6 Indigenous Cultural and Intellectual Property

Practice and procedure — Relief — Interlocutory injunction — Circumstances justifying the issue of interlocutory injunction — Anthropological research by defendant — Tribal secrets — Secrets revealed in confidence — Duty of good faith — Publication by defendant — Breach of confidence — Damage threatened to plaintiffs — Possible disruption of Aboriginal culture — Monetary damages inappropriate — Prima facie case — Consequences of order — Unlikelihood of substantial loss to defendant

Publication of cultural knowledge of a secret nature, relating to sacred sites, objects and stories gathered from an Indigenous community by an anthropologist and published in a book was found to be a breach of confidence. An injunction was ordered to prevent the publication of the book exposing this cultural knowledge.

In 1940 — which was 35 years prior to the proceedings — the defendant, an anthropologist, visited the land of the Pitjantjara people in the Northern Territory and made an exploratory field trip. During the trip the Pitjantjara people, in confidence, showed and explained to the defendant sacred sites and objects, including paintings and rock engravings. The defendant recorded this cultural knowledge through photographs, notes and drawings done by the Pitjantjara people. The defendant published a book for sale in the Northern Territory titled Nomads of the Australian Desert which revealed in sheer volume and detail this cultural knowledge, including Aboriginal words for ceremonial objects and practices which were considered to be secret and culturally sacred.³³

In the Supreme Court of the Northern Territory, the plaintiffs, members of the Pitjantjara Council, sought an interlocutory injunction to restrain the publication of the book in the Northern Territory on the basis that it breached the confidence of the Pitjantjara people and exposed culturally sacred knowledge.

The Pitjantjara people had a fear that publication of the book would disrupt their social system, and that exposure of their secrets could cause damage of a serious nature.³⁴

Muirhead J accepted the evidence that some of the information in the book could only have been exposed in confidence of secrecy to the defendant by the Pitjantjara people. It was found that, despite the absence of a recognised legal relationship which would demonstrate an obligation of confidence, the information in the book was information that carried an imposition of trust and was not to be revealed to the wider public.³⁵

It was found that the information in the book, which included photographs, drawings, descriptions of persons, places and ceremonies, was of deep cultural significance to the plaintiffs and that the exposure of this cultural knowledge had the potential to undermine the social stability of the Pitjantjara community and cause damage and dislocation if their cultural knowledge was not protected. The plaintiffs feared that damage to their community could occur through the book coming into the ‘wrong hands’ and Muirhead J recognised that this fear was ‘not without foundation’ and ‘not based on fanciful grounds’.³⁶

It was held that monetary damages would be irrelevant to address a breach of confidence exposing sacred cultural knowledge, and that an injunction to prevent publication of the book in the Northern Territory was the appropriate remedy.³⁷

At 236 (Muirhead J):

At 236–7:

Practice and procedure — Application for leave to inspect material on court file relating to finalised native title proceedings — Applicant is common law native title holder and director of prescribed body corporate — Consent received from Elders and prescribed body corporate to grant access — Inspection of documents under r 2.32 of the Federal Court Rules 2011 (Cth) — Access to gender-restricted material

This case recognised the importance of ensuring that Indigenous groups are consulted with when a non-party seeks access to anthropological evidence in a native title proceeding and that courts should not place undue restrictions on members of native title claimants’ groups wishing to seek evidence relating to their culture. In determining whether gender-restrictive evidence can be accessed, it is important that ‘appropriate access protocols to respect cultural sensitivities’ are developed and Indigenous-led.

