Sackville, Justice Ronald --- "Legal protection of indigenous culture in Australia" (FCA) [2002] FedJSchol 1

LEGAL PROTECTION OF INDIGENOUS CULTURE IN AUSTRALIA

“Traditional Knowledge, Intellectual Property and Indigenous Culture” Conference
Benjamin N Cardozo School of Law
Yeshiva University, New York
21-22 February 2002

by

JUSTICE RONALD SACKVILLE
Judge, Federal Court of Australia

Introduction
On 14 February 1966, Australia took one of many steps in a still incomplete journey towards severing the ties to its colonial past. On that date, Australia introduced decimal currency in place of the imperial system (pounds, shillings and pence) inherited from the United Kingdom.[1] The brand new one dollar note, later to be a casualty of inflation, incorporated an “Aboriginal theme” in its design. The theme included a “line interpretation” of a bark painting by a distinguished Aboriginal artist from northern Arnhem Land, together with motifs adapted from ancient rock paintings and carvings.[2]

The Governor of the Reserve Bank of Australia at the time was H C (“Nugget”) Coombs, a revered figure in Australian history, renowned as a vigorous supporter of Aboriginal autonomy.[3] Yet it apparently did not occur to Coombs or anyone else at the Reserve Bank to ascertain whether the work of an indigenous artist had been reproduced on the dollar note and, if so, whether the artist, or his people, had any objection to this form of reproduction. The story broke in the media nine days before the changeover date. Fortunately for the new dollar note, the artist was willing to accept an apology and modest recompense. In a special ceremony held in August 1966, he received $1,000, a fishing kit and a silver medallion in recognition of the nation’s appropriation of his work.

Much has changed since this demonstration of official insensitivity to indigenous artists and culture. The following year, the Australian Constitution was amended to remove discriminatory references to Aboriginal people.[4] Thereafter, attitudes within the non-indigenous community towards indigenous artists and culture began to change, albeit slowly. In consequence, as will be seen, Parliament and the courts began to respond more sympathetically (or at least less unsympathetically) to the desires and aspirations of Aboriginal and Torres Strait Islanders. This process has been tied closely to the belated recognition of “native title” in traditional lands and to the demands of indigenous people for greater autonomy and “ownership” of their culture.

The changing relationship between indigenous and non-indigenous peoples in Australia has also coincided with increased international attention to the protection of indigenous culture, although it is a moot point as to how far international developments have affected events in Australia. Over a long period of time, bodies such as the United Nations and the World Intellectual Property Organisation(“WIPO”) have attempted to formulate principles for the protection of “folklore”.[5] The issues have proved difficult to resolve, at least in a form that commands general acceptance among nation states. This is perhaps not surprising. The policy questions are complex, not least because the cultures and histories of indigenous peoples are strikingly diverse, as are the societies in which the indigenous peoples of the world live.

Regardless of international efforts to protect “folklore”, each country with its own indigenous population must grapple with the need to provide workable mechanisms for the protection of indigenous culture. The Australian experience can hardly be held up as a model for other countries with substantial indigenous communities to follow. After all, it took the Australian legal system more than two hundred years after European settlement to acknowledge the dispossession of Aboriginal peoples which “underwrote the development of the nation.”[6] Progress has often been slow and important developments, such as the judicial recognition of native title, have generated intense controversy. Certainly the aspirations of indigenous communities in Australia have not been satisfied and it may well be that “sui generis” legislation is required to satisfy some of those aspirations. Even so, over the past three decades Australian law has afforded a significant measure of protection to expressions of indigenous culture.

In part, protection has been extended by means of a broad interpretation of the statutory intellectual property regimes, notably the law of copyright. Orthodox common law and equitable principles, such as the law of confidential information and fiduciary doctrines, have been relied on in particular cases, with some success. These approaches have been supplemented by legislation specifically designed to protect, albeit to a limited extent, expressions of indigenous culture. More recently, the acknowledgment by the High Court in Mabo of the concept of native title, a concept subsequently endorsed by Parliament, may have opened up further possibilities for the protection of indigenous culture. The Australian experience suggests two things:

• first, common law and other Eurocentric legal concepts have proved to be more flexible and responsive to the legitimate concerns of indigenous peoples than conventional wisdom might suggest; and
• secondly, while intellectual property regimes have an important part to play in protecting expressions of indigenous culture, they are not the only legal mechanisms that can be invoked for that purpose.
  

Aboriginal Spirituality

Before addressing legal issues relating to the protection of indigenous culture in Australia, some background is necessary. It is generally accepted that Aboriginal peoples have occupied the Australian continent[7] for at least forty thousand years, having arrived from south east Asia. The term “Aboriginal peoples”, unless explained, is, however, apt to mislead. The culture of the Aboriginal peoples of the Australian mainland is distinct from that of the Torres Strait Islanders. The latter are people of Melanesian origin who came to the Torres Strait Islands relatively recently, probably from Papua New Guinea. Indeed the Torres Strait Islands only became part of the then Colony of Queensland in 1879, although European contact predated the annexation.[8] It is one of the great ironies of recent Australian history that the High Court’s acceptance of the doctrine of native title in Mabo occurred in relation to the people of the Meriam (or Murray) Islands in the Torres Strait, not in relation to the Aboriginal peoples of the mainland.[9] In this paper I shall use the term “Aboriginal peoples” to refer to the indigenous peoples of the mainland, although some of the issues addressed also apply to the indigenous Torres Strait Islanders.

The artistic and spiritual legacy of ancient Aboriginal peoples includes some of the earliest rock art known to the world. Engravings from Cape York Peninsula (Queensland), for example, date back more than thirteen thousand years. Aboriginal society was relatively stable prior to European contact, at least if measured in terms of technology. It is, however, a mistake to assume that Aboriginal culture remained static before European influences had their effect. As one commentator has noted:

“Waves of change swept the entire continent – changes in tools and implements, in social organization, and in ceremonial practices and mythological concepts”. [10]

Since European contact, the important changes have included the urbanisation of a significant proportion of the indigenous population and the consequent loss for many of knowledge of traditional culture and practices.[11]

Allowing for these changes, traditional Aboriginal art can be said, in European terms, to be of religious significance, in the sense that it invokes the Ancestral Past or Dreamtime.[12] The significance of the Dreamtime has been explained this way:

“The Ancestral Past or Dreamtime is sometimes described as the beginning of the world. This was the period when the Ancestral Beings (who were spiritual beings) emerged from the ground to transform the earth and to determine the form of social life. The Ancestral Beings did not cease to exist with the creation of human beings; rather they moved aside, often merging into the land forms that they created, removing their physical presence to beneath the surface of the earth. The Ancestral Beings did, however, retain the power to intervene in the life of man and remain a vital force in ensuring the continuity of human existence and in maintaining the fertility of the land.

The Ancestral Beings, their travels and experiences (known as Ancestral Events), the things they created, and the places associated with them, form the subject matter of traditional Aboriginal art. Of fundamental significance are the pre-existing designs which are the artistic manifestations of one or more of an Ancestral Being, Ancestral Event, or area of country associated with such Being or Event. The forms of the pre-existing designs are believed to have been created in the Ancestral Past by the Ancestral Beings, and they have been handed down through the generations. A pre-existing design may be made up of many design elements – various specific images, motifs or stylistic depictions – each of which may itself be said to be a pre-existing design. According to traditional Aboriginal customary law, pre-existing designs cannot, and should not, be changed. Their efficacy, in the form of activating Ancestral power, would be impaired if they deviated too widely from socially accepted norms....

The power of particular Ancestral Beings can be manifested only through particular persons associated with the Ancestral Beings. A person’s descent defines that association and conveys with it the right to reproduce particular material representations (subject also to other matters such as initiatory advancement and possession of the requisite religious knowledge). Those who have the right to reproduce pre-existing designs are members of clans or other relevant groups which are considered to be the traditional owners of the pre-existing designs. The reproduction must be acceptable to the relevant group, and hence the group has control over the reproduction of the pre-existing designs.” [13]

It is critical to appreciate that traditional Aboriginal art reflects the significance of the relationship between Aboriginal peoples and the land:

“In traditional Aboriginal thought, there is no central dichotomy of the spiritual and material, the sacred and secular, or the natural and supernatural. While each of the Dreaming Beings and their physical counterparts and manifestations (as animals, plants, water holes, rock formations, or people) are distinguishable, Dreamings and their visible transformations are also, at a certain level, one.

