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University of New South Wales Law Journal Student Series |
THE JUUKAN TRAGEDY: A TIMELY REMINDER OF THE
NEED FOR SUI GENERIS ICIP PROTECTION
ALESSANDRA STEELE
Within the [Puutu Kunti Kurrama and Pinikura People (PKKP)] family is an old lady. She is in her late 90s and quite frail. She is the last remaining daughter of Juukan, and she named the Gorge and the rockshelters on behalf of her father, who is a very respected ancestor of many. No one has told her that the rockshelters and Gorge have been lost as they all fear it will result in her passing. Everyone hopes she will never find out.[1]
I INTRODUCTION
The failure of Australian law to protect “Indigenous cultural and intellectual property” (ICIP)[2] from unauthorised access and exploitation is recognised as one facet of the systemic dispossession of Australian Aboriginal and Torres Strait Islander peoples.[3] Like the concept of “terra nullius”, the incompatibility of ICIP with Australian legal protections leaves a great proportion of those cultural works in the “public domain” – free to use and exploit by anyone. Van Caenegem has referred to this corollary of the public domain as scientia nullius.[4]
This essay examines the current state of Australian laws and practices that have developed with respect to protection of ICIP and considers the adequacy of those developments, with reference to the recent destruction of the 46,000 year old Juukan rock shelters in the Pilbara region of Western Australia, currently the subject of a Commonwealth Senate inquiry.
Against this backdrop, this essay will review the options for expanding protection of ICIP, and following the apparent foreclosure of native title as an avenue to protect ICIP in Western Australia v Ward[5], argues that given what occurred in the Juukan gorge, a sui generis system of protections is urgently required to ensure the protection of ICIP, a fundamental precursor to the commercialisation of ICIP which could have significant emancipatory value to Indigenous peoples.
II ICIP’S UNIQUE CHARACTERISTICS
At the time the First Fleet arrived in Botany Bay, the English system of common law was well established. Property rights were well recognised and fundamental to the legal and economic system, influencing the conception and development of then nascent protections of intellectual property rights – the Statute of Anne had been enacted in 1710 and in the nineteenth century a movement towards international harmonisation of intellectual property laws would be formalised via the Berne and Paris conventions.
The Indigenous peoples of Australia are said to be the world’s oldest continuous living culture, with some scientists suggesting that Indigenous peoples have lived in Australia for as long as 65,000 years. However, on European arrival, the landscape of Australia did not show the scars of human dominance, such as industrial scale agriculture or cities, that to them demonstrated human civilisation. Such observations may have informed the convenient declaration of Terra Nullius that permitted England to colonise New South Wales and later the rest of the country notwithstanding the true state of civilisation of Aboriginal and Torres Strait Islander Australians.[6] Their history of land dispossession has unfortunate parallels in recognition of ICIP by the English common law tradition, possibly in part because of the deep connection of Aboriginal and Torres Strait Islander culture to the land.
Federal Court Judge John Von Doussa, whose judgments have been influential in relation to recognition of ICIP within the common law, said in 2006:
A tragedy of the European colonisation of Australia that commenced with the arrival of The First Fleet from England in 1778 is that the new arrivals did not recognise that the Indigenous population of Australia lived in and under a complex matrix of well established laws and practices based on a close spiritual relationship with the land; that their lives revolved around their communal clan ownership and connection with carefully defined land areas; and that sophisticated forms of “ceremony” or “folklore” encompassing creation stories, art, dance and song, were of central importance to their way of life...It is only in the last forty years that this has changed, and in the meantime a lot of Indigenous heritage and knowledge has been "washed away with the tide of history"[7]
ICIP are rarely works of mere creative expression by an artist of the kinds we know to be covered by copyright law today or inventions for the profit of the inventor as patent law may be conceived. Rather, in addition to any expressive purpose, typically ICIP has a functional purpose for Aboriginal and Torres Strait Islander communities: transmitting and thereby preserving laws, history, culture and customs through the generations.[8]
ICIP frequently has strict customary rules governing its depiction and reproduction, which are enforced by the Aboriginal and Torres Strait Islander community owners. These rules constitute rights and responsibilities with consequences if the responsibilities are not met. Von Doussa notes in relation to Dreamtime stories that “if unauthorised reproduction ... occurs, under Aboriginal law it is the responsibility of the traditional owners to take action to preserve the Dreaming, and to punish those considered responsible for the breach”.[9] If the breach is caused by a third party, the artist is held responsible by his or her community and severe consequences can follow, including, in serious cases, ostracism or spearing.[10]
In attempting to explain the impact of the Juukan rockshelter destruction, the PKKP quoted NT v Griffiths as follows:
The people, the ancestral spirits, the land and everything on it are ‘organic parts of one dissoluble whole’....an act can have an adverse effect by physically damaging a sacred site, but it can also affect a person’s perception of an engagement with the Dreamings because the Dreamings are not site specific but run through a larger area of the land; and as a person’s connection with country carries with it an obligation to care for it, there is a resulting sense of failed responsibility when it is damaged or affected in a way which cuts through the Dreamings.[11]
The Indigenous perspective on the role of ICIP is therefore a means of maintaining and developing group identity which is communal in nature[12] and inseparable from the land which is the source of Indigenous spirituality. It is unsurprising that Puri notes that the venerating of individual Indigenous artists is therefore a concept that they themselves find foreign and quaint.[13]
Indigenous people seeking to protect ICIP do not look for protection of artefacts for their own sake or as things of economic value, but for the stories, ideas and meanings they represent to their communities. Indeed frequently no artefact exists, as stories are conveyed orally or by performance, and where an artefact does exist, it is the ancestral design on it, which can frequently be expressed differently by different artists, not the artefact itself, which is of value to Indigenous people.
