Hardie, Martin --- "Current Litigation in Native Title and Intellectual Property: Bulun Bulun and Milpurrurru v R & T Textiles" [1997] AboriginalLawB 25; (1997) 3(90) Aboriginal Law Bulletin 18

• Current Litigation In Native Title And Intellectual Property: Bulun Bulun And Milpurrurru V R &Amp; T Textiles

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Current Litigation in Native Title and Intellectual Property:
Bulun Bulun and Milpurrurru v R & T Textiles

Bulun Bulun and Milpurrurru v R & T Textiles

Federal Court of Australia

No. DG3 of 1996

Casenote by Martin Hardie

John Bulun Bulun and George Milpurrurru, the senior members of the Ganalbingu people of North Central Arnhem Land, are in the Federal Court attempting once again to further push the boundaries of Australian intellectual property law (see Bulun Bulun v Nejlam Pty Ltd, unreported (settled), Federal Court action in Northern Territory in 1989).

Bulun Bulun was the central applicant in Federal Court proceedings commenced in 1988, a case which was the catalyst for the recent Government focus in the interface between the Aboriginal arts and intellectual property law.

Milpurrurru was the first named applicant in Milpurrurru and Others v Indofurn Pty Ltd and Others (the 'Carpets Case'), decided in 1994 by Justice Von Doussa (0994) [1994] FCA 975; 54 FCR 240). That case saw traditional Aboriginal custom and law being taken into account in the assessment of damages.

Prior to Bulun Bulun's first case, the accepted wisdom was that works of Aboriginal art could not attract the protection of the Copyright Act 1968 (Cth). That point was not decided then, but in Yumbulul v Reserve Bank of Australia ((1991) [1991] FCA 332; 21 IPR 481) French J decided Aboriginal artworks are original; they therefore attract copyright protection, even though the work may be derived from a pre-existing tradition.

The recent proceedings commenced by Bulun Bulun and Milpurrurru seek to take the law to a position where it is consistent with Aboriginal tradition, custom and law. During 1997 the respondents in the new proceedings, R & T Textiles Pty Ltd, consented to having judgment entered against them for breach of Bulun Bulun's copyright. The matter will now proceed to trial on two issues never before decided by a court. These are:

1. Whether the other traditional Aboriginal owners of the corpus of ritual knowledge from which the artistic work is derived are the equitable owners of the copyright subsisting in the artistic work; and
2. Whether an infringement of either the legal or equitable title to copyright in a case such as this constitutes a nuisance which has interfered with the applicants' traditional Aboriginal ownership or native title rights in Ganalbingu country.

It is expected that the case will be heard in the Federal Court in Darwin before Von Doussa J in May of this year.

To some people the claims made by Milpurrurru in a representative capacity may seem novel. Milpurrurru, as the second applicant in the case, represents the traditional Aboriginal owners of Ganalbingu country. These are described in the application as including the members of the Ganalbingu people, the Yolngu people who are the children of the women of the Ganalbingu people, the Yolngu people who stand in the relationship of mothers' mother to the members of the Ganalbingu people under Ganalbingu law and custom, and such other Yolngu people who are recognised by the applicants according to Ganalbingu law and custom as being traditional Aboriginal owners of Ganalbingu country. The case seeks to explore the nature and incidence of native title. The High Court has said, in Mabo (No. 2) (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1), that the nature and incidence of native title are to be determined by reference to the traditions and customs of the Indigenous people in question. To anybody who has any knowledge of the system of Aboriginal art which exists in Arnhem Land, for example, it is clear that rights in paintings and rights in land are inextricably woven. As Howard Morphy has said (see Ancestral Connection, Chicago University Press, 1992) paintings are one manifestation of the ancestral world. According to Yolngu law and custom, the ancestral beings, the wangarr, handed over the land to particular groups of people on the condition that those groups continue to perform the ceremonies, produce the paintings and the ceremonial objects that commemorate the acts and journeys of the wangarr. Morphy has said that Yolngu people guard their rights in paintings and the land equally, their art allows the relationship to be encoded, and whether the production is for sale or ceremony, it is an assertion of the rights that are held in land.

Paragraph 8 of the amended statement of claim filed by Bulun Bulun and Milpurrurru states that:-

'According to Ganalbingu custom and law, the first applicant's (Bulun Bulun) creator ancestor caused Djilibinyamurr (the site in question) to be formed and settled the traditional Aboriginal ownership of that site upon the ancestors of the first applicant to be held with the other traditional. Aboriginal owners, on the condition that they and their descendants perpetuate and maintain the integrity of the corpus of ritual knowledge (madayin) of the Ganalbingu people associated with Ganalbingu country and in particular, Djilibinyamurr, for the benefit of the Ganalbingu people, including, inter alia, the songs, dances and paintings associated with Djilibinyamurr, such being an obligation arising from the granting to the applicants and their ancestors of traditional Aboriginal ownership of Ganalbingu country.'

The statement of claim then goes on to plead that Bulun Bulun's right to paint and permit the reproduction of the artistic work is subject to the conditions set out in paragraph 8 and is an incident of his traditional Aboriginal ownership of the land in question.

Works of art such as bark paintings have been recognised as a new form of evidence, or as title deeds to land. Aboriginal Land Commissioners exercising jurisdiction under the Aboriginal Land Rights (NT) Act 1976 (Cth) have adopted aspects of Aboriginal art as relevant forms of evidence in ascertaining whether or not certain Aboriginal people are the traditional Aboriginal owners of the land they claim. The case before the Federal Court at the present is an attempt to bring Australian intellectual property law into line with the realities of Yolngu law.