Contemporary issue: loss of cultural rights including language: HSC Legal Studies

What this dot point is asking

Loss of cultural rights including language is the first of the four contemporary issues that must be studied in the Indigenous Peoples option. You must identify and investigate how Indigenous peoples have lost cultural rights, with language named specifically, and evaluate the effectiveness of legal and non-legal responses.

Cultural rights are the rights to maintain, practise, develop and pass on culture: language, spiritual and ceremonial practices, knowledge, kinship and family structures, sacred sites and objects, and connection to land. For Indigenous peoples these are collective as well as individual rights. This issue overlaps with intellectual property (2024 HSC Question 28(b) combined the two) and with land rights, because culture is tied to country.

The answer

Identifying the issue: how cultural rights were lost

Dispossession. Indigenous cultures are grounded in relationships with particular lands and waters. Losing access to country meant losing sites, ceremonies, food and medicine knowledge, and the basis of law and identity.

Assimilation laws. Governments deliberately suppressed Indigenous cultures:

• In Australia, protection and welfare boards controlled where Aboriginal people lived, whom they married and whether they could speak their languages on missions and reserves, and children were removed from their families. The Bringing Them Home report (1997) found that between one in three and one in ten children were forcibly removed between about 1910 and 1970, cutting the transmission of language and culture across generations.
• In Canada, about 150,000 First Nations, Inuit and Métis children attended residential schools where they were punished for speaking their languages. The Truth and Reconciliation Commission (2015) described the system as cultural genocide and made 94 Calls to Action, several about language.
• In Aotearoa New Zealand, Māori children were punished for speaking te reo in schools for much of the 20th century, and in Scandinavia, "Norwegianisation" and similar policies suppressed Sámi languages.

The scale of language loss. The UN Permanent Forum on Indigenous Issues has estimated that about 40 per cent of the world's roughly 6,700 languages are in danger of disappearing, most of them Indigenous. In Australia, more than 250 languages were spoken at colonisation. The 2021 Census found 76,978 Aboriginal and Torres Strait Islander people (9.5 per cent) spoke one of 167 Aboriginal or Torres Strait Islander languages at home, down from 16.4 per cent in 1991, although the number of speakers rose from 63,754 in 2016.

Cultural heritage. Sacred sites, rock art and cultural objects continue to be damaged by development. In May 2020, Rio Tinto destroyed rock shelters at Juukan Gorge in Western Australia, sites of the Puutu Kunti Kurrama and Pinikura peoples with about 46,000 years of occupation. It was lawful.

Legal responses: international

• UNDRIP (2007) protects the right not to be subjected to forced assimilation (art 8), to practise and revitalise cultural traditions (art 11), to manifest spiritual traditions and seek repatriation of ceremonial objects and human remains (art 12), to revitalise, use and transmit languages (art 13), to education in their own languages (art 14), to their own media (art 16), and to maintain and protect cultural heritage and traditional knowledge (art 31). It is not binding.
• ICCPR art 27 (binding on Australia) protects the right of minorities to enjoy their culture and use their language. The UN Human Rights Committee applied it in Daniel Billy v Australia (2022), finding that Australia's failure to protect Torres Strait Islanders from climate impacts violated their right to enjoy their culture. The Supreme Court of Norway applied it in the Fosen case (2021) to protect Sámi reindeer herding culture.
• ICESCR art 15 (the right to take part in cultural life) and CRC art 30 (Indigenous children's right to their culture and language).
• The International Decade of Indigenous Languages (2022 to 2032), led by UNESCO, followed the International Year of Indigenous Languages (2019).

Legal responses: language laws

• NSW. The Aboriginal Languages Act 2017 (NSW), the first Australian law to recognise and protect Aboriginal languages, acknowledges them as the first languages of NSW and established the Aboriginal Languages Trust to support community-led revival. NSW schools also teach Aboriginal languages through the Aboriginal Languages Syllabus.
• National. Closing the Gap Target 16 aims for "a sustained increase in number and strength of Aboriginal and Torres Strait Islander languages being spoken by 2031". In its July 2026 report, the Productivity Commission said progress against Target 16 could not be assessed because of data limitations.
• Aotearoa New Zealand. Te reo Māori became an official language in 1987; the Māori Language Act 2016 (Te Ture mō Te Reo Māori 2016) created Te Mātāwai, a body representing iwi and Māori, to lead revitalisation in partnership with the Crown. The 1986 Waitangi Tribunal finding that te reo is a taonga (treasure) protected by the Treaty drove this change.
• Canada. The Indigenous Languages Act (2019) recognised Indigenous language rights as protected by s 35 of the Constitution Act 1982 and created an Office of the Commissioner of Indigenous Languages.

