Cultural dissonance: heritage protests and their implications for heritage-making in settler colonial cities

ABSTRACT

Heritage-making’s intrinsic dissonance has been thoroughly established in the field of critical heritage studies, and yet it is a reality that continues to be obscured in heritage practice in settler colonial cities. Authorised heritage discourse continues to project existing state-led systems of heritage-making as a self-evident ‘public good’ for current and future generations. In settler colonial cities, this increasingly includes attempts to incorporate Indigenous views and values into its framing. However, existing statutory processes that uphold normative approaches prove resilient to change. Continued prioritisation of tangible artefact amid private property rights impairs the heritage field’s ability to acknowledge alternative possibilities and to genuinely engage in decolonising transformation. This paper examines three cases where heritage dissonance has erupted into protest and protection action outside of the authorised heritage discourse: the Old Swan Brewery in Perth, Western Australia; Ihumātao in Auckland, New Zealand; and the West Berkeley Shellmound in Berkeley, California. It analyses the contestation of values that led to protest action, what ‘authorised’ attempts were made to heritagise each case and to what result. In so doing, the paper demonstrates how existing processes of statutory heritage-making continue to be inadequate for Indigenous and emerging heritage aspirations.

KEYWORDS:

• Urban heritage
• futurity
• future generations
• Indigenous heritage
• settler colonial cities

Introduction

How are emerging generations challenging the status quo of heritage-making in settler colonial cities, and what does this mean for its futurity? While the last four decades have produced an abundance of critical scholarship that question and reframe heritage-making assumptions in the context of settler colonial cities (Liu, Dupre, and Jin 2021; Silverman 2011), the heritage industry and the values it embodies has struggled to address these challenges on the ground (Knudsen et al. 2022; Winter 2013). Heritage conservation as a ‘public good’ continues to be its seemingly self-evident raison d’etre, as preserving the past for future generations gives the field meaning and purpose. Yet moments of public protest can unsettle these authorised narratives. This is particularly revealing when protest seeks to reclaim urban space as Indigenous land. Such moments expose the inability of heritage decision-making to reorientate its purpose towards spatial and cultural justice, and highlight alternative possibilities.

In this paper I explore these tensions through a lens of heritage dissonance, focusing on three cases of urban heritage protest from Australia, Aotearoa New Zealand and the United States of America (USA). The intrinsic dissonance of heritage is well-established across critical heritage scholarship. Heritage is recognised as a creative process, a conscious making that is highly political and invariably manipulated for purposes in the present (Hobsbawm and Ranger 1983; Lowenthal 1985). ‘Heritage’ is only made heritage by the values laid on it (Smith 2006), and these values are grounded in power – who has the right to decide (Graham and Peter 2008). As values selection is unavoidable and inherent in heritage production, dissonance is intrinsic to its nature and is unable to be resolved away (Tunbridge and Ashworth 1996).

However, this reality remains largely obscured in the outworking of heritage practice. Differences in values do not always erupt into active contestation or protest; cities are dynamic places and can encompass multiple claims on space and identity (Vinken 2021) and dissonance often remains latent as dominant interests subsume other knowledge and value systems (Kisić 2016). Yet while societies generally function normatively as people get on with their lives (Lefebvre and Nicholson-Smith 1991), moments of significant urban change can become flashpoints for conflict about what heritage is for, who benefits, who is (further) dispossessed, and who gets to decide (Rodenberg and Pieter 2018). What insights do such moments provide regarding emerging generations’ priorities for heritage, and how might they shift authorised heritage as a state-mandated practice? This exploratory analysis uses a case studies approach to investigate how similar themes of protection and protest are unfolding in dynamic ways across settler colonial contexts, and how these events may impact state-led heritage-making for more culturally just urban futures.

Heritage dissonance needs constant foregrounding in settler colonial contexts as the act of heritage-making entwines with nation-building and homemaking agendas (Porter 2018). As explained by Tuck and Wayne Yang (2012), in order for settlers to make Indigenous land our¹ home, we simultaneously sever Indigenous peoples’ connections to land, stories, ontologies, and make ourselves indigenous by implanting our own heritage and claiming occupation. As such, while Australia, Aotearoa and the USA have different heritage-making legacies with consequently different regulatory emphases, public/private funding models etc., their shared context as former British colonies shape similar socio-political understandings of planning and heritage that allow for a level of coherent enquiry (Bell 2014; Phillips et al. 2019). In particular, their heritage management systems, grounded in concepts of material authenticity and landscape aesthetic, are part of the export of European value systems enacted across the world via European imperial expansion (Swenson and Mandler 2013).

In line with this history, state agencies at every tier of government take a lead role in shaping, mandating and regulating heritage practice (Orbaşli 2017). The state therefore assumes responsibility for constructing what Laurajane Smith terms the ‘authorised heritage discourse’ (AHD) (2006, 11), the arbiter of values in urban environments. It is through state planning and legislation that values get pinned down and heritage objects, places, activities etc. are either valorised or disregarded in planning policy (Pietrostefani and Holman 2021; Porter 2018). Having claimed this responsibility, settler state governments are pivotal in attempts to balance heritage-making with other needs and desires within their contemporary society (Smith et al. 2010).

This balancing act is becoming simultaneously more significant and more controversial in settler colonial cities. This is not only due to broad global issues of urban growth, diverse immigrant populations and environmental crises (Bessant, Farthing, and Watts 2017), but also to the particular challenges of decolonising discourse and the contested nature of heritage in this field (Blatman‐Thomas and Porter 2019; Grandinetti 2019; Kitson et al. 2022; Livesey 2019). Dissonance reverberates through the urban experience, not only in relatively clearcut ‘heritage versus development’ debates but in the complex and often hidden realities of settler homemaking in Indigenous lands (Shapiro 2019; Swenson 2013). As such, while it is acknowledged that heritage is continually created and consumed in myriad forms (Waterton, Steve, and Helaine 2016), my focus here is on its official or ‘authorised’ making – the statutory processes that construct a dominant conception of what heritage ‘is’ and what is worthy of protection (Smith and Emma 2012). As this study shows, these processes misalign with Indigenous conceptions of heritage as inseparable from environmental and cultural recognition and urban land rights (Porter 2018). The study reveals that creating change will involve more than just a new openness to Indigenous and emerging views within the heritage sector itself, but wider transformation of planning and legislative systems that lock in the status quo as part of broader norms of urban management and land use.

