But that’s our traditional knowledge! – Australia’s cultural heritage laws and ICIP

Introduction

On 3 April 2009, Australia formally gave its support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[1]. The UNDRIP sets out the basic standards for the recognition and protection of Indigenous peoples’ rights, and outlines individual and collective rights of Indigenous peoples in relation to: self-determination, life and security, language, culture and spiritual identity, education, information and employment, participation, development and economic and social rights, rights to country, resources and knowledge and self-governance.[2]. This article focuses on Article 31 of the UNDRIP and the extent to which these rights are reflected or implemented in Commonwealth legislation.[3]

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

In September 2007, 173 nations in the United National General Assembly voted in support of the UNDRIP. Although Australia has formally supported UNDRIP, the declaration is not legally binding on Australia.

The UNDRIP sets out the basic standards for the recognition and protection of Indigenous peoples’ rights. Article 31, in particular, provides that Indigenous people have the right to:

“…maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures….” [4]and the right to “…maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions”. [5]

Article 31 not only acknowledges the rights of Indigenous people to self-determination in relation to their cultural heritage, but equally as important, is the recognition of the right of Indigenous people to maintain control and protect their cultural heritage.

In conjunction with Indigenous people, States supporting the UNDRIP should take effective measures to recognise and protect the exercise of these rights in their own countries[6] and should implement appropriate legislative measures to achieve the objectives set out in the UNDRIP.[7]

Indigenous Cultural and Intellectual Property (ICIP)

Indigenous cultural and intellectual property (ICIP) is a broad concept and refers to the rights of Aboriginal and Torres Strait Islander people to protect and control the use of their traditional knowledge, cultural heritage and expression as a community.[8] The concept of ICIP exists independently of the UNDRIP yet is obviously a core value which the UNDRIP is intended to protect.

ICIP includes:

• the right to protect traditional knowledge and sacred cultural materials;
• the right to ensure that traditional laws and customary obligations are respected;
• the right to be paid for the use of ICIP;
• the right to proper attribution in connection with the work including naming communities who are connected with the work;
• the right to prevent insulting, offensive or misleading uses of the ICIP in all media;
• the right to control the recording of cultural customs, expressions and language that may be essential to cultural identity, knowledge, skill and teachings about Indigenous culture.[9]

ICIP extends to various forms of traditional and cultural expressions and include writings, music (e.g. song), performances (e.g. dance, ceremonies), artistic work, languages, tangible cultural property (e.g. sacred sites, burial grounds), intangible cultural property (e.g oral stories) and documentation of Indigenous peoples’ heritage in all forms of media (e.g reports, films, sound recordings).[10]

Unfortunately, ICIP is not yet recognised under Australian law.  Intellectual property laws will protect some of the forms of traditional and cultural expressions mentioned, but such protections extend only to individuals rather than communities.  In addition, while Commonwealth and State cultural heritage laws do protect certain objects and places that are significant to Aboriginal and Torres Strait Islander people (see below), language, stories, cultural practices and other intangible forms of Aboriginal and Torres Strait Islander cultural heritage are not protected under any Commonwealth or State legislation.

Commonwealth legislation – Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and theProtection of Moveable and Cultural Heritage Act 1986

As mentioned above, there is no overarching law in Australia which specifically protects or governs the rights of Aboriginals or Torres Strait Islanders in relation to all aspects of their traditional cultural heritage. The laws which currently exist at a State and Federal level are generally limited to matters of a tangible nature (e.g. objects and sites) and are not always effective.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Protection of Moveable and Cultural Heritage Act 1986 provide a couple of examples of Commonwealth legislation which are aimed at protecting some aspects of Aboriginal and Torres Strait Islander cultural heritage.[11]

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act)

The ATSIHP Act seeks to preserve and protect from injury or desecration areas and objects in Australia (including Australian waters) which are of significance to Aboriginal and Torres Strait Islander people in accordance with Aboriginal tradition.[12]

Aboriginal tradition means;

“…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 of relationships.”[13]

An Aboriginal or Torres Strait Islander may make a written or oral application to the Environmental Minister (Minister) for a declaration to protect an Aboriginal area or object (including Aboriginal remains) which is under threat of injury or desecration.[14] If there is inadequate protection, the Minister may make a declaration in relation to the area or object, subject to receiving a valid application.

An application cannot be made in relation to threats that may or may not occur sometime in the future or to undo an activity that has already taken place.[15] Further, the ATSIHP Act is limited to objects and areas (i.e. tangible matters) and does not encompass other forms of cultural heritage including languages, dances, performances and intellectual property.[16]

Before making a declaration, the Minister must be satisfied that the area or object is of particular significance to Aboriginal or Torres Strait Islander peoples in accordance with their traditions and there is a threat of injury or desecration (i.e. the applicant is required to explain the relevant tradition and how the activity proposed threatens the area or object and is inconsistent with the tradition).[17] The Minister cannot make a declaration in relation to the protection of an area or object located in a State or Territory, unless the Minister has consulted with the appropriate Minister in that State or Territory.

