Balancing Rights and Responsibilities

Allow me to take a further step by suggesting the time has come, for us as CRM and CHM professionals, to attune our privileged positions in relation to cultural resources by boosting personal and collective commitments to the conservation of these resources in accord with the values and preferences of the people who care most about them. Archaeology’s ranks have swelled, and thousands of archaeologists’ careers have progressed through initiatives to counter external threats to cultural resources. Archaeologists have positioned ourselves as primary defenders of cultural resources from looting, rampant land modification, rapacious resource extraction, and other forms of misappropriation. We have used our relationships with leaders in government and business to advocate for greater, more careful, and more integrated consideration of cultural resources under threat from land modification. Libraries and museums are bursting at the seams with stockpiles of potsherds and chipped stones and contract reports. We have participated in broadening the definition of cultural resources and cultural heritage, but have yet to recognize archaeology as a CRM subsidiary, not the other way round. We have yet to situate ourselves and our CRM and CHM disciplines as primary arbiters of what will be carried forward for the benefit of future generations.

Nor have we come to terms with threats to cultural resources from within CRM and CHM. Much important work remains to be done to counter threats to cultural resources from land modification and misappropriation, but the substantial rights archaeologists have taken on as the recorders and assessors of the significance of cultural resources need to be more effectively balanced by responsibilities. Perhaps needless to say, many descendant communities have been surprised and dismayed to learn that cultural resources they hold dear are being determined to exist, evaluated in comparison with other resources, and “treated” by archaeologists using foreign epistemologies, terms of reference, and systems of values. The dismay has been exacerbated by standard archaeological operating procedures and compliance practices that privilege archaeologists’ knowledges and opinions over those of local people. These same privileges too often lead to disregard for intangible cultural resources linked to lands and other tangibles and, most damningly, generally facilitate rather than “mitigate” land modification and related resource desecration and destruction.

CRM professionals know much more about cultural resources, tangible and intangible, than we used to. We recognize, for example, that the material remains we refer to as archaeological sites may have significance far beyond region-specific culture histories. Even more to the point, we now understand that material remains are only one of many indices for the cultural significance of a given location. We have begun to see some benefits from relaxing archaeology’s iron grip on cultural heritage and on CRM. Too often acting as if it were ours to give, we have yielded at least some authority over cultural heritage to local and descendant communities, making room for such groups to assert their distinctive interests and values. We have seen that sharing power over cultural resources—in the implementation of the Native American Graves Protection and Repatriation Act (NAGPRA) and the operation of tribal historic preservation offices in the United States—can and often does add value and create mutual benefits.

In short, I think archaeologists are more powerful than we think we are. Even more to the point, our established professional ethical commitments to conserving sites and considering the effects of our work—positive as well as negative—on local and descendant communities obligate archaeologists to use whatever powers we do command, relentlessly, to thwart the destruction of cultural resources prior to consideration and, wherever appropriate, investigation. At the same time, I see an at least equally pressing mandate to critically assess intra-archaeological policies, practices, and customs. We should be building an archaeological culture in which our collective knowledges, skills, abilities, and positions are dedicated first and foremost to the protection of cultural resources. Our disciplinary forebears and benefactors worked hard through the second half of the last century to install the conservation model at the core of CRM archaeology’s operating system. That model remains an apt guide, robust as well as adaptable, for thinking and acting when we are engaged, as most professional archaeologists are most of the time, to deal with cultural resources slated for degradation or destruction as part of land modification intended to create other social goods. The essential question, one that I hope more archaeologists will ask, is whether we are honoring the trust that the world has placed in us—while also discharging the ethical duties we have imposed on ourselves and other archaeologists—to identify, respect, and optimize the full spectrum of values embedded in cultural resources.^{Footnote 6}

Reflexive Advancement

It is worth considering how archaeologists can do a better job of communicating what we do and of retuning our work in general and our conservation in particular to harmonize with the values and preferences of local and descendant communities. This forum provides one means for encouraging critical scrutiny of CRM archaeology in international contexts, where supervision is typically reduced. The discussants here are expert in the application of the Equator Principles and other authorities and Performance Standards available to guide archaeologists in interactions with both cultural resources and with the communities who care about and derive identity and vitality from these resources and the lands they are embedded in. I close with a set of questions I hope will encourage discussion in this context, as well as debate and action in related fora:

• • What factors or conditions foster CRM collaborations among Indigenous and local communities, researchers, and industry representatives—especially in the absence of legal mandates?

