Page 1488 - Week 05 - Thursday, 7 May 2015
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properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
The amendment bill that is before us has been drafted to be consistent with federal laws, particularly around intellectual property. However, proposed new section 27(2)(b) states:
(2) Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right— …
(b) to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued.
The opposition holds significant concerns around how, in practice, the “material and economic relationships” will be “recognised and valued”. The explanatory statement to this bill emphasises the point that this will not confer property rights. However, the scrutiny report raises some questions such as:
… will the right to have “material and economic relationships with land” “recognised” apply to interests in land now lawfully held by third parties?
It goes on to conclude:
Just what are “material and economic relationships” with land, waters and other resources will of course be a matter for debate and clarification.
In the supplementary information provided by the government to the opposition following a briefing on this bill, the Victorian Charter of Human Rights and Responsibilities 2006 is highlighted as an example of this right already in action. However, the Victorian example only goes so far as to provide protection of the right—and I quote:
… 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 Victorian example also attempts to deal with the issue of one right cutting across another by stating that it applies to Aboriginal persons and “other members of their community”, but stops going so far as to require the right to be “valued and recognised”.
The bill that is before us today seeks to go further, adding that the “material and economic” relationship needs to be “valued and recognised”. To put it into practice, would this right possibly give rise to a compensation claim if the government sought to develop a parcel of greenfield land to which the local Indigenous community was able to demonstrate a connection under “traditional law or custom”?
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