Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Stephen Gray with a response by Colin Golvan
The interest of the non-Aboriginal Australian public in Aboriginal art is matched only by its ignorance. Most people are unable to tell the difference between ‘traditional’ and ‘non-traditional’ art, ‘good’ and ‘bad’ art, or genuine and fake art.
Consequently they rely for advice upon a small legion of (mostly non-Aboriginal) galleries, dealers, brokers and rogues. This has led in turn to the exploitation of Aboriginal artists, to the marketing of traditional (if occasionally altered) designs in non-traditional or inappropriate contexts, and to outright forgeries. Australian law has not yet produced an unequivocal statement to the effect that the interests of such artists are protected.1
The Mabo decision, however, has arguably changed this situation. This article will argue that the case opens the possibility of legal protection of traditional Aboriginal interests in art on the same conceptual basis as it accords protection to traditional interests in land: specifically, that Aboriginal art is a 'nature or incident' of traditional Aboriginal title to land. To establish this will require not only a consideration of dicta in the Mabo case itself, but also of the nexus between art and land in Aboriginal law, and of ways to overcome the philosophical differences of perspective between the two systems of law concerning the relationship between art and land.
Aboriginal plaintiffs seeking to protect their artistic interests possess, apart from the Mabo decision, various legal options. First, of course, is an action for breach of copyright under the Copyright Act 1968 (Cth). There are various problems with such an action, the most obvious being that an artist who draws upon preexisting tradition or clan designs may have difficulty satisfying the originality requirement of s32 of the Act.2 In any case the focus of that Act upon originality is at odds with Aboriginal traditions of communal ownership of designs.
A second possibility is the notion of breach of confidential information, an equitable doctrine first recognised as applicable to Aboriginal plaintiffs by Muirhead J in Foster v Mountford.3 The doctrine dearly applies where publication of the information or art concerned has not occurred, but the notion becomes problematic once publication has occurred. Arguably the quality of confidentiality (that is, the traditional secrets encoded in the published article), is not lost when a publication occurs that is authorised under Aboriginal law.4 It may however be difficult to convince a non-Aboriginal judge of this.
Thirdly, Golvan has argued that Aboriginal traditional owners may be seen as equitable owners of copyright in traditional designs.5 Problems with this approach may include cases where a 'legal' owner of copyright cannot be identified, or where the legal copyright owner is not able to be joined with the equitable owners for the purposes of obtaining a permanent injunction. Golvan suggests legislative reform to the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth) as a means of overcoming such problems. While this seems clearly desirable, it is perhaps doubtful whether the political will currently exists to follow this legislative path.
The majority judges in the Mabo case clearly accept that the common law recognises traditional Aboriginal title to land. Brennan J holds that "a mere change in sovereignty does not extinguish native title to land"6, thus acknowledging that the interests and rights of indigenous inhabitants in and to land, whether communal or individual, continue to exist after a change in sovereignty unless validly extinguished. Similarly, Deane and Gaudron JJ state that:
“[t]he strong assumption of the common law was that interests in property which existed under native law or customs were not obliterated by the act of State establishing a new British colony but were preserved and protected by the domestic law of the Colony after its establishment”7
According to Toohey J, "[p]revious interests in the land may be said to survive unless it can be shown that the effect of annexation is to destroy them. That is, the onus rests with those claiming that traditional title does not exist"8
How is traditional title to be defined? Clearly at least the three indicia of property outlined by Blackburn J in Milirrpum v Nabalco 9 (the right to use and enjoy, the right to exclude others, and the right to alienate) need not exist in order for traditional title to exist According to Toohey J “[a] determination that a traditional right or duty amounts to a proprietary interest, however that is defined, will not reveal the existence or non-existence of traditional title.”10 Deane and Gaudron JJ state that “the pre-existing native interests with respect to land which were assumed by the common law to be recognised and fully respected under the law of a newly annexed British territory were not confined to interests which were analogous to common law concepts of estates in land or proprietary rights”.11
Thus in determining the content of traditional title the limitations on the notion of property in Anglo-Australian property law are of no assistance. On the contrary, we must look to Aboriginal law to determine this content. Toohey J required that Aboriginal plaintiffs establish occupancy of the land as a threshold question, but once this is established the "content of the interests protected is that which already exists traditionally".12 According to Deane and Gaudron JJ:
“(t)he content of such a common native title will, of course, vary according to the extent of the pre-existing interest of the relevant individual, group or community. It may be an entitlement of an individual, through his or her family, band or tribe, to a limited special use of the land in a context where notions of property in land and distinctions - between ownership, possession and use are all but unknown ... In contrast, it may be a community title, which is practically ‘equivalent to full ownership’”.13
Brennan J states succinctly that "[n]ative title has its origin in and is given its content by the traditionallaws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory".14
The next important question is whether traditional title is limited to traditional interests in the physical land itself. The logical answer would appear to be no: whatever is regarded in Aboriginal law as part of land ownership would, consistently with the dicta above, be recognised by Anglo-Australian law. Once again Brennan I makes this point most explicitly:
'The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs."15
We are thus enjoined to look to Aboriginal law to determine what may be regarded as a 'nature or incident' of Aboriginal title. The next question therefore is: can Aboriginal art under Aboriginal law be considered to be a 'nature or incident' of title to land?
The following discussion of the relationship of art to land in Aboriginal law is based on the Yolngu of North-East Arnhem Land, and particularly upon the analysis of Yolngu art undertaken by anthropologist Howard Morphy in his book Ancestral Connections.16 Murphy's analysis of Yolngu art establishes that the connection between art and the land in Yolngu culture is so strong that one could assert with some justification that art and land are the same: or at least, as Morphy puts it, that they are “two sides of the same coin”.17
This analogy helps illuminate an important difference of perspective between Aboriginal and non-Aboriginal views of art. The nonAboriginal view of the relationship of art to land highlights or focuses on the differences between art and land. Art and land are physically different, the two quite separate sides of the coin. The Yolngu view of the relationship of art to land focuses on the essential sameness of art and land: they both form part of the same coin. Murphy argues that it is impossible to understand the Yolngu view of art without also understanding the Yolngu view of land. Art and land are essentially interconnected, so much so that what is an apparent contradiction to non-Aboriginal eyes - how can art and land be different and yet the same? - is to the Yolngu resolved. Yolngu culture is more able than Western culture to entertain two simultaneous and opposed perspectives, and more capable of resolving the apparent contradictions which arise.
Morphy reiterates throughout his book his conviction that Yolngu art is viewed by the Yolngu in various simultaneous but apparently opposed ways. Take, for example, the Yolngu concept of representation and reality. Particular designs are specific to certain clans and are associated with particular named places within a clan's territory.18 The knowledge contained within them, which is divulged only to certain individuals, is a source of power, or a means of control by clan members over their land. According to the Yolngu, however, the knowledge is not the source of power but merely one manifestation of it. Power is contained or inherent in the paintings themselves: for example, the painting on a coffin lid (formerly painting the actual body of the dead person) is not a mere symbolic act but an actual means of "transferring the spirit from the human to the ancestral plane".19 Paintings are seen as "restored ancestral behaviour" in that the design is believed to be an actual part of creation of the ancestral being, at the same time as being 'merely' a representation of ancestral events.20
Another example of Yolngu tolerance of apparent contradictions is that paintings are seen as simultaneously public and confidential. The same painting or piece of art may appear in both a restricted and public context, and an object produced in a restricted context may be displayed in the open for all to see. For example, women are not supposed to know that burial posts (djuwany) have been made by men, and yet they see paintings of such posts being produced on commercial bark paintings in public contexts 21 This suggests strongly that if a Yolngu perspective is to be taken into account, the mere fad that a piece of art is in the public domain does not mean that confidentiality in the work is thereby lost - a conclusion with implications for the use by Aboriginal plaintiffs of the equitable doctrine of breach of confidence.
A third example is the Yolngu understanding of time. Yolngu believe that a "finite set of meanings was encoded in the paintings in the ancestral past" 23: that is, that Yolngu art does not change. Yet ancient Macassan elements are incorporated in Yolngu paintings, and these elements are themselves updated to include kitchens and bathrooms or even bulldozers.23 According to the Yolngu "mythological events are not simply located in the distant past but are also in some senses seen to be part of a continuous present'24: Similarly, the present can also in some contexts be reinterpreted to be part of the past.
Morphy asserts of the Yolngu that "social phenomena are so interconnected that any starting point results in a journey through the whole sociocultural system."25 There is no contradiction, therefore, to the Yolngu in entertaining two simultaneous opposed perspectives: including the idea that while, in a physical sense, art and land may be different, in an equally valid sense they are the same thing.
How are we to reconcile these differences of philosophical perspective between Yolgnu and non-Aboriginal views of art and land? One possibility is to demonstrate that both views - that art and land are the same, and that they are different - are the contingent product of cultural priorities, and that neither necessarily represents the whole truth.
The most powerful analytical tools for demonstrating this assertion may well be those of post-modernist deconstruction. Deconstruction in this context borrows initially from Saussurian linguistics. Saussure asserted that a linguistic 'sign' (eg., a word) has two parts: signifier and signified. The signifier is the physical word on a page, or a sound wave produced by the utterance, while the signified is the concept to which the signifier refers. Neither of these two facets of the sign, nor indeed the sign itself, have any necessary or natural meaning; rather meaning is achieved through the system in which it (the sign) is differentiated from all other signs... [and more specifically by]... the existence of underlying systems of conventions which enable elements to function individually as signs."36
Post-structuralists, however, argue that this model elevates a notion of objective 'meaning' capable of being discovered by a subjective observer. In fact there is no such thing as objective meaning, or at least it is a more subtle phenomenon than the Saussurian model suggests. What people generally think of as objective truth is in fad the product of a process of interpretation whereby one of a pair of opposed concepts is assumed to be more important (or 'privileged) over its opposite. his possible to unveil or 'deconstruct' this process of privileging. For example, Airo-Farulla argues that the High Court decision in Gerhardy v Brown27 holding the Pitjantjatjara Land Rights Act 1984 (SA) prima facie an infringement of the Racial Discrimination Act 1975 (Cth) involved a privileging of equality over difference. That is, the notion that all people are equal was assumed without argument to be more important than the apparently opposed notion that all people are different.38
The proposition that Aboriginal art and land are fundamentally (and in 'reality) different is one manifestation of the privileging of the present over the absent, a privileging which Derrida argues is fundamental to Western philosophy.29 It is immediately apparent to our senses that art and land are physically separated. What other connections there may be between art and land (eg., spiritual or other intangible links) are downplayed or considered of peripheral importance. The immediately apparent or present fact, the physical separation of art from land, is privileged over the undeniable but less immediately apparent spiritual or other connections between the two.
The post-structuralist argument that there is no logical reason for this 'privileging' of one concept over another is that either one of any pair of apparently opposed concepts always depends upon the other for its existence. The notion of presence, for example, is only comprehensible in terms of absence: it makes no sense to say that A is 'present' before B unless it is also possible to say that A is 'absent' from B.30 Thus, following this argument, neither the notion that art and land are different (based on the privileging of the 'present') nor the notion that they are the same (based on the privileging of the 'absent) represent the whole truth. The two sides of a coin are both the same and different which term you choose depends on how you look at the coin. Thus philosophical theory appears to come to the same conclusion as Yolngu practice: that the apparent contradiction involved in the proposition that art and land are simultaneously the same and different, can in fact be resolved.
The Mabo case directs us to consider the issue of what is a ‘nature or incident’ of Aboriginal native title in land from an Aboriginal perspective. From this perspective, as the anthropological discussion demonstrates, Aboriginal art is clearly a 'nature or incident' of land ownership: the two in fact are quite inseparable if not actually the same.
The difficulties involved in communicating this notion to a non-Aboriginal judge can, I have suggested, be alleviafed using the technique of deconstruction. The purpose of such an exercise is not to show that Western legal or philosophical techniques are wrong, but merely that they are one of a number of possibilities. There is no need for non-Aboriginal law to consider the 'present' fad' - that Yolngu art and land are different - to be of greater significance than the 'absent' or spiritual, non-tangible fact that they are the same. Once the validity of the Yolngu view of the relationship between art and land is accepted, it is a short step indeed to accepting that art is a nature or incident of Aboriginal title to land.
The extension to traditional Aboriginal art of the protection of Aboriginal land accorded by the Mabo decision would be a far-reaching step indeed. Aboriginal art would be subject to the same restrictions as land regarding alienability: that is, that rights in art could not be alienated "outside the native system otherwise than by surrender to the Crown".31 How this would be interpreted is a matter for conjecture; conceivably, while physical objects of art could be sold to non-Aboriginal people in a manner consistent with Aboriginal law, the traditional owners of the design would retain inalienable rights over the subsequent use of that design in a way perhaps akin to the moral rights of an author recognised by European law.
Even more intriguingly, it would be a logical step to extend the protection accorded to Aboriginal art under the doctrine of the Mabo case to songs, ceremonies, and other manifestations of Aboriginal culture. A final step, and one which would take our law into truly deep and uncharted waters, would be the extension of the proposition to Aboriginal people themselves.
1. See, for example, the decision of French J in Yumbulul v Aboriginal Artists' Agencyarul Ana (1991) 21IPR 481, and note But= Bulun v Nom Inceshnents and Others, Federal Court of Australia, NIG 3 of 1989, unreported. The Bulun Bulun case settled prior to trial and is discussed in Golvan, C., "Aboriginal Art and Copyright", (1989), 10 EIPR 346: both cases are discussed in Golvan, C., "Aboriginal Art and the Protection of Indigenous Cultural Rights', AboriginalLB Vol. 2., No. 56, June 1992.
2 See Golvan, C., "Aboriginal Art and Copyright", ibid., for an argument that Aboriginal artistic works are capable of being original within the Copyright Act. This argument was accepted by French J in the Yumbulul case, raid, at 484.
3. Foster and Others o Mountford and Rigby Ltd (1977)14 ALR. 71.
4. This argument is made in Gray, S., "Aboriginal Designs and Copyright", (1992) 66L(J,4649.
5. See Golvan, C., "Aboriginal Art and the Protection of Indigenous Cultural Rights", raid., p.7.
6. Mahe and On v The State of Queensland (No.2) (1992)175 CLR 1 at 57.
7. 1W., per Deane and Gaudron JJ at 82.
8. 1W, per Toohey J at 183.
9. (1971)17PLR 141 at 272.
10. Mabo (No. 2), op. cit., at 187.
11. Ibid at 85.
12. Ibid., at 187.
13. Ibid., at 88.
14. Ibid., at 58.
15. Ibid.
16. Morphy, H., Ancestral Connections : Art and an Aboriginal System of Knowledge, University of Chicago Press, 1991.
17. Ibid, at 49.
18. 1bid., at 101.
19. Ibid., at 108.
20. Ibid., at 114.
21. Ibid, at 89.
22 . Ibid at 125.
23. Ibid., at 125.
24 Ibid, at 45.
25. Ibid, at 291.
26. Young, R., (ed.), Untying the Text - A Post-Sfructuralist Reader, Routledge and Kegan Paul, Boston, 1981, at 2-3.
27. (1985) 57ALR 472; (19845)159 CLR 71.
28. Airo-Farulla, C., "Dirty Deeds Done Dirt Cheap: Deconstruction, Derrida, Discrimination and Difference/ance in (theHigh) Court", Law in Context, 9 (2),1991.
29. Balldn, J. M., "Deconstructive Practice and Legal Theory", Yale Law Journal, 96,743-86 at 747-8.
30. Ibid, at 751.
31. Mabo v Queensland, op.cit., per Deane and GaudronJJ at 88; see also per Brennan J at 59.
By Colin Golvan
I am grateful for the opportunity to respond briefly to the article on Aboriginal Art and Mabo by Stephen Gray.
The Mabo decision comes at a time of gradual movement towards the empowerment of Aboriginal society. The steps taken in recent years to protect Aboriginal art under Copyright law have, I believe, been part of that process. There is no other group in the Australian arts which has campaigned so vigorously to protect its artistic rights as that of Aboriginal artists. The effect of this campaign has been an increasingly pronounced recognition of the willingness and entitlement of Aboriginal artists to protect their work from unauthorized reproduction. I am very concerned that only part of the battle has been won by reliance on Copyright law. As Stephen Gray has commented, I have argued elsewhere for the extension of protection for Aboriginal arts by reference to heritage protection mechanisms (see AboriginalLB 56/5). I believe that this nexus is an important one in making out the connection between art, land and life in Aboriginal society. The next step forward in the campaign to protect the Aboriginal arts from derogatory usage ought to involve the extension of heritage protection under the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth) to protect works of Aboriginal art. In so arguing, I note the limitations of Copyright, as regards, for example, the absence of recognition of collective ownership of art and the failure to protect works of art outside of the limited term of Copyright protection. This extension requires popular and political support to have effect, although I believe the views that I have sought to express on this matter are consistent with propositions that the arts and rights in land cannot be separated. I hope that part of the flowering of the debate generated by the Mabo decision may fire some endorsement for considering the protection of artists as part of the package of rights which flow from rights in land, as Stephen Gray suggests. I believe that the extension of Aboriginal heritage protection provides a meaningful way to achieve more adequate protection than presently exists under Copyright law alone.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/31.html