• • What factors or conditions encourage appropriate attention to intellectual property issues in cultural heritage and community benefits sharing in the course of major land alteration proposals?

• • How can local traditional knowledge and other forms of intellectual property be both protected from inappropriate use and employed to maximize the benefits and limit the adverse effects of major land alteration proposals?

• • What are the best ways for moving toward just and equitable cultural resource compliance processes and outcomes—again, especially in the absence of top-down legal and contractual requirements to invest in CRM?

• • Are there reliable indications that industry associations or other organizations (other than the World Bank, International Finance Corporation [IFC], etc.) are either increasing or decreasing investments in CRM and benefits sharing? Do such investment trends reflect specific organizational tactics or broader institutional strategies or historical trajectories?

• • What are tried and true means for assuring that benefits—from CRM, to be sure, but also from land alteration and resource extraction projects in general—are justly or proportionately shared by those individuals and groups who experience losses so others may gain?

• • What are tried and true means for assuring that the identified community representatives are, in fact, representing the best interests of their constituents?

• • How can companies or consortia maximize comparative advantages from making commitments to CRM and benefits sharing when their competitors do not?

• • Are there indications that industry associations or individual companies are treating data relating to CRM, especially archaeological data, as proprietary?

• • What can and should be done to assure noncirculation of privileged data and wide circulation of data and perspectives, especially the results of archaeological field work, that should be shared?

• • In which jurisdictions are CRM and benefits sharing working well despite lack of strong or centralized law, policy, or enforcement?

In closing, I think it bears mention in the age of WikiLeaks that CRM and CHM have no reasonable expectation of freedom from scrutiny. Regardless of whether anyone else is watching what we do, how we do it, and to whom the benefits of our actions are directed, I invite forum discussants and the broader audience of CRM and CHM stakeholders to continue to ask questions about and to actively define the true character of CRM archaeology.

Who’s Who?

There are three main groups of organizations that practitioners need to know about:

• • The UN system

• • Lenders

• • Corporates

Conclusion

Archaeologists and heritage managers are involved in international efforts on many fronts. In addition to ICOMOS and ICAHM, there is the International Union of Pre- and Protohistoric Sciences (IUPPS), as well as the World Archaeological Congress, which spun off from IUPPS for political reasons in the mid-1980s. National and regional professional bodies—such as SAA and the Indo-Pacific Prehistory Association—also have international profiles, as do international heritage research projects such as IPinCH. Some (and sometimes many) of these organizations periodically act in concert to send letters to governments about this or that archaeological or heritage issue. In the main, though, the scene remains highly fragmented and, in comparison with nature conservation, disorganized and ineffective. As far as I can tell, for instance, no archaeological or cultural heritage organization or group thereof has ever participated in the World Bank’s bi-annual Civil Society Forums. This is where archaeologists could (and I think should) have a direct impact on bank policy and procedure. We just haven’t made the effort. In 1999, international heritage lawyer Patrick O’Keefe observed that archaeology and cultural heritage are simply not on the international radar screen, at least not in any way that counts when major shifts are occurring in global policy and procedure, even if those shifts directly affect archaeological interests right around the world.^{Footnote 14} Nothing has changed in the intervening 15 years, but we are finally starting to make up for lost time. I can’t wait!