Legal responses: cultural heritage

Heritage protection in Australia is largely a state responsibility, and it has often failed:

• Juukan Gorge was destroyed under a consent granted under s 18 of the Aboriginal Heritage Act 1972 (WA), which gave traditional owners no right of appeal. A federal parliamentary inquiry produced an interim report, Never Again (December 2020), and a final report, A Way Forward (October 2021), recommending new national heritage legislation. Rio Tinto's chief executive resigned.
• Western Australia passed the Aboriginal Cultural Heritage Act 2021 (WA), which commenced on 1 July 2023, but repealed it later in 2023 after backlash from farmers and landholders about its complexity, restoring an amended version of the 1972 Act.
• The Commonwealth's Aboriginal and Torres Strait Islander Heritage Protection Act 1984 allows emergency declarations but is widely regarded as weak; reform has been co-designed with the First Nations Heritage Protection Alliance, but no new law had been enacted as at September 2026.
• Positive examples. The climb at Uluru closed on 26 October 2019 after the Uluru-Kata Tjuta National Park board, which has an Anangu majority, decided in 2017 to respect traditional owners' wishes. The Murujuga Cultural Landscape in Western Australia was inscribed on the World Heritage List in July 2025.

Legal responses: redress for the Stolen Generations

Common law claims largely failed (Cubillo v Commonwealth, 2000 and 2001), but governments have provided redress: NSW's Stolen Generations Reparations Scheme (2017) and the Commonwealth's Territories Stolen Generations Redress Scheme (from 2022), with payments and healing support. The National Apology on 13 February 2008 was a symbolic acknowledgment of cultural loss.

Non-legal responses

• Community language centres and programs. Regional language centres and community projects record elders, create dictionaries and teach children; revival has brought languages such as Kaurna (Adelaide) back into use after a period with no fluent speakers.
• Aotearoa's language nests. Te Kōhanga Reo, Māori-language early childhood centres started by Māori communities in 1982, show the power of community-led, immersion-based revival.
• Healing and truth-telling. The Healing Foundation, Link-Up services and truth-telling commissions (Victoria's Yoorrook, 2021 to 2025) address intergenerational trauma.
• Media and public culture. NITV, NAIDOC Week, Acknowledgements of Country and dual naming (for example of places and sports venues) normalise Indigenous languages and cultures.
• Museums and repatriation. Returning ancestral remains and sacred objects from museums in Australia and overseas.

Evaluating the responses

Judgement. Legal and non-legal responses have been moderately effective in slowing the loss of Indigenous cultures and beginning to revive languages. The most successful responses combine legal recognition, stable funding and Indigenous control, as Aotearoa's language revival and NSW's community-led language programs show. The weakest area in Australia is cultural heritage, where the law still allows the destruction of irreplaceable sites and reform stalled after Juukan Gorge. Because language and cultural knowledge are held by elders, time is critical: responses that are slow to take effect may come too late for many languages.

In one sentence

Indigenous peoples lost cultural rights and languages through dispossession, assimilation and the removal of children, and although UNDRIP, ICCPR art 27, language laws in NSW, Aotearoa and Canada, redress schemes and community-led programs have begun to revive them, weak heritage laws (Juukan Gorge) and continuing language decline show the loss has not been reversed.

Try this

Q1. Identify TWO ways Indigenous peoples lost cultural rights. (2 marks)

• What the marker wants. For example, assimilation laws banning languages; removal of children.

Q2. Explain ONE legal response to the loss of Indigenous languages. (5 marks)

• What the marker wants. For example the Aboriginal Languages Act 2017 (NSW) or the Māori Language Act 2016: what it does and evidence of effect.

Q3. Evaluate the effectiveness of the law in protecting Indigenous cultural heritage. (10 marks)

• What the marker wants. Juukan Gorge, WA and Commonwealth law, international standards, positive examples (Uluru, Murujuga), and a judgement.