III ICIP’S UNEASY FIT WITH WESTERN IP RIGHTS
Aboriginal and Torres Strait Islander conceptions of ICIP, with its link to land and community, as well as the communal-custodial (rather than the Western individual-possessive approach) to property both real and intangible, bespeaks of the fundamental incompatibility with western IP rights which are focussed on economic domination, control and exploitation of real and intangible property alike. As Howden argues:
Indigenous traditional knowledge...is a concept that essentially defies description in Western terms, but which lies at the heart of Indigenous society.
Even where Western IP rights are available for ICIP, frequently such protection is incomplete or inadequate. As in the case of the Juukan rockshelters, where the artefacts found included grinding stones and a belt made from human hair, much ICIP that is of value to Aboriginal and Torres Strait Islander peoples does not attract IP protection at all.
Indigenous artworks, sculptures and performances may attract the limited statutory protections of copyright law. Frequently Aboriginal and Torres Strait Islander owners of such works face challenges defending even these more obviously protectable works, challenges that derive from the fundamental incompatibility referred to above: rarely are these works made solely for creative expression or economic benefit of the artists, but rather are creative expressions of a community’s culture.
First, the Copyright Act[14] protects original works. While the threshold for originality is low in copyright, works that have been copied from another work are not capable of protection unless independent intellectual effort or skill is able to be demonstrated.[15] Similarly, there will be no infringement of copyright if an unoriginal part of an original work is copied.[16] Yet Aboriginal and Torres Strait Islander artworks, sculptures and performances, in performing their cultural transmission function, frequently are inspired by “successive patterns of imitation over time”.[17] Ancestral designs, for instance, are required to be replicated with a degree of accuracy[18] and as such it may by argued that they do not meet the originality threshold, either at the subsistence or at the infringement stage.
Against this concern, in Milpurrurru v Indofurn[19] Von Doussa J noted that originality was admitted by the respondents and that “[a]lthough the artworks follow traditional Aboriginal form and are based on dreaming themes, each artwork is one of intricate detail and complexity reflecting great skill and originality”, and at the infringement stage rejecting the argument that depiction of particular Dreaming characters in that are common to many Aboriginal and Torres Strait Islander artworks involved no originality.[20] In that case however the artist applicants were “recognised nationally and internationally as exceptional”.[21] Each case would turn on its facts, and while all artworks involve the application of skill by an artist, reproduction of ancestral motifs in a more faithful manner could possibly have left the artworks unprotected by copyright, notwithstanding the cultural importance of those motifs to their traditional owners.
Secondly, consistent with the individual-possessive approach to property inherent in the Western system, the Copyright Act requires an identifiable author or authors (in the case of works of joint ownership) in whom ownership vests. Yet Aboriginal and Torres Strait Islander artists, even where identifiable, frequently recoil from the suggestion that they “own” one of their artworks, seeing their role in the transmission of their culture via their works more akin to “custodianship”:[22] some suggest that authorship may reside in pre-human creator ancestors.[23] This also poses a cultural impediment to making a copyright infringement claim. In relation to the Juukan rockshelters, were any of the artefacts within to be considered artistic works for the purposes of the Copyright Act, given the age of those artefacts, none of their authors would now be identifiable.
The need for an identifiable author gives rise to an issue of who has standing to enforce such IP rights as might exist in ICIP. In Bulun Bulun v R&T Textiles,[24] it was held that the artist, Mr Bulun Bulun was a fiduciary for the Ganalbingu people who had given him the right to create artistic works incorporating their ritual knowledge, but this did not vest any proprietary or equitable right in the copyright in the Ganalbingu people. As the artist was himself enforcing the copyright, it was not necessary to consider the standing of community members. But in obiter dictum, Von Doussa J however did speculate on the character of the rights the Ganalbingu might have obtained in a variety of scenarios without Mr Bulun Bulun taking action as follows:
By way of example, had Mr Bulun Bulun merely failed to take action to enforce his copyright, an adequate remedy might be extended in equity to the beneficiaries by allowing them to bring action in their own names against the infringer and the copyright owner, claiming against the former, in the first instance, interlocutory relief to restrain the infringement, and against the latter orders necessary to ensure that the copyright owner enforces the copyright...