Community Consultation

In Canada, the Crown has a legal duty to consult with and, where necessary, accommodate aboriginal peoples where there is the potential for projects to impact constitutionally protected rights.^{Footnote 24} For major development projects, there are prescriptive requirements for aboriginal consultation in EA processes, and cultural heritage is often a critical component. These EA processes also include requirements to consult with nonaboriginal persons, but it is in the context of soliciting stakeholder input on the merits of development applications through procedures outlined in provincial and federal EA legislation.

In certain countries, the requirement to consult on matters of cultural heritage is less well defined. While most countries have environmental laws that require stakeholder consultation, cultural heritage may not be discussed unless there is an immediate site of concern to a community (e.g., a village cemetery). More often, discussions focus on job creation, the environment, and community impacts. In my experience, engagement and consultation with communities on matters of cultural heritage occurs later in the project review process, often after a consultant such as myself has been retained to contribute to the preparation of a bankable ESIA report. At this stage in the process, the information gap is identified and considerable effort is expended in an effort to catch up and to demonstrate that meaningful consultation on cultural heritage has occurred.

Benefits Sharing

In Canada, my experience with descendant communities and benefits sharing associated with development projects is limited, as it is largely led by private-sector proponents or government—seldom if ever by CHM professionals. These discussions are typically not public, and in the case of private-sector proponents, the financial terms of resulting benefits agreements, some in the millions of dollars, are not publicly disclosed.^{Footnote 25} Often these benefits agreements are an outgrowth of the consultation process described above, and while most involve a financial dimension (e.g., revenue sharing, employment, economic development, business opportunities, capacity development funding, and/or community investment in services and/or infrastructure), these agreements can also include a cultural component, such as the protection or commemoration of an important heritage site where conditions allow. For example, in the Vancouver area, the proponent of a multibillion dollar infrastructure project recently went to great lengths to minimize impacts to heritage sites, create employment for First Nations members, and provide treatments for a significant archaeological site adjacent to the project through sympathetic landscaping and interpretative signage.

Internationally, the proponent may be viewed by communities as a proxy for the government in relation to economic and social financing and service provision.^{Footnote 26} In my experience, cultural heritage, while important, is but one concern on a long list of community needs in the developing world, including healthcare, education, employment, and infrastructure.

Intellectual Property

Matters of intellectual property rarely come up in my work. Surprisingly, intellectual property as it relates to cultural heritage only needs to be considered in an IFC Performance Standards–based ESIA if the proponent intends to use it for commercial purposes. If there is no commercial intent to use cultural heritage on the part of the proponent, intellectual property is not considered further. In this context, the IFC Performance Standard should be seen as a minimum standard. Clearly, this shortcoming needs to be addressed through revisions to IFC PS8 that expand the breadth of consideration for both de facto and de jure intellectual property and are aligned with the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage.

Concluding Remarks

In sum, the point I wish to stress is that there is no one-size-fits-all approach to addressing community consultation, benefits sharing, and intellectual property as it relates to cultural heritage assessments and major land development projects. Why doesn’t one size fit all? This is largely stating the obvious, but every project and its circumstances are different. The nature of the cultural heritage differs from area to area. The motives and drivers of regulators, proponents, regional and local governments, and communities differ from place to place, and as a result, the approach to achieving a successful outcome also has to differ. The approach to cultural heritage needs creativity and flexibility, and it should be solutions based. Proponents need to recognize the importance of cultural heritage for maintaining healthy communities—particularly those faced with significant change brought by major land alteration projects.

Development proponents should look beyond national or international standards, as inevitably there will be limitations. Proponents would be well served to educate themselves on the value of cultural heritage and the merits of consulting with affected communities at the earliest opportunity. Not only is it the ethical thing to do, but it is also good business. For its part, the IFC and Equator Principle Financial Institutions should provide leadership and encourage proponents not only to apply the Performance Standard and Equator Principles, but also to embrace their spirit so they may be adapted to suit the specific needs of development projects.

