remains and to provide extended access to indigenous collections. The museum's paramount concern was to try to maintain these good relationships, while meeting its contractual relationships with the two overseas museums. Discussions continued for several months, and it was only after the failure of these discussions to resolve the issue that the museum reluctantly went to court.

A short time after the first emergency declaration, Gary Murray began referring to the objects as having been “stolen.” “The institutions in the U.K. obtained these items … in very dubious circumstances,” he said.¹⁰

They were “taken, stolen—and we just want to right those wrongs.” “We are simply trying to reclaim a part of Australia's history that was taken from us without consent.” “The British haven't seemed to have changed their attitude in 200 years since they colonised us … they came and murdered us and dispossessed us.”¹¹

Murray's use of the language of theft and his “devastating line of rhetoric” was appreciated by the press and taken up by mainstream newspapers.¹²

The Melbourne Age published an editorial headed “Retrieving a stolen legacy,” and a lobby group, Australians for Native Title and Reconciliation, urged the museum, “Don't return stolen goods.”¹³ An added poignancy was given to the debate because the objects were artistic works. “Art theft or rightful repatriation?” asked one commentator; and the issue was linked with the return of art works that had been stolen by the Nazis during the Second World War.¹⁴ It was an easy move from the Kulin barks to the Elgin Marbles. Murray visited the offices of a Greek language newspaper in Melbourne and described how “the cultural heritage of both Australia's Aboriginal people and the Greek people have been plundered and desecrated by … a common enemy, the disreputable institution known as the British Museum.”¹⁵

Discussion pages on the web in England, Australia, and America took up the issue with enthusiasm. Some of the comment was thoughtful, some confused, and some vitriolic; this was especially so because the British Museum was involved, and most writers mentioned the Elgin Marbles. Even the London Times, reporting that “Aborigines grab art from Britain,” included a companion piece entitled, “Holding on to the spoils of history,” with the clear implication that the barks, like many other items, were acquired illegitimately as part of the “fruits of imperialism.”¹⁶

The court case was limited to a challenge to the legality of successive emergency declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The judge determined that successive emergency declarations were not legal, and they could not be used to keep the objects in Australia. Other provisions of the act were then invoked. Several months after the December 2004 hearing, but before the judge presented his findings, the Dja Dja Warrung sought a federal court order directing the minister for Aboriginal Affairs to either declare a permanent declaration under the same Heritage Protection Act, or to acquire the objects compulsorily so that they could be held in Boort by the Dja Dja Warrung people. This application was also unsuccessful.

WORLD HERITAGE OR REPATRIATION TO COUNTRY?

During the dispute Murray, who was the main spokesman for the Dja Dja Warrung, made several different claims about the barks. The earliest one was that the items had been stolen. Therefore, he claimed, the items rightly were owned by the descendents of those who had made them, probably the Dja Dja Warrung. At first there was a suggestion that the barks could return to Britain if the London museums agreed that they actually belonged to the Dja Dja Warrung. Later the claim was that the barks should be moved not to a museum but to the people in Boort. Murray claimed on radio that “these artefacts are being desecrated every day that they are in a Museum, whether they be in Melbourne or in Britain.”¹⁷

Some Aboriginal people associated with the case suggested that the items should be returned to country, allowed to deteriorate naturally and eventually rot away.

The stakes were very high for the international museum community. The British Museum, speaking also for the Royal Botanic Gardens, made its position clear. “It is in the interests of everyone concerned that objects of cultural and artistic significance continue to be able to move around the world and be seen by many different publics.” The emergency declaration “puts at risk the very legal framework that allows such exhibitions to take place.”¹⁸

A representative from the British Museum visited Melbourne to speak to the elders shortly after the first emergency declaration. She came with information about other Australian holdings in the British Museum and expressed her organisation's commitment to making cultural items available and accessible to people throughout the world. In initial discussions, the elders suggested that they might lend the objects back to England if it was clearly understood that they in fact belonged to the Dja Dja Warrung peoples. The British Museum curator could not agree to the elders' request that the ownership of the objects be transferred to them.¹⁹

Within a short time after these initial discussions, the discussion moved to repatriation: and repatriation not just of these three objects but of all indigenous artifacts held away from country. Speaking for the Dja Dja Warrung Native Title Group, Murray said, “The Dja Dja Warrung, like all First Nations peoples, have a cultural and spiritual duty and obligation to repatriate all our Human Remains and Artefacts spiritually and physically connected to our Country and our Esteemed Ancestors.”²⁰

It was clear that the objects had great emotional power, because they connected people with their ancestors who had made them. Both because of this connection, and because the art work had been a forgotten tradition, the Dja Dja Warrung elders were desperate to retain them in Victoria and bring them back to their country.