Cases: selection and approach

The three cases example moments where heritage dissonance has erupted into protest and protection attempts outside of state-led heritage processes. First, the Old Swan Brewery in Perth, Western Australia, where Indigenous Noongar people and allied groups protested the heritagisation of a nineteenth century brewery in the 1980s–1990s. Second, in Tāmaki Makaurau/Auckland, Aotearoa, where between 2016–2020 local Māori and supporters occupied a site known as Ihumātao to protect the cultural landscape from housing subdivision. Third, the West Berkeley Shellmound in Berkeley, California, where Ohlone peoples’ campaign to prevent development resulted in an historic buy-back in March 2024.

While each case is situated in its own temporal, cultural and political context, they highlight common fractures between Indigenous relationships to land and heritage values mandated by the state. Importantly, all three cases relate to urban localities. While urban protest is only one component of broader patterns of Indigenous resistance to settler-colonial land claims (Bell 2014; Walker 2004) it is a powerful acknowledgement of Indigenous people as urban, rejecting settler-colonial placements of Indigeneity in an essentialised rural hinterland (Grandinetti 2019; Howard-Wagner 2021; Jacobs 1996; Kiddle 2021; Porter and Barry 2015). In all three cases attempts were made to formally recognise the place’s heritage significance (Indigenous and/or European) and to protect and manage this significance through legislative pathways and urban planning mechanisms. These statutory interventions varied across the cases as explored below, but in all instances they were inadequate for Indigenous self-determination of living heritage and aspirations for cultural redress.

The cases have been individually examined by scholars across a range of disciplines (as cited in each case). My work draws on this body of literature as well as on national, state and local heritage listings, legal cases and related documents. A thematic approach is taken to documentary analysis (Grant 2018) following four lines of enquiry: reasons for contestation, legal frameworks, political and legal reactions, and relational outcomes (Appendix 1). The paper does not seek to capture the complex and dynamic heritage significance of each place as Indigenous land, as this is beyond my place² and has been richly explored by others. Rather, the work centres on the ‘authorised’ heritage response to these moments of protest and cultural claim: what official attempts were made to make heritage of each place and to what result. My aim is twofold: first, to highlight how the AHD is not only created and upheld by the systems and processes of the heritage industry, but also by planning and legislative structures that create the state mandate for these systems; and second, to query the potential for AHD transformation through Indigenous and emerging claims to urban space.

Case 1: the old swan brewery, Perth

We belong to the land, the land is us. We stand united in heart to fight and to make a stand for the old people. The dancing flowers of our campfire tells me I am home with my people

• Woman speaking at a meeting at the old Swan Brewery protest camp, March 1989 (quoted in Ansara 1989, Document 6, 70).

Located on the north bank of the Swan River directly below Kings Park (Figure 1), the Old Swan Brewery forms a prominent landmark in Perth’s inner city landscape (Figure 2). In the late 1980s – early 1990s the site was one of protest and occupation as its past and future purposes were contested and redetermined.

Figure 1. Old swan brewery, Perth. Source: Google Earth, 31°58’40”S 115°53’38”E. Accessed October 1, 2023.

Figure 2. The old swan brewery with the Kings Park escarpment behind. Source: Gnangarra, April 4, 2006. CC BY 2.5 AU deed. https://commons.wikimedia.org/wiki/File:Old_swan_brewery_gnangarraREV.jpg.

The land occupied by the Old Swan Brewery has been the ancestral land of the Whadjuk Noongar people for millennia. It forms part of the area known as Goonininup, a sacred site of Waugal, an ancestral serpent that carved the river in the Dreaming. Prior to colonisation the land was an important place for gathering, trade and ceremonial practices, but these processes were uprooted by settler claim and development from 1829. Establishment and expansion of the Swan Brewery in the 1870s and 1880s obstructed Noongar people’s right to occupy, use and spiritually connect with the land, solidifying a severance that was later enacted by law (Committee for Perth 2017; Vinnicombe 1992).

However, by 1966 brewery operations had outgrown the site, leading to its closure and slow deterioration. In 1978, public opposition to a private redevelopment proposal resulted in the site’s purchase by the Government of Western Australia and catalysed debate about its future – either restore the buildings as a commercial hospitality and tourism venue or demolish them and create a public park (PWA, 1987a, 1987b, 1987c, 1988). As state politicians argued these options, Noongar people declared their ancestral place claim multiple times through public requests, petitions and legal challenges (Ansara 1989; Foley 1997).

The sustained controversy was essentially defined by four overlapping contestations of place significance. First, Noongar peoples’ cultural aspirations to recognise and rekindle their living presence on ancestral land, which called for demolition of the brewery buildings (Jacobs 1996). Noongar voices were added to by diverse groups including churches and trade unions who variously supported Indigenous land rights and opposed corporate interests. Second, wider community concerns for the natural heritage and landscape qualities of the Swan River and its banks, which also called for demolition (PWA, 1987c). Third, European heritage values associated with the buildings and their landmark qualities that demanded a built conservation-led response; and forth, the commodity value of the site, which increasingly tapped into the heritage buildings as a promotional asset for Perth (Lewi 2005) – the position promulgated by the state government.

