As the tide of society shifts, we increasingly demand more of the systems that govern our communities. Whether asking for greater autonomy or urging our elected representatives to take action on issues of deep significance, there is growing scrutiny over the mechanisms available to achieve meaningful outcomes. This has led to a search for alternative avenues to seek justice—particularly where traditional pathways have proven slow, costly, or ineffective. The ongoing struggle for Indigenous land rights is no different. Litigation in this area is notoriously expensive and often spans years, if not decades. Where this is the norm, we must ask: Are there other mechanisms through which Aboriginal and Torres Strait Islander peoples can assert their rights to land, obtain redress, and secure compensation? One such mechanism may lie in the Human Rights Acts legislated domestically. Within the Australian Capital Territory, Victoria and Queensland, each state and territory has enacted a Human Rights Act to align with international obligations and standards. Do these Act offer a remedy to ensure First Nations peoples in Australia have a right to their land?
Implementation of Human Rights Acts in Australian States
The Human Rights Act 2004 (ACT), the Charter of Human Rights and Responsibilities Act 2006 (Vic), and the Human Rights Act 2019 (Qld) each provide for the recognition and protection of a broad range of rights.
- ACT: Recognises civil, political, economic, social, and cultural rights for all people.
- Victoria: Establishes obligations on public authorities to act compatibly with human rights and interpret laws consistently with those rights.
- Queensland: Protects and promotes human rights, requires public entities to comply with the Act, and provides a complaints mechanism.
A defining feature of these Acts is their interpretive provisions. For example, s31 of the ACT Act, s32(2) of the Victorian Charter, and s48(3) of the Queensland Act expressly authorise courts to consider international law and the decisions of international courts and tribunals when interpreting rights.
This reflects a clear legislative intent: to align Australian human rights protections with internationally recognised standards.
The Role of International Jurisprudence
In Momcilovic v The Queen, French CJ cautioned against the wholesale adoption of “alien legal systems” that may be at odds with Australian constitutional and legislative frameworks. However, as Dr Scott Calnan argues in Indigenous Rights to Land under the Australian Human Rights Acts, this concern does not consider the already-established international jurisprudence.
The Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights, and the UN Human Rights Committee have all developed law recognising that the “right to property” includes Indigenous peoples’ rights to their traditional lands.
Importantly, these principles have been applied in various common law jurisdictions such as Belize, the United States, and Kenya. Noting these legal systems show strong parallels to Australia’s. Their approaches demonstrate how rights to property, culture, and equality can be interpreted in ways that secure Indigenous ownership, demarcation, and protection of traditional territories.
Relevant Rights in the Australian Human Rights Acts
The Acts in the ACT, Victoria, and Queensland contain two particularly relevant rights for Indigenous land claims:
- Distinctive Cultural Rights of Aboriginal and Torres Strait Islander Peoples
- HRAACT s 27(2), CHRRV s 19(2), HRAQ ss 28(2)–(3) protect “distinctive cultural rights,” including maintaining and strengthening spiritual, material, and economic relationships with traditional lands.
- International commentary on UNDRIP Article 25 and the UN Committee on Economic, Social and Cultural Rights has recognised that, in some cases, exclusive possession is necessary for the full enjoyment of cultural rights.
- Right to Property (Victoria and Queensland)
- CHRRV s 20, HRAQ s 24 protect against arbitrary deprivation of property.
- Inter-American Court jurisprudence treats traditional possession as equivalent to legal title, requiring recognition, demarcation, and protection from interference.
- These interpretations align with the Acts’ remedial purposes and could be applied by Australian courts under the Acts’ interpretive provisions.
Legal Pathways to Advance Land Rights
Drawing on international jurisprudence, Aboriginal and Torres Strait Islander peoples could frame land rights claims under the Human Rights Acts in the following ways:
- Cultural Rights as a Basis for Land Access or Ownership
Reliance on UNDRIP Article 25 and ICESCR Article 15 to argue that exclusive possession or control over traditional lands is necessary to practise and preserve culture. - Property Rights Interpreted to Include Traditional Lands
Using Inter-American and African jurisprudence (Awas Tingni, Sawhoyamaxa, Ogiek) to support an interpretation that “property” includes communal Indigenous land, entitling claimants to recognition, restitution, or equivalent compensation. - Equality and Non-Discrimination
Invoking equality provisions (CHRRV s 8(3), HRAQ s 15(3)) to argue that excluding Indigenous land rights from property protections would result in unequal treatment contrary to the Acts.
Why International Jurisprudence is Essential
The Acts were enacted to give Australians access to Human Rights remedies domestically, without resorting to international complaints processes. Ignoring international jurisprudence on Indigenous land rights would frustrate that purpose. Incorporating this jurisprudence not only aligns with legislative intent but also ensures that the Acts provide practical, enforceable avenues for justice—particularly when other mechanisms, such as native title, are unavailable or inadequate.
Conclusion
The Human Rights Acts in the ACT, Victoria, and Queensland offer more than symbolic recognition; they are living instruments capable of delivering substantive rights to Aboriginal and Torres Strait Islander peoples. By interpreting these Acts in light of international human rights jurisprudence, Australian courts could recognise Indigenous rights to land in a way that is both legally defensible and consistent with global standards. This approach would open a new frontier in Indigenous land rights advocacy—one that is less dependent on costly, protracted litigation under existing native title frameworks, and more aligned with the principles of justice, equality, and cultural survival.