2. Land, Culture and Heritage

Objectives

1. Improved understanding and respect for Aboriginal and Torres Strait Islander cultures, heritage, languages and traditional knowledge

2. Sustainable use of the environment that incorporates and protects the heritage and cultures of Aboriginal and Torres Strait Islander peoples

3. Guaranteed recognition and protection of native title

4. Recognition of the cultural and intellectual property rights of Aboriginal and Torres Strait Islander peoples

5. Promote respect for Aboriginal and Torres Strait Islander law

Protection for Aboriginal and Torres Strait Islander peoples cultures, heritage and languages

It is a fundamental right of every person to enjoy their culture, heritage, religion and language, both individually and in association with others. Indeed, the right to freely exercise our religion is one of the few freedoms guaranteed by the Australian Constitution. Recognition and protection of cultural rights are essential to the enjoyment of individual rights and the achievement of social justice.

The cultural rights of Aboriginal and Torres Strait Islander peoples are unique. Aboriginal and Torres Strait Islander peoples' cultures and heritage are diverse and dynamic in their politics, histories, stories, songs, ceremonies, traditions and relationships to land. It is also one of the bases of the collective identities of Aboriginal and Torres Strait Islander peoples as distinct communities. As the first peoples of Australia, the cultures of Aboriginal and Torres Strait Islander peoples are essential to our distinctive character as a nation.

The enjoyment of these rights, however, has been impeded and remains under threat, particularly from desecration in the course of development projects.

The whole of the landscape, land, sea and waters contains areas and places of deep significance to Aboriginal and Torres Strait Islander peoples. Sometimes referred to as sacred sites these locations are central to the religious and spiritual belief systems of Aboriginal and Torres Strait Islander Australians. They are often celebrated in ritual, ceremony, stories dance and art works. They are inextricably part of the Aboriginal and Torres Strait Islander worldview. There are also sites of immense historical, social and cultural importance that require protection.

Although existing Commonwealth, State and Territory legislation provides some protection for Aboriginal and Torres Strait Islander cultures and heritage, it is the Council's view that the value and integrity of Aboriginal and Torres Strait Islander cultures and heritage require greater protection through comprehensive and effective legislation.

Language and culture are closely linked for many Aboriginal and Torres Strait Islander peoples. Maintaining knowledge of languages, among other things, provides an assurance of identity. The struggle to record and foster Aboriginal and Torres Strait Islander peoples languages must enjoy continued support.

Incorporating programs about Aboriginal and Torres Strait Islander cultures, including language, in general school curricula is an immensely important aspect of the reconciliation process and the promotion and protection of Aboriginal and Torres Strait Islander peoples' rights. One way to more directly foster Aboriginal and Torres Strait Islander languages is to teach them in schools through bilingual education programs or in general curricula.

The process of reconciliation depends upon all Australians respecting Aboriginal and Torres Strait Islander cultures and heritage, appreciating and fostering the rich and diverse identities of Aboriginal and Torres Strait Islander peoples and relishing that heritage as part of the distinctive character of our nation. Therefore, the ongoing education and public awareness campaigns of the reconciliation process must have respect and appreciation of heritage at their core.

Actions for Implementation

A. Commonwealth, State, Territory and local governments assist relevant community groups to work with Aboriginal and Torres Strait Islander peoples to continue to develop projects that recognise, record and protect local aspects of Aboriginal and Torres Strait Islander cultures, heritage and languages.

B. Commonwealth, State and Territory governments develop further programs to enable bilingual education to be taught in schools and other educational institutions.

C. ATSIC, the Australian Heritage Commission, AIATSIS and Reconciliation Australia work together to produce community education programs that promote the value of and respect for the cultures and heritage of Aboriginal and Torres Strait Islander peoples.

The importance of land and waters

Aboriginal and Torres Strait Islander peoples' connection with land and water is a unique and complex relationship. Land and waters mean more to Aboriginal and Torres Strait Islander peoples' cultures and traditions than merely an economic and social base. They are integral to Aboriginal and Torres Strait Islander religious and cultural practices, ceremonial life, and heritage. To this end, Aboriginal and Torres Strait Islander peoples, even where they can no longer live on their traditional land, may have an interest in how it is managed. This interest can be an important basis for cooperation between State, Territory and local governments and Aboriginal and Torres Strait Islander peoples.