Criminal sanctions and penalties may be imposed where a person contravenes a declaration made under the ATSIHP Act.[18] However, despite such penalties, the ATSIHP Act does not provide any right of compensation or recompense to the applicant where there is damage to the object or area as a result of a contravention, or a requirement that any damage be remedied or rectified.

Unbelievably, approximately 93% of valid applications received since 1984 have not resulted in declarations,[19] which raise a number of concerns in relation to the effectiveness of the ATSIHP Act in protecting objects or areas of cultural significance.

Protection of Moveable and Cultural Heritage Act 1986 Act (Cth) (PMCH Act)

The PMCH Act regulates the exportation of Australia’s significant moveable cultural property. The primary purpose behind this legislation is to restrict the exporting of items which are of cultural significance to Australia and so that this heritage is not lost.

The Protection of Moveable and Cultural Heritage Regulations 1987 (PMCH Regulations)set out the National Cultural Heritage Control List which list the objects covered by the PMCH Act (referred to under the PMCH Act as ‘Australian protected objects’), which are divided into Class A and Class B objects.

Class A objects refer to those items which cannot be exported from Australia. This includes, among other things, ‘significant objects’ of Aboriginal and Torres Strait Islander heritage such as bark and log coffins, human remains, rock art, carved burial and initiation trees and sacred and secret ritual objects. Anyone wishing to import a Class A object which is located outside of Australia may request that the Minister issue a certificate authorising the object to enter Australia and then allow for it to be returned overseas without restriction.

Class B objects may be exported subject to the relevant permit being issued and other criteria being satisfied.

Reform of Commonwealth Aboriginal and Torres Strait Islander cultural heritage laws

During 2009, the Government undertook a review of the ATSIHP Act, the PMCH Act and other Commonwealth legislation which deals with Aboriginal and Torres Strait Islander cultural heritage property, noting the need for reform in relation to cultural heritage legislation.

In August 2009, the Department of the Environment, Water, Heritage and the Arts published a discussion paper regarding Aboriginal and Torres Strait Islander heritage law reform.  It proposed legislation aims to clarify the obligations of interested parties through a clear allocation of roles and responsibilities; to improve procedures by specifying information needed for protection applications and articulating reasoning for providing and revoking such protection; and to sharpen enforcement powers and penalties.[20]  In December 2009, an independent review of the EPBC Act suggested that reform efforts of the ATSIHP Act be streamlined through the incorporation of the latter’s requirements within the former.  In August 2011, the Government agreed to consider such incorporation pursuant to Recommendation 64 of the independent review.[21]

The Government also undertook a review the PMCH Act in 2009 and issued a report (PMCH Report) which outlined 74 recommendations regarding amendments to the PMCH Act.[22] One of the areas reviewed under the PMCH Report was Aboriginal and Torres Strait Islander cultural objects, and in particular, the adequacy of assessment and protection of Aboriginal and Torres Strait Islander fine or decorative art of secret sacred and/or exceptional significance.[23]

The PMCH Report acknowledged the complexity of these matters, further complicated by the fact that there were multiple parties to consult, each with differing views as to what changes should be implemented to the PMCH legislation. The PMCH Report also acknowledged the limitations with the consultation process and noted that the submissions received did not represent the views of all stakeholders and was largely confined to submissions from state governments, those engaged in the sale of Aboriginal and Torres Strait Islander art, academics and professionals working within the collector section.[24]

The PMCH Report recommended further investigations and development in consultation with relevant stakeholders,[25] including Aboriginal and Torres Strait Islander groups, in regards to amendments to the PMCH Act. While this recommendation is consistent with the Government’s obligations under the UNDRIP to consult and co-operate with Indigenous peoples in relation to cultural heritage laws, no further consultation has been undertaken at this stage.

As at March 2013, the Government has not yet finalised its position on the shape of these reforms.

Concluding remarks

There is no Commonwealth legislation which currently protects aspects of Aboriginal and Torres Strait Islander cultural heritage such as dance, ceremonies and oral stories. Existing Commonwealth legislation is limited in that it is confined to matters of a tangible nature. Whilst there is some acknowledgment by Government for the need to reform Aboriginal and Torres Strait Islander cultural heritage laws, there has been no general recognition that the UNDRIP seeks a fundamental shift in approach to ICIP.

The ATSIHP Act and the PMCH Act were both enacted prior to the UNDRIP being adopted by Australia in April 2009.  As it stands, Aboriginal and Torres Strait Islander people’s traditions do not lend themselves to existing heritage, property and intellectual property regimes. As such, and pursuant to Article 31 of the UNDRIP, the Government should now be striving to implement an enforceable right of communal ownership of Aboriginal and Torres Strait Islander cultural heritage and an obligation on non-Indigenous Australians to respect traditional knowledge and culture.