The centrality of place – particular lands and sites of significance – in this imagery enables even the religious sculptures to be regarded as ‘landscapes’. For the tradition-minded, the art works themselves may belong on a continuum of manifestations of the Dreaming, together with the artists who made them, the natural species projected in the totemic designs, and the topographic features of the landscape. Landscape features themselves are the marks made by the Dreaming Beings, elements of a larger system of meaning. The single most common subject matter of Aboriginal art is landscape-based myth.” [14]

For this reason it is difficult to consider the protection of indigenous culture independently of the belated recognition in Australian law of the concept of communal native title.[15]

Terminology
The expression “folklore” has gained currency in international forums as the English word appropriate to refer to the traditional artistic and cultural heritage of indigenous peoples.[16] In 1985, a UNESCO group of Government Experts adopted a broad definition of the term:

“Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group of individuals and recognised as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”[17]

In Australia, largely in deference to international usage, the word “folklore” was employed for some time to describe Aboriginal culture and heritage. For example, an inter-Departmental Working Party on the Protection of Aboriginal Folklore, which reported in 1981, perhaps not surprisingly, endorsed its own name.[18] The Working Party considered that the expression “Aboriginal Folklore” was appropriate because

“the term ‘folklore’ recognises that traditions, customs and beliefs underlie forms of artistic expression, since Aboriginal arts are tightly integrated within the totality of Aboriginal culture. In this sense, folklore is the expression in a variety of art forms of a body of custom and tradition built up by a community or ethnic group and evolving continuously.”[19]

The Working Party acknowledged that the word “folklore” could be misinterpreted, but the report expressly disclaimed any intent to imply that Aboriginal peoples possessed a rudimentary or unsophisticated artistic tradition or that Aboriginal “folklore” was closely related to artistic traditions elsewhere in the world.[20]

Later reports, prepared both for Government and for indigenous organisations, have repudiated the use of the word “folklore” in relation to indigenous culture and heritage, reflecting the fact that indigenous Australians do not or use or endorse the use of “folklore” to refer to their own cultures.[21] Current terminology employs expressions such as “indigenous culture”, “indigenous intellectual property” (referring to material that indigenous communities themselves regard as subject to rights and duties)[22] and “indigenous Cultural and Intellectual Property Rights”.[23] I shall adopt this language or variations of it in this paper.

Constitutional Arrangements

In a federal system, the starting point for determining legislative responsibility for the protection of indigenous culture must be the constitutional arrangements for the distribution of powers. In this respect the Australian Constitution broadly follows the pattern of the United States Constitution, in that specific powers are conferred on the Commonwealth, while the residue of legislative authority remains with the States.[24] In the event of an inconsistency between a valid Commonwealth law and the law of a State the latter, to the extent of the inconsistency, is invalid.[25]

The most general legislative power available for the protection of indigenous culture is that conferred by s 51(xxvi) of the Constitution, which enables Parliament to make laws with respect to the

“people of any race for whom it is deemed necessary to make special laws.”

This might be thought to be a curious provision to have in a modern constitution, since it authorises legislation based specifically on the criterion of race. Like much else in the Constitution, s 51(xxvi) is explicable only by reference to peculiar historical considerations.[26]

Section 51(xxvi) allows considerable scope for Parliament to enact laws designed to benefit indigenous peoples, although the cases suggest that the power is not confined to laws that are beneficial to indigenous interests.[27] In general, it is for Parliament to determine whether “special” law is deemed necessary for the people of any race.[28] Laws supported, at least in substantial part, by this power include, for example, the Native Title Act 1993 (Cth) (“Native Title Act”), which recognises but qualifies the concept of native title acknowledged by the High Court in Mabo in 1992 and the Heritage Protection Act, to which I refer later.[29] It is therefore open to Parliament to pass legislation expressly designed to protect indigenous culture and, in particular, expressions of that culture. The conventional constraints of intellectual property law do not limit the scope of the power in s 51(xxvi).

A second source of legislative power potentially significant for the protection of indigenous culture is conferred by s 51(xxix), which empowers the Commonwealth Parliament to make laws with respect to “external affairs”. In rulings that many have seen as transforming the character of Australian federalism, the High Court has held that the external affairs power enables Parliament to enact legislation implementing Australia’s obligations under international treaties or conventions even if the subject matter of the treaty or convention is not otherwise within Commonwealth power.[30] The Racial Discrimination Act 1975 (Cth), for example, is within Commonwealth power because it implements Australia’s obligations under the Convention Prohibiting All Forms of Racial Discrimination.[31] It follows that if Australia were to ratify any convention that might be drafted along the lines of the draft Declaration on the Rights of Indigenous Peoples,[32] the Commonwealth Parliament could implement in domestic law Australia’s obligations under the convention without reliance on any other head of constitutional power.

Much of the discourse concerning the adequacy of legal measures to protect indigenous culture revolves around the relatively narrow area of intellectual property law. The Commonwealth Parliament has extensive powers to enact intellectual property law regimes. In particular, s 51(xviii) of the Australian Constitution provides that the Commonwealth Parliament may make laws with respect to:

“Copyright, patents of inventions and design, and trade marks.”

The High Court has taken a broad view of the power in s 51(xviii). In Grain Pool of Western Australia v Commonwealth,[33] the Court upheld the validity of the Plant Variety Rights Act 1987 (Cth).[34] The Court emphasised that the language of s 51(xviii) is not to be confined to species of intellectual property recognised by statute or the common law at the time of Federation (1901).[35] The Court also rejected a submission that the Writings and Discovery power in the United States Constitution[36] was expressed more generally than s 51(xviii), pointing out that the Australian provision lacks the “express purposive element” of its United States counterpart.[37] The significance of these observations is that the power in s 51(xviii) might well be broad enough to support legislation protecting aspects of indigenous culture regardless of whether the legislation can be said to encourage or advance current artistic, literary or scientific endeavours. Of course, such legislation might find independent constitutional support, for example in the external affairs and race powers.

Legislation

Legislation Relating to the Protection of Indigenous Culture

A full survey of legislation relevant to the protection of indigenous culture in Australia would require reference to a large body of statute law. Some, such as the principal enactments governing intellectual property rights, are laws of general application. None of these makes provision for the protection of indigenous culture, although of course each is capable of protecting the work of indigenous artists and other manifestations of indigenous culture. Laws of this kind include the Copyright Act 1968 (Cth) (“Copyright Act”), the Patents Act 1990 (Cth), the Trade Marks Act 1995 (Cth) and the Designs Act 1906 (Cth). Other statutes are concerned specifically with the protection of indigenous peoples and indigenous culture, such as the Native Title Act[38] and the Heritage Protection Act.

In this paper I shall deal briefly with one example of each category of legislation. The first is the Copyright Act, the provisions of which have frequently been invoked to protect Aboriginal art works. The second is the Heritage Protection Act, which illustrates the extent and limitations of legislative protection of particular sites of significance to indigenous people.

The Copyright Act

The Legislative Scheme

The scheme established by the Copyright Act is the exclusive basis for the subsistence of copyright in Australia.[39] The Act follows a pattern familiar enough in the common law world. Copyright subsists, among other things, in an “original literary, dramatic, musical or artistic work”, either published or unpublished.[40] Copyright, in relation to a literary, dramatic or musical work is the exclusive right to do a number of acts, including reproducing the work in a material form, publishing the work, performing the work in public or making an adaptation of the work.[41] The legislation takes a broad approach to the circumstances in which a work is “reproduced in a material form”. A literary, dramatic or musical work, for example,[42] is deemed to have been reproduced in a material form if a sound recording or film is made of the work. Special provision is made for the reproduction of a work in electronic form.[43]

Copyright in a work is infringed by a person, not being the owner of the copyright, who, without the licence of the owner, does any act comprised in the copyright.[44] With some qualifications, copyright in a literary, dramatic, musical or artistic work continues for fifty years after the expiration of the calendar year in which the author died.[45] The subsistence of copyright in a work does not require any form of registration. Copyright is, however, subject to a variety of qualifications, including fair dealing for purposes of research or study, criticism or reporting news.[46]

The remedies that may be awarded for infringement of copyright include injunctive relief, damages and an account of profits.[47] In the case of a flagrant infringement of copyright, the count may award “additional damages” as it considers appropriate.[48] The owner of copyright may also bring an action for conversion or detinue in relation to infringing copies.[49]

Moral Rights

The Copyright Act has recently been amended to introduce moral rights provisions for the benefit of authors of copyright works and films.[50] The legislation establishes three moral rights: an author’s right to be identified as the author of a work; the author’s right not to have a work falsely attributed; and an author’s right of integrity of authorship of a work, including the right not to have his or her work subjected to derogatory treatment which prejudicially affects his or her honour or reputation.[51] In relation to an artistic work, “derogatory treatment” includes doing anything that results in a material distortion of or alteration to the work, or doing “anything else in relation to the work” that is prejudicial to the artist’s honour or reputation.[52]The legislation is designed to implement, albeit belatedly, Australia’s obligations under the Berne Convention.[53]

The moral rights conferred by the legislation are subject to limitations. Moral rights are available only to individuals[54] and they exist only in relation to works in respect of which copyright subsists.[55] In general, an author’s moral rights in respect of a work continue in force until copyright ceases to subsist in the work (that is, for fifty years after the author’s death).[56] The court is, however, empowered to grant a wide range of remedies in an action for infringement of moral rights, including an order that the defendant make a public apology and an order that any false attribution of authorship or derogatory treatment of the work be removed or reversed.[57]

The Limitations of Copyright Law

It is generally taken for granted that copyright law provides inadequate protection to indigenous culture in Australia.[58] It is certainly true that copyright law has obvious limitations although, as will be seen, the courts have not entirely been powerless to protect expressions of indigenous culture from unfair or insensitive exploitation. Commentators have identified five principal, albeit related, deficiencies in copyright law.

The first is the fundamental incompatibility between the assumptions underlying copyright law and the practices, beliefs and aspirations of indigenous communities. It is, of course, necessary to recognise that traditional (as opposed to urban) indigenous communities have different languages and different expressions of cultural identity. Moreover, as has been noted, expressions of indigenous culture change over time. Even so, the gulf between the two systems is a large one. Professor Blakeney has put it well:[59]

“The intellectual property paradigm... involves the incentivisation of creativity. If the beliefs and practises of Australian indigenous peoples are any guide, authorship may reside in pre-human creator ancestors, such as the Wandjina of the Kimberley region. Authorship is replaced by a concept of interpretation through initiation. Ownership yields to a concept of custodianship of dreamings, or legends. Alienation is contradicted by the concept of immutable community property. Exploitation is subject to cultural restraints and taboos. Incentivisation also has to yield to concerns about spiritual adulteration.

Another problem with the intellectual property discourse is that it is often considered rather too sectional....

‘Underpinning the concept of Indigenous intellectual property is a holistic view that cultural products are intimately connected to Dreamings, ceremony, sacred sites and objects and also land’.[60]”

Secondly, the assumption underlying copyright law, that rights are vested in an author or joint authors of a work, does not sit well with Aboriginal beliefs concerning the source of authority to reproduce creation stories and dreamings. The evidence given in a seminal Australian case on infringement of copyright in Aboriginal works (bark paintings) is illuminating on this issue.[61] The evidence explained the significance of the creation stories and dreamings in the cultures of the particular clans involved. The trial Judge, von Doussa J, made these findings:[62]

“Those stories are represented in ceremonies of deep significance, and are often secret or sacred, known only to a few senior members of the clan chosen according to age, descendence, sex, initiation, experience in the learning of the dreamings and ceremonies, and the attainment of skills which permit the faithful reproduction of the stories in accordance with Aboriginal law and custom. Painting techniques, and the use of totemic and other images and symbols are in many instances, and almost invariably in the case of important creation stories, strictly controlled by Aboriginal law and custom. Artworks are an important means of recording these stories, and for teaching future generations. Accuracy in the portrayal of the story is of great importance. Inaccuracy, or error in the faithful reproduction of an artwork can cause deep offence to those familiar with the dreaming.

The right to create paintings and other artworks depicting creation and dreaming stories, and to use pre-existing designs and well recognised totems of the clan, resides in the traditional owners (or custodians) of the stories or images. Usually that right will not be with only one person, but with a group of people who together have the authority to determine whether the story and images may be used in an artwork, by whom the artwork may be created, to whom it may be published, and the terms, if any, on which the artwork may be reproduced.” (Emphasis added.)

The concept of individual or joint authorship as a precondition to the subsistence of copyright contrasts starkly with the emphasis in Aboriginal customary law on group or community control of images and symbols.[63]

Thirdly, the Copyright Act assumes that an unpublished “work” is made only when it is “first reduced to writing or some other material form”.[64] This assumption appears to preclude intangible items of cultural heritage, such as dances, songs, stories and knowledge of traditional medicines or foods (“bush tucker”) being the subject of copyright. Indeed, copyright in a traditional song, for example, subsists in the first person to record the notes and words regardless of his or her association with the relevant community or group.[65] The absence of protection for ephemeral manifestations of indigenous culture is a major source of concern to indigenous communities,[66] although in some cases arrangements have been made to compensate communities for permission to use themes derived from traditional songs and dances.[67]

Fourthly, the period for which copyright subsists is ordinarily limited to a period of fifty years after the death of the author. As the Australian Copyright Council has pointed out, in “Indigenous discourse...cultural rights may not have any fixed duration” and, indeed, include cultural expressions that have come from the Dreaming and which continue forever.[68] Many examples of rock art are sacred to Aboriginal people, yet are hundreds or thousands of years old. Access to particular examples of rock art may be restricted in consequence of a grant of native title or other forms of land rights or heritage protection. But much rock art is not protected in this way and, in any event, Aboriginal people cannot control the use of existing photographs or other reproductions of pre-existing designs.[69]

Fifthly, many indigenous people deeply resent their inability to prevent the commercial exploitation of traditional designs or symbols, often in a manner which shows scant regard for the cultural and religious sensitivities of the communities affected. Evidence accepted in one of the important indigenous copyright cases illustrates the point.[70] The case concerned the reproduction of Morning Star Poles which, according to traditional beliefs of the clans of north east Arnhem Land, are imbued with the power to take the spirits of the dead to the Morning Star and from thence to their ancestral home.[71] The uncontradicted evidence was that a Morning Star Pole could be made only by men of particular clans who had been properly taught the rules relating to their production.[72] French J accepted that the maker of a Pole for public display had an obligation to the relevant clans to ensure that it was not used or reproduced in a way that offends against the members’ perceptions of the Pole’s significance.[73] Yet the Copyright Act would of itself not prevent a non-indigenous person reproducing a Morning Star Pole by a long-dead artist (that is, one in respect of which the artist’s copyright no longer subsists), or utilising ideas derived from traditional designs.[74] It is trite law that there is no copyright in ideas.

It is also sometimes said that the requirement in copyright law that a work be “original” creates difficulties for indigenous artists whose work utilises traditional images or pre-designs.[75] This reflects a concern, manifest in early cases, that an artist who works within a traditional framework would not be creating an “original” work. The test for originality is, however, easily met in the case of artistic, literary or dramatic works. Indeed, the threshold in Australia may be even lower than the “minimal degree of creativity” required under United States law.[76] The High Court has said more than once that the requirement in copyright law that a work be original simply means that the work emanates from the person claiming to be the author, in the sense that he or she has originated it or brought it into existence and has not merely copied it from another.[77] It follows that whatever difficulties other aspects of copyright law may present for the protection of expressions of indigenous culture, the requirement of originality of itself will rarely, if ever, create a major obstacle.[78]

The recently introduced moral rights provisions in the Copyright Act may well prove to be of benefit to individual indigenous artists. The right of integrity of authorship, for example, gives the indigenous owner of copyright in an artistic work a remedy if the work is reproduced in a manner that is “prejudicial to the author’s honour or reputation”. But the moral rights exist only if the author already holds copyright in a work. The legislation does not extend the scope of copyright itself. In particular, it does nothing to recognise the interest of indigenous groups or communities in protecting expressions of culture; nor does it extend the period of protection.[79] To overcome some of these difficulties an amendment was proposed in Parliament which would have conferred moral rights in relation to an Australian cultural work created by an indigenous author under the direction of an indigenous cultural group.[80] The rights would have been capable of assertion by a custodian nominated by the group. The amendment was rejected, but it illustrates the form a possible extension of the moral rights legislation might take in advancing the interests of indigenous people.[81]

