Protecting the sacred Wandjina – the Land and Environment Court goes to the Blue Mountains
On 22 June 2011 Commissioner Tuor of the Land and Environment Court upheld the decision of the Blue Mountains City Council to refuse permission to gallery owners Vesna and Damir Tenodi to place a large stone sculpture depicting Wandjina on the verge of their Katoomba premises. The hearing for the matter took just two days earlier, in response to an application from the Tenodis appealing the Council's original decision.
Under the Environmental Planning and Assessment Act 1979, the Commissioner makes a fresh decision on the merits. The Court stands in the shoes of the original decision-maker (here the Council) and considers both the original evidence and any fresh evidence. In this case, the critical question was whether the sculpture should be removed because of the adverse social impact were it to remain. Arts Law had filed a submission opposing the sculpture on the grounds that it had been created and displayed in breach of the traditional laws of the Wandjina custodians – the Worrora, Wunumbal and Ngarinyin peoples of the Kimberley region – and in defiance of the wishes of the local traditional owners. Arts Law argued that its ongoing public display in Katoomba was a public expression of racial, cultural and religious intolerance and, as such, had a substantial adverse social impact.
At the hearing, Arts Law also represented Mowanjum Artists Spirit of the Wandjina Aboriginal Corporation and the Kimberley Aboriginal Law and Culture Centre. Several local Katoomba residents, both Aboriginal and non-Aboriginal also spoke at the hearing explaining their deep embarrassment and shame that this inappropriate and disrespectful activity was occurring in their community. The Ngarinyin traditional owners considered this matter so significant that they sent theor own representative from the Kimberley to make submissions to the Court. Gordon Smith Jr of the Ngarinyin Aboriginal Corporation spoke eloquently and powerfully of the cultural and spiritual significance of the Wandjina to the Ngarinyin people and the traditional laws that governed the creation and use of imagery of the sacred Wandjina spirits. The display of the sculpture, created by a non-Aboriginal, without any consultation was in breach of those laws and was deeply distressing and offensive to the Ngarinyin people.
Robyn Ayres, Executive Director of the Arts Law Centre of Australia, welcomed the decision saying, “This matter has highlighted the current gaps in legal protection afforded by intellectual property laws to Indigenous culture. Given this inadequacy, it is important that planning processes by developers and council take into consideration the impact of disrespectful use of Indigenous culture, particularly around public art.”
Set out below are extracts from submissions made by Donny Woolagoodja, elder and senior lawmaker of the Worrora people and Professor Emeritus Valda Blundell, expert anthropologist on the Aboriginal cultures of the Worrora, Wunumbal and Ngarinyin people.
Extract from Worrora elder Donny Woolagoodja's submission to the Land and Environment Court
I am an elder and senior lawman of the Worrorra Aboriginal people of the Western Kimberley region. The Worrorra people are one of the three language groups who are custodians of the Wandjina law and sites of the Western Kimberley. I write this as the representative of the Worrorra people. I am authorised to speak on their behalf.
The term 'Wandjina' or 'Wanjina' or 'Ounjina' refers to the spiritual creator and source of Law for the Worrorra Aboriginal people. The 'Wandjina' have been artistically depicted by the Worrorra people for thousands of years in a uniquely distinctive form (for example as images on bark). The paintings of 'Wandjina' in ancient rock art in our country are there because Wandjina have ‘left' their images at these sites as paintings. For us, these images are not ‘paintings' in the Western sense. For us, they are living, sentient spirits. They visit us in our dreams; they instruct us in our dreams; and we interact with them when we visit their paintings at rock art sites. We reproduce these images in our contemporary art where they are distinguished by their large heads, large black eyes, and typically by halo-like rings that encircle their heads.
The 'Wandjina' have a spiritual or religious significance to the Worrorra people. Images of 'Wandjina' are religious symbols and are depicted by us respectfully and in accordance with our Law.
