Cultural Heritage and
Sacred Sites: World Heritage from an Indigenous Perspective 15 May 2002 -
New York University
Presentation by John Scott (transcript from audiotape by Marie-Danielle
Samuel based on paper ATSIC's Cultural Rights Policy provided by John
Scott.) John Scott is a descendant of the Iningai people (Indigenous Australian)
of central Queensland (Barcaldine area) of Australia. He has worked as a
high school teacher, an Aboriginal Education advisor, an Indigenous policy
officer, a university lecturer and a senior manager at the Aboriginal and
Torres Strait islander Commission. He has a particular interest in
bio-diversity and the protection of traditional knowledge. In 2001 he
accepted a position as Indigenous human rights officer with the office of
the High Commissioner for Human Rights. This position allowed him to work
at the important tasks of establishing the Permanent Forum for Indigenous
peoples at the United Nations and organizing the 20th Anniversary meeting
of the Working Group on Indigenous Populations which will occur in July
Considerations and Cultural Heritage:
I will begin by acknowledging the traditional owners of this land as it is
the custom for Aboriginal peoples in my country. It is a great honor to be
welcome by them here. I was born in Australia, I am a descendant of the
Iningai people…and that is thru my father and his mother. My father's
father was a Scotsman and my mother is of Scottish and Irish descent.
I would like to talk a little bit about the rights that we have regarding
our cultural heritage and I will be reflecting on work that I did with the
Aboriginal and Torres Strait Islander Commission in Australia when I was
managing the Cultural Heritage branch.
I begin with a line from an aboriginal poet that I think very clearly
reflects cultural heritage. It is by a lady called Matilda House. She
said: When you look behind you, you see the future in your
footprints. I would like for you to think about that and what
happens, if you look behind you and you see no footprints.
Cultural Heritage for us is Traditional Knowledge and Knowledge Systems
(including Traditional Environmental Knowledge, and Indigenous Knowledge
transfer systems) such as inter-generational transfer, Indigenous
Intellectual Property, Cultural Objects (including human remains and
ancestral remains), Cultural Practices, Resources and Languages and
Contemporary Reflections of all of these things…
The vision of the Aboriginal and Torres Strait Islander Commission was
that Aboriginal Cultures would be restored, revitalised, respected and
valued by all Australians as the Indigenous Cultures of Australia and
passed on through our families, creating a continued Dreaming extending
forever - from time immemorial far into the shared futures that we can
It is important to talk about rights, and values and ethics. We know that
human rights are inherent, inalienable and universal.
There is no hierarchy of rights. They are all of equal value and operate
at the same time. You cannot enjoy one right without enjoying another
right. You cannot enjoy the right to employment if you don't have an
education. Nor can you enjoy education, unless you have appropriate
housing and good health. You cannot enjoy any of these rights unless you
have the right to your own culture.
We know as Aboriginal peoples that we cannot accept 'responsibility' for
our life circumstances unless we have access to and enjoyment of our human
For the purpose of this policy paper, Human Rights are divided up into two
(1) (General) Human Rights which include:
Civil and Political Rights - The right to live in freedom, peace
and security. The right to be free of genocide and other acts of violence.
Our children should not be removed from their families and communities for
instance. The right to freedom, peace and security which are vital for
cultural survival; and then there are other general human rights that fall
under the title of Economic, Social and Cultural Rights and that
include the right of everybody has to take part in their own cultural life
and in the broader cultural life of the countries in which they live.
Then I would like to talk to you about Indigenous Human Rights. An
understanding of the distinct rights of Indigenous peoples (Indigenous
Human Rights) must begin with the recognition that we are unique peoples -
that we are in fact First peoples. Aboriginal peoples belong to the lands
to which we are Indigenous. Our cultures and our lands and waters are
inseparable, and the relationship with our lands and waters preceded the
introduction of all other cultures and peoples. As such we have prior and
distinct rights over those territories. Our Indigenous Rights are based on
Collective Rights - our Rights as a group, as a community and as distinct
From this basic recognition follow these main points about Indigenous
Indigenous Rights are Inherent Rights and include the Right to Distinct
Status and to Culture; the Right to Self Determination; and the Right to
Land as the basis for Indigenous identities.
The recognition of the unique characteristics of Indigenous Rights,
including Cultural Rights, as Collective Rights, must take into account
the following characteristics: A Living Tradition; Holistic nature;
Communal ownership; Responsibility and custodianship; Collective Consent
to use Indigenous Cultural and Intellectual Property; Inter-generational
transfer, passing on the knowledge to future generations.
Human Rights particularly relevant to Culture include 1)
Self-Determination. Aboriginal peoples in Australia hold that we are
distinct peoples and as such we claim the Right of Self-determination.
Self-Determination, of course, is the Right of all peoples. 2) The
Right to Cultural Integrity includes the Right to our distinct
characteristics and the Right that we have to exist as distinct peoples.
All peoples have the right to keep and develop their distinct
characteristics and systems of law. Aboriginal peoples also have the same
right, if we choose, to take part in the cultural life of the rest of the
country and to share our cultures with the broader community, as we see
fit and in accordance with our traditions. We have the right to our
distinct cultures and identities. This also includes our right to genetic
integrity. All peoples should be free from cultural genocide.