Cultural Heritage

The early legislation protecting land-based cultural heritage of Aboriginal people was enacted by the States. This legislation extended protection beyond archaeological sites, which had been the subject of statutory regulation since the 1960s, to sacred, ritual or ceremonial sites of significance to Aboriginal people.[82] State authorities were empowered to make declarations in relation to particular sites, including those located on private land, the effect of which was to limit access to the sites. No provision was made in the early statutes for the involvement of Aboriginal people themselves in the protection process. Some later State legislation has, however, vested a significant degree of responsibility to local indigenous people, for example, in identifying and initiating measures to protect heritage sites, although the relevant State Minister retains ultimate discretionary authority to determine what action should be taken.[83]

It was against the background of State cultural heritage legislation that the Commonwealth enacted the Heritage Protection Act. The objects of the Heritage Protection Act, are:

“the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.”[84]

The expression “Aboriginal tradition” is defined to mean:

“the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.”[85]

The Heritage Protection Act is not intended to exclude or limit the operation of State laws capable of operating concurrently with it.[86] Commentators have said that the Heritage Protection Act is intended to be a measure of “last resort”.[87] This observation reflects the fact that State laws are preserved and that the Minister, in determining whether to make a declaration in relation to an area, must consider the extent to which State laws already provide adequate protection.[88]

A declaration in relation to an area can be made only where the Minister

• receives an application from an Aboriginal or group of Aboriginals seeking the preservation of an area from injury or desecration;
• is satisfied that the area is of particular significance to Aboriginals in accordance with Aboriginal tradition (and is under threat of injury or desecration); and
• has considered a report that deals with matters such as the significance of the area and the nature of the alleged threat.[89]
  

The Heritage Protection Act expressly deals with “Aboriginal folklore”, but only for very limited purposes. In 1987, the then Victorian Government, requested the Commonwealth to enact legislation applicable only to Victoria.[90] The Commonwealth responded favourably.[91] The amendment defines “Aboriginal cultural property” to include not only Aboriginal places and objects but “Aboriginal folklore”. The definition of “Aboriginal folklore” is as follows:

“traditions or oral histories that are or have been part of, or connected with, the cultural life of Aboriginals (including songs, rituals, ceremonies, dances, art, customs and spiritual beliefs) and that are of particular significance to Aboriginals in accordance with Aboriginal tradition.”[92]

The only potentially practical significance of the expanded definition appears to be that the Minister may compulsorily acquire any “Aboriginal cultural property” in Victoria if satisfied that the property is of such significance that it is irreplaceable and that no other arrangements can be made to ensure its proper preservation.[93] Since no action has been taken under this provision, the potential scope of the compulsory acquisition power is unclear.

The Heritage Protection Act has been the subject of much criticism, particularly from Aboriginal groups. The principal criticisms were summarised in the Evatt Report which reviewed the legislation in 1996:[94]

“Aboriginal people consider that the Act has not protected their heritage. Few declarations have been made and only one is now in force.[95] They say that the administration of the Act has given too much deference to ineffective State and Territory processes which do not recognise their role in the identification, management and protection of heritage. In some situations negotiations by the Commonwealth with the State/Territory government have resulted in arrangements being made without adequate consultation with Aboriginal people. In addition, the Act does not recognise that there are Aboriginal restrictions on information which play an important role in the protection and maintenance of their cultural heritage. The Act does not protect confidential information or respect Aboriginal spirituality and beliefs which require that confidentiality be maintained. Its failure to deal with all aspects of heritage, including intellectual property was another subject of concern, though the Review has been unable to deal with this issue in detail.... Nor does the Act adequately recognise or provide for the involvement of Aboriginal people in negotiation and decision-making about their cultural heritage. Aboriginal people want the Act to be maintained and strengthened.”

In addition to these criticisms, in practice the statutory procedures have afforded considerable scope for administrative law challenges by parties whose interests are adversely affected to the validity of declarations.[96]

The Evatt Report addressed a number of issues troubling Aboriginal groups. It did not, however, suggest a substantial change in the concentration on protecting sites, areas and objects of cultural significance. In particular, it did not address claims by Aboriginal groups for greater protection of intellectual property in accordance with traditional laws. Nonetheless, the Report proposed a broader definition of “objects” under the Heritage Protection Act to include those

“which are of significance to Aboriginal people because they record, describe or portray an aspect of Aboriginal tradition”.

The recommendations of the Evatt Report have not been implemented.[97]

Towards Recognition of Indigenous Culture
It would not be correct to infer from this brief and necessarily incomplete account of the workings of the Copyright Act and the Heritage Act that the Australian legal system has been entirely unresponsive to the claims of indigenous peoples to protect their culture and associations with traditional lands. Far from it. Important changes have occurred since the 1970s which, although falling far short of satisfying the legitimate aspirations of indigenous peoples, have transformed the relationship between indigenous culture and the legal system. The extent (and limitations) of the changes require reference to both the recognition under the general law of indigenous laws and customs and to the decided cases in which intellectual property issues have been raised and judicial responses to claims made by or on behalf of indigenous claimants.

Aboriginal Laws and Customs
Although it did not seem so at the time, a turning point in the recognition of indigenous laws and customs under Australian law was the decision of Blackburn J in Milirrpum v Nabalco Pty Ltd in 1971.[98] In that case, Aboriginal clans asserted that the common law recognised their rights under native law or custom to land on the Gove Peninsula in the Northern Territory. The claim founded on the doctrine of communal native title was dismissed. Blackburn J, however, comprehensively rejected an argument by the respondents that Aboriginal law and custom were “too low in the scale of social organisation” to be recognised under the general law. He found on the evidence that the social rules and customs of the clans constituted

“a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society, and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me”.[99]

Blackburn J’s analysis of Aboriginal laws made it impossible for later courts simply to dismiss them as too “primitive” or undeveloped to be accorded recognition.

One consequence of the Milirrpum decision was that the Commonwealth appointed a Commissioner to investigate the feasibility of recognising traditional Aboriginal claims to land in the Northern Territory. The report[100] led to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which, for the first time, established a mechanism under federal law for vesting title in Aboriginal groups on the basis of a “traditional land claim” by the “traditional Aboriginal owners”.[101] The statute thus recognised claims founded on Aboriginal law and custom and the acknowledged significance of “common spiritual affiliations to a site” of Aboriginal clans or groups.[102]

These developments coincided with a renaissance of Aboriginal art and the emergence of commercial interest in traditional art forms. It is a common misconception that the creation of traditional Aboriginal art forms had somehow fallen into abeyance in colonial times, only to be revived in the 1970s. In fact, traditional practices continued, although many expressions of Aboriginal culture, such as sand and body paintings, ceremonies and perishable bark paintings, did not survive because of their ephemeral nature. Indeed there were individual Aboriginal artists whose work was well-known in colonial as well as post-Federation times.[103] Until the 1970s, however, there was relatively little interest among the non-indigenous community in Aboriginal culture or art. At about that time, interest in Aboriginal art among non-indigenous people began to increase, stimulated in part by the use of new materials and techniques by Aboriginal artists.[104]

As commercial interest in Aboriginal art increased, so the incentives and opportunities to appropriate artworks or images used in artworks multiplied. A national seminar on Aboriginal Arts was held in 1973 and drew attention to instances of the unauthorised use of Aboriginal paintings and designs. In 1975, at the suggestion of the Australia Council, the peak arts body, a Working Party was established to consider the nature of legislation required to protect Aboriginal artists in relation to copyright. It ultimately reported in 1981.[105]

The Working Party concluded that Aboriginal folklore[106] was inadequately protected by copyright law. It also expressed the view that “abuses”, such as the use of sacred-secret material otherwise than in accordance with custom and the destruction of items of folklore, had to be addressed. The Working Party recommended criminal sanctions to curb abuses. These were to operate alongside a system whereby a statutory officer could grant “clearance” (immunity from prosecution) for persons proposing to use items of folklore.[107] The proposals have not been implemented.

