[Aboriginal News] from les malezer
I provide below the recommendations that are included in the report to the UN Human Rights Council by the “independent expert in the field of cultural rights”, Ms Farida Shaheed. (Document A/HRC/17/38)
I was able to attend the three-day seminar with the independent expert in early February 2011, whilst in Geneva for the UPR examination of Australia. I presented on the subject of the rights of Indigenous Peoples to culture, as set out in the Declaration on the Rights of Indigenous Peoples and other international instruments.
SUMMARY OF THE REPORT BY THE INDEPENDENT EXPERT:
“The report investigates the extent to which the right of access to and enjoyment of cultural heritage forms part of international human rights law. Stressing the need for a human rights-based approach to cultural heritage matters, the independent expert explores the concept of cultural heritage from the perspective of human rights and presents a non-exhaustive list of human rights issues related to cultural heritage. A compilation of references in international law on the rights of individuals and communities in relation to cultural heritage and a summary of information received regarding national initiatives are included. The report further contains an analysis of the right of access to and enjoyment of cultural heritage, in particular regarding its normative content, related State obligations and possible limitations. The report’s final section contains conclusions and recommendations.”
I do not attach a copy of the report itself (due to technical limitations of the email list server) but please note the contents of this report are as follows:
I. Introduction
II. Concept of cultural heritage from a human rights perspective
III. Human rights issues related to cultural heritage
IV. References in international law relating to the rights of individuals and communities
in relation to cultural heritage, and initiatives at the national level
A. UNESCO instruments
B. Convention on Biological Diversity
C. Regional instruments and initiatives relating to cultural heritage
D. Human rights instruments
E. Initiatives at the national level
V. Right of access to and enjoyment of cultural heritage
A. Normative content
B. State obligations
C. Possible limitations
VI. Conclusions and recommendations
Annexes
I. Responses to the questionnaire on access to cultural heritage
II. Experts’ meeting on access to cultural heritage as a human right (Geneva, 8-9 February 2011)
For those based in Geneva, or otherwise able to attend and participate, the interactive dialogue on this report will now be held with the Human Rights Council in Geneva on the morning of 31 May 2011. A side-event will also be held from 1 pm to 3 pm that day.
While I am unable to attend this dialogue and side-event I am hoping to prepare a statement which can be read out on behalf of the Foundation for Aboriginal and Islander Research Action (FAIRA). The statement will highlight major concerns about the failure of laws in Australia to provide adequate protection to the cultural heritage of the Aboriginal and Torres Strait Islander peoples. (FAIRA will also write directly to the Government of Australia expressing its concerns.) If this statement is to be presented at HRC I will send a copy through this network.
You may be aware that last week I visited the important cultural heritage site in Tasmania where the Aboriginal people are protesting the disrespectful ‘go-ahead’ for a bypass road to be built over a site that has been used by Aboriginal people for 42,000 years. After visiting the site and talking to people I regard this as an awful case, but typical, representing ‘progress’ in Tasmania through cultural genocide. It is happening all over Australia after the last wave of conservativism led by Howard but maintained by the ALP-led national government.
Documents of the next HRC session are not yet available on the UN website but anyone wanting a copy of this full report by the independent expert immediately can contact me by return email and I will send a copy to you.
The independent expert makes the following recommendations in her report:
RECOMMENDATIONS
(a) States should recognize and value the diversity of cultural heritages present in their territories and under their jurisdiction, and acknowledge, respect and protect the possible diverging interpretations that may arise over cultural heritage. The choices of individuals and communities to feel associated (or not) with specific elements of cultural heritages should be respected and protected;
(b) States should respect the free development of cultural heritage. They have the duty not to destroy, damage or alter cultural heritage, at least not without the free, prior and informed consent of concerned communities, and to take measures to preserve/safeguard cultural heritage from destruction or damage by third parties;
(c) Concerned communities and relevant individuals should be consulted and invited to actively participate in the whole process of identification, selection, classification, interpretation, preservation/safeguard, stewardship and development of cultural heritage. No inscription on UNESCO lists relating to cultural heritage or national lists or registers should be requested or granted without the free, prior and informed consent of the concerned communities. More generally, States should seek the free, prior and informed consent of source communities before adopting measures concerning their specific cultural heritage, in particular in the case of indigenous peoples, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples;
(d) States should ensure that cultural heritage policies and programmes are not implemented at the expense or to the detriment of concerned communities. The preservation/safeguarding of cultural heritage should aim at ensuring human development, the building of peaceful and democratic societies and the promotion of cultural diversity;
(e) States are encouraged to develop cultural heritage mapping processes within their territory and should utilize cultural impact assessments in the planning and implementation of development projects, in full cooperation with concerned communities;
(f) States should take measures to encourage professionals working in the field of cultural heritage to adopt a human rights-
based approach and to develop rules and guidelines in this respect;
(g) Professionals working in the field of cultural heritage and cultural institutions (museums, libraries and archives in particular) should build stronger relationships with the communities and peoples whose cultural heritage they are the repositories of, respect their contributions regarding the significance, interpretation, sharing and display of such heritage, and consider in good faith their queries regarding repatriation;
(h) Researchers should likewise build stronger relationships with the communities and peoples whose cultural heritage they desire to investigate, especially when recording cultural heritage manifestations, to ensure their free, prior and informed consent at all stages of research and dissemination;
(i) Tourism and entertainment industries should respect the right of access to and enjoyment of cultural heritage. This implies, in particular, fully taking into consideration the complaints lodged by concerned individuals and communities who consider that their cultural heritage has been misused, misrepresented or misappropriated, or that their cultural heritage is being endangered by their activities;
(j) States should ensure access to the cultural heritage of one’s own communities, as well as that of others, while respecting customary practices governing access to cultural heritage. In particular, such access should be ensured through education and information, including by the use of modern information and communication technologies. States should also ensure to that end, that the content of programmes is established in full cooperation with the concerned communities;
(k) States should adopt positive measures to ensure access to and enjoyment of cultural heritage by all people regardless of gender, including people with scarce financial resources, and those with mental and physical disabilities;
(l) States should make available effective remedies, including judicial remedies, to concerned individuals and communities who feel that their cultural heritage is either not fully respected and protected or that their right of access to and enjoyment of cultural heritage is being infringed upon. In arbitration and litigation processes, the specific relationship of communities to cultural heritage should be fully taken into consideration;
(m) States are encouraged to ratify relevant international and regional treaties for the preservation/safeguarding of cultural heritage, and to implement them at the national level adopting a human rights-based approach;
(n) States should include in their periodic reports to treaty bodies, in particular the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child, information on action taken to ensure the full participation of concerned individuals and communities in cultural heritage preservation/safeguard programmes, as well as on measures taken, particularly in the field of education and information, to ensure access to and enjoyment of cultural heritage.
________________________________________
Les Malezer
Chairperson
Foundation for Aboriginal and Islander Research Action (FAIRA)
PO Box 8402
Woolloongabba Q 4102
AUSTRALIA
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Email: les.malezer@gmail.com
Mobile: +61 419 710 720 (Australia)
Mobile: +41 79 606 18 59 (Switzerland)
Fax: +61 7 3391 4551 (Australia)
Skype: malezer