New Caledonia

The misuse and resultant mistrust of archaeology is forcing 21st century archaeologists to reimagine archaeology in decolonizing contexts and to create context-specific research protocols to engage indigenous Pacific Islanders. This experience, working with Kanak and non-Kanak colleagues, has radicalized my thinking on various issues, starting with private archaeology.^{Footnote 27} I want to underscore the differences between French and Anglo-American traditions of salvage archaeology. In the French tradition, the state must be responsible, as a matter of public interest, to study and preserve heritage; in the Anglo-American tradition, the state generally seeks to maximize cost-effectiveness by retaining responsibility for quality control while soliciting competitive bids for specific survey and excavation projects.

In New Caledonia, the collision between these two traditions has led to a crisis. A combination of dissatisfaction with poor quality reports from private contractors, together with suspicions about profit-driven nonlocal consultants studying local heritage, led to a ban on private archaeology on the archipelago. Since that time, only public servants have been allowed to perform surveys and excavations.

The rules governing cultural heritage empower New Caledonia’s three provincial presidents with powers and responsibilities relating to archaeological studies. However, owing to local community assertions of interest concerning local land and resources, our team must also always negotiate research agreements at the local level for each project. Setting aside the administrative rules favoring centralized control, nothing can be started in archaeology without consent from local landowners, including families, clans, and chiefs. This allows our team to deal directly with the most concerned and knowledgeable people; to discuss their expectations even before the start of a project; and to find in each circumstance the proper ways to satisfy their specific demands in terms of the processes and aims of surveys and excavations. Following local custom, the research agreements are oral. We rely on trust and a steady flow of contacts among local group members and our group of archaeologists. It may be useful to note that oral agreements are particularly appropriate because no “compensation measures” are involved. The focus is not on money, but on maintaining a good balance among people, land, heritage, and the jobs and services needed by every community.

Three Test Cases

Some examples may further clarify a few key points. The first case concerns a large development on the west coast of the main island of New Caledonia, a property called Deva. The proposed construction of a series of hotels, along with a golf course and other tourist amenities, threatens archaeological resources at Deva. In preliminary discussions, local representatives of Kanak and other cultural groups forced development proponents to agree to conduct archaeology in advance of every construction project. The agreement included provisions for human remains, making it clear that these were to be excavated but not removed. Instead, a minimum area of 4 square meters would be established to encompass the remains. Any and all construction plans for the affected area were to be altered or relocated to avoid further effects on the remains. On a case-to-case basis, some objects discovered during the excavations were reburied on site as part of an effort to comply with the spirit of the protocol.

The construction at Deva is ongoing, and the essential heritage constraints remain in effect. In 2012, plans to open a 1-hectare sand quarry required the total excavation of surface sediments prior to the sand extraction. This process allowed Kanak representatives to determine the extent of human remains and led to an agreement to exclude from the quarry the zone containing burials. Although the Deva project remains a source of conflict among various stakeholders, the full involvement of local representatives in all decisions affecting their ancestral remains has thus far averted major tensions arising from the archaeological issues.

The second example is a project on one of the outer islands of the archipelago, the small island of Tiga. Although administratively authorized by the Loyalty Islands Province in 1999, it took another seven years of discussions with the local clans to reach an agreement on heritage resource treatments. In particular, we worked with local representatives to find the best way to bridge gaps between oral traditions and archaeological data. In pursuit of this goal, we started fieldwork by recording those oral traditions that individual families were willing to make public. We also conducted a type of cultural landscape survey, recording sites that locals regarded as important historical markers. We then built on the results of the initial research and the recordings to plan and implement additional surveys and excavations. We took care to inform community representatives of each new discovery and to host visits to sites being studied. The individual families retain all intellectual property rights to the oral traditions not granted through permission to use their stories.

