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Justice Rachel Pepper and Lauren Butterly

This chapter focuses on the role of the courts in the protection of Indigenous cultural heritage in Australia. Across a number of the Australian jurisdictions there has been recent curial evolution in this area, with courts increasingly recognizing that cultural heritage comprises of much more than artefacts, and includes landscapes and values. However, this needs to be situated within a broader context that seeks to limit the court’s ability to engage with the wider ‘environment’. In asking whether courts are ‘blind to country’, this chapter considers whether courts can see the whole of country, rather than compartmentalizing it in line with Eurocentric ideas and legal divisions. It must be acknowledged that clearly the courts alone cannot provide the solution to protection of Indigenous heritage. Yet a court determination is often the culmination of a long-term, complex and hard-fought dispute in this area. Further, court decisions on Indigenous heritage matters often have impacts beyond that one case, and can demonstrate new judicial understandings. This chapter seeks to provide both a judicial and an academic perspective on these issues, to draw what otherwise may be discrete ideas together and to suggest practical examples of legal reform (both inside and beyond the courtroom). Although this chapter focuses on Indigenous cultural heritage and its relationship to courts, the notions of compartmentalization and limitation of courts have implications for other substantive areas of law, particularly relating to Indigenous peoples.