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"'A Just War': Protecting Indigenous Cultural Property "

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Diver, Alice (2004) "'A Just War': Protecting Indigenous Cultural Property ". Indigenous Law Bulletin , 6 (4). pp. 7-11. [Journal article]

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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2004/43.html

Abstract

When indigenous cultural property rights are defined by western concepts of ‘property ownership’, they risk the fate of indigenous land rights. Where entire continents were lost under terra nullius, indigenous peoples’ descendants now face a ‘cultural genocide’ with ‘discovered’ culture appropriated to benefit the ‘greater good’. Human rights issues resurface; would cultural property rights be better protected via segregation or ‘integration’ into majority cultures? Should rights be framed as collective ‘group’ claims or as ‘matters for individuals’?[2] If so, might cultural property be capable of ‘self-determination’? If ‘cultural secession’ occurs, demands for defined territories become paramount. Human Rights lawyers may have to revise emerging customary norms given recent cases highlighting western judicial bias, where European definitions of ‘land use’ disregard the nomadic, ‘hunter-gatherer’ nature of many indigenous populations, Anglo-western preoccupation with ‘alienability’ conflicts with the ‘perpetual’ nature of indigenous ownership[3] and the ‘individualistic orientation of Anglophone countries’[4] ignores the communal, ‘caretaker’ nature of aboriginal ownership.Although Mabo[5] appeared to extinguish terra nullius, its legacy lingers on. This paper examines whether legal ‘blemishes of the past ... translate into current inequities’.[6]

Item Type:Journal article
Faculties and Schools:Faculty of Social Sciences
Faculty of Social Sciences > School of Law
ID Code:21824
Deposited By:Dr Alice Diver
Deposited On:17 Apr 2012 10:03
Last Modified:17 Apr 2012 10:03

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