All Worrora people whether living in the Western Kimberley or elsewhere are offended and distressed by the prominent public display of the sculpture:
- the sculpture is created and displayed by people who are not from our language or cultural group;
- the sculpture is not a genuine or authentic Wandjina;
- the sculpture is associated with the First Applicant whose book “Dreamtime: Set In Stone” argues that Aboriginal people are a “dying race” and suffering from “spiritual atrophy” (page 116) and that “Aboriginal culture has all but disappeared” (page 118). She illustrates her book with Wandjina images to support an argument that ” Aboriginal people are spiritually …in a no man's land” and are “pitiful creatures”. The sculpture is a tangible evidence of her appropriation and diminution of our culture;
- the sculpture is a caricature of the Wandjina spirit and its presence mocks and denigrates the spiritual beliefs of the Worrorra people. It exemplifies the racial and religious intolerance of those responsible for the sculpture and their contempt for our religious and spiritual beliefs;
- the misuse of the Wandjina imagery reflects badly on us as having failed to prevent it and has a negative impact on our relationship with the Aboriginal people of the Katoomba area who are embarrassed by its presence within their community;
- this misuse of our imagery humiliates us in the eyes of other Indigenous people and younger generations of our own people by undermining our attempts to protect and nurture our culture for future generations;
- Ms Tenodi's depiction of the Wandjina imagery incorporates mouths. The Wandjina are never depicted in this way by Aboriginal people. This depiction is particularly offensive to us. The Wanjina we depict in our contemporary art are too powerful to be depicted with mouths – their power descends to Earth through the line seen as a nose; and
- Ms Tenodi is using Wandjina imagery for commercial purposes and is thereby abusing our indigenous culture.
Extract from Emeritus Professor Valda Blundell's submission to the Land and Environment Court
For Wanjina-Wunggurr people, the Wanjina remain an active force in the world today, for example by communicating with their human descendents in their dreams. So, too, Wanjina who have transformed themselves as paintings at rock art sites are considered sentient beings, with whom Wanjina-Wunggurr people interact on a regular basis, for example by communicating with them when they 'visit' them at rock art sites. As part of the reciprocity that exists between the Wanjina and their human descendents, Wanjina-Wunggurr people carry out culturally prescribed duties toward the Wanjina, including maintaining their 'paintings' at rock art sites, caring for the country created by the Wanjina, and ensuring that the required cultural protocols are followed when Wanjina are depicted in contemporary art. This includes maintaining control over the use of the Wanjina image by outsiders. It is believed that failure to adhere to these obligations will rupture the balance the exists between humans and the (super)natural world, for example, the annual rains will fail to arrive and children will not be born because child-spirits will disappear from the land.
As the brief comments above suggest, depicting Wanjina is a significant way in which Wanjina-Wunggurr people enact their identity as a distinct Aboriginal society and convey this identity to other Aboriginal societies as well as the non-Aboriginal world. Wanjina images are encoded with multiple layers of meaning that support the cultural practices and integrity of these people, including their individual and group identities and the nature of their connections to their country. Depicting Wanjina in their contemporary art is a way for these people to maintain the trans-generational continuity of their Aboriginal culture.
According to their laws, only Wanjina-Wunggurr people are permitted to depict Wanjina unless authorised to do so by the appropriate Wanjina-Wunggurr person. Other Aboriginal societies in Australia acknowledge and respect this. Unauthorised portrayals of Wanjina are not only highly harmful to Wanjina-Wunggurr people, but considered highly offensive to the Wanjina themselves. The execution and public display of the Katoomba sculpture has not been authorised by Wanjina-Wunggurr people. Such an unauthorised portrayal of the Wanjina undermines the very foundation of their society in that it constitutes an attack on the specificity and integrity of their identity and the legitimacy of their cultural and religious beliefs. As an unauthorised depiction of Wanjina, it destabilises the natural balance of their life-world which is only ensured when their laws and cultural protocols are followed.
Moreover, in a broader national (and international) context, the public display of the Katoomba sculpture challenges the right of Wanjina-Wunggurr people – and by example all Indigenous people – to protect their Indigenous culture and their intellectual property. The depictions at Katoomba are doubly hurtful to Wanjina-Wunggurr people given the liberties that the artist has taken with their depiction, for example the inclusion of a mouth. Wanjina are not depicted with mouths in contemporary art; it is considered highly inappropriate – indeed a blasphemous distortion – to do so.
Given the legacy of colonialism in Australia, and the efforts of previous national and state governments to eradicate Aboriginal cultures and 'assimilate' them to a Euro-Australian way of life, it is not surprising that Wanjina-Wunggurr people are so deeply distressed by unauthorised (and distorted) depictions such as the one currently on display at Katoomba. The continued public display of this sculpture, despite sustained protests from Wanjina-Wunggurr people, indicates an egregious lack of respect for a living and vibrant Aboriginal culture. Moreover, such an unauthorised display is likely to have a harmful impact on the wider Australian society in that it undermines the commitment of both Indigenous and non-Indigenous Australians to the on-going process of reconciliation between the country's Aboriginal and non-Aboriginal citizens.