Page 1495 - Week 05 - Thursday, 7 May 2015
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I reiterate the comments I made in response to the scrutiny of bills committee’s comments on this question. It is not anticipated that this amendment will have an impact on land rights in the ACT. It is likely that native title has been extinguished in the ACT through the operation of the Native Title Act 1994 in conjunction with the Native Title Act 1993 of the commonwealth. It is worth highlighting that the Heritage Act 2004 currently makes provision for the cultural significance of land for Aboriginal and Torres Strait Islander people. It is already a routine requirement that any development application that may impact the heritage values of an area or object registered or provisionally registered under the Heritage Act is referred to the ACT Heritage Council for advice.
Heritage Council advice includes reference to Aboriginal connections to the area of land or water where appropriate. The government does not anticipate that formal acknowledgement of cultural rights in the Human Rights Act will give rise to any new claims of native title in the ACT. Where any claims arise, they will continue to be dealt with as they already are under the native title legislation.
Central to the notion of culture for Aboriginal and Torres Strait Islander people is a relationship with land and water. This amendment does not provide any right to own land but simply the right to maintain the connection with significant areas of land and water. The UN Human Rights Committee has stated:
… one or other aspect of the rights of individuals protected under that article—for example, to enjoy a particular culture—may consist in a way of life which is closely associated with territory and use of its resources.
The committee further stated:
With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.
It is also worth highlighting that a paper by the special rapporteur of the United Nations Working Group on Indigenous Populations recognised a number of aspects of the relationship between indigenous peoples and their land which are unique to indigenous peoples, including that a profound relationship exists between indigenous peoples and their lands, territories and resources; that this relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities; and that the collective dimension of this relationship is significant.
The Victorian charter guidelines explain that decisions that have been made by the UNHRC extend article 27 to protect the cultural rights of Indigenous peoples and that these decisions have informed the drafting of section 19(2) of that charter. They also note that, 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.
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