Section 19(2) - Distinct cultural rights of Aboriginal Persons

Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community—

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The distinct rights of Aboriginal persons in Victoria have been set out in s. 19(2) of the Charter. These rights are primarily based on article 27 of the ICCPR and decisions of the UN Human Rights Committee to extend article 27 to protect the cultural rights of indigenous peoples.

The preamble to the Charter provides a context in which to consider the specific rights of Aboriginal persons in relation to identity, culture, language, kinship and relationship to traditional lands and waters. The Preamble provides that the Charter is founded on a principle that ‘human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters’.

Under s. 19(2), four rights are recognised:

  • the right to enjoy identity and culture;
  • the right to maintain and use language;
  • the right to maintain kinship ties; and
  • the right to maintain a distinctive spiritual, material and economic relationship with the land and waters and other resources with which there is a connection under traditional laws and customs.

The Charter defines ‘Aboriginal’ to mean a person belonging to the indigenous peoples of Australia, including the indigenous inhabitants of the Torres Strait Islands, and any descendants of those peoples. This is the same definition as is used in the Aboriginal Heritage Act 2006 (Vic).

If one or more of the policy triggers are present, you should consult the discussion on s. 19(1) in these Charter Guidelines, in addition to the information below.

Identity and culture

You should refer to the discussion on culture under s. 19(1) for guidance on the meaning of ‘culture’. The key point to remember is that culture manifests itself in a number of forms and embraces the maintenance and expression of traditional beliefs, practices and social and economic activities that are part of a group’s tradition. It may include traditional activities for Aboriginal people, such as fishing and hunting. Further, the right may protect traditional cultures that have adapted ‘to the modern way of life’.165

In the context of international human rights law, the protection of the cultural rights of indigenous peoples under article 27 has often arisen in the context of economic development. For example, a case was brought before the UN Human Rights Committee by members of an indigenous people in Finland.166 They claimed that the government had violated their right to culture when it authorized quarrying works disturbing their traditional reindeerherding practices. Noting that reindeer husbandry was an essential element of their culture, the UN Human Rights Committee found that in this case, the right to culture had not been violated since the mining activities did not have an unduly detrimental effect on their cultural activities.

This conclusion was based on a number of considerations, including:

  • the authors had been consulted during the permit process;
  • reindeer herding in the area had not been adversely affected by the quarrying that had occurred; and
  • conditions in the quarrying permit sought to minimise the impact of the activity on reindeer husbandry and the environment.

Language

The content of the right under s. 19(2) for Aboriginal persons in relation to language is to ‘maintain and use’ their language. Research into identifying Aboriginal language areas in Victoria and the revival and teaching of Aboriginal languages can be found through the Victorian Aboriginal Corporation for Languages.

In the context of the decline of many indigenous languages, it is relevant to consider that the UN Human Rights Committee has noted that the enjoyment of individual rights under article 27 depends on the ability of the minority group to ‘maintain’ its culture, language or religion, and that positive measures may be necessary to correct conditions that prevent or impair the enjoyment of those rights.

Like s. 19(1), the right of Aboriginal persons to ‘use’ their language is distinct from the right to freedom of expression.

Kinship ties

Kinship ties play an important role in Aboriginal communities. The notion of ‘kinship ties’ is closely linked to other cultural and religious practices.

The right to maintain kinship ties is particularly important in issues surrounding the removal of children from their homes, fostering, adoption and other processes whereby Aboriginal children might be taken away from their families and their indigenous culture.

Section 19(2) does not mean that a child should not be removed from an abusive situation, but that care should be taken to ensure that whatever arrangements are made for the child, there should be respect paid to his or her right to maintain contact with his or her kin.

Spiritual, material and economic relationship with land, waters and other resources

Section 19(2)(d) was based on article 25 of the United Nations Draft Declaration on Indigenous Rights, which reads:167

‘Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.’

This right is designed to protect the distinctive relationship between Aboriginal persons and traditional lands, waters and other resources. In the context of international human rights law, the former Chairperson-Rapporteur of the Working Group on Indigenous Populations, Ms Erica-Irene A Daes, has identified a number of unique elements to explain the nature of the relationship to the land of indigenous peoples, as follows:

‘(i) a profound relationship exists between indigenous peoples and their lands, territories and resources; (ii) this relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities; (iii) the collective dimension of this relationship is significant; and (iv) the intergenerational aspect of such a relationship is also crucial to indigenous peoples’ identity, survival and cultural viability’.168

This right under s. 19(2)(d) should be taken into account in the context of the protection of Aboriginal cultural heritage in Victoria. It should be taken into account if a law or a policy restricts access to a place of spiritual significance for Aboriginal people or prevents or limits traditional practices on that land. It also requires consideration of restrictions on traditional Aboriginal practices that bring material benefit for that community, for example hunting or fishing.

This aspect of s. 19(2) may interact with the law on native title in Australia.

Individual or collective rights?

Section 19(2) states that ‘Aboriginal persons… must not be denied the right, with other members of their community….’. [emphasis added]. The inclusion of the phrase ‘with other members of their community’ raises the issue of the nature of the rights protected by s. 19(2): are they individual rights or collective rights?

As in the case of s. 19(1), the rights conferred by s. 19(2) are conferred on individuals, not on a community. Nonetheless, sometimes there can be tensions or clashes between the cultural rights of an individual and the countervailing interests of the group or community to which they belong.169

 

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165 Mahuika v. New Zealand, Human Rights Committee, Communication No. 547/1993, UN Doc. CCPR/C/70/ D/547/1993 (15 November 2000) [9.4].

166 Länsman v. Finland, Human Rights Committee, Communication No. 511/92, UN Doc. CCPR/C/52/ D/511/1992 (8 November 1994).

167 Article 25, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994). This declaration was adopted by the Human Rights Council of the United Nations on 29 June 2006.

168 Final Working Paper on Indigenous Peoples and their Relationship to Land, UN Doc. E/CN.4/Sub.2/2001/21 (11 June 2001) [20].

169 For example, Kitok v. Sweden, Human Rights Committee, Communication No. 197/1985, UN Doc. CCPR/C/33/D/197/1985 (10 August 1988); Mahuika v. New Zealand, Human Rights Committee, Communication No. 547/1993, UN Doc. CCPR/C/70/D/547/1993 (15 November 2000).