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A human rights-based approach to native title reform
(d) The rights to country, culture, and knowledge
Wiyi Yani U Thangani detailed the human rights framework in relation to country, culture and
knowledge34 and it is replicated here for ease of reference.
As mentioned above, the enjoyment of economic, social, and cultural rights for Aboriginal and
Torres Strait Islander peoples is intrinsically connected to the rights of Indigenous people to
maintain, practise, and teach our culture. These rights are articulated in various international
human rights frameworks, including article 27 of the ICCPR and article 30 of the CRC:
Indigenous people are not to be denied the right, in community with the other members of
their group, to enjoy their own culture, to profess and practise their own religion, or to use
their own language.
The Committee on the Elimination of Racial Discrimination has also indicated that the
obligations in the ICERD require governments to:
recognise and respect Indigenous distinct culture, history, language, and way of life as an
enrichment of the state’s cultural identity and to promote its preservation
ensure that members of Indigenous peoples have equal rights in respect of effective
participation in public life and that no decisions directly relating to their rights and interests
are taken without their informed consent
ensure that Indigenous communities can exercise their rights to practise and revitalise their
cultural traditions and customs and to preserve and to practise their languages
recognise and protect the rights of Indigenous peoples to own, develop, control, and use
their communal lands, territories and resources.35
UNDRIP sets out how these rights apply in protecting Indigenous peoples’ cultural identity,
connection to Country, and cultural knowledge. That is, how it looks to apply these universal
rights to Indigenous peoples:
Article 10: Indigenous peoples shall not be forcibly removed from their lands or territories.
Article 12(1): Indigenous peoples have the right to manifest, practise, develop and teach their
spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and
have access in privacy to their religious and cultural sites.
Article 25: Indigenous peoples have the right to maintain and strengthen their distinctive
spiritual relationship with their traditionally owned or otherwise occupied and used lands,
territories, waters and coastal seas and other resources and to uphold their responsibilities
to future generations in this regard.
Article 26: Indigenous peoples have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired, and the right to own,
use, develop and control the lands.
Article 27: States shall establish and implement a fair, independent, impartial, open and
transparent process, giving due recognition to Indigenous peoples’ laws, traditions, customs
and land tenure systems, to recognise and adjudicate the rights of Indigenous peoples
pertaining to their lands, territories and resources, including those which were traditionally
owned or otherwise occupied or used. Indigenous peoples shall have the right to participate
in this process.
Article 29: Indigenous peoples have the right to the conservation and protection of the
environment and the productive capacity of their lands or territories and resources.
States shall establish and implement assistance programs for Indigenous peoples for such
conservation and protection, without discrimination.
Australian Human Rights Commission
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