But the emergency declarations, the “art grab,” did not have universal support among Victorian Aboriginal communities. No other community group threw its weight behind the actions of the Dja Dja Warrung elders, and many Aboriginal leaders from other groups distanced themselves from them, disturbed at the perceived threat to Museum Victoria's good relationship with communities, and afraid that negotiations with overseas museums about the return of Ancestral Remains would be jeopardized. Aboriginal leaders from other states were also silent on the issue. Dr. Dawn Casey, formerly director of the National Museum of Australia and a prominent indigenous person from Queensland, was asked to advise the Victorian minister for Aboriginal affairs about the implications of keeping the objects in Australia. She advised that, because of the imposition of the emergency declarations, loans to Australian art galleries of some European art works were already at risk; and if the items were not returned, 40,000 indigenous items held in overseas museums would “most probably never be seen in Australia again.”²¹

The press also reported her claim that Gary Murray had possibly planned to use the legislation to try to prevent the objects' return from the time he heard about the proposed exhibition during the planning stages. Murray did not deny this claim but responded angrily to Casey's report, dismissing her as “an apologist for the museum fraternity” who “should be ashamed because of her own Aboriginal identity.”²²

There were at least two prongs to the arguments from the Dja Dja Warrung. The first was that the objects had been stolen in the first place. The second was that, although the objects were in the collections of museums overseas, they actually belonged to the Dja Dja Warrung and should be handed back. In the rest of this paper, I discuss these issues in turn.

“HISTORICAL WOUNDS,” RELATIONSHIPS OF POWER, AND THE HISTORIAN'S TASK²³

The term ‘historical wounds’ is from Dipesh Chakrabarty, in a lecture given at the University of Melbourne in July 2007. He develops the idea further in his essay, “History and the Politics of Recognition,” in Manifestos for History, edited by Susan Morgan, Keith Jenkins, and Alan Munslow, Routledge, 2007.

The Dja Dja Warrung's claims of theft were shaped within a framework produced by the trauma of loss. In 2002, after 7 years of legal effort, the land rights claim of the Yorta Yorta people of Northern Victoria had been rejected, and an appeal against this decision was lost. The judge in that case remarked, “The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised.”²⁴

The framework of dispossession shaped the Dja Dja Warrung's statements about the history of the three objects and the events at Fernyhurst in 1854. There exists no “Bill of Sale” document between the people and Kerr, and in its absence the elders made repeated claims that the objects had been taken from their ancestors without consent. Very quickly, the discussion moved from the provenance and cultural significance of the objects to broader questions about colonization, using the strong story of theft, exploitation and powerlessness. Consequently, the barks were caught up as part of the whole colonial project, and thus became a powerful symbol of exploitation and loss. The issue became more about the wrongs wrought by colonization than about the barks themselves.

Most commentators on the issue, indigenous or nonindigenous, made the assumption that any transfer of goods between settlers and Indigenous people in the nineteenth century had to be exploitative, even if it was not technically a theft. In a commentary in the Museums Australia magazine, Young asked, “How can such an unequal exchange be legitimate, as, in the cultural economy of colonial Victoria, Indigenous products were, to say the least, undervalued?”²⁵

Because colonial power relations between white and black were so uneven, it seemed self-evident that the indigenous people at Fernyhurst must have been forced to give up their objects to the squatter. Fung and Wills criticize the argument, based on historical research, that these objects were freely given or sold or bartered to Kerr. They maintain that the argument “presume[s] a problematic equality by flattening out the different conditions of power and privilege (or lack thereof) that would have existed between Kerr and the Dja Dja Warrung of the time.”²⁶

For the Dja Dja Warrung, the damage consequent on colonization and dispossession was the overarching story that shaped how the issue was presented. Many nonindigenous commentators, also working within this framework, easily accepted Murray's claims of theft. It was difficult for them to conceive that the indigenous people at Fernyhurst might have worked together with Kerr in deciding what aspects of their material culture could be presented to a European audience. Views that were shaped by the universalized strong story of powerlessness and dispossession completely discounted the historical evidence about these particular events. They seemed to ignore historical instances of Aboriginal agency and ability to negotiate and to make autonomous decisions, and to suggest that in the nineteenth century indigenous people were always powerless in the face of the white intruder.