On the other hand, were Mr Bulun Bulun to deny the existence of fiduciary obligations and the interests of the parties asserting them, and refuse to protect the copyright from infringement, then the occasion might exist for equity to impose a remedial constructive trust upon the copyright owner to strengthen the standing of the beneficiaries to bring proceedings to enforce the copyright. This may be necessary if the copyright owner cannot be identified or found ...[25]
Thirdly, duration of copyright, generally 70 years from the death of the author or when the work was first made public,[26] may well be long expired for many ICIP works such as any artistic works that may have existed in the Juukan rockshelters. Sacred and ancient rock carvings, paintings and other artefacts, even if capable of attracting copyright as original artistic works would have long been out of copyright. Like all works made, or made public, more than 70 years ago, such material will fall into the public domain, allowing them to be reproduced, adapted and exploited by anyone, notwithstanding the harm and offence that may be caused to Aboriginal and Torres Strait Islander people who consider themselves the cultural owners.[27]
Fourthly, ICIP that is oral, an idea, a motif or a performance does not meet the material form requirement or otherwise does not meet the definition of works or subject matter other than works under section 22 of the Copyright Act. Because copyright protects economic rights and does not consider or take into account the cultural transmission function of ICIP, copyright strikes a balance between freedom of artistic expression and the artist’s individual economic rights by protecting the expression of an idea and not the idea itself. This leaves much ICIP incapable of protection and also left in the public domain unless an alternative cause of action can be established.[28]
The fair dealing exemptions in copyright law seek to strike the same balance between freedom of creative expression and the artist’s individual economic rights by permitting certain dealings in copyright works that are seen as beneficial to society. Thus even where ICIP does meet the requirements for copyright protection, it may be used without the permission of the artist/traditional owners for the purposes of satire and parody, education, criticism and review and news reporting (amongst others). This can leave ICIP vulnerable to reproductions and adaptations that could conceivably cause harm and offence to traditional owners.[29]
It can be seen from the above analysis that while some ICIP can attract the protection of Australian IP laws, the scope of what is protected is limited and much ICIP consequently falls into the public domain. Van Canaegem states:
the notion of "public domain" operates to deny the effect of [Indigenous people’s] own legitimate norms concerning control of both artistic and technological knowledge. Public domain knowledge can thus be referred to as scientia nullius, in the same manner that land, until Mabo, was considered to have been terra nullius in Australia prior to European occupation...[30]
...just as the now discredited theory of terra nullius was really a theory justifying unwarranted dispossession of land, the theory of scientia nullius can be conceived as a justification for the dispossession of knowledge.[31]
It is the case that IP laws have allowed Aboriginal and Torres Strait Islander artists to exploit and commercialise ICIP that does fit within the western IP framework, in particular their paintings and sculptures, with some success. Trade mark law, breach of confidence and consumer protections have also provided avenues for Aboriginal and Torres Strait Islander artists and communities to restrain misappropriation of their culture and works.[32]
Even where this is so, a difficulty arises where the harms caused by the infringement are incapable of compensation. In Yumbulul, copyright subsistence was accepted by French J (as he then was), however the artist was criticised by his community for permitting a Morning Star pole he had created and which was on display at the Australian Museum to be reproduced on a banknote and he took legal action against the Reserve Bank of Australia claiming he did not know what he was agreeing to when he signed the licence.[33] Evidence was given that Morning Star poles have sacred meaning to Indigenous people and the artist has an obligation to consult with the clans that have given him the right to create them to ensure that he artwork was not used in a way that offended against their perceptions of its significance.[34] This case demonstrates the difficulty faced in using Western, economically focussed IP laws to address the cultural harm caused by infringements. In the case of the Juukan rockshelters, the place was known to be a resting place of the spirits of PKK ancestors, who were described as being “very disturbed”, with the result that “PKKP People are feeling fear, anxiety and a sense of hopelessness thinking about the spirits of their ancestors who no longer have their resting place”.[35] These concepts do not rest easily with the utilitarian, individual-possessive conception of intellectual property law, although the moral rights remedies, being less economically focussed, may come closer.[36] As Von Doussa J said in Milpurrurru:
The statutory remedies do not recognise the infringement of ownership rights of the kind which reside under Aboriginal law... as the evidence discloses the likelihood that the unauthorised reproduction of the artworks has caused anger and offence to those owners, and the potential for them to suffer humiliation and repercussions in their cultural environment.[37]
Yumbulul also demonstrates a second difficulty in the commercialisation of ICIP: accessibility of the intellectual property regime and judicial system to Aboriginal and Torres Strait Islander artists. It was the artist’s evidence in that case that he did not understand what he was signing when he executed the licence for the Morning Star Poles to appear on the $10 banknote.[38] While the court noted that the artist had difficulty with particular words of the English language, it ultimately found that the artist did know what he was signing but did so because he and his wife were in need of money urgently, living on an income less than what they would have received on unemployment benefits and with a sick relative.[39] This context highlights the difficulties faced even by successful artists who are able to avail themselves of the intellectual property regime, in language, resources, and education – systemic disadvantage makes commercialisation and protection of ICIP more difficult for Indigenous artists than for others. French J (as he then was) observed:
