Aboriginal & Torres Strait Islander cultural rights

Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right to maintain, control, protect and develop their culture, and to have their traditional connections with land, waters and resources recognised and valued.

Section 27(2) of the Human Rights Act 2004 (ACT) focuses on the distinct rights of Aboriginal and Torres Strait Islander peoples in relation to their ancestral lands, cultural heritage, traditional languages and knowledge and natural resources.

It is based on Article 27 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 25 and 31 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Australia is a party to the ICCPR, and has formally expressed its support for UNDRIP. Section 27(2) also draws from section 19(2) of the Charter of Human Rights and Responsibilities Act 2006 (VIC).

These rights are not intended to change current arrangements dealing with intellectual property or land rights, which will continue to be dealt with under existing laws.

Rather, enjoying these cultural rights could include a way of life associated with land, and the use of resources. This might include traditional activities such as hunting and fishing, or carrying out cultural practices in national parks for example.

These rights may be relevant to cases in ACT courts and tribunals, in interpreting laws. They also create expectations and obligations for the Government and Legislative Assembly. ACT public authorities must act and make decisions consistently with these rights. Under the Human Rights Act, all ACT government agencies, or people or organisations who do government work, are public authorities.

If legislation can’t be interpreted to be consistent with these rights, the ACT Supreme Court may issue a declaration of incompatibility.

Where these rights could be relevant

The actions of public authorities can both promote and limit rights. Section 27(2) could be raised in regard to activities that:

  • limit or prohibit communication in an Indigenous language
  • limit the sharing or teaching of information by Aboriginal and Torres Strait Islander people about their language, beliefs or culture
  • limit the ability of Aboriginal and Torres Strait Islander people to take part in a cultural practice, or interfere with their distinct cultural practices
  • fail to recognise the rights of Aboriginal and Torres Strait Islander children and young people to learn and be connected to their culture and to maintain kinship ties to the community
  • fail to consult with Aboriginal or Torres Strait Islander peoples about decisions that affect them
  • regulate the conduct of commercial activities on the traditional lands of Aboriginal people in the ACT
  • interfere with the relationship of Aboriginal and Torres Strait Islander people and land, water and resources.

Case study: Police regret asking traditional custodians, practising their cultural rights, to move on

A leader in the Aboriginal community and his family were camping, practicing their culture and performing traditional ceremonies on a pastoral lease area. Queensland Police Service (QPS) officers approached the group and asked them to leave, stating that an international mining company occupying the land had claimed they were trespassing. The site was the subject of an Indigenous Land Use Agreement but the family opposed the agreement and the mine, saying that Aboriginal people had been exercising their culture by fishing and hunting and performing ceremonies for 40,000 years.

Cultural rights of Aboriginal peoples and Torres Strait Islander peoples are specifically protected by the QLD Human Rights Act, including the right to maintain their distinctive spiritual, material and economic relationship with the land and waters with which they hold a connection.

The family told the police that they had received expert advice that they could lawfully exercise their cultural rights and responsibilities. However, the police required the group to pack up their equipment and leave within an hour. The family says that this caused grief and trauma.

QPS agreed to provide a statement of regret which was able to be shared publicly. The statement acknowledged that the events caused embarrassment, hurt and humiliation for the complainant and his extended family, that there are complex legal issues and cultural sensitivities, and that the QPS will commit to take into account the issues in the complaint in future responses. (Info courtesy QHRC)

Case study: cultural rights for tenants

Lorna lived in transitional housing owned and leased by a non-Aboriginal community organisation, ABC Inc, after escaping family violence. She lived with and cared for her grandson and brother who had an intellectual disability. A condition of her tenancy was that she engage with community services.

In January her nephew died of a drug overdose in her presence at the property. Lorna went back to her country for a couple of weeks of ‘sorry business’ to grieve for his death. When she returned she started receiving warnings to engage with services. However she was overwhelmed with family responsibilities, trauma and grief. Her engagement decreased and she stopped answering the door for fear of eviction. A possession order was made and the police came to her door with a warrant.

She got in touch with the Victorian Aboriginal Legal Services (VALS). VALS made an application for an urgent review and stay. VALS then successfully made arguments to ABC that they had failed to engage with Lorna’s cultural rights and the rights of her grandchild and family members in their eviction process, by failing to support her to recover from her grief. These arguments significantly turned around ABC’s approach to the client. ABC allowed the review, and withdrew the possession application, engaged an Aboriginal support service and started again. (Info courtesy VALS submission to 2015 review of the Charter)

More info

If you want to discuss a breach of your cultural rights: