Secrets to Cultural Identity; legal and institutional mechanisms to better support Torres Strait Islanders to maintain their cultural secrets

Abstract

Torres Strait Islanders are a proud People with a strong physical and spiritual connection to their lands and waters in the Torres Strait, Australia. They present a unique and rich set of values, beliefs, geography, language and cultural practice, inextricably-linked to their cultural identity and vastly distinct from first-nation Australian Aboriginal peoples and the multi-cultural Australian mainland. Torres Strait Islanders practice a unique form of secrecy (Yagasin) applied towards the concealment and controlled revelation of sensitive Indigenous knowledge comprising the very building-blocks of their civilisation (their cultural secrets), itself cultural practice deriving from their traditional laws and customs acknowledged, connecting them spiritually to their lands and waters. <br/> Most Australian statutory, common law and equitable legal mechanisms have proven ill-equipped to protect cultural secrets in their sui generis form and effectively remediate for spiritual impairment; the instruments fail to appreciate the primacy of the Indigenous spiritual world and communal interests distinct from Eurocentric proprietary interests in the physical world. When Indigenous people lose control of cultural secrets they are also likely to lose cultural identity, autonomy and power to control their own lives, rendering them helpless in the face of complex modern-day, ever-evolving political and economic relations. <br/> This thesis explores legal and institutional mechanisms that may better support Torres Strait Islanders to protect their cultural secrets. The author argues that Native Title law is poised to emerge as the leading contender, best-equipped to provide tailored legal and institutional protection of Torres Strait Islander cultural secrets. Such a law would apply a regime which is neither an institution of the common law nor a form of common law tenure but nevertheless recognised by common law; it would provide a vital intersect with Torres Strait Islander traditional law and custom widely acknowledged.