During the 1980s, important inquiries explored the relationship between Aboriginal laws and customs and the general law.[108] In 1992, however, the High Court’s decision in Mabo transformed the very foundations of Australian law. The effect of the decision was that the common law in Australia for the first time recognised the rights of indigenous peoples who had substantially maintained their traditional connection with the land.[109] Native title could be extinguished in any one of a number of ways, for example, by the grant to a third party of the fee simple estate in the land. But the decision opened the way for indigenous groups to claim interests in large segments of their traditional lands if they could demonstrate the required continuing connection with those lands. The Court’s reasoning acknowledged that native title rights derived from indigenous laws and customs. Native title was seen neither as an institution of the common law nor as a form of common law tenure.[110] Rather, it was said to have its origins in, and to be given its content by, the traditional laws and customs observed by the indigenous inhabitants of a particular area.

The decision in Mabo made it clear beyond argument that indigenous laws and customs cannot simply be regarded as separate from and irrelevant to the general body of Australian law. On the contrary, those laws and customs can be the source of entitlements enforceable in Australian courts. Moreover, the language used by members of the High Court left no doubt about their view that a grave historical injustice had been done to the Aboriginal peoples.[111] It is true that Mabo and successor cases[112] have attracted intense controversy. Nonetheless, the High Court’s acceptance of native title demonstrated that indigenous laws, customs and traditions could be accommodated within the common law paradigm.[113]

Much has happened since the decision in Mabo. The Native Title Act 1993 provides for the “recognition and protection of native title”[114] and prevents extinguishment of native title contrary to the provisions of the legislation.[115] It also defines “native title” to mean the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders “in relation to land or waters”.[116] To be protected under the Native Title Act, the rights and interests must have three characteristics:

“First, they [must be] possessed under the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned. Secondly, those peoples, by those laws and customs, must have a ‘connection’ with the land or waters. Thirdly, the rights and interests must be recognised by the common law of Australia.”[117]

While a substantial body of jurisprudence has built up in the decade since Mabo was decided, there is considerable uncertainty about the outer limits of native title rights and interests that may be protected under the Native Title Act. In particular, it has been argued that the nature and incidents of native title under Aboriginal law can extend far beyond rights that a common lawyer would consider relate to land.[118] Stephen Gray points out that, from an Aboriginal perspective, paintings or other art works are very often part of the land itself, both being the creations of ancestral beings.[119] He also notes that Mabo requires the specific “nature and incidents” of native title to be determined by reference to indigenous laws and customs. It follows, so Gray argues, that indigenous intellectual property rights can be said to exist “in relation to land and waters” where indigenous laws and customs acknowledge the relationship between the rights and the land. On this approach, just as the right to hunt estuarine crocodiles can be an incident of native title,[120] the right to protect indigenous, cultural expression of a kind inextricably linked to land can also be an incident of native title.[121]

There are difficulties confronting this approach. The obstacles include a decision by a single Judge of the Federal Court that rights in cultural expression under indigenous laws and customs have been extinguished by modern intellectual property statutes.[122] Even so, it is by no means clear that native title cannot extend to indigenous rights in relation to cultural expression. The point is illustrated by a determination of native title made by the Federal Court in a recent case. It provided that the subsisting rights and interests included

“the right to manage the spiritual forces and to safeguard the cultural knowledge associated with [the claimed land and waters].[123]

The precise scope and significance of determinations in this form have not yet been the subject of close analysis.[124] It may well be the case, however, that native title determinations will encompass forms of indigenous culture that have usually been thought of as being protected, if at all, only by the statutory intellectual property regime or related principles.

In October 1994, not long after Mabo was decided, the Commonwealth Government released a short Issues Paper designed to put forward ideas to stop what was described as the “unacceptable exploitation of indigenous works”.[125] The Issues Paper outlined the protection available to indigenous “arts and cultural expression”, a term which was “intended to encompass all forms of artistic expression which are based on custom and tradition derived from communities which are continually evolving”.[126] Options were presented for reform. These, however, were put in very general terms. For example, the Issues Paper suggested that the Copyright Act could be amended so as to omit the material form requirement and “address the collective ownership of Aboriginal and Torres Strait Islander creative works”.[127] The authors of the Issues Paper recognised that such a proposal would encounter considerable practical difficulties, including the need to comply with the requirement of the Berne Convention that copyright protection afforded to Australian nationals also be afforded to nationals of Convention countries.[128]

One of the purposes of publishing the Issues Paper was to facilitate consultation with indigenous communities to ascertain their views on the protection of indigenous art and cultural expression. The consultation process[129] led to the establishment of an Indigenous Reference Group on Intellectual Property under the auspices of the Aboriginal and Torres Strait Islander Commission (ATSIC). In turn, ATSIC funded a study by consultants which was published in 1998.[130] This report recorded the views expressed by indigenous respondents on a wide range of issues, including protection of what were described as “indigenous cultural and intellectual property rights”, and proposed a variety of strategies to recognise and protect those rights.

Case law
Recourse to the courts in Australia to protect indigenous culture from exploitation coincided with the recognition of indigenous claims to traditional lands and the renaissance of Aboriginal art. While the limitations of the current law are undeniable, the decided cases demonstrate that the law is capable of a flexible response to novel claims made by indigenous peoples.

In Foster v Mountford,[131] the Supreme Court of the Northern Territory applied equitable principles relating to confidential information when making orders restraining publication of a book in the Territory. The book was a scholarly work entitled Nomads of the Australian Desert. The author, an anthropologist, had undertaken extensive field work in 1940. Members of the Pitjantjatjara people had taken the author into their confidence and explained to him sacred sites and objects and paintings and rock engravings. He had recorded this information and photographed objects and sites. The confidential information found its way into the book. Muirhead J accepted that the book was a “magnificent publication” that acknowledged “the traditional dignity and wisdom of the Pitjantjatjara people”.[132] He nonetheless found that the plaintiffs, who claimed to represent all Aboriginal people inhabiting the traditional lands of the Pitjantjatjara, would suffer damage and dislocation if confidential information in the book came into the hands of the uninitiated.

The status of Foster v Mountford as a precedent is limited because the application to the Court was made ex parte. But there is no reason to doubt the correctness of the analysis. Once a finding is made that sensitive cultural material has been imparted to a person on a confidential basis, established principles are likely to afford a remedy for any publication of the confidential information by that person in breach of confidence. To that extent the law can provide a remedy in respect of hurtful disclosures of indigenous culture.[133]

The first case in which an Aboriginal artist complained of infringement of copyright appears to have been brought in 1983. The claim involved the reproduction of an original bark painting on fabric. The action was successful but attracted little attention.[134]

A second case, in 1989, received much greater publicity. Johnny Bulun Bulun, a well-known bark painter from central Arnhem Land, and a number of other artists, sued a T-shirt manufacturer and two retailers.[135] Their complaint was that the manufacturer’s T-shirts had reproduced or adapted bark paintings and that the retailers had sold the offending articles. The litigation was funded by the Department of Aboriginal Affairs and was ultimately settled on terms favourable to the artists. The outcome alerted many in the non-indigenous community to abuses that were taking place in the form of authorised reproductions of Aboriginal works and to the possibility of legal remedies being available.

The first reported case involving indigenous copyright was Yumbulul v Reserve Bank, to which reference has already been made.[136] It concerned the reproduction of the design of a Morning Star Pole on yet another Australian banknote, this time a special ten dollar note issued to commemorate the bicentennial of the first European settlement of Australia. The Reserve Bank had reproduced the artist’s design under a sub-licence granted by a collecting agency for Aboriginal artists to which the artist had previously granted a written licence. The artist had been criticised within the Aboriginal community for permitting reproduction of the design on a banknote. His response was to sue the Reserve Bank for infringement of copyright and to take action against the agency to set aside the licence by reason of what was said to be misleading and deceptive conduct and unilateral mistake.