Ms Sue Boyd was an Eastern Guruma Elder and sought to inspect evidence from a native title proceeding brought by Eastern Guruma people to which she was not a party and which was finalised by a consent determination in Hughes obh of Eastern Guruma People (No 2) v Western Australia.³⁸

Ms Boyd filed a ‘Party Access to Files’ document under r 2.32 of the Federal Court Rules 2011 (Cth) (‘Federal Court Rules’) and sought to access all anthropological evidence submitted in the native title claim including affidavit evidence, video and audio recordings and expert witness evidence.³⁹

The Federal Court sent a letter to the parties in the Eastern Guruma native title proceedings informing them of the request submitted by Ms Boyd and that the Court proposed that she be allowed access to the materials if it could be established that Ms Boyd had obtained consent from the native title holders to obtain access.⁴⁰ Ms Boyd provided the Court with minutes from a meeting of the Wintawari Guruma Aboriginal Corporation (‘WGAC’) who consulted with the Eastern Guruma Elders and passed a resolution to support Ms Boyd being granted access to the material.⁴¹

In determining whether Ms Boyd could obtain access to the evidentiary material, the primary issues for determination included:

The access request was granted, excluding gender-restricted material, as the Eastern Guruma native title holders were consulted with and agreed to grant access. Mortimer J noted that, had there been objections to the access request, further consideration would have been required concerning the Court’s usual approach to access requests.⁴²

While Ms Boyd is a director of the WGAC and an Eastern Guruma Elder, this did not mean that she could be treated as a party to the Eastern Guruma native title proceeding, and she was treated as a non-party to that proceeding.⁴³

At [27] (Mortimer J):

Native title to land — Pastoral lease — Mining lease — Cultural knowledge — Grant under statutory authority — Effect of grant upon individual native title rights and interests — Effect of dedication — Public works — Effect of resumption of land — Crown lands — Exclusive possession — Inconsistency of rights — Compensation

This case held that intellectual and cultural property cannot be part of a native title claim as cultural knowledge is not considered to be ‘in relation to’ land or waters, as required under s 223(1) of the Native Title Act 1993 (Cth) (‘NTA’). In dissent, Kirby J found that cultural knowledge is ‘inextricably’ linked with the applicants’ land and waters and that protecting this cultural knowledge is consistent with the purpose of the NTA.

In 1994 an application was made on behalf of the Miriuwung and Gajerrong peoples for native title, which was then joined by the Balangarra peoples. The native title determination area was within the East Kimberley region of Western Australia and adjacent land in the Northern Territory. In 1999, Lee J in the Federal Court made a native title determination for a large portion of the area and granted a right ‘to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the “determination area”’.⁴⁷

The Federal Court judgment granting native title was appealed to the Full Court of the Federal Court and the orders of Lee J were set aside. A new determination of native title was made and leave to appeal to the High Court was granted.

Multiple issues were on appeal concerning the circumstances in which native title may be extinguished. The issue which concerned cultural intellectual property was whether cultural knowledge was a right that could be protected under s 223(1) of the NTA and this involved determining the following question: was a right to protect cultural knowledge a right ‘in relation to’ land or waters?

In the High Court, the majority held, with Kirby J dissenting, that a right to protect cultural knowledge, including preventing the misuse of cultural knowledge, was not a right that was protected by the NTA as it went beyond the scope of controlling access to land or waters. It was reasoned that the phrase ‘in relation to’ had to be read in the context of ‘rights and interests in or with respect to land, and not knowledge about or reverence for it, no matter how culturally significant that knowledge or reverence might be to those who possess it’.⁴⁸

In dissent, Kirby J recognised that cultural knowledge is ‘inextricably’ linked with their land and waters, and that this construction is consistent with the aims and objectives of the NTA:

Dr Terri Janke is a Wuthathi, Yadhaigana and Meriam woman and an international authority on Indigenous Cultural and Intellectual Property (‘ICIP’). True Tracks provides a framework for respectful engagement with Indigenous people and ethical use of Indigenous materials and knowledge in order to protect ICIP. The book addresses a wide scope of Indigenous material that is at risk of being appropriated including Indigenous languages, art, design, film and television, writing, performance, traditional food, science, research and more. A framework of interconnected principles for respecting ICIP is provided, named ‘true tracks’.⁵⁰ The principles aim to support the creation of meaningful relationships and connections in order to ‘enabl[e] Indigenous peoples to actively practise, manage and strengthen their cultural lives, keeping tracks into the future to empower the next generation’.⁵¹ The 10 principles are:

These principles are unpacked, and methods of acting in line with the principles in practice discussed, in Chapter 1 of the book.