It is important to highlight that in the early stages of contestation neither the brewery buildings nor the land they sat upon were officially recognised as having heritage significance, and the heritage value of the existing architecture was widely debated (PWA, 1987c, 1987c). Indeed, the site’s first formal heritage investigations were archaeological, undertaken in the mid-1980s in response to Indigenous customary ownership claims and the government’s purchase. This resulted in the site’s registration in 1985 under the Aboriginal Heritage Act 1972 for its significance as the dreaming track of the Waugal and as a place of occupation, ceremony and trade (Ansara 1989; Lewi 2005). However, this authorised ‘making’ of heritage did little to reorientate dominant interests towards cultural redress through land return. Rather, identified Indigenous values were sought to be commodified for tourism, with then-Minister for Planning Bob Pearce suggesting that the buildings could become ‘a shrine to Aboriginal culture and heritage’ (PWA, 1988) via incorporation of an artefact museum, theatre etc. This was rejected by Noongar people as ‘a familiar displacement of their interests over land’ (Jacobs 1996, 124).

Legal action continued as development was formally approved and preparatory work began in 1988 to restore the brewery buildings for commerce and hospitality. In protest, Noongar groups led by Robert Bropho and known as the ‘Aboriginal Fringe Dwellers of the Swan Valley’ camped on the land from January to October 1989 alongside allies who also sought brewery demolition. Occupation of such a prominent site on a major urban highway was a radical strategy as ‘residents and urban authorities in Perth were confronted with the unlikely presence of the Aboriginal sacred in the city’ (Jacobs 1996, 104). On 9 October 1989 the occupation of several hundred was cleared by more than one hundred police, with over 50 people arrested and charged (Gregory 2003).

Official investigation of heritage values associated with the Swan Brewery site continued in a reactive response to this politically-charged context. Debates on the heritage values of the architecture were effectively settled by experts and by new legislation that created a statutory framework for built heritage protection. The state government enacted the Heritage of Western Australia (HWA) Act in 1990, the last state to legislate for built heritage, and the newly formed Heritage Council of Western Australia undertook a site assessment. Their report found that the brewery was an important historical landmark, an exemplar of the industrial Federation style and of social significance (Committee for Perth 2017). The entire precinct was placed on the register of the National Estate in 1991 (Australian Heritage Database 1991) and on the new State Register of Historic Places in 1992 (HCWA, 1992).

Through these processes, the Swan Brewery buildings became authorised heritage via the HWA Act created for this purpose. It was immediately clear that built heritage trumped that of the Aboriginal Heritage Act and that of the Noongar people continuing their vigil. A ministerial decision gave approval for restoration and development to proceed, rejecting a recommendation from the Aboriginal Cultural Material committee that consent should be refused. In making the decision, Minister Judyth Watson stated that ‘while I respect the Aboriginal significance of the area, it is equally important to recognise the heritage value of the existing buildings and the need for their preservation’ (Government of Western Australia, 1992). There was no acknowledgement that valorisation of built form necessarily meant the (continued/attempted) erasure of Noongar peoples’ right to the city and to alternative aspirations for their ancestral land.

The site continued to be a place of protest as construction work began, with workers escorted by police through a picket line of Indigenous groups, trade union members and other allies. Events came to a head on 26 August 1992 when police cleared the protestors and construction work began in earnest (Everett 2019). The approved development had a strong emphasis on built heritage restoration, with a statutory agreement in 1993 ensuring the long term protection of ‘significant fabric’ (HCWA, 1993). The resulting development consists of exclusive residences and dining, with the site’s historic buildings used to market its status (Gandhi and Freestone 2008).

Case 2: Ihumātao, Tāmaki Makaurau

History on this landscape is not monumental. There’s no fixed beginnings or endings, grand narratives or imposing structures. … The narratives of this place are grafted through tangible remnants of stone, soil and water, but the true beauty of this place lies within the intangible values. They reach back beyond the narratives that historians and archaeologists and heritage practitioners and law-makers would conventionally rely on.

• Pania Newton speaking at a TED^xAuckland event, 2018 (Newton 2018).

The Ihumātao peninsula is located on the Manukau Harbour in the major South Auckland suburb of Māngere (Figure 3). Situated on the city’s south-western peri-urban fringe, the open farmland is close to the international airport, major highways and commercial centres. In 2016, a proposal for a large housing development at Ihumātao met sustained Māori-led resistance due to the land’s deep cultural significance.

Figure 3. Ihumātao peninsula showing the Ōtuataua stonefields historic reserve (yellow), the ihumātao papakāinga (blue) and the contested block (red, shaded). Source: Google Earth, 36°59’22”S 174°46’23”E. Accessed August 8, 2023.

Ihumātao is part of the extensive volcanic field that creates the Auckland landscape. Its rich soil, strategic elevation points and water resources drew Aotearoa’s earliest human inhabitants, and the names embedded on the land speak to its importance as an ancestral landscape (Mackintosh 2021). The area is associated with interlayered settlement and development over generations, with scoria used to create extensive horticulture systems, terraced pā (fortified settlements) and domestic complexes, and caves and lava crevasses used for burials (Rickard, Veart, and Bulmer 1983) (Figure 4).

Figure 4. Ōtuataua stonefields. Source: Callan Bird, April 14, 2017. CC BY 2.0 deed. https://www.flickr.com/photos/151182189@N04/36208016213/.

Mana whenua (Māori with territorial authority) continued to live on and modify their ancestral lands at Ihumātao well into the colonial period and were active in the provision of food supplies for the region’s growing Pākehā (European) population. This relationship was ruptured in July 1863 with their forcible eviction at the start of the Waikato war and Crown confiscation of over 400 hectares of land (O’Malley 2016). A small reserve returned to mana whenua in 1888 became the Ihumātao papakāinga (village) of the hau kāinga (home people), descendants of the tribal groupings of Waiōhua, Ngāti Te Ahiwaru and Ngāti Mahuta (Hancock et al. 2020).

