Communal Ownership and Collective Decision Making

Introduction

First Nations cultural rights are, necessarily, collectively owned. A key element of collective rights is the nature of the collectivity.

The United Nations Declaration on the Rights of Indigenous People (UNDRIP) utilises the concept of ‘collective rights’. These are rights held by ‘indigenous communities themselves‘ and not by ‘individuals in community with others’. Throughout UNDRIP the distinction between the rights of “Indigenous peoples” (collective rights) and “Indigenous individuals” is highlighted.

Individuals can enjoy the culture of their society and contribute to it. However, culture itself can only exist as a community construct. It can be said that only a society (community) can give rise to laws and customs. The same is even more true of culture. Language, dance, and art only have meaning in a social context. Whilst access to culture can be a right held by an individual, the rights inherent in that culture must be held collectively.

In the jurisprudence emanating from Committee on Economic, Social and Cultural Rights (CESR), regarding the right of everyone to take part in cultural life, there is reference to the ‘community or group’. This supports collective participation and ownership approach to cultural rights detailed in the UNDRIP.

Now that collective ownership of rights has been established, consultation and decision making on use of those collective rights necessarily is considered.

Jurisprudence

As we note, Traditional Owner interests have a dual individual and collective character.

The foregoing assertion (regarding the dual character of Traditional Owner interests) may require some supporting analysis. The fact that Traditional Owner rights arise and exist collectively but can be enjoyed individually is a well-established concept in Australian jurisprudence. This is most commonly explored in the context of rights to land, but as discussed above the same principle applies to other social constructs. In the context of rights to land the most authoritative statement in the issue is that of Brennan J in Mabo No 2¹ when his Honour states at [68]:

… so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.²

The point regarding rights under traditional law and custom arising from the collective identity but taking a form as both individual and collective rights is made quite explicit by his Honour in the following paragraph:

[69] Thirdly, where an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under a proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title. A sub-group or individual asserting a native title dependent on a communal native title has a sufficient interest to sue to enforce or protect the communal title. A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands.³

Self-Determined Representative Structures

Article 18 of UNDRIP provides for “the right to participate in decision making in matter which would affect their rights through representatives chosen by themselves in accordance with their own procedures…”. Therefore, we see that a collectively held right to culture, and therefore ownership of that cultural knowledge, is ‘managed’ by a collectively determined representative of the Traditional community.

Under existing Australian law there is an extensive range of Traditional Owner organisations that satisfy the representative requirements of UNDRIP Article 18. The Prescribed Body Corporates (PBCs) and Native Title Representative Bodies (NTRBs) established under the Native Title Act 1993 (NTA) are two examples of these. However Traditional Owner organisations established under other legislation such as the Victorian Registered Aboriginal Parties under the Aboriginal Heritage Act 2006 or Tasmanian Aboriginal Land Council under the Aboriginal Lands Act 1995 provide further examples

Utilisation of the system of recognised Traditional Owner Representative Institutions (TORIs) must be a central feature of the proposed legislation. The existence and recognition of TORIs is essential to give effect to the collective rights, including the right self-determination, land rights and the right to protect and enjoy cultural heritage.

Where there is no relevant TORI, a mechanism can be developed to provide advice on who the appropriate Traditional Owners are to engage with. Currently, structures for appropriate recognition of collective rights holding institutions like that described above, are being considered under commonwealth environmental and cultural heritage reforms. Particularly, in regard to a proposed First Nations Engagement and Participation in Decision Making Standard.

Conclusion

The collective ownership of cultural rights provides a mechanism for decision making on cultural issues and those projects effecting cultural landscapes. Consultation with Traditional Owners is a common area of discontent amongst Traditional Owners and industry alike.

Across most regional and remote areas of the country - areas where the economic challenges of First Nations peoples are at their greatest - there already exist the vehicles to achieve economic self-determination and improved employment outcomes.

These vehicles to economic self-determination are the more than 300 existing Native Title Prescribed Bodies Corporate and other Traditional Owner land rights bodies.

It is through these organisations, or ‘Representative Institutions’ as they are called in UNDRIP, that Traditional Owners can give effect to their collective rights and give effect to self-determination, both economic and cultural.

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Footnotes

1 Mabo& Ors v Queensland & Ors (No 2) (1992) 175 CLR 1.

2 Emphasis added.

3 Footnotes omitted, emphasis added.

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