I do not want to minimize in any way the trauma consequent on colonization. The Etched on Bark 1854 exhibition sought only to illuminate aspects of indigenous–settler relationships at a particular place and time; it made no larger claims. But one of the jobs of a historian is to uncover evidence of past events that might show resistance or adaptation or the exercise of human choice; such actions by people in the past can be empowering in the present. Historians aim to write about the complexities of past interactions, rather than a simple two-dimensional account of vanquished and victor. Any claims about the past that deny or ignore Aboriginal agency, or categorize whole populations as people without autonomy or agency, distort our view of the Aboriginal past. This is true whether they are made by nonindigenous people or by indigenous people to make a political point. Such claims can, unwittingly, diminish people, even though they may have political value in campaigns for reconciliation and the recognition of past wrongs.

As heirs of the colonizers, many Australians of European descent feel a personal pressure to accept the claims when indigenous people allege that items of their material culture were “stolen.” But part of the historian's task is to revisit the stories about the past and recover the stories that have been forgotten. We can document what people remember, and what they have been told. But memory and oral traditions, even the collective memories of a cultural group, are clumsy and ultimately unreliable tools by themselves for finding out all about the past. In cases when there is an overarching framework of trauma, this is especially so.

Historian Gillian Cowlishaw has recently written on what she calls the collateral damage of the history wars in Australia, describing how the emphasis on trauma, dispossession, exploitation, and separation from family has been far from liberatory for the older generations of Aboriginal people in Bourke, New South Wales. The younger generation's emphasis on historical trauma, which is reenforced by an urban intellectual elite, has seemed to devalue the lived experience of these older Aborigines, many of whom are proud of their work on the pastoral stations and in the town as well as of the ways that they have overcome adversity. Cowlishaw has identified how the strong story developed by historians and taken further in a political context is not the whole picture, and how it does not reflect the whole lived experience of the Aboriginal and non-Aboriginal people of Bourke.²⁷

In relation to the Dja Dja Warrung barks, we are dealing with events beyond living memory and cannot call on the lived experience of our contemporaries to provide a counterpoint to the strong story of dispossession. Here I am arguing that the historian's task is to recover, from within the framework of the stories of dispossession and from within the community memories of loss, other events that might show the complexities of relationships, cut across the strong stories and provide counterpoints to the overarching frameworks. Part of the historians' task is to resist efforts to normalize memory; another part is to rescue what is forgotten.²⁸

Sometimes what has been forgotten is that cooperative and mutually advantageous relationships between some collectors and some indigenous communities did occur, where objects were freely exchanged or purchased ethically without any type of coercion. Histories of Aboriginal agency and adaptation in the fact of colonization, and histories of ethical collecting and mutual respect, are valid alongside the more common histories of dispossession and loss. Clearly, such histories are to be written with sensitivity and care; but “historians who defer to Indigenous claims because they are Indigenous and not because they are valid, are doing a disservice to History.”²⁹

OWNERSHIP CLAIMS AND CUSTODIAL ROLES

Readers of this journal are well aware of the many reasons why indigenous leaders may wish to claim ownership of the objects made by their ancestors, and to assert that they, as descendants of the makers, have a particular cultural role in relation to these objects. Fung and Wills suggest that issues of cultural integrity, cultural control, the transmission of cultural knowledge, and cultural identity are all important in the Australian context, and were by definition in operation in this case.³⁰

In Australia, claims for repatriation have been mostly limited to ancestral remains and secret/sacred objects. Such material was almost always acquired illegitimately, plundered by the collector or bartered by someone who did not have the cultural right to dispose of the objects. Most museums, following international treaties on the rights of indigenous peoples, recognize the moral rights of indigenous people with regard to these items. But, as we saw previously, Gary Murray made additional claims, seeking the repatriation of “all … Artifacts spiritually and physically connected to our Country and our Esteemed Ancestors.”

The Victorian government's Aboriginal Heritage Act 2006 gives ownership of Aboriginal cultural heritage in Victoria, including sites, Aboriginal human remains, and secret or sacred Aboriginal objects, “as far as practicable” to “Aboriginal people with traditional or familial links to the area from which the Aboriginal cultural heritage is reasonably believed to have originated.”³¹

Under the act, Aboriginal cultural heritage that is in the custody of the State will continue to be protected by the State until it can be transferred into the protection of its Aboriginal owners. These provisions recognize that ancestral remains and secret/sacred objects are Aboriginal property, and they effectively set out what has been the practice of Museum Victoria over the last 20 years: practice that has been informed by international declarations on indigenous rights that seek to protect ownership rights to and encourage repatriation of ceremonial objects and human remains.

