Appendix 5

 

The international standards
relevant to heritage protection

The relevant international
human rights standards can be broadly identified as following:

• the right to self-determination,
• the right to protect
  indigenous heritage, including the right to manifest, practice, develop
  and teach indigenous heritage,
• the right of indigenous
  people to participate in matters effecting their heritage,
• the right to equality
  of treatment,
• the right to freedom
  of thought, conscience and religion.

The following instruments,
declarations, principles and guidelines set out Australia's International
human rights obligations with regard to cultural heritage protection.

International Covenant
on Civil and Political Rights (ICCPR)(1)

Article 1

1. All peoples have
   the right to self-determination. By virtue of that right they freely
   determine their political status and freely pursue their economic, social
   and cultural development.
2. All people may,
   of their own ends, freely dispose of their natural wealth and resources
   without prejudice to any obligations arising out of international economic
   co-operation, based upon the principle of mutual benefit, and international
   law. In no case may a people be deprived of its own means of subsistence.
3. The State Parties
   to the present Covenant, including those having responsibility for the
   administration of Non-Self Governing and Trust Territories, shall promote
   the realization of the right of determination, and shall respect that
   right, in conformity with the provisions of the Charter of the United
   Nations.

Article 18

1. Everyone shall
   have the right to freedom of thought, conscience and religion. This
   right shall include freedom to have or to adopt a religion or belief
   of his choice, and freedom, either individually or in community with
   other and in public or private, to manifest his religion or belief in
   worship, observance, practice and teaching.
2. No one shall
   be subject to coercion which would impair his freedom to have or to
   adopt a religion or belief of his choice.
3. Freedom to manifest
   one's religion or beliefs may be subject only to such limitations as
   are prescribed by law and are necessary to protect public safety, order,
   health, or morals or the fundamental rights and freedoms of others.

International Commentary on
Article 18

United Nations Human Rights
Committee - General Comment 22

General Comment
22 of the Human Rights Committee provides guidance on the interpretation
of the limitation clause, 18(3).

Limitations may
be applied only for the purpose for which they are prescribed and must
be directly related to and proportionate to the specific need on which
they are predicated.

Restrictions may
not be imposed for discriminatory purposes or applied in a discriminatory
manner. The Committee observes that the concept of morals derives from
many social, philosophical and religious traditions; consequently limitations
on the freedom to manifest a religion or belief for the purpose of protecting
morals must be based on principles not deriving exclusively from a single
tradition.(2)

Article 27

In those
states in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community
with other members of their group, to enjoy their own culture, to profess
and practice their own religion, or to use their own language.

International Commentary on
Article 27

United Nations Human Rights
Committee - General Comment 23

- General Comment
23(50) (art. 27) */, CCPR/C/21/Rev.1/Add.5, 26 April 1994.

3.2 The enjoyment
of the rights to which Article 27 relates does not prejudice the sovereignty
and territorial integrity of a State party. At the same time, 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.
.This may particularly be true of members of indigenous communities
constituting a minority.

6.1 Although
Article 27 is expressed in negative terms, that article, nevertheless,
does recognize the existence of a right and requires that it shall not
be denied. Consequently, a State party is under an obligation to ensure
that the existence and exercise of this rights are protected against
their denial and violation. Positive measures of protection are, therefore,
required not only against the acts of the State party itself, whether
through its legislative, judicial or administrative authorities, but
also against the acts of other persons within the State party.

6.2 Although
the rights protected under Article 27 are individual rights, they depend
in turn on the ability of the minority group to maintain its culture,
language and religion. Accordingly, positive measures by States may
also be necessary to protect the identity of a minority and the rights
of its members to enjoy and develop their culture and language and to
practice their religion, in community with other members of the group.
In this connection, it has been observed that such positive measures
must respect the provisions of Articles 2(1) and 26 of the Covenant
both as regards the treatment between different minorities and the treatment
between the persons belonging to them and the remaining population.
However, as long as those measures are aimed at correcting conditions
which prevent or impair the enjoyment of the rights guaranteed under
Article 27, they may constitute a legitimate differentiation under the
Covenant, provided that they are based on reasonable and objective criteria.

7. 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 and resources,
specially 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. (3)

The International Convention
on the Elimination of All Forms of Racial Discrimination

Article 1

1. In this Convention,
the term "racial discrimination" shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purposeor effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life.

4. Special measures
taken for the sole purpose of securing adequate advancement of certain
racial or ethnic groups or individuals requiring such protection as
may be necessary in order to ensure such groups or individuals equal
enjoyment or exercise of human rights and fundamental freedoms shall
not be deemed racial discrimination, provided, however, that such measures
do not, as a consequence, lead to the maintenance of separate rights
for different racial groups and that they shall not be continued after
the objectives for which they were taken have been achieved.