The claim against the Reserve Bank was settled, while that against the agency failed on the facts. Apart from the evidence relating to the cultural constraints on the use of Morning Star Poles, the case is significant in three respects:

• first, French J held that the Morning Star Pole created by the artist was an original artistic work in respect of which the artist held copyright, notwithstanding his use of traditional motifs;[137]
• secondly, he decided that communal concerns about the artist’s possible departure from his cultural obligations had no impact upon the effectiveness of contractual arrangements into which he had entered with third parties; and
• he observed, in a passage often cited by commentators, that the current law may give inadequate recognition to Aboriginal community claims to regulate the reproduction and use of works which are “essentially communal in origin”.[138]
  

Yumbulul, then, shows that Aboriginal artists have the protection of copyright law, but also are bound by any agreements into which they enter voluntarily. Communal claims to control the dissemination of sensitive cultural information by members of the community are less susceptible of recognition under principles of intellectual property law although, as will be seen, those claims may still be recognised to some extent.[139]

The next case, Milpurrurru v Indofurn Pty Ltd,[140] is instructive, not least for its detailed explanation of the cultural restraints on inappropriate use of reproductions of creation stories and dreamings. The applicants were three living Aboriginal artists and the representative of five deceased artists. Each artist had a national and international reputation. The respondent company imported into Australia some 246 carpets manufactured in Vietnam, each of which reproduced either the whole or some part of an art work created by one of the artists.[141]

No issue was raised as to originality of the art works for copyright purposes. The Court took a broad view of what constituted a taking of a substantial part of a copyright work. It was held that even where the carpet designs had been substantially modified, in one instance so that no more than ten per cent of the work had been used to create a border pattern on an otherwise plain carpet, the carpets infringed the copyright of the artists.[142] In these circumstances, the Court concluded that the company had infringed the artist’s copyright by importing the carpets for the purpose of sale.[143] The directors of the company were also found liable as having authorised the infringement.

The major legal significance of the case is the form of relief granted to the applicants. Conventional orders were made for delivery up of the infringing carpets and damages in conversion[144] and for diminution in the value of copyright. von Doussa J accommodated a request made by counsel for the applicants that the orders be in a form which enabled the fruits of the action to be shared, in accordance with Aboriginal law, equally among the artists.[145] Moreover, he considered that the Copyright Act permitted the Court to award damages for personal suffering caused by the copyright infringement.[146] While damages could not be awarded for the pirating of cultural heritage as such, von Doussa J held that, having regard to the flagrant violations of copyright, additional damages could be awarded to reflect the culturally based harm suffered by the three living applicants. Thus in a case involving infringement of the copyright of Aboriginal artists, the award of damages took account not only of the artists’ financial losses but the hurt caused by the appropriation of culturally sensitive material.

Bulun Bulun v R & T Textiles Pty Ltd[147] is an illustration of both the potential scope and the limitations of orthodox principles of law when invoked to protect indigenous culture. There were two applicants. The first was the artist who had been involved in the 1989 proceedings;[148] indeed his complaint concerned “Magpie Geese and Water Lilies at the Waterhole”, the very same bark painting that had been the subject of the earlier proceedings. The second applicant, the senior member of the Ganalbingu people of Arnhem land, sued in his own right and as a representative of his people.

The artist’s case was straightforward. He complained of the importation of fabric which reproduced his painting. The importer admitted infringement of copyright and consented to appropriate orders.[149]

The second applicant’s claim was more complex. He sought relief against the importer on the basis that the Ganalbingu people had the equitable title to the copyright in the artistic work, the legal title only vesting in the artist. The equitable title was said to arise because the representatives of the community had the power under customary law to regulate and control the production and reproduction of the corpus of ritual knowledge. On this argument, the artist was in the position of a trustee or fiduciary and, accordingly, held his own title as copyright owner in trust for the community.

The Court accepted the factual foundations of the representative claim. In particular, it accepted evidence that

“[u]nauthorised reproduction ‘at the Waterhole’ threatens the whole system and ways that underpin stability and continuance of Yolngu society [Aboriginal people of Arnhem Land]. It interferes with the relationship between the people, their creator ancestors and the land given to the people by their creator ancestor. It interferes with [the people’s] custom and ritual, and threatens [the people’s] rights as traditional Aboriginal owners of the land and impedes...the carrying out of the obligations that go with this ownership and which require [the people] to tell and remember the story...as it has been passed down and respected over countless generations”.[150]

The Court concluded, however, that the representative claim could not succeed against the importer.

First, von Doussa J rejected an argument based on Mabo, to the effect that the common law recognises communal Aboriginal title in relation to artistic works.[151] He saw no reason to doubt that

“customary Aboriginal laws relating to the ownership of artistic works survived the introduction of the common law of England in 1788. The Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of Australia by the Crown. The question however is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community, either through recognition of those laws by the common law, or by their capacity to found equitable rights in rem”.[152]

von Doussa J answered the question in the negative, at least in relation to indigenous collective ownership in artistic works. At the time of European settlement in 1788 there may have been scope for the continued operation of a system of indigenous collective ownership. That system arguably might have been incorporated into the common law, since it recognised that the author of an unpublished artistic work had property in the work which lasted in perpetuity or until publication. But the common law had since been subsumed by statute, in particular by legislation which abolished the common law right in unpublished works until first publication.[153] von Doussa J also held that the Gunalbingu people could not collectively be regarded as the joint authors of the artistic work for the purposes of the Copyright Act, since merely supplying an artistic idea does not, of itself, establish joint authorship of a work.[154]

Secondly, the Court found that, on the evidence, no express trust had been created in favour of the community by the artist as owner of the copyright. von Doussa J accepted that no formalities were necessary for an express trust and that the critical issue was whether the artist had intended to create a trust. He considered, however, that the fact that the artist had sold the work and retained the proceeds of sale for himself was inconsistent with an intention to create an express trust. On the evidence, there was nothing to suggest that ownership and use of the work itself was to be treated separately from ownership in the copyright. In these circumstances, the permission granted by the senior Gunalbingu people to create the work could not establish the existence of an express trust.[155] Furthermore, since a copy of the work had been reproduced with permission in an important book, there could be no suggestion that the imagery incorporated into the work was sacred or secret.[156]

Thirdly, notwithstanding the first two holdings, the Court considered that the unique relationship between the artist and the Gunalbingu people could be characterised as fiduciary in character. The artist was required to act, in relation to the artistic work, in the interests of the Gunalbingu people in order to preserve the integrity of their culture and ritual knowledge. The artist was entitled to consider and pursue his or her own interests, for example by selling the work, but was not permitted to shed the overriding obligation to preserve the integrity of the Gunalbingu people.[157]

As a fiduciary, the artist was subject to an obligation not to exploit the artistic work in a manner that was contrary to the laws and customs of the Gunalbingu people. This obligation extended to taking reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work by a third party. These obligations were not, however, sufficient to vest equitable title in the copyright in the Gunalbingu people. Their remedy, in the event of a breach of obligation by the artist was to bring an action in personam against the artist to enforce his or her fiduciary obligations to the community. Since the artist had successfully taken action against the third party in respect of the infringement of his copyright, there had been no breach of his fiduciary duties and no occasion for the intervention of equity.

Although the representative claim failed, the reasoning leaves open the possibility that, in somewhat different circumstances, a claim by a community to restrain inappropriate dissemination of culturally sensitive material might succeed against a third party, even one who reproduces a work with the consent of the copyright owner. The facts in Bulun Bulun did not support the existence of an express trust. If, however, an artist expressly or by implication agreed to hold the copyright in a work based on traditional motifs in trust for the community, it is by no means out of the question that a representative claim by the community against a third party might succeed.[158] If such a trust is valid, reproduction of a work by a third party, even with the consent of the legal owner of the copyright might not extinguish the rights of the community against the third party. Similarly, a third party who is aware of the circumstances giving rise to fiduciary duties to a community of the kind recognised in Bulun Bulun, may become liable to the community if, for example, he or she becomes knowingly involved in the copyright owner’s breach of fiduciary duty.[159] The introduction of a national system for the labelling of Aboriginal works to identify authenticity of indigenous cultural products[160] may well provide a factual basis for affording wider protection to the cultural integrity of indigenous communities than hitherto has been the case.

Conclusion
It is undeniable that the Australian legal system, for the best part of 200 years, did very little to protect indigenous culture in any of its forms. The consequences of that long history of neglect cannot be reversed. Nonetheless, much has changed in a relatively short period of time. The recognition of indigenous culture by the legal system has sometimes been sudden and dramatic, as with the High Court’s decision in Mabo. Mostly, however, the process of recognition has been gradual, with a consequence that many claims advanced on behalf of indigenous interests have not been successful. Mirroring the situation in the international arena, a steady stream of reports and inquiries has failed to produce comprehensive legislative action. Even so, the general law, including but not limited to intellectual property law, has proved more adaptable to indigenous claims than many might have thought possible only a decade ago.