Before farming, pastoral activity and urban development, the landscape and waters were managed by Aboriginal and Torres Strait Islander peoples in such a way that Australia had some of the richest bio-diversity in the world. Even where soils were thin and rainfall restricted, a huge variety of flora and fauna flourished. But much of this diversity is being lost. Recognising Aboriginal and Torres Strait Islander people's knowledge of the natural environment and incorporating that knowledge into the way we manage Australia's natural resources today can help to sustain the country as well as the cultures and traditions of Aboriginal and Torres Strait Islander peoples.

Actions for Implementation

A. All levels of government acknowledge the importance of land and waters to Aboriginal and Torres Strait Islander peoples and agree that effective protection of rights over land and waters, access issues, and participation in environmental and land management structures, remain unresolved issues of reconciliation.

B. Commonwealth, State and Territory governments continue to recognise and accommodate Aboriginal and Torres Strait Islander aspirations to participate as equal partners in the management of seas, coasts and waters.

C. Commonwealth Government continue to provide adequate resources to enable Aboriginal and Torres Strait Islander communities to document their knowledge about the environment, assist to ensure this knowledge is not lost, and where appropriate, seek assistance from Aboriginal and Torres Strait Islander peoples to make use of their knowledge that can contribute to the restoration and maintenance of the natural environment.

D. All tiers of government develop and fund strategies that encourage partnerships between Aboriginal and Torres Strait Islander land managers and their neighbours to help restore the natural environment on Aboriginal and Torres Strait Islander lands and across the regions where they are located.

Understanding native title rights

In 1992, a landmark decision of the High Court of Australia in the Mabo case determined that Aboriginal and Torres Strait Islander peoples' rights to their country could be recognised under Australian law. Native title in land and waters is demonstrated by the maintenance of the connection with land or water according to traditional laws and customs and provided that the native title has not been extinguished by an act of government. Native title is a property right recognised in Australian law and protected by the Racial Discrimination Act and the Native Title Act 1993 (Cth). The recognition of native title in Australian law may never have occurred but for the Racial Discrimination Act which the High Court, in the first Mabo case found ruled out discriminatory state legislation.

In 1993, the Commonwealth parliament responded to the Mabo decision by implementing legislation which recognised native title while confirming other titles, introduced mechanisms for its determination and established regimes for future dealings

In 1998, amendments to the Native Title Act were criticised by Aboriginal and Torres Strait Islander peoples and others. The United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) expressed concern regarding the consistency of the amended Native Title Act with the Convention on the Elimination of All Forms of Racial Discrimination and the lack of participation by Aboriginal and Torres Strait Islander peoples in the legislative process.

In the spirit of reconciliation, the Council supports further discussion between the government and Aboriginal and Torres Strait Islander representatives about the concerns surrounding the Native Title Act, particularly the right to negotiate so they can be addressed in ways that do not disadvantage native titleholders.

Actions for Implementation

A. The Commonwealth government undertakes the periodic reviews of the effectiveness of the Native Title Act in cooperation with Native Title Representative Bodies (NTRBs) and ensure its effective implementation.

B. The Commonwealth government discuss with Aboriginal and Torres Strait Islander representatives and NTRBs, ways to address the concerns of the United Nations committees, ATSIC, Aboriginal and Torres Strait Islander and non-Indigenous organisations and others regarding the Native Title Act and the level of Aboriginal and Torres Strait Islander involvement in legislative decision-making.

C. Governments, industry, private landholders and Aboriginal and Torres Strait Islander claimants seek to settle native title claims in a spirit of cooperation and reconciliation through mediated determinations and future dealing be resolved through negotiated processes such as Indigenous Land Use Agreements and regional agreements. It is crucial that Native Title Representative Bodies be resourced for this purpose.

D. Reconciliation Australia and other relevant bodies work with the National Native Title Tribunal, governments, peak bodies and industry leaders to promote initiatives to inform and educate the general community about native title rights and to improve acceptance of negotiated outcomes as a way of resolving competing interests involving native title.

Land rights and restitution

'The inhabitants of any Country, who are descended, and derive a title to their Estates from those, who are subdued, and had a Government forced upon them against their free consents, retain a Right to the Possessions of their Ancestors. If God has taken away all means of seeking remedy, there is nothing left but patience. But my Son, when able, may seek the Relief of the Law, which I am denied: He or his son may renew his Appeal, till he recover his Right...If it be objected this would cause endless trouble; I answer, No more than Justice does, where she lies open to all that appeal to her.'