Pākehā interest in preserving remnant stonefields at Ihumātao began to develop in the 1930s as the area was increasingly subject to quarrying and other industrial uses (Hancock and Newton 2022). Archaeological investigations led to formal Category 2 listing of part of the peninsula by the New Zealand Historic Places Trust (now Heritage New Zealand Pouhere Taonga (NZHPT)) in 1991, meaning that any proposal to destroy or modify the identified site required archaeological authority. This protection was significantly strengthened in 2001 by public purchase and gazetting of the land as the Ōtuataua Stonefields Historic Reserve (Jones 2020).

An area not included in the reserve was the rural-zoned block of farmland to the immediate east (Figure 3) known as the Ōruarangi (or Wallace) block (Hill 2019). In 2007 the Manukau City Council sought to designate this land as protected public open space. However, this was successfully appealed by the landowners, with the Environment Court requiring that the block be rezoned for urban development (Gavin 2012). While the court did not dispute the land’s historical and cultural associations it rejected mana whenua and heritage experts’ opposition to urban development, finding that ‘sympathetic development which protects specific heritage, cultural and historic values … could be undertaken’ [80]. In 2014 the newly-amalgamated Auckland Council rezoned the land for housing (Auckland Council 2016) and a 480-unit residential development was proposed by Fletcher Building Limited.

In 2015 six cousins with whakapapa (ancestral connections) to Ihumātao began a campaign to protect the land, led by Pania Newton. The 2012 Environment Court case had demonstrated that official heritage recognition could not be relied on for holistic protection of Ihumātao. In particular, it was clear to hau kāinga that even with support of authorised heritage mechanisms, namely in the form of NZHPT listings and ‘expert’ evidence, ancestral connections could be reduced to itemised management in familiar processes of land segmentation. Under the banner Save Our Unique Landscape (SOUL) and later #ProtectIhumātao, hau kāinga and supporters used legal and political avenues, occupation, petition, hīkoi (protest marches) and wide-ranging public awareness engagements to prevent the Fletcher subdivision and to ‘allow the people of Ihumātao to determine the future of our whenua’ (Qiane Matata-Sipu, quoted in Nairn et al. 2022, 30).

As such, what gave rise to protest action in this case was disparate visions for the meaning of heritage protection. In the view of hau kāinga and many in the heritage sector that supported their case, Ihumātao’s heritage value was not a sum of parts but intimately tied with sustaining and restoring relationships between mana whenua and their ancestral land. The full area therefore needed holistic recognition and custodianship as a living cultural landscape defined by cultural redress. From a development perspective and within the legal system, historical grievances were acknowledged but seen as a separate issue in the current realities of private ownership. Significance was acknowledged but could be managed as individual entities (physical artefacts, caves, hills, coastal edge, viewshafts etc.) within otherwise standard development norms.

It is notable that having unsuccessfully sought outright protection in the 2012 Environment Court case, mana whenua, namely the Makaurau Marae Māori Trust and Te Kawerau Iwi Tribal Authority, felt compelled to work within the latter view. They therefore negotiated development mitigations with Fletcher that included a buffer to Ōtuataua, viewshaft protections and some housing earmarked for shared equity (King v. Heritage New Zealand Pouhere Taonga, 2018). This was also the case for HNZPT who subsequently granted an archaeological authority in 2017 for the work to proceed.³

Campaign representatives appealed the archaeological authority to the New Zealand Environment Court. However, the appeal was declined, with the court confirming the limitations of HNZPT’s jurisdiction to individual archaeological sites with adverse effects to be mitigated by design controls (King v. Heritage New Zealand Pouhere Taonga, 2018). While HNZPT gathered research to support a spatial extension and higher heritage classification for the Ōtuataua Stonefields to encompass the Ōruarangi block,⁴ hau kāinga continued to protect the land through occupation, political agitation and public outreach. The effectiveness of the campaign was proven in July 2019 when an eviction notice was served and a large police contingent arrived on the site. Thousands of people joined the occupation and the Kīngitanga⁵ offered its support to facilitate a solution (Nairn et al. 2022). In the face of this local and national groundswell of protest, the proposed development was abandoned and the government purchased the site in December 2020 under legislation allowing private land to be acquired for state housing (Office of the Deputy Prime Minister, 2020). A rōpu whakahaere (committee) including hau kāinga, Kīngitanga and the Crown was subsequently established to decide the use and management of the land, with this work ongoing.

Case 3: the West Berkeley Shellmound

There’s not one place in the Bay Area that talks about Ohlone history and resiliency and this could be that place. … a place where we can have ceremony, the way we’re supposed to. Not on asphalt but on a place that’s green, that has trees growing. … to talk about the history, and it’s a painful history, but also to uplift the resiliency of language coming back and ceremony and dance and a place for culture to be shared

• Corrina Gould, spokesperson for the Confederated Villages of Lisjan (quoted in Stock 2022).

In Berkeley, California, the sub-surface portion of an Ohlone Shellmound remains under a carpark at 1900 Fourth Street, in an inner-city commercial precinct on the edge of San Francisco Bay (Figure 5). The site is a place of deep ancestral connection for Indigenous peoples of the bay area and is one of the last remnants of formerly hundreds of shellmounds around the coast. The future of the Shellmound was in contention from 2015 when a major housing development was proposed for the land. A sustained campaign for its protection by Ohlone leaders and supporters has resulted in an historic settlement to return the land to Indigenous ownership.

Figure 5. Ohlone Shellmound, West Berkeley. Source: Google Earth, 37°52’03”N 122°17’53”W. Accessed October 1, 2023.

Shellmounds were created over centuries by the Indigenous peoples of the greater San Francisco Bay area, known collectively as the Ohlone.⁶ Composed of shell, rock, sediments and ash, shellmounds could be up to nine metres high and contained a wide variety of human use and habitation patterns, including burials, artefacts and architectural remnants (Nelson 1909). Their construction across generations created a cultural landscape of mounds interspersed between waterways and tidal marshes which held a rich spectrum of flora and fauna to resource communities (Wallace and Lathrap 1975). One of the largest and oldest known mounds, the West Berkeley Shellmound is considered one of the bay’s first major settlements. Located next to Strawberry Creek, a spring-fed braided stream that fed into the bay, the site was continuously occupied for almost 4,000 years until 780 AD and continued to be used as a ceremonial site (Dore et al. 2004; Lapena and Lebeau 2021).

Alienation of Ohlone peoples from the bay area occurred through multiple waves of settler colonisation from the eighteenth century, including the Spanish Mission from 1769, Mexican control in the early nineteenth century and American annexation and occupation from 1848 (Rizzo-Martinez 2022). Attempted elimination extended to Ohlone cultural landscapes, with shellmounds systematically destroyed through agriculture, industry and development as ancestral land was commodified and urbanised (Hwang 2004; Panich 2020). The West Berkeley Shellmound presents today as an unkempt carpark on the edge of a railway line, obscuring the reality that the oldest parts of the mound survive below contemporary surface levels (Lightfoot 2004). It remains one of the last parts of the Shellmound landscape that has not been fully excavated and built upon.

The significance of the West Berkeley Shellmound to Lisjan Ohlone peoples (Confederated Villages of Lisjan, n.d.) was formally recognised by planning authorities in 2000 when it was made a city landmark (City of Berkeley 2023; Wollenberg 2008). A major development was proposed for the site in 2015, triggering a requirement for Indigenous consultation under California Assembly Bill No. 52 (Dadashi 2021). However, subsequent enactment of Senate Bill No. 35 provided a gateway to bypass consultation via its fast-tracked housing approval process. The development proposal was amended and resubmitted under SB-35.

Recognising the limitations of authorised heritage protection, a coalition of the Confederated Villages of Lisjan, other Indigenous organisations and allied supporters began campaigning to protect the West Berkeley Shellmound. Under the banner ‘Save the West Berkeley Shellmound & Village Site’ and the leadership of Lisjan Ohlone leader Corrina Gould, campaigners employed social media, public ceremonies and vigils, petitions, political activism and legal challenges to oppose the development (Figure 6). The campaign sought to have the ancestral significance of the place lead its future purpose, presenting an alternative proposal for the land as protected public open space and cultural centre (Shellmound, 2020).

Figure 6. West Berkeley Shellmound interfaith vigil, November 2016. Source: Wendy Kenin, November 6, 2016. CC BY-ND 2.0 deed. https://www.flickr.com/photos/greendoula/30199922644/in/photostream/.

Protective action outside of statutory heritage mechanisms arose due to divergent views about what ‘counts’ as heritage and its implications for place protection. From Ohlone peoples’ perspectives, the Fourth Street site embodied a sacred landscape that had largely been consumed by the settler colonial city. As a surviving remnant, its heritage value was less in material intactness or boundary positions but in its potential for Indigenous recognition and rematriation (Shellmound, 2020). This demanded a complete ‘no excavation’ response and Ohlone-led imagining of environmental and cultural futurities. For those wishing to develop the land, the mound’s lack of surface visibility diminished or negated its heritage value, meaning that protection could be reduced to itemised management of found objects. While official heritage channels sought to recognise the former via archaeological registration and landmark status, campaigners were well aware of the scope limitations and legal vulnerability of such protections.

This was confirmed when the shellmound’s authorised heritage protection was tested through the courts. The City of Berkeley initially rejected the SB-35 application due to the site’s landmark status (Lapena and Lebeau 2021). When the owners sued, the Alameda County Superior Court ruled in favour of the City, importantly finding that the Shellmound continued to endure as a ‘historic structure’ regardless of its above-ground erasure (Ruegg & Ellsworth, 2019). However, the case was appealed to the California Court of Appeal which overturned the Superior Court decision, finding that the Shellmound was no longer conceivable as a ‘structure’ and eliminating any requirement for Indigenous consultation (Ruegg & Ellsworth, 2021).

In February 2021 as the Court of Appeal case was being heard, the landowners erected a high barbed wire fence around the site, security cameras and No Trespassing signs (Dinkelspiel 2021b). The following month, hundreds of campaigners gathered on adjacent Fourth Street and participated in mural painting, ceremonial dance and candlelight vigil (Dinkelspiel 2021a).

In May 2021 the City of Berkeley and the Confederated Villages of Lisjan petitioned the Supreme Court of California to review the appeal court’s decision. Their petition was supported by amicus letters from a wide range of organisations and individuals, including other federally-recognised Native American tribes, the National Trust for Historic Preservation, Jews on Ohlone Land, Friends of the Earth and student groups (Shellmound, 2021). However, the court declined to hear the case, meaning that the city was obliged to permit the development under SB-35. The campaign continued to meet on the land for prayers and demonstrations and to advocate and fundraise for its protection. In an historic buy-back in March 2024, the still-undeveloped site was purchased by the City of Berkeley and the Sogorea Te’ Land Trust, an Indigenous women-led collective that facilitates land return to Indigenous peoples. Title is now vested with the Trust on behalf of the Confederated Villages of Lisjan in a fulfilment of rematriation (Shellmound, 2024).

Discussion

While heritage is intrinsically dissonant, authorised systems of heritage work to contain this dissonance in a state of unseen latency as part of the normative functioning of settler colonial cities. This has increasingly involved attempts to incorporate Indigenous heritage into existing protection regimes (via official recognition of archaeology, sacred sites, cultural landscapes etc.). However, such assimilations largely work to bolster settler homemaking and futurity (Bell 2019; Kitson et al. 2022) by reinforcing state authority and management of Indigenous and emerging aspirations (Smith 2022). These cases of protest and protection outside of authorised mechanisms highlight the inability of heritage decision-making to genuinely explore what decolonisation looks like for the sector and reorientate its purpose towards recognition and redress.

Each of the three cases described above expose multiple layers of dissonance as rights to urban space are negotiated. The dissonance of commercial versus heritage concerns is a clear starting point. In each case powerful state and corporate interests saw land development as inevitable, albeit with some challenges along the way. This compelling ‘future imaginary’ (Goode and Godhe 2017), a taken-for-granted discourse of land commodification and selective benefit, conflicted with Indigenous heritage imaginaries which centre on ancestral relationships to place (Hancock et al. 2020) and are inseparable from environmental and cultural restoration. Development agents in each case sought to ameliorate this conflict in ways that minimised its impact and maintained their social licence to operate. This occurred through the presentation of development as a public good (a city-enhancing destination, housing provision) and through the limited accommodation of Indigenous ‘celebration’ and memorialisation (design motifs, archaeological controls, cultural/community centres etc.). Through these moves, developments sought to contain and manage dissonance, curating Indigenous aspirations through the constricts of a settler colonial lens.

However, the three cases are also embedded in another layer of dissonance within the differing imaginaries of heritage itself. Each case held moments of alternative possibility, where expressions of heritage beyond a Eurocentric gaze could shape the site’s futurity. In particular, each case was not only a campaign to protect a site of significance but to claim the right to the city itself (Vinnicombe 1992). The AHD – written into state and city codes and enacted through legislation – proved inadequate to realise these possibilities. It is notable that this was not through lack of trying by the heritage sector: in all cases state-mandated heritage organisations and experts sought to acknowledge and formally value Indigenous land relationships in ways that aligned with Indigenous demands for spatial and cultural justice. This demonstrates that authorised heritage institutions are only one layer in a web of authorities that embed the AHD in long-established norms of operation. As Libby Porter highlights, planning policy and legislation play a key role in narrowing heritage back to a settler colonial framing of ‘what heritage is and who has the authority to define it’ (2018, 198).

In the case of the Old Swan Brewery, the heritage discourse was initially fluid and potentially open to different ontologies. It is worth remembering that the first formal protection of the land was for its Aboriginal heritage – at a time when Western Australia did not even have legislation to protect built heritage, much less have it applied to the brewery. However, the reactive creation of the HWA Act and the brewery’s addition to the National Estate solidified an AHD that gave primacy to settler colonial built artefacts. The final heritage scope was therefore limited to careful restoration and gentrification of historic buildings, disregarding the reality that in doing so Noongar demands for recognition and land return were invisibilised once again. In this case, the dissonance exposed by protest was impelled back into latency by ‘respecting’ Indigenous values but ultimately ignoring them in the drive to produce a showcase of Perth’s economic success and to solidify settler colonial values within the urban landscape.

Ihumātao and the West Berkeley Shellmound’s complete inversion of the more common trajectory of dominant interests inevitably trumping Indigenous-place relationships remain unusual. In these cases, heritage authorities made significant moves to recognise heritage as holistic cultural landscapes, beyond tangible form or artefact. However, in both cases the potential to reshape heritage through Indigenous perspectives was curtailed by continued requirements of material evidence and visual conspicuity in planning and legal processes. In the Ihumātao case, when the contested block was rezoned for urban development the scope of heritage considerations was restricted to itemised archaeology and landscape vistas in a familiar limitation of ancestral land claim. In West Berkeley, other ways of conceiving heritage were excised by the California Court of Appeal decision, which centred on the provable presence or absence of tangible artefact – whether significant archaeological deposits remained on the site, whether it had in fact been the exact position of the Shellmound, etc. (Panich 2020). In these ways, dominant heritage discourses were used to (attempt to) return dissonance to dormancy by re-grounding heritage in its Eurocentric foundations of monumentality, physical integrity and visual aesthetic. It was only through immense contestation that the sites were purchased and protected. As with the Old Brewery, dissonance remains enveloped in the material effects of place protection, but in these cases Indigenous voices have returned to dominance on their land.

It is notable that in both Ihumātao and West Berkeley this outcome was only made possible through property purchase. Official heritage recognition was not enough to change settler colonial imaginaries of land as commodity, which remains ingrained in planning and legislative constructs that in turn undergird the AHD. Differences between the sites’ new ownership structures – Ihumātao with the Crown, the West Berkeley Shellmound with the Sogorea Te’ Land Trust – are important and raise a final point. Indigenous demands to recognise the land as sacred are a direct consequence of Indigenous-coloniser interaction (Jacobs 1996), where heritage claims are among the limited options for Indigenous peoples to influence land use outcomes (Porter 2018). However, Indigenous restoration as decision-makers within their own land may blur the artificial boundaries between sacred and secular created by authorised heritage norms.

In particular, the primary weight given to tangible preservation (Porter 2018) currently overlaps with Indigenous aspirations (1News 2020; Sacred Land Film Project, 2024); however, this AHD may fail to keep up with evolving reimaginings of life and enterprise grounded in justice, land sovereignty and self-determination. Heritage and development – determined and led by Indigenous peoples – may emerge as ‘concomitant Indigenous ontologies’ (Mika et al. 2022, 285) that strengthen ancestral place bonds as living heritage. At Ihumātao, state-led heritage management may adversely affect these aspirations in light of government ownership and its consequent adjudication of ‘correct’ heritage management as part of balancing public goods. Outright Indigenous ownership of the West Berkeley Shellmound may better enable alternative possibilities. Rather than maintaining control, the key response from emerging heritage discourse must be how not to get in the way.