Constructive engagement between indigenous culture in Australia and the wider legal system, in a sense, has only just begun. However imperfect and halting the process, it has at least provided an opportunity to fashion particular solutions that take account of the unique circumstances of indigenous Australians and the painful history of dealings between indigenous peoples and the non-indigenous community. There is much to be said for continuing along that path.

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[1] The material in this and the following paragraph is largely drawn from V Johnson, Copyrites: Aboriginal Art in the Age of Reproductive Technologies (Touring Exhibition Catalogue, National Indigenous Arts Advocacy Association and Macquarie University, 1996), 13-14.

[2] The designer worked from photographs of the bark paintings. The photographs, curiously enough, had been taken by a Hungarian art collector and anthropologist who had visited Arnhem Land in 1963. The most influential of the bark paintings referred to the mourning cycle of the Manharingu people.

[3] For a brief biographical note on Coombs, see Monash Biographical Dictionary of Twentieth Century Australia (1994), 123-124.
[4] See note 26 below.

[5] See, for example, UNESCO/WIPO, Model Provisions for National Laws for the Protection of Expressions of Folklore, Against Illicit Exploitation and Other Prejudicial Actions (1985); WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: Draft Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1988-1999) (2000).
[6] The striking words of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (“Mabo”), 69.

[7] Including Tasmania, which was connected by land to the present mainland until about twelve thousand years ago.

[8] Mabo, 113-114.

[9] As to the background of the Meriam people, who lived a settled life based on gardening and fishing, see id, 190.
[10] P Sutton (ed), Dreamings: The Art of Aboriginal Australia (1988), 5.

[11] The 1996 Census estimated that the resident Aboriginal and Torres Strait Islander population was then 386,000. Of this population, 72.6% lived in “urban” areas having a population of 1,000 or more. Just under a third (30.3%) lived in major cities with a population of more than 1000,000. Australia’s total population in 1996 was 18,310,700. Thus the indigenous population comprised 2.1% of the total. Source: Australian Bureau of Statistics “Aboriginal and Torres Strait Islander Australians: A Statistical Profile from the 1996 Census” (Year Book Australia, 1999).

[12] D A Ellison, “Unauthorised Reproduction of Traditional Aboriginal Art” [1994] UNSWLawJl 12; (1994) 17 UNSWLJ 327, 330.
[13] Id, 330-331.

[14] P Sutton, note 10, above, 76. For a recent account of evidence relating to the Dreamtime in the context of a native title claim, see Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32, 39-41.
[15] See text at notes 104-106, below.

[16] For example, Model Provisions, note 5, above, s 2.

[17] UNESCO, Recommendation on the Safeguarding of Traditional Culture and Folklore adopted by the General Conference at its twenty-fifth session (1989).

[18] Report of the Working Party on the Protection of Aboriginal Folklore (1981) (“Aboriginal Folklore Report”.
[19] Id, par 502.

[20] Id, par 503. A later report adopted the expression “folklife”: Committee of Inquiry into Folklife in Australia, Folklife: Our Living Heritage (1987). This report adopted a definition closely resembling that used in the American Folklife Preservation Act 1976: id, 14. It concentrated, however, on non- indigenous folklife and the need to conserve folk materials and encourage folk activities.

[21] T Janke, Our Culture: Our Future (Report on Australian Indigenous Cultural and Intellectual Property Rights, 1998) (“Our Culture: Out Future”), 10 n 33.
[22] Id, 14.
[23] Id, 7.
[24] See, in particular, Constitution, s 51, 107.
[25] Constitution, s 109.

[26] In its original form s 51(xxvi) included the words “other than the aboriginal race in any State” after the word “race”. The contemporary understanding of the founders was that the provision would authorise laws discriminating against people of so-called “coloured races”: see Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 363, per Gaudron J. In consequence of a referendum held in 1967, the Constitution was amended to remove the reference to the aboriginal race. The amendment was universally seen as removing a source of discrimination against Aboriginal people, a view not necessarily correct as a matter of law.

[27] The High Court held in Kartinyeri v Commonwealth that a law enacted pursuant to s 51(xxvi) did not necessarily have to be for the benefit of the particular race (the law upheld by the Court restricted the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in relation to a particular site).
[28] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373.
[29] See text at notes 79-90, below.
[30] The foundation case is Commonwealth v Tasmania (“Tasmanian Dams Case”) [1983] HCA 21; (1983) 158 CLR 1.
[31] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168.

[32] United Nations Working Group on Indigenous Populations, Draft Declaration on the Rights of the World’s Indigenous Peoples (1991).
[33] (2000) 202 CLR 479.
[34] Creating intellectual property rights where the breeding of a plant variety constitutes an “invention”.
[35] Grain Pool v Commonwealth 496.
[36] Art I, s 8, cl 8, which is in the following terms:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

[37] Grain Pool v Commonwealth, 498. The “express purposive element” comprises the introductory words “To Promote the Progress of Science and useful Arts”. Compare the Trade Mark Cases [1879] USSC 171; (1879) 100 US 82.

[38] As to which see text at notes 109-113 below.
[39] Copyright Act, s 8. This is a matter of some significance: see text at notes 141-142, below.

[40] Id, s 32. The work must meet certain requirements. For example, the “author” of an unpublished work must be a “qualified person” (an Australian citizen or resident) at the time the work is made: s 32(1)(a). A statutory reference to an “author” includes all authors of the work: ss 78, 79. An unpublished work is made at the time it was first reduced to writing or to some other material form: s 22(1).

[41] Id, s 31(1)(a). As to copyright in an artistic work, see s 31(1)(b). As to copyright in subject-matter other than works, such as broadcasts, films and sound recordings, see Part IV of the Act.
[42] Id, s 21(1).
[43] See the definition of “material form” in s 10(1).
[44] Id, s 36(1).
[45] Id, s 33(2).
[46] Id, Part III, Div 3.
[47] Id, s 115(2).
[48] Id, s 115(4).
[49] Id, s 116(1).

[50] Id, Part 9, in force as from 21 December 2000: For analysis of the moral rights provisions in relation to indigenous people, see C Banks, “The More Things Change the More They Stay the Same” [2000] GriffLawRw 22; (2000) 9 Griffith L Rev 334.

[51] Id, Part 9, Divs 1, 2 and 3. Derogatory treatment is not actionable if reasonable in all the circumstances: s 195AS. See also ss 194AR, 195AT.
[52] Id, s 195AK.

[53] Art 6bis. The Berne Convention was amended in 1928 to include provision for moral rights. Legislative implementation of this aspect of the Convention in Australia therefore took 72 years.
[54] Copyright Act, s 190.
[55] Id, s 189 (definition of “work” and associated definitions).
[56] Id, s 195AM.
[57] Id, s 195AZA.

[58] See, for example, Australian Copyright Council, Protecting Indigenous Intellectual Property (1998), 40-47; K Puri, “Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action” (1985) 9 IPJ 293, 305-320; D A Ellinson, note 12 above, 332-334.
[59] M Blakeney, “Protection of Traditional Knowledge under Intellectual Law” [2000] EIPR 251, 252.
[60] Australian Copyright Council, note 57 above, 14.
[61] Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1994) 54 FCR 240. See text at notes 130-136 below.

[62] Id, 245-246.
[63] Puri, note 57 above, 310.
[64] Copyright Act, s 22(2).
[65] Subject to questions such as breach of confidentiality or passing off.

[66] Our Culture: Our Future, note 21 above, 34-35, 56.

[67] M Rimmer, “Bangarra Dance Theatre- Copyright Law and Indigenous Culture” [2000] GriffLawRw 19; (2000) 9 Griffith L Rev 274, 278.
[68] Australian Copyright Council, note 57 above, 43.
[69] See D A Ellinson, note 12 above, 334.
[70] Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481. See text at notes 126-129, below.
[71] Id, 482.
[72] Id, 483.
[73] Id, 483-484.