[the case] demonstrates difficulties that arise in the interaction of traditional Aboriginal culture and the Australian legal system relating to the protection of copyright and the commercial exploitation of artistic works by Aboriginal people.[40]
IV NON-IP RIGHTS: NATIVE TITLE
Given that the differences between ICIP and intellectual property rights lie in the Indigenous conception of ICIP being an intersection of land, culture and creativity, it is perhaps not surprising that native title has been seen as a possible avenue of protection and commercialisation of ICIP. Native title recognition started with the Mabo decision, where the High Court acknowledged the fiction of Terra Nullius and recognised that a set of native title rights and interests based in Indigenous law and custom co-existed with, but predated, the common law.[41] The Native Title Act 1993 (Cth) codified these rules with section 223(1) defining native title as follows:
The communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) The rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) The Aboriginal people or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) The rights and interests are recognised by the common law of Australia.
Howden notes that this definition is intentionally broad, and is in subsection (2) extended non-exhaustively to include hunting, gathering and fishing, none of which are proprietary rights.[42] Initially there was optimism that this native title right could extend to traditional knowledge after the decisions in the Yarmirr v Northern Territory[43] and Hayes v Northern Territory[44] recognised a right to safeguard cultural and spiritual knowledge. However, in Ward,[45] in which the majority of the High Court declined to recognise any right that was “akin to a new species of intellectual property to be recognised by the common law under par (c) of section 223(1)”.[46] Kirby J dissented on this point, noting that the right to protect cultural knowledge was indeed inherently connected to land in Aboriginal and Torres Strait Islander culture.[47] While there is some suggestion that perhaps the decision in Akiba[48] leaves open a reconsideration of the majority’s view in Ward,[49] the scope of any such right arising from the decision in Akiba, which was focussed on commercial rights arising from Native Title, is unlikely to be as expansive as suggested by Kirby J.[50]
Native title is germane to the Juukan rockshelter destruction because the rockshelters were located on PKKP native title claim land which was the subject of a Land Use Agreement (LUA) between the PKKP and Rio Tinto. Janke notes that LUAs, which are voluntary agreements between a native title group and other parties about the use of land and waters, may have the capacity to provide recognition of Aboriginal and Torres Strait Islander rights in knowledge[51] and thereby enable ICIP to be commercialised, although such potential is only possible where “the underlying weaknesses in the bargaining power of Aboriginal...people are addressed”.[52]
The Federal Court recognised native title over the Juukan gorge in September 2015. The native title rights included the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Determination Area; and the right to engage in cultural activities on the Determination Area, including visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and conducting ceremony and ritual, and the transmission of cultural knowledge.[53]
Consistently with Ward, these rights did not extend to protection of cultural knowledge, and at the time of execution of the LUA, the native title claims of the PKKP had not been determined. Rio Tinto had had mining leases on the site since 1964[54] and its position was that the PKKP did not have the right to apply for Native Title and that compensation and royalties were not payable to them.[55] Ultimately, a preliminary agreement to an LUA involving a “new mine” which would permit royalties to be paid to the PKKP, was agreed with Rio Tinto, with significant concessions being made by the PKKP which classified the area of the Juukan rockshelters as “Priority Projects” to which the PKKP would not oppose any notice of development, even though at the time little in the way of archaeological or ethnographic data existed.[56] Subsequently, a formal LUA was executed which Rio Tinto submitted gave it “free, prior and informed consent” of the PKKP to conduct mining operations on the site of the Juukan rockshelters.[57] The LUA and associated agreements contained strong confidentiality requirements about public disclosure of information to do with Rio Tinto’s operations that made it difficult for PKKP to raise the alarm in the days leading up to the destruction of the caves, a matter which Rio Tinto ensured was communicated to the PKKP via a letter from a top-tier law firm.[58] The PKKP submit that its agreement to this deal was “a direct consequence of its inequitable negotiating position”.[59]
Following the decision in Ward, the great hope of Native Title as a source of protection of ICIP appears to have been extinguished, like much of Native Title itself. Connectedly, the use of LUAs in connection with Native Title as a means of exploiting native title rights most certainly failed the PKKP in connection with the Juukan Gorge due to two key factors: first, the lack of an underlying legal right in the land and its associated ICIP, and secondly, the inequality of bargaining power between the PKKP and Rio Tinto which disempowered the PKKP from protecting the rockshelters and even drawing attention to their impending destruction. In 2015, the Australian Law Reform Commission noted the decisions of Ward and Akiba and recommended a review of how cultural knowledge may be protected.[60]
V OTHER MECHANISMS
There appears to be a significant amount of interest by governments and reform bodies in addressing the inability of western Intellectual Property laws to provide sufficient protection and consequent exploitability to ICIP by traditional owners both in Australia and internationally.