Conclusion

Rather than cultural contestation being a historical artefact in urban environments, the cases of the Old Swan Brewery, Ihumātao and the West Berkeley Shellmound demonstrate that cities are inherently conflicted spaces, simultaneously perpetuating settler colonial assimilation policies while also acting as ‘key spaces for Indigenous resurgence and struggle’ (Blatman‐Thomas and Porter 2019, 33). They also illustrate how settler heritage values (well-preserved colonial built form, tangible ‘authenticity’, picturesque landscape) continue to assert control over Indigenous heritages even as heritage authorities seek to acknowledge them. A persistent limitation of scope – to itemised, identifiable objects within a legislative structure of pre-eminent private land use rights – continues to segregate heritage-making from cultural redress and justice. This impairs the field’s ability to acknowledge the intrinsic dissonance that layers of heritage policy, planning and legislative mechanisms work to contain and obscure.

Protective protest outside the AHD highlights the unsettling reality that sites of erasure can be places of great importance (Stiles 2022). It is notable that each resistance campaign defended the contested site as a cultural landscape, with its value enwoven in ancestral presence more than in material intactness or boundary accuracies. The heritage sector in each jurisdiction sought to acknowledge and valorise Indigenous place claims, but in each case the broader web of statutory processes upheld long-established norms of monumentality, artefact and aesthetic. Indigenous heritage could only be seen as annulled through irreparable settler destruction (Swan Brewery and West Berkeley Shellmound) or selectively manageable through development controls (Ihumātao).

Nonetheless, each case explored here indicates that the status quo of heritage-making continues to be contested in settler colonial environments. This is not only due to shifting social, political and economic mores that shape each generation’s valorisation of fabric (Pendlebury 2009; Pietrostefani and Holman 2021) but to heritage’s inseparability from political struggles for Indigenous recognition and land rights. These challenges are most powerful in urban contexts where Indigenous heritage claims have the greatest potential for material and political impact. What effect this may have on future evolutions of AHD remains uncertain. These cases signal the continued power of settler colonial economic and political hegemonies in urban heritage-making, exercised through heritage institutions, planning policy and legislation. As such, attempts to assimilate Indigenous places of significance into state-led heritage systems may principally reaffirm state authority rather than usefully support Indigenous redress and futurities.

However, these cities are and always have been Indigenous places (Kiddle 2021), and their heritages can be reimagined in form and action. Bringing this out of the realm of theory will require more than just change within heritage systems and institutions (expert identification, values definition, technical conservation approaches etc.) but a transformative reorientation of larger planning and legislative constructs towards spatial and cultural justice. So far, it appears that it is only through land purchase that Indigenous and emerging aspirations can genuinely be pursued.

Acknowledgements

With grateful thanks to two anonymous reviewers for their valuable review and insights on an earlier draft of this paper.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Carolyn Hill

Carolyn Hill is a lecturer in environmental planning at the University of Waikato. She is also an architect and has worked in built heritage roles across public and private sectors in Aotearoa, Australia and the UK. Her work explores architecture as part of broader urban form and life, with issues of social and cultural justice being central to her applied work and writing. Her current research explores the views and values of young adults in relation to heritage-making in urban environments.

Notes

1. I use first-person pronouns in this discussion as I am a Pākehā New Zealander, a descendent of British settlers to Aotearoa and a beneficiary of the structures and systems of settler colonialism.

2. I am mindful that telling others’ stories can perpetuate ongoing processes of colonisation (Smith 2021) – this informs my focus on official attempts to manage and contain heritage dissonance rather than on place values directly.

3. It is notable that HNZPT rejected the Fletcher application twice for failing to satisfy consultation and archaeological assessment requirements. The authority was finally granted only after Fletcher posed a judicial review. This outcome reflected the norm for Māori heritage – HNZPT’s legislative constraints and inadequate resourcing means that the overwhelming majority of applications to modify archaeological sites are approved (Hill 2019; Short and Diane 2023).

4. This process, which gained unprecedented public submissions, resulted in the contested block being added to the original 1991 Ōtuataua Stonefields listing and the whole area being elevated to category 1 status. While largely symbolic, the decision added to pressure on the government and Auckland Council to effectively protect the area (Short and Hancock 2020).

5. The Kīngitanga (Māori King movement) was founded in 1858. Centred in the Waikato and with ancestral connections to Ihumātao, the Kīngitanga wields significant authority in Aotearoa.

6. This is a disputed grouping associated with land alienation and Indigenous homogenisation from the eighteenth century – over 40 distinct people groups have ancestral connections to the area and maintain relationships between each other and to the land in heterogenous ways (Rizzo-Martinez 2022).

Appendix 1:

Tabulated summary of documentary analysis

Table

		← COMPARATIVE OVERVIEW → (AHD and alternative possibilities in heritage-making)
	Theme	Old Swan Brewery	Ihumātao	West Berkeley Shellmound
	Reasons for contestation – Indigenous peoples/place relationships; synthesising historical information to establish chronologies of contestation.	– Ansara (1989) – Committee for Perth (2017) – Everett (2019) – Foley (1997) – Gandhi and Freestone (2008) – Gregory (2003) – Jacobs (1996) – Lewi (2005) – Vinnicombe (1992)	– Hancock and Newton (2022) – Hancock et al. (2020) – Mackintosh (2021) – Nairn et al. (2022) – O’Malley (2016) – Rickard, Veart, and Bulmer (1983)	– Confederated Villages of Lisjan (n.d.). – Dinkelspiel (2021a), (2021b) – Dore et al. (2004) – Hwang (2004) – Lapena and Lebeau (2021) – Lightfoot (2004), 2015 – Nelson (1909) – Panich (2020) – Rizzo-Martinez (2022) – Wallace and Lathrap (1975) – Wollenberg (2008)
← Triangulation (primary and secondary sources) →	Legal frameworks – relevant statutes, AHD identifications; implications for heritage-making.	– Aboriginal Heritage Act 1972 – Ansara (1989) – Australian Heritage Database (1991) – Lewi (2005) – HCWA (1992) – HCWA (1993) – Heritage of Western Australia Act 1990	– Heritage New Zealand Pouhere Taonga Act 2014 – Hill (2019) – Housing Accords and Special Housing Areas Act 2013 – Housing Act 1955 – Jones (2020) – Resource Management Act 1991 – Short and Hancock (2020) – Short and Diane (2023)	– City of Berkeley (2023) – Dadashi (2021) – California Assembly Bill No 52 (2014) – California Assembly Bill No. 168 (2020) – California Senate Bill No. 35 (2017) – Wollenberg (2008)
	Political and legal reactions – political debates, non-statutory AHD advocacy, legal cases; effects on heritage-making.	– Bropho v. Western Australia 1990 – Churches 1992 – PWA (1987a), (PWA, 1987b), (PWA, 1987c), PWA (1988), 1991	– Auckland Council (2016) – CERD 2017 – Gavin (2012) – King v. Heritage New Zealand Pouhere Taonga (2018) – NZP 2015, 2016, 2019a, 2019b, 2020a, 2020b	– National Trust for Historic Preservation 2020 – Ruegg and Ellsworth (2019) – Ruegg and Ellsworth (2021) – Shellmound (2021)
	Relational outcomes – state/campaigners’ positions; implications for heritage dissonance.	– Everett (2019) – Government of Western Australia 1992a, (1992b)	– 1News (2020) – Newton (2018) – Office of the Deputy Prime Minister (2020)	– Sacred Land Film Project (2024) – Shellmound (2020) – Shellmound (2021) – Shellmound (2024) – Stock (2022)