[74] The absence of legal remedies does not necessarily mean that the protests of indigenous custodians will be disregarded: see B Goldsmith, “A Positive Unsettlement: The Story of Sakshi Anmatyerre” [2000] GriffLawRw 21; (2000) 9 Griffith L Rev 321 (telling the story of the mass marketing of the work of an artist who falsely claimed to have Anmatyerre ancestry and the efforts made by the publisher to atone for the offence caused to the Anmatyerre people).

[75] For example, Attorney-General’s Legal Practice, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples (Issues Paper, 1994), 6.
[76] Feist Publications Inc v Rural Telephone Service Co, Inc 449 US 358 (1991), 369.

[77] Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; (1999) 202 CLR 1, 41-42; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479, 511.

[78] A T Kenyon, “Copyright, Heritage and Australian Aboriginal Art” [2000] GriffLawRw 20; (2000) 9 Griffith L Rev 303, 311-314.
[79] See C Banks, note <> above, 343-345.

[80] The form of the proposed amendment is reproduced by T Janke, “Berne, Baby, Berne: the Berne Convention, Moral Rights and Indigenous Peoples’ Cultural Rights” [2000] IndigLawB 47; (2001) 5 Indigenous Law Bulletin 14, 17.
[81] Ibid.

[82] The first such legislation was the Aboriginal Heritage Act 1972 (WA). See generally M Tehan, “To Be or Not To Be (Property): Anglo-Australian Law and the Search for Protection of Indigenous Cultural Heritage” [1996] UTasLawRw 11; 1996) 15 U Tas L Rev 267, 280 ff.

[83] See, for example, the Aboriginal Heritage Act 1988 (SA). The legislation is summarised in E Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1996) (“Evatt Report”), Annex VIII.
[84] Heritage Protection Act, s 4.
[85] Id, s 3(1).
[86] Id, s 7(1).

[87] Tehan, note 77 above, 286; Australian Copyright Council, note 57 above, 64.
[88] Heritage Protection Act, s 10(1)(c), (4)(g).
[89] Id, s 10(1).
[90] R G Nettheim, “Victoria Requests the Commonwealth” (1987) 25 Aboriginal Law Bulletin 8.
[91] See now Heritage Protection Act, Part IIA.
[92] Heritage Protection Act, s 21A(1).
[93] Heritage Protection Act, s 21L. See also s 21K dealing with Aboriginal Cultural Heritage Agreements.

[94] The Evatt Report, Annex VII details the fate of applications for declarations made under the Aboriginal Heritage Act up to 1996. As at July 2000 only two long-term declarations were in force, one relating to Junction Waterhole near Alice Springs and another to Boobera Lagoon in northern New South Wales.
[95] Evatt Report, xiv.

[96] Examples are Norvill v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 (concerning Hindmarsh Island) and Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia [1996] FCA 1509; (1996) 67 FCR 40 (concerning a crocodile park).

[97] The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 was designed to repeal and replace the Heritage Protection Act. The Bill did not pass the Senate, in part because it was not thought by opponents to address the concerns identified in the Evatt Report.
[98] (1971) 17 FLR 141.
[99] Id, 267.

[100] Aboriginal Land Rights Commission, Second Report (Parl Paper No 69, 1974). The report was prepared by Mr Justice Woodward who had been counsel for the claimants in Milirrpum.

[101] See definition of “traditional Aboriginal owners” in s 3. In general, claims were limited to unalienated Crown lands or lands held on behalf of Aboriginals: s 50(1)(a).

[102] The first case to reach the High Court under this legislation concerned a claim to Utopia Station, an area of 2,000 square kilometres situated some 200 kilometres from Alice Springs: The Queen v Toohey; Ex parte Attorney-General for the Northern Territory [1980] HCA 2; (1980) 145 CLR 374. Utopia is home to a number of very well known Aboriginal artists.
[103] See A Sayers, Aboriginal Artists of the Nineteenth Century (1994).

[104] Perhaps the best example is Western Desert dot painting, exemplified by the Papunya Tula Artists whose “modern” work commenced in 1971: H Perkins and H Fink, Papunya Tula – Genesis and Genius (Art Gallery of New South Wales in association with Papunya Tula Artists, 2000).
[105] Aboriginal Folklore Report, note 18 above.

[106] See text at notes 18-23, above.
[107] Aboriginal Folklore Report, pars 1208, 1209.

[108] See, for example, Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, (Report 31, 1986); Royal Commission into the Aboriginal Deaths in Custody (National Report, 1991).

[109] See generally R Sackville, “The Emerging Law of Native Title: Some North American Comparisons” (2000) 74 ALJ 820.
[110] Mabo, 58.

[111] See the reference by Deane and Gaudron JJ to the “conflagration of oppression and conflict which...leave a national legacy of unutterable shame”: id, 104.
[112] Notably Wik Peoples v Queensland (1996) 187 CLR 1.
[113] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 128.

[114] Native Title Act 1993 (Cth), s 3(a). The Act has been heavily amended, especially by the Native Title Amendment Act 1998 (Cth).
[115] Native Title Act 1993 (Cth), s 11(1).

[116] Id, s 223(1). Waters include the territorial sea: Commonwealth v Yarmirr (2001) 184 ALR 113 (Croker Island Case).
[117] Id, 120.

[118] S Gray, “Peeking into Pandora’s Box: Common Law Recognition of Native Title to Aboriginal Art” [2000] GriffLawRw 17; (2000) 9 Griffith L Rev 227.
[119] Id, 237.
[120] Yanner v Eaton (1999) <> CLR <>.
[121] Id, 238-239.
[122] Bulun v Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1998) 86 FCR 244; see text at notes <> below.
[123] Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32, 148-149.

[124] The High Court expressly declined to comment on a determination made in the Croker Island Case which acknowledged the claimants’ right of access to the sea and sea-bed to safeguard cultural and spiritual knowledge: Croker Island Case, 118.

[125] Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples (Issues Paper, 1994), v.
[126] Id, 2.
[127] Id, 7.
[128] Berne Convention, Art 3(1).

[129] Summarised in Intellectual Property Council, note 57 above, 37-38.

[130] Our Culture: Our Future, note 21 above.
[131] (1976) 29 FLR 233 (Muirhead J).
[132] Id, 236.

[133] This does not mean that cultural information imparted on a confidential basis will necessarily be confined to the recipient: cf Aboriginal Sacred Sites Protection Authority v Maurice; Re The Warumungu Land Claim (1986) 10 FCR 104.
[134] The case is noted in Copyrites, note 1 above, 15-16.

[135] An account of the case is given in C Golran, “Aboriginal Art and Copyright: The Case for Johnny Bulan Bulan” (1989) 10 EIPR 346.
[136] See text at note 68, above.
[137] Yumbulul v Reserve Bank, 484.
[138] Id, 490.
[139] See text at note 146, below.
[140] [1994] FCA 975; (1994) 54 FCR 240. See text at note 60, above.
[141] Four bark paintings, one lino cut and three “Papunya”-style dot paintings in acrylic paint on canvas.
[142] Milpurrurru, 262-263.
[143] Copyright Act, s 37.
[144] Id, s 116(1).

[145] Milpurrurru, 272-273. The judgment expressed the aggregate liability of each respondent to the applicants as a group.
[146] Copyright Act, s 115(2).
[147] [1998] FCA 1082; (1998) 86 FCR 244.
[148] See text at note 125, above.

[149] Bulun v Bulun, 247. Although the importer did not appear, the Court had the benefit on other aspects of the case of arguments by an intervener and amicus curiae.
[150] Id, 251.
[151] For development of the argument, see S Gray, note <> above, 232-236.
[152] Id, 257.

[153] Copyright Act 1911 (UK), adopted in Australia by the Copyright Act 1912 (Cth), s 8. See now Copyright Act, s 8. For criticism of this reasoning, see S Gray, note <> above, 243-245.
[154] Bulun Bulun, 257-258.
[155] Id, 259.
[156] Ibid.
[157] Id, 262.

[158] von Doussa J pointed out that the purported creation of a trust in favour of a particular Aboriginal group might raise an issue as to whether the trust has the requisite certainty of objects.
[159] Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8; (1975) 132 CLR 373.

[160] J von Doussa, “Legal Protection of Cultural Artistic Works and Folklore” (unpublished paper, Conference on Legal Developments in the Pacific Island Region, Vanuatu, 2000), 18; M Annas, “The Label of Authenticity” (1997) 3 Aboriginal Law Bulletin 4.