John Locke, Political Theorist (17th Century), on the rights of the Scottish people


The protection of property rights from arbitrary interference without appropriate compensation is a right that should be guaranteed to all Australians. These rights have a particular significance to Aboriginal and Torres Strait Islander peoples because of the history of colonisation that saw so much of that land simply taken away. In addition, the unique relationship that Aboriginal and Torres Strait Islander peoples have to the land, is central to their collective identity as Aboriginal and Torres Strait Islander peoples. It means that Aboriginal and Torres Strait Islander peoples' right to land is expressed in different forms to the rights of other Australians.

Most Aboriginal and Torres Strait Islander peoples have been at least partly, and often wholly, dispossessed of their traditional lands by the process of colonisation and economic development of Australia. Legislation and policies controlling management of seas, coasts and waters have also affected Aboriginal and Torres Strait Islander peoples' access to and enjoyment of traditional resources.

Aboriginal and Torres Strait Islander peoples' claims for restitution or compensation for loss of land and waters have met with different responses in each State and Territory. The most comprehensive arrangements were introduced in the Northern Territory, where the Aboriginal Land Rights (NT) Act 1976 (Cth) resulted in substantial land reverting to Aboriginal ownership under inalienable freehold title. Significantly less land has returned to Aboriginal and Torres Strait Islander ownership under State land rights schemes.

Many Aboriginal and Torres Strait Islander peoples have been removed from or lost legal rights to their traditional lands. Others have maintained their connection to their traditional laws but cannot have rights under their law recognised in current Australian law. Yet others have rights which are theoretically enforceable but may not be enjoyed because of the cost and complexity of the available legal processes.

The Aboriginal and Torres Strait Islander Land Fund and the Indigenous Land Corporation (ILC) were established in 1994 as part of the Commonwealth response to the High Court's Mabo decision. The Land Fund and ILC aim to assist Aboriginal and Torres Strait Islander peoples to acquire control over land and manage it in a way that provides social, cultural, environmental and economic benefits. It is imperative that all Aboriginal and Torres Strait Islander peoples across the country have access to effective mechanisms for the acquisition of land.

Aboriginal and Torres Strait Islander peoples' aspirations with regard to redressing dispossession from their lands and waters is part of the unfinished business that remains to be further negotiated with Commonwealth, State and Territory governments.

Actions for Implementation

A. Governments, ATSIC, ILC and other relevant bodies continue to assist local Aboriginal and Torres Strait Islander peoples to define their needs and aspirations with regard to land.

B. Government provide adequate resources to Aboriginal and Torres Strait Islander organisations to ensure land acquisition programs provide an equitable distribution of social, cultural, environmental and economic benefits to Aboriginal and Torres Strait Islander peoples across Australia.

C. All governments ensure that there are adequate and accurate information campaigns that emphasise the benefits of native title and remove the ungrounded fears and misconceptions about Aboriginal and Torres Strait Islander property rights

D. Commonwealth Government ensure that provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 are not diminished or impaired without the agreement of the relevant Aboriginal peoples.

'We have to work out a way of sharing this country, but there has to be understanding of, and respect for, our culture, our law.'

Mr. Wenten Rubuntja, former member of the Council for Aboriginal Reconciliation

Customary law

Aboriginal and Torres Strait Islander peoples have traditionally lived their lives and maintained their communities through highly developed systems of law that deal with issues such as ownership of lands, waters and resources, utilisation of flora and fauna and regulation of moral, social and religious customs and relationships between and among individuals and groups. The High Court's Mabo decision recognised the existence of native title based on these continuing traditional laws and customs in relation to land. In a similar way, and much earlier, the Aboriginal Land Rights (Northern Territory) Act 1976 recognised Aboriginal law in relation to land in that part of Australia.

Many Indigenous people in Australia today still uphold cultural and spiritual systems of law often referred to as traditional or customary law.

This law still operates on varying levels in some Aboriginal and Torres Strait Islander communities. It has been considered desirable to find some accommodation of these laws and practices within the Australian legal system, both to protect Aboriginal and Torres Strait Islander cultural practices and to ensure, for example in the administration of criminal justice, people are not punished twice for offences.

Not since 1986 has there been a comprehensive examination of the ability of the Australian law to accommodate the law of Aboriginal and Torres Strait Islander peoples. Many of the recommendations of that Australian Law Reform Commission Report into Aboriginal Customary Law have not been pursued. In the intervening period, however, there have been significant developments in common law and legislative arrangements, most notably through native title, that have provided greater recognition of the law making responsibilities of Aboriginal and Torres Strait Islander communities and their ability to be accommodated within the Australian legal system.