In the Australian Parliament recently, Opposition members, discussing the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill suggested that the Government should develop “a clear policy on the investigation and repatriation of objects of cultural significance that have been removed from Australia without the consent of their custodians.”³²

I assume that the politicians are talking about objects that have been illegitimately collected, in other words, stolen: human remains, secret/sacred objects, and other objects that were acquired without the consent of the owners at the time of acquisition.

But perhaps the politicians were referring to all types of material culture, and talking about a kind of retrospective withdrawal of consent. To what extent does the provenance of a collection matter when claims of ownership and repatriation are being made? Can a community today rightly claim ownership rights over material held by a collecting institution (or in a private collection) when that material was originally acquired in an ethical way with fair exchange? What ownership claims, if any, can indigenous leaders make on works of art obtained in the distant past under circumstances that necessarily remain ambiguous because of an absence of adequate documentation to prove legitimate transfer? Should objects that were freely given or sold in the colonial past be now deemed improperly obtained, stolen, because, overall, the circumstances of the period were inherently coercive?³³

Museums of course have recognized that issues of provenance are now even more crucial, and they have become more meticulous about researching and recording the provenance of newly acquired indigenous items, and researching the provenance of older collections. For example, the British Museum recently noted of a purchase of Native American objects, that “all this material was freely given … As a result, there is no question of any claims for restitution of this material.”³⁴

There are many Aboriginal collections with unclear provenance, though the provenance of many others can be determined. If claims are to be made for a custodial role, for the recognition of ownership for all items of Aboriginal culture, not only for ancestral remains and secret/sacred material, there are of course major implications for museums with collections of indigenous culture. Will museums be able to continue to hold this material in trust, not only for members of the relevant cultural group, but also for all humankind?

Jonathan King of the British Museum proposed an alternative scenario, when he reiterated the responsibility of museums to make their collections accessible to communities. “It is not a question of ownership,” he said, “it is a question of [Indigenous people] working with museums so that people can understand their past and rekindle old identities.”³⁵

In the midst of all the discussions and angst during the barks case, the Dja Dja Warrung people drew on the objects on display in the exhibition for the transmission of cultural knowledge. The bark etchings became the catalyst for the reinvigoration of a forgotten cultural practice among the Dja Dja Warrung, and some artists of the Kulin nation began again to make etchings on smoke-blackened bark.³⁶

THE LEGAL POSITION NOW

The legal loophole that allowed the emergency declarations to be used against Aboriginal objects imported for an exhibition has been closed by the federal parliament. The Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 2006 was passed in November 2006. One of its provisions is to ensure that any declarations made under Section 21 of the parent act will not apply where a section 12 certificate authorizing the export of objects is in place under the Protection of Movable Cultural Heritage Protection Act 1986. As long as a section 12 certificate is granted before the object's arrival in Australia, this provision should safeguard indigenous objects borrowed from overseas in the future, not only from the imposition of successive emergency declarations but also from any threat of compulsory acquisition by a relevant minister.

Perhaps partly in response to the barks case, the British government announced in 2006 a consultative process aimed toward legislation to give art on loan from other governments immunity from “cultural kidnapping.”³⁷

There is a growing fear by governments that works of art can be seized by individuals, companies, or states as hostages in trading suits, or perhaps by colonized communities to reinforce their claim for ownership and restitution. It seems that cultural property is more vulnerable than ever to being caught up in international disputes.

Was the exhibition worth doing? Museum Victoria unwittingly caused distress to some of the Dja Dja Warrung elders who connected with a ceremonial activity and an artistic tradition of which they had not previously been aware but who then had to see the objects representing those traditions disappear back to the London museums. The museum was accused of putting the interests of the worldwide museum community before the demands of one of its stakeholders, and some long-standing relationships were threatened, but most have not been greatly damaged. But, to take the long view, there have been a number of positive outcomes:

• The Kulin people are now aware of an artistic tradition that was forgotten, and young Kulin artists have begun making bark etchings based on those collected in 1854.
• Future loans of indigenous material from overseas to Australia will be secure as long as a re-export permit has been obtained.
• The Victorian government has provided a substantial sum for the purchase of Victorian Aboriginal artifacts in private hands.
• The two London museums have been dramatically alerted to the cultural meaning of their holdings of Indigenous material; the British Museum's web page now features two of the bark pieces among their treasures.
• Perhaps, in the long term, we can all respect the makers of the objects and the motives of the collector, rather than categorizing the collecting process narrowly within the rhetoric of colonization.

My hope is that museums and the holders of private collections will work even harder to discover the provenance of their Indigenous collections, and the history of the relationships and interactions between the makers and the collectors. Some of these histories may contribute, even in only a tiny way, to greater understanding and reconciliation.