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Legislative Assembly for the ACT: 2015 Week 5 Hansard (7 May) . .

Page.. 1483..

The bill also introduces new Aboriginal and Torres Strait Islander cultural rights. The Canberra Liberals support the general principles of the UN Declaration on the Rights of Indigenous Peoples, including that Indigenous people are equal to all other peoples, while recognising the right of all peoples to be different, to consider themselves different, and to be respected as such; that all peoples contribute to the diversity and richness of civilisations and cultures, which constitute the common heritage of humankind; and that Indigenous peoples in the exercise of their rights should be free from discrimination of any kind.

In accordance with the UN resolutions, the bill provides that Aboriginal and Torres Strait Islander people hold distinct cultural rights and must not be denied the right to maintain, control, protect and develop their cultural heritage and distinctive spiritual practices, observances, beliefs and teachings, languages and knowledge and kinship ties. This clause was developed in international forums and is based on section 19 of the Victorian charter and section 31 of the UN declaration.

We acknowledge the intent of these provisions, particularly provisions such as section 27(2), which recognises, for example, that their right to enjoy a particular culture may consist in a way of life that is closely associated with territory and use of its resources. I also note from the explanatory statement the comment that:

The intention behind the amendments to insert s 27(2)(b) is not to confer property rights through the recognition of native title (which has been extinguished in the ACT), but to require the ACT Government to recognise the prior and continuing relationships of Aboriginal and Torres Strait Islander peoples with the Canberra region and environment as first owners and custodians and to value the importance of those relationships as an integral part of the history, cultural heritage and ongoing protection of the Canberra region and environment.

However, Madam Assistant Speaker, we must also take note of the extensive comments that have been raised by the scrutiny of bills committee. The committee has noted several potential difficulties with this provision, and omissions and uncertainty, both in the legislation and in the explanatory statement. These comments have been examined in detail by me and my colleague Andrew Wall, the shadow minister for Indigenous affairs. I understand a number of these questions and concerns have been raised in discussions between Mr Wall, the Greens and the Labor Party. He will elaborate on those shortly.

Some of the questions and concerns raised by the committee include:

Will the right to have "material and economic relationships with land" apply to interests in land now lawfully held by third parties?

Will the right to protection of Aboriginal and Torres Strait Islander peoples' "knowledge" lead to the recognition of new types of intellectual property?

Will the right to protection of cultural heritage be a basis to argue that a rule or a practice warranted by customary law should be recognised notwithstanding its incompatibility with the general law applicable to all persons?

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