Greater discussion must occur on the extent to which Aboriginal and Torres Strait Islander law can be recognised under Australian law and accommodated in individual circumstances. Particularly consideration should be given to community justice procedures, sentencing options and methods of alternative dispute resolution. Legislation that will allow for the appropriate recognition of Aboriginal and Torres Strait Islander laws and customs should receive consideration in all Australian jurisdictions.

The Council for Aboriginal Reconciliation recognises the role and importance of customary law practices with Aboriginal and Torres Strait Islander communities.

Actions for Implementation

A. The Legal and Constitutional Affairs Committee of the House of Representatives re-visit the Australian Law Reform Commission report (1986) in light of developments in the recognition and protection of the rights of Aboriginal and Torres Strait Islander peoples under Australian common law. The objective is to examine the extent to which that report can be implemented and make new recommendations for the recognition of customary law.

B. Commonwealth and State governments negotiate with Aboriginal and Torres Strait Islander peoples about amending relevant legislation to reflect the rights of Aboriginal and Torres Strait Islander peoples to live in accordance with their laws, customs and traditions, consistent with all international human rights instruments, and to ensure that Australian laws will not impose unnecessary restrictions upon the exercise of those rights.

C. Commonwealth, State and Territory governments negotiate with Aboriginal and Torres Strait Islander peoples regarding community justice procedures and the use of alternative dispute resolution mechanisms and processes that recognise the diversity of Aboriginal and Torres Strait Islander laws that are consistent with all international human rights instruments.

D. State and Territory governments give magistrates and judge's discretion to take account of Aboriginal and Torres Strait Islander laws in sentencing, as already occurs in some circumstances in the Northern Territory.

Aboriginal and Torres Strait Islander Peoples' Intellectual Property

The protection of intellectual property, to protect inventors, authors, artists and those who have put their intellectual efforts into an idea or work, has a long history in common law and is an important aspect of commercial as well as international law.

Aboriginal and Torres Strait Islander peoples, like others, seek recognition and protection of intellectual property in all types of artistic works, stories, and scientific, ecological and biological knowledge. They also seek protection of ancient and modern forms as well as ceremonies, spiritual knowledge and objects, including sacred and historical sites, ancestral remains and languages. Importantly, Aboriginal and Torres Strait Islander peoples also wish to be able to assert some of these rights communally.

Current legal regimes for the protection of intellectual property do not adequately accommodate these unique expressions of cultural and intellectual property by Aboriginal and Torres Strait Islander peoples. Presently, the law contemplates a single author/owner and considers the protection in a commercial context, which gives a limited life to the protection.

The knowledge and beliefs of Aboriginal and Torres Strait Islander peoples are fundamental to their identities and cultures. They are also resources of national and international significance. Aboriginal and Torres Strait Islander people have long considered it be desirable that they gain greater control over their intellectual property so that it can continue to provide a base for cultural practice and also allow opportunities for economic sustainability. The extraordinary growth in the commercial value of Aboriginal and Torres Strait Islander images for the domestic and international markets has created significant pressure on the current intellectual property regimes to regulate the exploitation of cultural property to ensure that the use of that property is authorised and that the benefits of that use are equitably shared.

The Council commends initiatives, such as the establishment of an Aboriginal and Torres Strait Islander Advisory Committee under the Environment Protection and Biodiversity Conservation Act 1999 to assist in the protection of Aboriginal and Torres Strait Islander ethno-biological knowledge in Australia.

The Council also supports the Our Culture: Our Future--Report on Australian Indigenous Cultural and Intellectual Property Rights, by ATSIC and the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), which contained a series of recommendations that are worthy of implementation. Among its recommendations, the report suggests legislative intervention to protect the unique aspects of Aboriginal and Torres Strait Islander intellectual and cultural property.

Actions for Implementation

A. Commonwealth, State and Territory governments work with Aboriginal and Torres Strait Islander representatives to develop legislation to protect the unique aspects of Aboriginal and Torres Strait Islander intellectual property, informed by the recommendations of the report Our Culture: Our Future.

B. ATSIC, together with AIATSIS, coordinate the development of a code of practice for protection of Aboriginal and Torres Strait Islander intellectual property rights.

C. State and Territory regional development authorities review their practices to identify the potential impact on Aboriginal and Torres Strait Islander intellectual property and develop model codes of practice for government and industry.

D. All Australian museums and collecting institutions improve processes for recording and obtaining information about, and respecting Aboriginal and Torres Strait Islander intellectual property.

E. State and Territory tourism authorities develop community education materials and information programs that promote respect for Aboriginal and Torres Strait Islander intellectual property.

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