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 reflects a long overdue recognition of the culture of Aboriginal and Torres Strait Islander peoples as essential to Australia’s distinctive character. 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.
The actions of public authorities can both promote and limit rights. Section 27(2) could be raised in regard to activities that:
Parks Victoria used a similar provision in the Victorian Charter to justify giving preference to members of the Wurundjeri Tribe for field and office positions involving working on and caring for Wurundjeri country. (Parks Victoria (Anti-discrimination Exemption)  VCAT 2238)
In this case, the Court stressed that the purpose of the proposed conduct was to ‘realise substantive equality for Indigenous applicants for the field and office based positions, and more broadly for Indigenous people’. When this purpose was considered in the context of the cultural right, specifically in connection to culture and country, the objective was ‘necessary, genuine, objective and justifiable’.
Respecting the right to culture did not breach the right to equality; rather, it was helping to redress an unequal balance in the community. (Info courtesy VEOHRC.)
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)
If you want to discuss a breach of your cultural rights, you can: