Ford, Linda --- "An Indigenous Perspective on Interllectual Property" [1997] AboriginalLawB 22; (1997) 3(90) Aboriginal Law Bulletin 13

An Indigenous Perspective on Intellectual Property

By Linda Ford

Aboriginal customary law conceptualises our knowledge, our stories, in a very different way from Western concepts of intellectual property.

The significance for us as the primary custodians of sites and objects, songs, paintings, ceremonies and stories that belong to the site or object, is utterly linked with the primary custodians' knowledge, experiences and expertise of that country, and/or family group's estate. Our `country' refers not only to the geography of the land, but to all the flora, fauna, and other natural and unnatural elements of the land that come under Aboriginal Customary Law.

However, the debates about `intellectual property' provide Indigenous people with the opportunity to have a voice in protecting our cultural and society's values. These debates establish an avenue to measure ideas of `ownership'.

My story is of the Rak Mak Mak Marranunggus- Marra Walgut language group of the Finniss and Reynolds River country, situated south west of Darwin in the Northern Territory. Our White Eagle's Clan belief in those stories places us in a unique blend of multiculturalism and multilingualism. Our Mak Mak Marranunggu history are lived experiences in Marranunggu, Marrithiel and North West Region Creole. Our history told by our family groups currently uses the above languages, plus Aboriginal English and Australian English and other forms of metaliteracies to express and record outlived experiences through the land we belong to.

Kurindju Yil Yil!

The way in which White Eagle people know our history today is entwined with the present through younger members of our family and/or those people that are linked in the `Stolen Generations' returning to participate in Mak Mak Marranunggu customary practices. The older generation that were denied their early childhood with their parents in their country are reclaimed into the storylines, for example by being claimed by their genealogical or kinship system relationship to the characters in the story.

The Aboriginal Land Rights (NT)Act 1976 (Cth) provided many Aboriginals the opportunity to claim Crown land from the Australian government. However, our family group and many other Aboriginals in the Northern Territory were not expecting the tortuous experiences that we as Indigenous people would endure and suffer as a consequence of taking on the western system. Justifying our Aboriginal knowledge was intense in this process, in which an account of our past and of our existence was concentrated into a small spectrum of our lives.

Our history was raped, pillaged and is constantly questioned. For example, Aboriginal and non-Aboriginal people have developed and tried to apply their theories to our circumstances of land ownership. Yet these theories are always inaccurate and lack authority, for the family clan continue to assert that we are the primary custodians and the land owning group, as we possess customary law for our country. Many reasons exist for us to make our land claims, which we may not have disclosed, or which people may not understand. Other people try to confuse and mystify the situation about the land and the people that belong there. But we know why we belong there. We belong there through our law, ceremonies, language, people and land connections.

The knowledge we have of our land and that which surrounds it is categorised into various degrees of ownership of that knowledge: as group ownership, clan ownership, family group(s) ownership, inter-clan ownership, in-law ownership or individuals' personal knowledge and their interaction with the `country'. So when Mak Mak Marranunggus are discussing ownership of knowledge it needs to be clarified who owns the knowledge. Often the person or group presenting the information will specify where the source of the knowledge is derived. As Indigenous people, our knowledge is shared between family members and extended family. An advantage of intellectual property debates is that they offer an opportunity to establish ground rules as to whether the property belongs to an individual and/or one clan group. There will be conflict as there has been in the past. Northern Territory land claims have many examples of knowledge leading to conflict.

As Indigenous Australia moves with the new emerging consumerism of a capitalist society, our values will inevitably change. The concept of intellectual property of knowledge will create new ways in which our unique systems of knowledge, from our language(s), law, ceremony and our cultures, are expressed. These different ways of expression will lead to many different possibilities for understanding our knowledge. New terms of reference for making informed decisions about what to do with the clans' knowledge will cause unresolvable disputes because the laws of the western system and those of Indigenous Australia are not compatible.

What is clear is the need for a set of guiding principles. Mediators in the western system of intellectual property need to be aware of these principles so appropriate acknowledgment is given to Indigenous people. Through serious negotiations between the relevant parties an amicable agreement should be sought about ownership of the knowledge, whose property it is and, if the knowledge is not theirs, where the knowledge comes from.