Documentary sources not otherwise included in the paper’s reference list

Aboriginal Heritage Act 1972. Government of Western Australia. 1972/053 (2 October 1972). https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a3.html.

Bropho v Western Australia. High Court of Australia 24, 171 CLR 1 (1990). http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1990/24.html.

California Assembly Bill No 52 (2014). AB-52 Native Americans: California Environmental Quality Act. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB52.

California Assembly Bill No. 168. (2020). AB-168 Planning and Zoning: Annual Report: Housing Development: Streamlined Approvals. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB168.

California Senate Bill No. 35. (2017). SB-35 Planning And Zoning: Affordable Housing: Streamlined Approval Process. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB35.

CERD (Committee on the Elimination of Racial Discrimination). 2017. CERD/C/NZL/CO/21–22: Concluding Observations on the Combined Twenty-First and Twenty-Second Periodic Reports of New Zealand. United Nations: Office of the High Commissioner for Human Rights.

Churches, Steven. 1992. ‘Aboriginal Heritage in the Wild West – Robert Bropho and the Swan Brewery Site’. AboriginalLawB 27, 1 (56), Aboriginal Law Bulletin 9.

Coney, Sandra. 2020. ‘Ihumātao Was Long Meant To Be Public Land’. Newsroom, 1 March 2020. https://www.newsroom.co.nz/sandra-coney-on-ihumtao.

Government of Western Australia. 1992a. ‘Comment on Claims About Old Swan Brewery Site’. Media Statement: Lawrence Labor Government. https://www.wa.gov.au/government/media-statements/Lawrence-Labor-Government/Comment-on-claims-about-old-Swan-Brewery-site-19920106.

Heritage New Zealand Pouhere Taonga Act 2014. New Zealand Government. 2014/26 (19 May 2014). https://www.legislation.govt.nz/act/public/2014/0026/latest/DLM4005414.html.

Heritage of Western Australia Act 1990. Government of Western Australia. 1990/103 (22 December 1990). https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_418_homepage.html.

Housing Accords and Special Housing Areas Act 2013. New Zealand Government. 2013/72 (13 September 2013). https://www.legislation.govt.nz/act/public/2013/0072/latest/DLM5369001.html.

Housing Act 1955. New Zealand Government. 1955/51 (21 October 1955). https://legislation.govt.nz/act/public/1955/0051/latest/DLM291040.html.

King v Heritage New Zealand Pouhere Taonga (2018). http://www.nzlii.org/nz/cases/NZEnvC/2018/214.html.

National Trust for Historic Preservation. 2020. ‘Discover America’s 11 Most Endangered Historic Places for 2020’. National Trust for Historic Preservation. https://savingplaces.org/stories/discover-americas-11-most-endangered-historic-places-for-2020.

NZP (New Zealand Parliament). 2015. ‘Parliamentary Debates for Thursday, 25 June 2015’. Hansard Report vol. 706. https://www.parliament.nz/en/pb/hansard-debates/rhr/document/51HansD_20150625/volume-706-week-20-thursday-25June 2015.

NZP (New Zealand Parliament). 2016. ‘Parliamentary Debates for Tuesday, 6 September 2016’. Hansard Report vol. 716. https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansD_20160906_20160906.

NZP (New Zealand Parliament). 2019a. ‘Parliamentary Debates for Wednesday, 31 July 2019’. Hansard Report vol. 739. https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansD_20190731_20190731.

NZP (New Zealand Parliament). 2019b. ‘Parliamentary Debates for Thursday, 19 September 2019’. Hansard Report vol. 741. https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansD_20190919_20190919.

NZP (New Zealand Parliament). 2020a. ‘Parliamentary Debates for Wednesday, 12 February 2020’. Hansard Report vol. 744. https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansD_20200212_20200212.

NZP (New Zealand Parliament). 2020b. ‘Parliamentary Debates for Wednesday, 2 September 2020’. Hansard Report vol. 748. https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansD_20200902_20200902.

PWA (Parliament of Western Australia). 1991. ‘Legislative Assembly: Wednesday, 15 May 1991’. Hansard Archives. https://www.parliament.wa.gov.au/hansard/hansard1870to1995.nsf/screen1990s?OpenForm&Start=1&Count=1000&Expand=2.7.

Resource Management Act 1991. New Zealand Government. 1991/69 (22 July 1991). https://www.legislation.govt.nz/act/public/1991/0069/latest/DLM230265.html.