By Chris Sexton, Legal Officer
First published in ART+law September, 2003
I was privileged to attend, as a guest, partly courtesy of the Australia Council of the Arts, the Garma Forum 2003 – “Duhni: Indigenous Arts and Culture”. The Yolngu elders had agreed on the name Dhuni, being tied to the ritual theme of the bunguul ( meaning dance and song) which was performed each evening at Gukula, North East Arnhem Land.
The event was held mainly at camp site from 8 to 12 August to an invited group of 1200. The mix of Yolngu elders, artist, performers, bureaucrats, lawyers, and those with a genuine interest in indigenous arts and lifestyle, combined to make the event an extraordinary, memorable experience.
My main role was to present on a Panel with Justice Lindgren of the Federal Court of Australia, Senator Aden Ridgeway and Tamara Winnikoff of the National Association for the Visual Arts, an address on protecting Aboriginal arts and artists. The focus was on the proposed changes by the Federal Government on the introduction of communal moral rights to the Copyright Act.
What emerged in the Panel address, and the feedback from the audience, was clearly a divergence of views about the best approach to a very complex issue. Do we change the law under an existing law (namely the Copyright Act), do we introduce sui generis (completely new) legislation, or do we rely on protocols? The debate was divided, and no clear resolutions were resolved. This issue though will not disappear easily as it touches at the core of heritage.
What became clear to me as I consulted other lawyers, bureaucrats and, most importantly some of the Indigenous elders, is the lack of consultation it appears the Federal Government has had with those parties likely to be most informed and affected about the proposed legislative changes.
As a case in point, on one of the last days when I had the opportunity to ask one of the elders his view about the idea of his clan having to engage in written agreements with a user of his clan’s artwork ( as has been proposed by the Federal Government), his response was simply that they don’t care about Western formalities. Respect their work, was the underlying message he imparted.
I went away from that week thinking not only do we speak in vastly different legal tongues, but honoured by the beauty and simplicity of their expectations.
