Elcho Arts Centre (the Arts Centre) represents Indigenous female artists on Elcho Island and in the wider Kakadu area. The principle income for the artists comes from the sales of artworks.
In May 2011, the Arts Centre had artworks in Darwin being prepared to be sent for a large commercial exhibition in London in mid-June 2011. The artworks for the exhibition at the Rebecca Hossack Gallery were made in part from the native Australian species, pandanus spiralus (pandanus). Pandanus is used commonly in weaving and in this case was collected by hand from the wild by the artists themselves.
Prior to shipment, the Arts Centre was advised by the Commonwealth Department of Sustainability, Environment, Water, Population and Communities (Department) that certain restrictions applied to the export of pandanus under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). These restrictions had the potential to delay the export of the artworks making them too late for the exhibition, or prevented the artworks from going overseas altogether.
Wishing to ensure the exhibition in London went ahead, the Arts Law Centre of Australia (Arts Law)sought urgent legal advice from law firm DLA Piper for the Arts Centre. This advice was given in the context of a wider concern for other export opportunities in the near future which the Art Centre wishes to pursue. Here in this article, we have a quick look at what this legislation means for artists using native wildlife in their artwork that they want to show overseas.
What is the EPBC Act?
The EPBC Act regulates the export of specimens of Australian native species for the purposes of conservation of Australia's biodiversity and environment heritage. Part 13A, headed 'International Movement of Wildlife Specimens', includes an object of ensuring that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way.
It is an offence to export a regulated native specimen, which includes a specimen that is derived from a native plant. This would include export of artworks created from pandanus or any other native species. Significant penalties apply if the offence is committed.
Exempt native species
It is not an offence to export 'exempt native specimens'. Exempt specimens are listed by the Minister and can be listed subject to restrictions or conditions including, for example, a limit on the quantity of export or a restriction as to the source of the exported specimen.
The option of seeking a listing of pandanus was explored but found to be a time-consuming process. To add a species to the list, the Minister is required to consult with other relevant state ministers and seek appropriate advice on the implications for protection of biodiversity.
Permit for commercial export
It is also not an offence to export a native specimen where the Minister has issued a permit. The permit system provides a means for the Minister to provide special permission for the export of native specimens in specific circumstances.
There are a number of matters the Minister must consider in deciding to issue a permit. These include that the export would not be detrimental to any relevant ecosystem or the survival of the species and that there would be no contravention of any state law.
However where there is a commercial objective in the export (as was the case in these circumstances), the Minister also needs to be satisfied the export would be an 'eligible commercial purpose export'. In this case, this would have involved a first step of seeking the Minister's approval of a Wildlife Trade Operation (WTO).
Wildlife Trade Operation
Approval of a WTO occurs pursuant to a declaration by the Minister. A WTO declaration applies for a maximum period of three years but fresh declarations can be made following expiry of the initial period.
The WTO must also be further classified. In this case, the relevant categorisation of the operation would be as a "small-scale operation". A WTO is a small-scale operation if it has a low impact and either a small area is harvested, the number of people involved in the operation is small or the number of specimens harvested is small.
Applying for approval of a WTO
An application for approval of a WTO is assessed by a delegate of the Minister. Assessment and approval process usually takes around 3 months. There are a number of considerations relating to the impact of the WTO, including any threat to the species or ecosystem survival, effectiveness of any management arrangements for the operation (including monitoring procedures) and the provisions of any state law.
These considerations are reflected in the WTO application form which requires information to be provided to the Minister as to the merits of the application.
The WTO approval process requires consultation with the relevant agency of the state or territory and with the public. Public consultation requires a notice to be placed by the Minister on the internet for a period of at least 20 business days and the Minister is required to consider any comments made in deciding whether to make the declaration.
Like seeking the listing of pandanus as an exempt species, the process of approval of WTO and issuing of a permit by the Minister is a long process and would not have facilitated the exhibition going ahead in June.
Exceptional circumstances permit
For the Arts Centre and the pandanus works, fortunately recourse was available in the form of an 'exceptional circumstances permit'.
The Minister has power to issue an export permit despite some criteria not being met. The Minister does, however, still need to be satisfied that the export would not be contrary to the objects of the EPBC Act, that there are exceptional circumstances justifying the export and that there would be no adverse effect on biodiversity.
A permit based on exceptional circumstances can be made valid for a maximum period of 12 months and still requires a period of public notification prior to approval of 5 days.
The Arts Centre was advised to seek the exercise of the Minister's discretion under this part of the EPBC Act.
If the Minister had declined to exercise the discretion to issue a permit on the exceptional circumstances basis, there would have been avenues for appeal in the Administrative Appeals Tribunal.
The Minister ultimately approved the application for an exceptional circumstance permit and issued the Arts Centre with a 'commercial specimen export permit'. The permit allowed the Arts Centre to export the 65 artworks specified in the application from Darwin to the Rebecca Hossack Gallery in the London. The permit was limited to the shipment of artworks included in the application.
There will, however, be a need for a longer-term solution to the issue of Indigenous artists wishing to export artworks comprising or made from Australian native plant specimens.
An application has been made by the Arts Centre to the Minister to amend the List of Exempt Native Specimens (LENS) by adding pandanus. This application is currently before the Minister for consideration. Once this application has been assessed and the relevant stakeholders have been provided the opportunity to comment, the Minister (or his delegate) will make a decision as to whether pandanus should be added to the LENS.
Arts Law remains concerned that there may well be other native plants and animals used by Indigenous artists in Australia that need to be considered for inclusion on the LENS. Arts Law looks forward to further engagement with Indigenous arts organisations as well as the relevant government agencies on this issue.
Vanessa Walsh and Dwana Walsh, Solicitors at DLA Piper