Article 2

2(1) State parties
condemn racial discrimination and undertake to pursue by all appropriate
means and without delay a policy of eliminating racial discrimination
in all its forms and promoting understanding among all races.

2(2) State Parties
shall, when circumstances so warrant, take, in the social, economic,
cultural and other fields, special and concrete measures to ensure adequate
development and protection of certain racial groups or individuals belonging
to them, for the purpose of guaranteeing them the full and equal enjoyment
of human rights and fundamental freedoms...

Article 5

guarantees all
people equality before the law and the enjoyment of specific rights
without distinction as to race, colour or national or ethnic origin.
The article includes:

5(d)(v) The right
to own property alone as well as in association with others;.

5(d)(vii) the right
to freedom of thought, conscience and religion (4)

International Commentary on
CERD

CERD Committee - General
Recommendation XIV

The Committee
observes that a differentiation of treatment will not constitute discrimination
if the criteria for such differentiation, judged against the objectives
and purposes of the Convention, are legitimate or fall within the scope
of Article 1, paragraph 4, of the Convention. In considering the criteria
that may have been employed, the Committee will acknowledge that particular
actions may have varied purposes. In seeking to determine whether an action
has an effect contrary to the Convention, it will look to see whether
that action has an unjustifiable disparate impact upon the group distinguished
by race, colour, descent, or national or ethnic origin.

CERD Committee - General
Recommendation XXIII

4. The Committee
calls in particular upon States parties to:.

(d) 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.
(emphasis added)

CERD Committee - General
Recommendation XXI

10. In accordance
with Article 2 of the International Convention of All Forms of Racial
Discrimination and other relevant international documents, Governments
should be sensitive towards the rights of persons belonging to ethnic
groups, particularly their right to lead lives of dignity, to preserve
their culture, to share equitably in the fruits of national growth and
to play their part in the Government of the country in which they are
citizens. Also, Governments should consider, within their respective
constitutional frameworks, vesting persons belonging to linguistic groups
comprised of their citizens, where appropriate, with the right to engage
in activities which are particularly relevant to the preservation of
the identity of such persons or groups.

Convention on the Rights
of the Child (5)

Article 30

In those
states in which ethnic, religious or linguistic minorities or persons
of indigenous origin exist, a child belonging to such a minority or who
is indigenous shall not be denied the right, in community with other members
of his or her group, to enjoy his or her own culture, to profess and practice
his or her own religion, or to use his or her own language.(6)

UNESCO Convention for the
Protection of the World's Cultural and Natural Heritage

As a party to the
Convention Australia has made a commitment to ensure that cultural and
natural heritage of outstanding universal value in Australia is identified,
protected, conserved, presented and transmitted to future generations.(7)

The World Heritage
Properties Conservation Act is the Commonwealth's domestic implementation
of the Convention. It provides for the protection of properties which
are on the World Heritage list, nominated for listing or the subject of
a Commonwealth Inquiry into whether they should be listed. While the Act
only protects property falling within these categories, it specifically
provides for the protection or conservation of artefacts or relics of
particular significance to Aboriginal people where these exist on protected
sites [Section 8(2)].

Convention on Biodiversity
(8 )

Article 8(j)

Each Contracting
Party shall, as far as possible and appropriate:

(j) Subject
to its national legislation, respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable
use of biological diversity and promote their wider application with
the approval and involvement of the holders of such knowledge, innovations
and practices and encourage the equitable sharing of the benefits arising
from the utilization of such knowledge, innovations and practices.

Commentary:

Article 8(j) gives
explicit mention firstly to the Traditional knowledge, innovations and
practices of Indigenous people and local communities while also speaking
strongly for its protection, preservation and maintenance. Article 8(j)
also provides that the use of Indigenous traditional knowledge, innovations
and practices should only occur with the approval and involvement of
the Indigenous or local community and that any benefits that arise from
its use is to be shared with the people or community from which that
knowledge originated.

Article 10

Sustainable Use of
the Components of Biological Diversity

Each Contracting
Party, shall as far as possible and appropriate:

(c) Protect
and encourage customary use of biological resources in accordance with
traditional cultural practices that are compatible with conservation
or sustainable use requirements

Commentary:

Article 10(c) is
also extremely important for the representation of Indigenous interests.This
article is directly relevant to the hunting and gathering of biological
resources by indigenous peoples and local communities and lays down
a powerful obligation to parties in regards to the recognition of continued
cultural maintenance through the ongoing use of biological resources.
It also calls upon parties to "protect and maintain" these practices
and in doing so recognises that the customary use of biological resources
is as much a cultura practices as it is one of sustenance".(9)

Draft Declaration on the
Rights of Indigenous Peoples

Article 12

Indigenous
peoples have the right to practice and revitalise their cultural traditions
and customs. This includes the right to maintain, protect and develop
the past, present and future manifestations of their cultures, such as
archaeological and historical sites, artefacts, designs, ceremonies, technologies
and visual and performing arts and literature, as well as the right to
the restitution of cultural, intellectual, religious and spiritual property
taken without their free and informed consent or in violation of their
laws, traditions and customs.