The Australian Government’s principal arts investment and advisory council, Creative Australia, has a Protocol Guide setting out the principles and protocols for engaging with Indigenous cultural knowledge and cultural heritage in creative projects in order to support the self-determination of Indigenous peoples. The Guide sets out 10 principles for respecting Indigenous cultural and intellectual property based on the ‘true tracks’ principles developed by Wuthathi, Yadhaigana and Meriam lawyer Dr Terri Janke:

Part 1 of the Guide sets out how to adhere to each of these principles in practice, with more detailed examples, and case studies on the implementation of protocols, provided in Part 2 of the Guide. The principles and protocols set out in the Guide have been applied nationally and internationally for education on Indigenous Australian cultural heritage and respectful engagement with Indigenous artists and creators.

Aaron Moss is a senior solicitor, specialising in public law and government with a particular emphasis on judicial review matters. Moss is also an Adjunct Researcher at the University of Tasmania and in 2016 served as Associate to the Hon. Justice J M Jagot in the Federal Court of Australia.

This article examines the developments in law surrounding access to documents and evidence for court proceedings, and how courts have grappled with the translation of general principles of practice to the unique context of native title litigation, given that large amounts of evidence are routinely required for native title proceedings. Relevant issues which are examined in the context of native title proceedings include the Hearne v Street obligation, requests for access to documents by non-parties and the application of legal professional privilege. The application of Indigenous Data Sovereignty principles, and how these principles may be adhered to, is discussed in relation to access to and presentation of anthropological evidence. Judicial decisions which have promoted Indigenous Data Sovereignty principles are examined throughout the article. As recognised by jurisprudence, it is emphasised that Indigenous peoples should be centred in the process of resolving documentary disputes to support Indigenous Data Sovereignty principles.⁵³ Moss has found that ordinary principles of civil procedure for accessing documents are applied by courts in native title litigation, and that there are no special rules protecting documents in such litigation.⁵⁴ This supports the need for careful management of documents and promotion of Indigenous Data Sovereignty where possible in order to prevent disclosure of sensitive cultural material of Indigenous peoples.⁵⁵

This is a podcast conversation between Patricia Adjei, who is a Wuthathi, Mabulag Islander and Ghanaian woman and Head of First Nations Arts and Culture at the Australia Council for the Arts (now Creative Australia), and Rebecca Simpson, Legal Writer, Practical Guidance Intellectual Property at LexisNexis Australia. Adjei and Simpson discuss the development of protocols and best practice guidelines to safeguard Indigenous Cultural and Intellectual Property (‘ICIP’). They cover the discussions that are underway nationally and internationally for potential law reform protecting ICIP. The Australian Government’s scoping study for new laws to protect ICIP is discussed, as well as the ongoing work and discussions of the World Intellectual Property Organization on the development of a draft international instrument to better protect Indigenous knowledge. International capacity building is under way in countries that want to support the establishment and implementation of guidelines and laws to protect ICIP. Further resources on ICIP are mentioned which include the Arts Law Centre of Australia, and IP Australia which has guides for Indigenous businesses.

Following an Indigenous Data Sovereignty Summit held in Canberra in 2018 by Maiam nayri Wingara Indigenous Data Sovereignty Collective and the Australian Indigenous Governance Institute, the Maiam Nayri Wingara Principles were developed to support Indigenous Data Sovereignty. The Principles are aimed at ensuring that Indigenous peoples have control over the collection and use of their data in order to support Indigenous peoples’ sovereignty and their right to self-determination.

The Principles aim to ensure that Indigenous peoples have the right to:

A communiqué was set out which outlines the Indigenous Data Sovereignty Collective’s view on Indigenous Data Sovereignty and governance, and the purpose of establishing these Principles and which is addressed to all individuals and entities involved in the creation, collection, access, analysis, interpretation, management, dissemination and reuse of data and data infrastructure in Australia.