UNDRIP,[61] signed by Australia in 2009,[62] is an international instrument intended to enshrine the rights that “constitute the minimum standards for survival, dignity and well-being of the indigenous peoples of the world”.[63] Article 31 declares the right of indigenous peoples to “maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions...[as well as] their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions”. Article 11(2) requires states to provide redress for indigenous peoples whose cultural, intellectual, religious and spiritual property is taken without their free, prior and informed consent or in violation of their laws, traditions and customs”. Not having yet been ratified, it may not be binding as an instrument,[64] however Janke considers that it sets standards for governments and Indigenous peoples for protection of their knowledge.[65]
In Australia, reviews and recommendations have peppered at least the last two decades, with state-based cultural heritage legislation and commonwealth biodiversity laws being enacted as well as several unsuccessful attempts to legislate to better protect ICIP either via expansions of IP laws or by amendment to other legislation.[66]
Unfortunately, the best intentions of the legislature and international bodies over this period have not materially improved the ability of Aboriginal and Torres Strait Islander peoples to protect and exploit ICIP, demonstrated most recently in relation to the destruction of the Juukan rockshelters, where the Western Australian cultural heritage legislation provided no relief[67] and the LUA between Rio Tinto and PKKP, far from assisting the PKKP in protecting or commercialising its ICIP in the site, effectively constrained the PKKP from taking legal action to protect a site that was apparently very significant both to the PKKP and more generally to humanity.
In the absence of legal protection of ICIP, voluntary protocols have developed in recognition of Aboriginal and Torres Strait Islander and international concerns, as a means of protecting ICIP. The protocols are commonly known as an “established code of procedure or behaviour”, which “have developed as a mechanism for mediating relationships between Indigenous and non-Indigenous Australians”,[68] with a “culture of protocols” developing over the last four decades in the Australian arts community.[69] Protocols have normative benefits, particularly as they become more broadly adopted, but they are inherently piecemeal and their voluntary nature makes them ineffective against deliberate transgressions. Further, Riphagen and Stolte note that the enforcement of protocols against Indigenous people creates unique conflicts that are difficult to resolve.[70] Even where they can be protective, while they can be made enforceable in contractual relations, the inequality of bargaining power or access to legal resources may mean that, like the PKKP, the protocol ultimately agreed does not provide the hoped for protection. Indeed, a cultural heritage protocol formed part of the suite of agreements including the LUA covering the Juukan rockshelters,[71] yet none of these agreements operated to support the PKKP in preventing the destruction of those sites.
It follows that while protocols are a novel, grassroots and proactive approach to remedying the lacuna in protection for ICIP, without a set of enforceable rights to underpin them, Aboriginal and Torres Strait Islander owners will always be at risk of destruction, desecration, and misappropriation of ICIP and the consequent cultural, economic, spiritual and social harms of the kinds experienced by the PKKP in relation to the Juukan rockshelter destruction.
VI FUTURE OF ICIP PROTECTION
Given the foreclosure of native title as an avenue of protection for ICIP, the inherent unsuitability, incompleteness and incompatibility of intellectual property legislation with Indigenous conceptions of ICIP and the failure of voluntary measures such as protocols and LUAs to assist the PKKP in relation to the Juukan rockshelters, legislative action is clearly and urgently needed. Merely tweaking existing unsuitable rules such as cultural heritage legislation will not address the parallel deficiencies of inequality of bargaining power and lack of enforceable rights in relation to ICIP that have characterised the dealings of the PKKP with Rio Tinto and many other cases involving ICIP.