Article 13

Indigenous
peoples have the right to manifest and practice, develop and teach their
spiritual and religious traditions, customs and ceremonies; the right
to maintain, protect and have access in their privacy to the their religious
and cultural sites; the right to the use and control of ceremonial objects;
and the right to repatriation of human remains. States shall take effective
measures, in conjunction with the indigenous peoples concerned, to ensure
that indigenous sacred places, including burial sites, be preserved, respected
and protected.

Declaration on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or
Belief (10)

Article 1

Everyone
shall have the right to freedom of thought, conscience and religion. This
shall include the right to have a religion or whatever belief of his choice
and freedom, either individually or in community with others and in public
or private, to manifest his religion or belief in worship, observance,
practice and teaching.

Article 6

- elaborates a
number of particular freedoms protected by the Declaration including
the freedoms:

(a) To worship
or assemble in connection with a religion or belief, and to establish
and maintain places for these purposes;...

(c) To make
acquire and use to an adequate extent the necessary articles and material
related to the rites or customs of a religion or belief;...

(e) To teach
a religion or belief in places suitable for these purposes;...

Commentary:

The Draft Declaration
is the pre-eminent statement of the rights of Indigenous peoples at
the international level. Although it does not yet have any formal status
in the United Nations system, it provides a guide for the rights which
Governments should seek to recognise when drafting policies regarding
Indigenous peoples.

Part III of
the Draft Declaration is concerned with cultural rights.

UNESCO Declaration of the
Principles of International Cultural Co-operation (11)

This declaration
recognises that ignorance of the ways and customs of peoples still presents
an obstacle to friendship amongst nations, peaceful co-operation and progress.
It provides that:

Each culture
has a dignity and value that must be respected and preserved.

Every people
has the right and duty to develop its culture.

Article 1

In their
rich variety and diversity, and in the reciprocal influences they exert
on one another, all cultures form part of the common heritage belonging
to all mankind.

Article 2

Nations
shall endeavour to develop the various branches of culture side by side,
and... to establish a harmonious balance between technical progress and
the intellectual and moral advancement of mankind.

---

1
In addition to the articles listed here, Articles 17.1 and 23.1 are also
relevant to heritage issues. In Hopu and Bessert v France (543/93), an
individual communication under the first optional protocol, the Human
Rights Committee found that the construction of a hotel on an ancestral
burial site of indigenous Tahitians was a violation of Covenant Articles
17, the right to privacy, and Article 23, the right to protection of the
family.

2
Human Rights Committee General Comment 22, para 8.

3
See in particular Bernard Ominayak, Chief of the Lubicon Lake Band v Canada,
Communication No 167/1984, CCPR/C/38/D/167/1984, 28 March 1990, 13.4.

4
The meaning of these principles has been considered in detail in previous
Native Title reports: Acting Aboriginal and Social Justice Commissioner,
Native Title Report 1998, op.cit., Chapter 2; Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 1996- 97, HREOC,
Sydney, 1997, Chapter 6; and in the HREOC CERD Submission, paras 92-126.

5
Ratified by Australia in 1990.

6
The CROC text adopts the formula used in Article 27 of the ICCPR, to apply
a positive duty on states to prevent the enjoyment of rights. The application
to children imports the rights enunciated in the draft Declaration on
the Rights of Indigenous People and the UNESCO Convention for the Protection
of the World's Cultural and Natural Heritage including protection of the
right to maintain, practice, develop and transmit culture, religion and
language.

7
The obligations imposed by this Convention are detailed in the Review
of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Report by Hon Elizabeth Evatt AC, 21 June 1996 at p35.

8
This section is adapted from Henrietta Fourmile-Marrie and Glen Kelly
The Convention on Biological Diversity and Indigenous People: Information
concerning the implementation of decisions of the Conference of the Parties
under the Convention on Biological Diversity, Centre for Indigenous History
and the Arts, University of Western Sydney, 2000, pages 3-4.

9
ibid.

10
The Declaration was proclaimed by the UN General Assembly in 1981, and
is annexed to the Human Rights and Equal Opportunity Commission Act 1986
(Cth).

11
Declared 1966.