This thesis is titled The Right of Aboriginal Communities to Control their Culture: the Potential of Australian Legislation and Anthropological Work to Recognise this Right. This project grew from my experiences at the University of Queensland Aboriginal and Torres Strait Islander Studies Unit, The University of Queensland anthropology department, as well as my experiences at the Quandamooka Aboriginal Land and Sea Management Agency, Stradbroke Island.
I became aware that Aboriginal people are still the lowest socio-economic group in Australia, still the most imprisoned people in Australia with the shortest life expectancy. Aboriginal groups remain under the control of the Australian Government and common law. Self-determination was removed from Federal Government Policy in 1998. Aboriginal customary law governs the ‘inheritance system’ of communal rights to their culture including heritage, knowledge, and land. Aboriginal customary law has only recently and partially been acknowledged by common law.
Cultural heritage management is still dominated by archaeologists and anthropologists and their non-Aboriginal notions of preserving ‘traditional’ and ‘authentic’ Aboriginal culture. The Queensland heritage laws and federal Aboriginal and Torres Strait Islander heritage protection law function inadequately to address Aboriginal heritage management systems.
Australia still fails to have responded at Statute Level to international intellectual property debates and United Nations conventions on Indigenous intellectual property. The Copyright and Patent Acts are inadequate methods of protecting Aboriginal knowledge and the Aboriginal social structures that govern its usage within Aboriginal societies.
Improvements have been made within land legislation with the introduction of Native Title into common and statue law. However, non-Aboriginal land-holders are favoured in the negotiation of co-existing rights on Native Title land. Attempts have been made to recognise Aboriginal Customary rights and responsibilities to land within the Native Title Acts.
However, similarly to other legislation relating to Aboriginal culture, eurocentric concepts constrain the Native Title Acts’ effectiveness in recognising Aboriginal notions of rights.
There is urgent need for Australia to make changes within legislation relating to heritage, knowledge, and land to incorporate Aboriginal definitions of culture and its maintenance. There is also the need to make these legislations mutually supportive in order to reflect the interrelatedness of these rights in Aboriginal societies. The Aboriginal, and human right of Aboriginal communities to control their own culture is missing from Australian and Queensland legislation and should be included immediately.