Extending copyright duration or ownership rules would not have assisted the PKKP because the nature of the ICIP that needed protection in the Juukan rockshelters was an intangible spiritual connection to the rockshelters and ancient artefacts of unknown creation. The extension of copyright in this way would also have consequences for Australia’s international obligations under the Berne convention’s “National Treatment” requirements.[72] For these reasons, Githaiga notes that there is general consensus among legal commentators that an extension of the Copyright Act would be an inappropriate measure, compromising copyright law and stifling Indigenous notions of communal property.[73]
In its submission to the Juukan rockshelter inquiry, the Arts Law Centre of Australia pointed to the failure of Australian law to protect ICIP in calling for national sui generis legislation in order to address the current piecemeal and incomplete legal framework that contributed to the Juukan rockshelters’ destruction.[74] It submits that this legislation be based on the principles in the UNDRIP as well as the Convention on Biological Diversity, such that free, prior and informed consent of Aboriginal and Torres Strait Islander communities becomes a feature of the system. This is a call that was made as early as 1981 in the Working Party on the Protection of Aboriginal Folklore[75] and has broad support in the literature.[76]
VII CONCLUSION
A sui generis system of ICIP protection founded on the principles in UNDRIP and using the Indigenous connection to land as its starting point seems to this writer to be the last remaining path toward recognition and protection, and ultimately the ability of Aboriginal and Torres Strait Islander peoples to protect, and where appropriate, commercialise ICIP. While western IP laws offer limited protections to certain forms of ICIP that meet the statutory criteria, and the courts have been open to using actions in equity and consumer protection law to protect ICIP, these measures are incomplete, incompatible with the core of the Indigenous custodial-communal conception of ICIP and provide inadequate remedies. The destruction of the Juukan rockshelters and their associated ICIP demonstrates that private solutions such as protocols and LUAs cannot be sufficient without legislative action to provide enforceable rights to traditional owners and measures being taken to overcome the social disadvantages faced by Indigenous people in interacting with the legal system. It is clear that such legislative reform is now urgently overdue.
VIII BIBLIOGRAPHY
A Articles/Books
Åhrén, Mattias, 'Indigenous Creativity and the Public Domain – Terra Nullius Revisited?' in Alexandra Xanthaki et al (eds), Indigenous Peoples’ Cultural Heritage: Rights, Debates and Challenges (Formin.Finland.Fi, Ministry for Foreign Affairs of Finland, 2017) 130
Davis, Megan, 'To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On' [2012] AUIntLawJl 3; (2012) 19 Australian International Law Journal 17
Douglas, Tina, 'But that’s our traditional knowledge! Australia’s cultural heritage laws and ICIP' (2013)(1 (March 2013)) 5
Githaiga, Joseph, 'Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge' [1998] 5(2) MurdochUeJlLaw 13
Howden, Kristin, 'Indigenous Traditional Knowledge And Native Title' [2001] UNSWLawJl 12; (2001) 24(1) UNSWLJ 60
Janke, Terri, 'Indigenous Knowledge: Issues for protection and management: Discussion Paper', 2016)
Janke, Terri, Maiko Sentina and Elizabeth Mason, Legal protection of Indigenous Knowledge in Australia: Supplementary Paper 1)
Janke, Terri et al, International Laws and Developments relating to Indigenous Knowledge in Australia: Supplementary Paper 2)
Korosy, Zsofia, 'Native Title, Sovereignty and the Fragmented Recognition of Indigenous Law and Custom' (2008) 12 Austl. Indigenous L. REV. 81
Mackay, Erin, 'Indigenous traditional knowledge, copyright and art – shortcomings in protection and an alternative approach ' [2009] UNSWLawJl 1; (2009) 32(1) UNSWLJ 1
Puri, Kamal, 'Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action' (1995) IPJ 293
Riphagen, Marianne and Gretchen M. Stolte, ' The Functioning of Indigenous Cultural Protocols in Australia's Contemporary Art World, ' (2016) 23 International Journal of Cultural Property 295
Van Caenegem, William, 'The public domain: scientia nullius?' (2002) 24(6) E.I.P.R. 324
B Cases
Akiba v Commonwealth & Ors [2013] HCA 33
Bulun Bulun & Anor v R&T Textiles & Anor [1998] FCA 1082; (1998) 157 ALR 193
Chubby on behalf of the Puutu Kunti Kurrama People and Pinikura People #1 and #2 [2015] FCA 94
Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32
IceTV v Nine Network Australia [2009] HCA 15
Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1
Milpurrurru & Ors v Indofurn Pty Ltd & Ors [1994] FCA 975; (1994) 54 FCR 240
Northern Territory v Griffiths (2019) HCA 7
Re Terry Yumbulul v Reserve Bank of Australia & Ors [1991] FCA 332
Western Australia v Ward [2002] HCA 28
Yarmirr v Northern Territory [1998] FCA 771; (1998) 82 FCR 533
C Legislative Instruments
Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural expressions) Bill 2019 (Cth)
Copyright Act 1968 (Cth)
United Nations Declaration on the Rights of Indigenous Peoples, signed 3 April 2009 (Australia)
D Other
Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) No ALRC Report 126, April 2015)
Arts Law Centre of Australia, Submission re Inquiry into the destruction of Aboriginal heritage sites at Juukan Gorge, Inquiry Into The Destruction Of 46,000-Year-Old Caves At The Juukan Gorge In The Pilbara Region Of Western Australia 2020,
Puutu Kunti Kurrama People And Pinikura People, Submission To The Joint Standing Committee On Northern Australia Inquiry Into The Destruction Of 46,000-Year-Old Caves At The Juukan Gorge In The Pilbara Region Of Western Australia 2020,
Von Doussa QC, John, 'Legal Protection of Cultural Artistic Works and Folklore in Australia: Paper' International Association for the Protection of Intellectual Property and The Malaysia Bar Council's Intellectual Property Committee - Joint Conference, 1 September 2006)
[1] Puutu Kunti Kurrama People And Pinikura People, Submission To The Joint Standing Committee On Northern Australia Inquiry Into The Destruction Of 46,000-Year-Old Caves At The Juukan Gorge In The Pilbara Region Of Western Australia 2020, 60.
[2] ICIP has been defined to mean “the rights of Aboriginal and Torres Strait Islander people to protect and control the use of their traditional knowledge, cultural heritage and expression as a community... it includes [inter alia] the right to protect traditional knowledge and sacred cultural materials...the right to ensure that traditional laws and customary obligations are respected... the right to be paid for the use of ICIP... the right to prevent insulting, offensive or misleading uses of ICIP in all media”: Tina Douglas, 'But that’s our traditional knowledge! Australia’s cultural heritage laws and ICIP' (2013) Art + Law (March 2013)) 5, 6. This definition would arguably implicitly include the right to prevent the destruction of ICIP.
[3] See e.g. Terri Janke and Malko Sentina, Indigenous Knowledge: Issues for protection and management, IP Australia (2018); Mattias Åhrén, 'Indigenous Creativity and the Public Domain – Terra Nullius Revisited?' in Alexandra Xanthaki et al (eds), Indigenous Peoples’ Cultural Heritage: Rights, Debates and Challenges (Formin.Finland.Fi, Ministry for Foreign Affairs of Finland, 2017) 130; William Van Caenegem, 'The public domain: scientia nullius?' (2002) 24(6) E.I.P.R. 324.
[5] Western Australia v Ward [2002] HCA 28 ('Ward'). Akiba v Commonwealth & Ors [2013] HCA 33 ('Akiba') cited Ward without disapproval but did find that native title could extend to commercial use of land or waters for any purpose, leaving a slim possibility that the majority decision in Ward could yet be reconsidered or distinguished to permit native title to extend to ICIP.
[6] Although it is well recognised that even if it was not obvious on arrival, it became obvious within a short period of time that Aboriginal and Torres Strait Islander Australians had established rights to use, occupy and exploit the land: Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1, [53] ('Mabo').
[7] John Von Doussa, 'Legal Protection of Cultural Artistic Works and Folklore in Australia: Paper' (Speech, International Association for the Protection of Intellectual Property and The Malaysia Bar Council's Intellectual Property Committee - Joint Conference, 1 September 2006).
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Northern Territory v Griffiths (2019) HCA 7, [206] ('Northern Territory v Griffiths'); Puutu Kunti Kurrama People And Pinikura People (n 1) [283].
[12] Joseph Githaiga, 'Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge' [1998] 5(2) MurdochUeJlLaw 13, [4].
[13] Ibid [11] citing Kamal Puri, 'Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action' (1995) IPJ 293, 310.
[14] Copyright Act 1968 (Cth) ('Copyright Act').
[15] See e.g. IceTV v Nine Network Australia [2009] HCA 15, [33] and n 38 ('IceTV').
[16] Ibid [37], [43]. See also Boomerang v Padgett [2020] FCA 535 at [216], cited in Universal Music v Palmer (No. 2) [2021] FCA 434, in which Perram J said: “Obvious, commonplace or prosaic statements are unlikely to be original, and therefore substantial, for the purposes of assessing infringement”.
[18] Ibid. [19].
[19] Milpurrurru & Ors v Indofurn Pty Ltd & Ors [1994] FCA 975; (1994) 54 FCR 240, [20] ('Milpurrurru').
[20] Ibid [78].
[21] Ibid [2].
[24] Bulun Bulun & Anor v R&T Textiles & Anor [1998] FCA 1082; (1998) 157 ALR 193 ('Bulun Bulun').
[25] Ibid 211-212.
[26] Copyright Act (n 14) s 33(2).
[27] Terri Janke, Maiko Sentina and Elizabeth Mason, Legal protection of Indigenous Knowledge in Australia: Supplementary Paper, IP Australia (2018) 6.
[28] Alternative causes of action include breach of confidence (which has the benefit of no material form requirement, e.g. Foster v Mountford and Rigby [1907] ArgusLawRp 6; (1976) 13 ALR 71 and misleading and deceptive conduct (which assists with unauthorised reproductions of Aboriginal and Torres Strait Islander art, e.g. Milpurrurru (n 19). While moral rights legislation introduced in 2001 has the potential to address the cultural transmission function of ICIP, the Australian moral rights regime in Part IX of the Copyright Act has linked the entitlement to moral rights to the existence of a copyright work, cementing the gap in protection of certain forms of ICIP that do not meet the definition.
