Indigenous Law Bulletin
Interview with Terri Janke
By Erin Mackay
Terri Janke is a lawyer, policy maker and novelist who runs her own legal and consulting firm in Sydney. She has been awarded several prestigious scholarships and awards, sits on a number of boards, and is the Chair of National Indigenous Television. In this interview, Terri talks to Erin Mackay about Indigenous cultural and intellectual property, the National Indigenous Cultural Authority, and how she maintains her identity as an Indigenous woman working in the legal profession.
Can you tell us a bit about your personal background?
I am the Solicitor, Director and owner of Terri Janke and Company Pty Ltd. I set up my own law firm in 2000 specialising in Indigenous arts, heritage and intellectual property.
I was born in Cairns, north Queensland and have family connections to Cairns, the Torres Strait Islands and Cape York.
I come from a strong family. Both my parents worked in the Commonwealth public service in Canberra. My sister Toni studied law, and is a performer. My brother John Paul works in Indigenous media and played soccer and cricket since he was four.
I am married with two children and live in Sydney.
You have recently proposed the creation of a 'National Indigenous Cultural Authority' (‘NICA’). Can you tell us about this, and explain how it differs from other methods for safeguarding Indigenous cultural and intellectual property or traditional knowledge rights?
The idea of an NICA is for the creation of a recognised body that will advocate for the recognition of Indigenous cultural and intellectual property rights. This means advocating for the right of Indigenous people to maintain, control and protect their cultural heritage, traditional knowledge and traditional cultural expressions. This would be done by providing education for artists and communities, by facilitating rights to prior informed consent and by connecting people to communities. It would give people access to templates and standards and would lead to the development of appropriate protocols. It would also establish a mediation system to deal with any disputes that may arise.
A specifically tailored NICA would differ from other methods in that it would provide a collective and independent Indigenous voice. I submitted a discussion paper to the Australia Council this year called Beyond Guarding Ground: A Vision for a National Indigenous Cultural Authority discussing in more detail the way that such a body would function and improve existing legal safeguards.
In 1999, Our Culture Our Future called for new laws to protect Indigenous cultural and intellectual property. There have been no developments in this area since that time, due to what I consider to be a lack of government interest. The NICA is a way of establishing a system where Indigenous people stand at the forefront and are able to directly develop the rights infrastructure necessary to protect their interests. In the long run, we still need sui generis law; an organisation like the NICA can advocate for this.
Your work has informed important negotiations in international institutions. Can you comment on how cultural issues are addressed on the international stage compared with the domestic context?
There is important work being done in World Intellectual Property Organisation (‘WIPO’) is for the protection of Traditional Knowledge and Traditional Cultural Expressions. The new mandate of the Intergovernmental Committee is to develop a draft text for an international agreement or agreements to govern both of these important areas. It is expected that Australia will take a role in the drafting process; I would like to see Indigenous Australians provide input into the discussions and negotiations. This has been lacking in the past especially in the post-ATSIC era.
The UN Permanent Forum is obviously also looking at these issues so, following the Declaration on the Rights of Indigenous People, it will be interesting to see how that body contributes to the international conversation.
I think the Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture 2002 (coordinated by the Secretariat of the Pacific Community) is a regional model that we could look to for guidance on how to establish prior informed consent processes. As a legal consultant with WIPO, I am working with the Pacific Islands Forum Secretariat and the Secretariat of the Pacific Community on a project which aims to see six countries enact laws based on this model, including Palau, Papua New Guinea, the Cook Islands, Fiji, Kiribati and Vanuatu.
There has been some optimism about the potential effects of Art 31 of the United Nations Declaration on the Rights of Indigenous Peoples on the protection of Indigenous cultural rights. Can you explain what this article is and what the ramifications might be for Aboriginal and Torres Strait Islander peoples?
Article 31 of the UN Declaration on the Rights of Indigenous Peoples is an important development for Indigenous Australians. It states that Indigenous people should have the right to protect, maintain and advance their cultural and intellectual property.
Although it is a different language, it is advocating for Indigenous peoples’ rights to maintain, control and protect cultural heritage, traditional knowledge and traditional cultural expressions. That includes its uses and applications in sciences, technologies, human genetic resources, seeds, medicine, traditional games and sports. The endorsement of the Declaration by the Federal Government hopefully means that these issues will be given greater importance in formulating future policy and legal development.
Aside from practicing law, you are completing your doctorate and developing a national Indigenous cultural policy. You have also written a novel. It sounds tiring! How do you manage to fit in the rest of your life and meet your family obligations?
I am someone who enjoys a balanced life. At work, play and with family, I am flexible and proactive. I also have assistance from my capable team at the office. My husband Andrew is also very supportive of my work, as are my family, friends and community. This has created the space for me to do so much. Writing the novel was fun, and something that gave me energy to continue with my legal work.
On top of all this, you are an inspirational business woman leading your own firm. Do you have any tips for Aboriginal and Torres Strait Islander students and lawyers who are interested in striking out on their own?
I was once told that when things get hard, that’s when most people give up. But if you want to achieve your goal, you can’t give up.
When I started my own law firm it was really challenging: jobs were scarce and money was tight. Some days I wanted to give up, but I remembered that advice, and I’m glad that I stuck with it. I think the biggest tip I can give is to find what you love, and do it with passion. Nothing else will sustain you through the journey.
Finally, can you comment on how you have maintained your identity working in the legal profession?
My work is with Aboriginal and Torres Strait Islander people and our culture. The heart of my work is about giving voice to Indigenous people’s needs and aspirations. Every day I draw on networks and connections, and get involved with projects that are about strengthening identity. All of this shapes and strengthens my own identity.
Erin Mackay directs the Indigenous Art and the Law project at the Indigenous Law Centre and is a PhD scholar in the Faculty of Law, University of New South Wales.
 See Australia Council website, aavailable at <http://www.australiacouncil.gov.au/research/aboriginal_and_torres_strait_islander_arts/reports_and_publications/beyondguardingground> , at 15 December 2009.
 Terri Janke, Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights (1999), published under commission of the Aboriginal and Torres Strait Islander Commission and the Australian Institute of Aboriginal and Torres Strait Islander Studies.
 Secretariat of the Pacific Community, Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture by Secretariat of the Pacific Community, Pacific Islands Forum Secretariat and UNESCO Pacific Regional Office, 2002, available at <http://www.wipo.int/export/sites/www/tk/en/laws/pdf/spc_framework_2002.pdf> , at 17 December 2009.