Governments should prevent actions which take away our distinct cultures
and identities; the taking of land, waters and associated resources
(including biological and genetic resources); our removal from our
traditional lands and waters; removal of our children from our families
and communities; measures of assimilation; propaganda and racial
vilification against us. 3) The Right to Development and the
Recognition of Dynamic Cultures. The Right to Development is the Right
of every human person and all peoples. No cultures are 'frozen-in-time'
but respond to our changing circumstances. This must be acknowledged along
with our right to develop our cultures in accordance with our ways and as
we see fit. This may include the right to develop and to share our
cultures, acknowledging that our direct descendants must have priority in
regards to this matter. This may include the right to share traditional
knowledge and to expect equitable benefit sharing in return. Or it may
include the right to withhold that knowledge if we should choose to do so.
4) The Right to Protect Our Traditional Knowledge. All peoples must
first have the right to withhold and protect our traditional knowledge.
Secondly, where Aboriginal peoples choose to share our knowledge we expect
equitable sharing of benefits as a result
Indigenous Human Rights relevant to Culture are: 1) Prior Rights.
Aboriginal peoples have prior property rights over all air, land, and
waters, and the natural resources within them, that we have traditionally
inhabited or used, together with all knowledge and intellectual property
and traditional resource rights associated with such resources and their
use. 2) The Right to be Indigenous and the Right to Identity.
Aboriginal peoples have the right to our distinct identities. This
includes the right to identify ourselves as Indigenous.
We have Specific Rights to Culture, Religion and Language.
Aboriginal peoples and Torres Strait Islander peoples have the right to
our cultural traditions and customs. This includes aspects of our cultures
such as places of historical and traditional significance, sacred sites,
designs, ceremonies, technologies and performances. Our cultural property
should be returned to us, if it was taken without our permission. We
should be adequately assisted in the repatriation of our cultural and
ancestral remains including proper resourcing to establish processes of
return, and the establishment and maintenance of safe keeping places
within our communities. We should have the rights to our Spiritual and
Religious Traditions and to our Language.
If we take these as our human rights, I will put to you that certain
principles emerge in term of our relationship with the other peoples that
we share our country with. I will touch on these briefly as I have given a
few copies of the paper to Russel (moderator), if you like to read about
it in more details. These are the principles that empowered mainstream
peoples take for granted:
The Principle of Inalienability in regard to Traditional Land. We
cannot simply be removed if that be the government will.
The Principle of the Recognition that we do have Traditional
Territories and in Australia, we refer to that as Native Title.
The Principle of not being arbitrarily Removed or Relocated.
The Principal of Traditional Guardianship and Custodianship.
Recognition that we believe that we are the custodians of the land that is
our traditional land.
The Principle of Belonging to extended Indigenous Families,
Communities and Nations.
The Principle of Confidentiality. The right to exclude from
publication or to have kept confidential any information concerning our
cultures, traditions, or spiritual beliefs if we choose that it should
The Principle of Full Disclosure. This principle recognises that
Aboriginal peoples are entitled to be fully informed about the nature,
scope and ultimate purpose of any activities that impact on our cultures
in any way, including research, methodology, data collection, and the
dissemination and application of results from research.
The Principle of Prior Informed Consent and Veto. This principle
recognises that the prior informed consent of the relevant Aboriginal
peoples and our communities must be obtained before any research or other
activities are undertaken regarding cultural matters. In Australia which
is a modern western nation, Aboriginal peoples find themselves the most
researched peoples on earth and very often our communities do not benefit
from this research. In Australia, our life expectancy is 20 years below
the rest of the population and this is in a modern western nation which
has one of the highest standard of living in the planet. We still have the
poorest health statistics, the poorest education results, the lowest life
expectancy in the country.
The Principle of Respect. This principle recognises the necessity
for 'outsiders' to respect the integrity, morality and spirituality of
their cultures, traditions and relationships.
The Principle of Protection. That is taking active measures to
protect and to enhance the relationships of Aboriginal peoples with our
environment and thereby promote the maintenance of cultural and biological
The Principle of Active Participation. That we should actively
participate in all phases of planning, development and government service
delivery that impact on our respective cultural lives and that we should
benefit from the results.
The Principle of Precaution advocates taking pro-active,
anticipatory action to identify and prevent biological or cultural harms
resulting from research activities or outcomes, or development even if
cause-and-effect relationships have not yet been scientifically proven.
The principle of precaution should be applied to those situations.
The Principle of Compensation and Equitable Benefit Sharing. This
principle recognises that Aboriginal peoples must be fairly and adequately
compensated for our contribution to any activities including research and
outcomes involving our knowledge, our culture, our land and our resources.
The Principle of Restitution. This principle recognises that every
effort will be made to avoid any adverse consequences to Aboriginal
peoples and their cultures, from research and other activities, including
development and their outcomes and that, should any such adverse
consequences occur, appropriate restitution shall be made.
And finally, the Principles of Retrospectivity, Reparation and
Reconciliation. Given that Aboriginal cultures have already sustained
long term damage in my country through the past and ongoing processes of
colonialism, Nation States should apply protection mechanisms and
equitable benefit sharing strategies as negotiated with Aboriginal
peoples, respectively where possible and seek to make reparation for
damage and exploitation already done to Indigenous cultures. This
application of the principles of Retrospectivity and Reparation are chief
strategies that will assist the advancing of Reconciliation between
Aboriginal peoples and the peoples of the broader Australian community.
All of these principles suggest the over-arching human right - that we
have the right to enjoy our cultures and to reject arbitrary interference.
It is on this basis that Aboriginal peoples should negotiate with the
broader community in which we live. Thank you very much for your time.