[29] However, where ICIP does attract copyright protection, a Indigenous artist may well be able to invoke the moral rights regime in such a circumstance; while this is untested, it is probable that the fair dealing exemptions do not apply to moral rights, which have a distinct defence of “reasonableness”: see e.g. s195AXE and s195AS of the Copyright Act.
[30] Van Caenegem (n 3) 324 footnotes omitted.
[31] Ibid 329.
[32] See n28 for examples.
[33] Re Terry Yumbulul v Reserve Bank of Australia & Ors [1991] FCA 332, [1],[21] ('Yumbulul').
[34] Ibid [4].
[35] Puutu Kunti Kurrama People And Pinikura People (n 1) [293]-[296].
[36] Section 195AZA of the Copyright Act permits orders for apologies and removal/reversal of derogatory treatment of any copyright work where its moral rights have been made, however these will only apply to works where copyright subsists. In the case of Juukan caves, it is unlikely that there will be any copyright subsistence that would permit a moral rights claim.
[37] Milpurrurru (n 19) [127].
[38] Yumbulul (n 33) [15]-[16], although the court ultimately did not accept this evidence.
[39] Ibid [19].
[40] Ibid [1].
[41] Zsofia Korosy, 'Native Title, Sovereignty and the Fragmented Recognition of Indigenous Law and Custom' (2008) 12 Austl. Indigenous L. REV. 81.
[42] Kristin Howden, 'Indigenous Traditional Knowledge And Native Title' [2001] UNSWLawJl 12; (2001) 24(1) UNSWLJ 60, 68.
[43] Yarmirr v Northern Territory [1998] FCA 771; (1998) 82 FCR 533 ('Yarmirr v Northern Territory'), cited in Howden (n 42) 69.
[44] Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32, 148-149 ('Hayes v Northern Territory '), cited by Kirby J in Ward.
[45] Ward (n 5) [580]. Note that this decision was handed down after publication of Howden’s article (n 42).
[46] Ibid [59]. The majority did however note that access to sites where artworks on rock are located or ceremonies are performed would answer the definition in 223(1).
[47] Ibid [580].
[49] See comments at n 5 above.
[50] The decision in Akiba, however, does open the door to Aboriginal and Torres Strait Islander commercialisation of native title rights, which had previously been thought not to exist (following the decision in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426), so in combination with a reconsideration of Ward, could be a positive development for commercialisation of ICIP.
[51] Janke, Sentina and Mason (n 27) 35-36.
[52] Ibid.
[53] Chubby on behalf of the Puutu Kunti Kurrama People and Pinikura People #1 and #2 [2015] FCA 94 ('PKKP Native Title Decision').
[54] Puutu Kunti Kurrama People And Pinikura People (n 1) [69].
[55] Ibid [70].
[56] Ibid [78].
[57] Ibid [110].
[58] Ibid [229].
[59] Ibid [79].
[60] Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report No 126, April 2015) 263.
[61] United Nations Declaration on the Rights of Indigenous Peoples, signed 3 April 2009 (Australia) ('UNDRIP').
[62] Although the UNDRIP remains unratified and so has no binding impact on Australian lawmakers.
[64] Although there are arguments that it forms part of customary international law: Megan Davis, 'To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On' [2012] AUIntLawJl 3; (2012) 19 Australian International Law Journal 17.
[65] Terri Janke, Maiko Sentina, Elizabeth Mason and David Wenitong, International Laws and Developments relating to Indigenous Knowledge in Australia: Supplementary Paper 2, IP Australia (2018) 10.
[66] See most recently the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural expressions) Bill 2019 (Cth) ('Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural expressions) Bill') which was not ultimately enacted.
[67] The WA legislation was under review at the time of the destruction of the rockshelters, and in September 2020, a strengthened draft Aboriginal Cultural Heritage Bill 2020 was released for public consultation.
[68] Marianne Riphagen and Gretchen M. Stolte, ' The Functioning of Indigenous Cultural Protocols in Australia's Contemporary Art World, ' (2016) 23 International Journal of Cultural Property 295, 297.
[69] Ibid.
[70] Ibid 314.
[71] Puutu Kunti Kurrama People And Pinikura People (n 1) 5, definition of “Participation Agreement”.
[73] Ibid [52].
[74] Arts Law Centre of Australia, Submission re Inquiry into the destruction of Aboriginal heritage sites at Juukan Gorge, Inquiry Into The Destruction Of 46,000-Year-Old Caves At The Juukan Gorge In The Pilbara Region Of Western Australia 2020, 3.
[76] See e.g. Ibid.; Erin Mackay, 'Indigenous traditional knowledge, copyright and art – shortcomings in protection and an alternative approach ' [2009] UNSWLawJl 1; (2009) 32(1) UNSWLJ 1.
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