The first Tiga report volume is specially written for the community, with each chapter starting with an oral tradition. We provided a prepublication copy of the manuscript to each family and solicited their feedback and final agreement before preparing the last draft. We remain hopeful that this procedure ensures that local community voices and perspectives are included in interpretations of individual or shared land and resource rights, of regional history, and of the archaeological objects that are owned collectively and under provincial custodianship.

The last example concerns mining. New Caledonia is the world’s third largest nickel producer. For more than a century, no heritage studies were conducted prior to mineral exploitation. Since the early 1990s, things have changed. Today, as a result of either direct commissions from mining companies or due to demands by Kanak tribes with ties to the mining areas, all proposed project impact areas are assessed by archaeologists. These assessments have identified many sites on the island’s acidic and deserted plateaus, including shrines, stone cairns, camps, and residential or ritual wall alignments. In a number of cases, after the archaeological survey, mapping, and dating of sites, specific agreements between the mining company and Kanak leaders resulted in protection of significant heritage areas, while areas of less significance were recorded before being consumed by the mining. The indigenous people did not seek financial compensation for the site losses, believing that the agreement was fair and had provided for the preservation of the most important and culturally sensitive areas. Again, the emphasis here is not ensuring that everybody gets paid, but that balance is achieved among and between people, land, and heritage, and the jobs, goods, and services essential to healthy communities.

Conclusion

These examples show that in New Caledonia, face-to-face discussions and time are the essential ingredients to building trust and long-term, mutually satisfactory relations. This approach is seldom compatible with the short timeframes common in CRM or CHM archaeology elsewhere. Another key point is that, when working with indigenous people with close ties to land, state laws and regulations must often be considered as secondary authorities. Local reality rules! Giving proper decision-making power to local leaders is, in our experience, not only the surest (if not the shortest) route to project completion but also an excellent way to learn about indigenous people and specific ways of learning, thinking, and deciding in relation to sociocultural and biophysical heritage. Our commitments to working within local and indigenous rationalities suggests that mainstream Anglo-American discourse about First Nations and indigenous groups is, above all, embedded in British common-law legal traditions. The legal frame through which we operate is local tradition, which among other things involves an insistence on exclusive interactions with individual leaders and creates incentives for diverse subaltern groups to subordinate their different values and preferences in order to obtain greater collective political power. Unfortunately, the Anglo-American approach has become nearly universal, thanks to the United Nations. In reality, different indigenous groups think differently, with different words, aspirations, and ways of knowing the right thing to do and reaching agreements to move forward.

In closing, I would thus like to emphasize that the proper path toward lasting trust and cooperation between indigenous communities and archaeologists is dependent on local knowledge, relationships, and sensitivities. This understanding deserves priority consideration ahead of the one-size-fits-all toolboxes and best practices that various organizations seek to promulgate as part of globalized professional practice. Frankly, I see this as the next phase of a colonial agenda. Whether viewed through a political lens of sovereignty, a social lens of diversity, or an economic lens of efficiency, any sincere measure of respect for people and place demands recognition of the diversity in and of indigenous ways of being, relating, and coping with a fast-changing world. What makes native peoples unique as a group is not their supposed difference from Western peoples, it is their diversity.

But this diversity and the diversity of heritage that results from it are today more than ever in a fragile state. As new generations of global corporate interests and strategies emerge, it is increasingly evident that the ethical rules that some multinational companies are beginning to adopt, especially in the mining sector, may create comparative disadvantages in the relentless competition for resources in places like Africa, southeast and northeast Asia, and the Middle East. Few of the fast-growing Asian, Arabic, or South American corporations are indicating intentions to adhere to these rules or otherwise adopt recommended ethical practices for safeguarding cultural resources and cultural heritage. Instead of complaining about the never-perfect attitudes of corporations based in North America, Europe, and Australia—places where laws can always be called to the rescue—we should consider individual and collective dedications of time and energy to assist those who need help to save their heritage, if not their lives, as endangered by political corruption and the ruthlessness of new (and old) multinationals.