Protecting the Spiritual Beliefs of Indigenous Peoples: Australian Case Studies

Abstract

This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define their status and society by reference to their relationship with the land, this article considers the ultimately unsuccessful attempt to protect their spiritual beliefs as an incident of native title law. It reviews a line of intellectual property cases which have been a more fruitful source of protection, as well as the possibilities of the protection of the spiritual beliefs of indigenous peoples under racial vilification laws. With changes to the Australian Constitution to recognize the particular rights of Aboriginal and Torres Strait Islander Peoples currently under consideration, the article concludes with the speculation that specific Federal legislation could achieve the protection of their spiritual beliefs.