Indigenous Cultural and Intellectual Property (ICIP)

Aboriginal and Torres Strait Islander peoples have cared for and protected their Countries for over 65,000 years. Their unique relationship to Country, and all that is on and contained by it, is almost unimaginable to the non-First Nations community.

The associated knowledge and cultural associations of place and intangible rights are therefore deep and ever present. Material such as dance, language, story and artistic design are important manifestations of these intangible rights. It is essential that any protections of such knowledge provides a basis for appropriate economic development for Traditional Owners, who continue to experience the ongoing effects of colonisation. The vast gap in life expectancy, health outcomes and generalised rates of violence and incarceration, is testament to the stymying of Aboriginal and Torres Strait Islander peoples’ rights.

Based on this recognition of ongoing connection to country and culture, and respect for the rights and responsibilities that this determines, we must therefore include protections for all the manifestations of this intellectual property.  

Central establishing a broader ICIP regime must be the principle that ICIP that springs from Traditional Knowledge (TK) is necessarily generated and “owned” by the community that gives rise to that TK.¹  When this principle is given effect in a Western legal system it requires that the legal entity ‘owning’ the ICIP is controlled by, and representative of, the Traditional community that generated the TK that led to the ICIP.

To this end, the ultimate recognition of Traditional Owner rights in native foods and botanicals, cultural knowledge, intangible cultural heritage, environmental knowledge and bioprospecting must be managed by the same structures that are given that responsibility with respect to Traditional design as a result of the current legislative development process.

Under international law, the ICIP rights of Australia’s First Nations are recognised in the United Nations Declaration on the Rights of Indigenous People (UNDRIP), the Convention for the Safeguarding of Intangible Cultural Heritage (CSICH) and the and the Nagoya Protocol - Convention on Biological Diversity (CBD). Each of these instruments has relevance to the broader management of ICIP. However, it is UNDRIP that provides the foundational principles for the structures necessary to manage ICIP derived from TK. 

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Who owns ICIP?

Central to any protections will be the identification of those who ‘own’ the property. The concept of collective ownership, whilst not unknown, sits uncomfortably in Western law.

A key element of collective rights is the nature of the collectivity.

The UNDRIP utilises the concept of ‘collective rights’. These are rights held by ‘indigenous communities themselves‘ and not by ‘individuals in community with others’. Throughout UNDRIP the distinction between the rights of “Indigenous peoples” (collective rights) and “Indigenous individuals” is highlighted.

Individuals can enjoy the culture of their society and contribute to it. However, culture itself can only exist as a community construct. It can be said that only a society (community) can give rise to laws and customs. The same is even more true of culture. Language, dance, and art only have meaning in a social context. Whilst access to culture can be a right held by an individual, the rights inherent in that culture must be held collectively.

In the jurisprudence emanating from Committee on Economic, Social and Cultural Rights (CESR), regarding the right of everyone to take part in cultural life, there is reference to the ‘community or group’. This supports collective participation and ownership approach to cultural rights detailed in the UNDRIP.

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Self-Determined Representative Structures

Article 18 of UNDRIP provides for “the right to participate in decision making in matter which would affect their rights through representatives chosen by themselves in accordance with their own procedures…”. Therefore, we see that a collectively held right to culture, and therefore ownership of that cultural knowledge, is ‘managed’ by a collectively determined representative of the Traditional community that gave rise to the TK.

Under existing Australian law there is an extensive range of Traditional Owner organisations that satisfy the representative requirements of UNDRIP Article 18. The Prescribed Body Corporates (PBCs) and Native Title Representative Bodies (NTRBs) established under the Native Title Act 1993 (NTA) are two examples of these. However Traditional Owner organisations established under other legislation such as the Victorian Registered Aboriginal Parties under the Aboriginal Heritage Act 2006 or Tasmanian Aboriginal Land Council under the Aboriginal Lands Act 1995 provide further examples

Utilisation of the system of recognised Traditional Owner Representative Institutions (TORIs) must be a central feature of the proposed legislation. The existence and recognition of TORIs is essential to give effect to the collective rights, including the right self-determination, land rights and the right to protect and enjoy cultural heritage.

Where there is no relevant TORI, a mechanism can be developed to provide advice on who the appropriate Traditional Owners are to engage with in determining issues of ownership of ICIP stemming from TK.

Currently, structures for appropriate recognition of collective rights holding institutions like that described above, are being considered under commonwealth environmental and cultural heritage reforms. Particularly, in regard to a proposed First Nations Engagement and Participation in Decision Making Standard.  

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Conclusion

The manifestation of ICIP must also be found in all physical aspects of culture including song, dance, visual arts, music and performance.

The limitation of ICIP is necessarily in its intangibility. The protections it affords are to the knowledge, so that knowledge can be protected whether it manifests in carpet designs, music samples or novels. Protection must be made across all knowledge, meaning that it must be at a commonwealth level and have jurisdictional application.

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Footnote

1. In this context TKextends to include the notion of Traditional Cultural Expression.

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