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Elcho Island Arts Centre – Part 2: Export Exemption to Benefit Indigenous Artists

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Follow up to the article published in art+LAW on 4th April, 2012 ‘Echo Island Arts Centre – when is an export permit required to exhibit artwork overseas?’ By Delwyn Everard and Marie-Christin Stenzel

Indigenous Australian traditional weaving techniques have existed and evolved over thousands of years. Aboriginal woven fibre art, made from various natural fibres including native pandanus including not only baskets but sculptural forms such as those currently on display at Sydney’s Museum of Contemporary Arts’ ‘String Theory: Focus on Contemporary Australian Art’ exhibition has garnered widespread national and international acclaim.  Indigenous fibre art is held in public and private art collections throughout the world. However, as discussed in art+LAW’s April 2012 article, efforts to build international awareness and reputation have been hampered by restrictive export laws governing the overseas shipment of items created from native plant species. Now, thanks to the efforts of Arts law and its pro bono partners, substantial obstacles previously hindering the international exhibition and sale of Indigenous art created from pandanus fibres has been removed. With effect from 18 December 2012, pandanus spirillis (pandanas leaf ) has been added to the list of exempted native species, so that export permits are no longer required.

In 2011, Rebecca Hossack Gallery in London was planning an exhibition in London of sixty-five woven pandanus works by women of the Yolngu community on Elcho Island. Just days before the works were due to be shipped, the Department of Sustainability, Environment, Water, Population and Communities (SEWPaC) informed the Elcho Island Arts Centre that the pandanus fibre fell within the scope of the Australia’s wildlife protection legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which regulates import and export of native and endangered flora and fauna. Unless the pandanus had been grown on a plantation, which it had not, they could not ship the works outside Australia and they could not be exhibited for commercial sale. The penalty for non-compliance was up to 10 years imprisonment in addition to substantial fines.

Arts Law, through its Artists in the Black casework service secured pro bono legal assistance for the Elcho Island artists from lawfirm DLA Piper who managed to secure an ‘exceptional circumstances’ permit under the EPBC Act for the export of pandanus spirilis (pandanus leaves), the native palm in question.  The exhibition was able to proceed in London as planned to critical success.

Following that situation, Arts Law worked with Elcho Island Arts to lodge an application to remove pandanus fibre from the list of species requiring such a permit. After more than 12 months, this species has finally been classed as an exempt species under the EPBC act which regulates, on a national level, the collection and use of certain species of fauna and flora which are native to Australia, or which are considered to be a threatened species.  This clears the way for all Aboriginal and Torres Strait Island art centres and artists creating artworks from pandanus fibre to ship them overseas for international exhibition and sale.

The exempt list can be found at: http://www.environment.gov.au/biodiversity/wildlife-trade/lists/exempt/index.html

This is however the first stage in what is likely to be an ongoing advocacy campaign by Arts Law with the assistance of another of its pro bono partners King & Wood Mallesons. The EPBC act restricts the export of a number of other species of fauna and flora commonly used in traditional and contemporary Indigenous art and similar problems are likely to continue to arise in the fine art market with the curation of international art exhibitions featuring Indigenous artworks incorporating native materials. Arts Law is currently undertaking a survey of community art centres in order to create a list of all the relevant exempt species of fauna and flora used by Indigenous artists in their creative practices. With the assistance of King &Wood Mallesons, Arts Law will determine whether any of the nominated species are subject to restrictive regulation at State or Federal level and consider the options available for gaining a general exemption under the EPBC act for the general use and export of any protected species for traditional indigenous use and in indigenous art works.

While Arts Law fully supports efforts to protect endangered native flora and fauna and prevent commercial trafficking of such species, the development of the international market for Australian Indigenous art does not, in our view threaten that objective and such legislation should not (and is not intended to) operate to hinder the promotion and appreciation around the world of the extraordinary artistic output of Australia’s Indigenous artists.

 

Delwyn Everard is the Deputy Director at the Arts Law Centre of Australia and Monique Hennessy is a Volunteer Lawyer at the Arts Law Centre of Australia.

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