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The central government is likely to stipulate for the first time in law that the Ainu are an "indigenous people" of Japan, according to sources.

Using the phrase "indigenous people" in a law would be an additional step by the government to clarify its stance on the Ainu, as it issued a statement in 2008 recognizing them as an "indigenous people that have their own language, religious and cultural identity."

The sources said Monday that the reference is likely to be made in a law the government is considering to improve Ainu living standards and education.

The Ainu people have lived for centuries in Hokkaido and nearby areas, including Sakhalin and the Kuril Islands.

They have struggled to pass down their language and culture after the government implemented an assimilation policy beginning in the Meiji Era (1868-1912) as Japan was undergoing rapid modernization.

A law was enacted in 1997 aimed at preserving Ainu culture and guaranteeing their human rights, about 100 years after the government introduced the assimilation policy. It was the nation's first legislation acknowledging the existence of an ethnic minority, but it stopped short of saying that the Ainu are an indigenous people.

In 2007, the U.N. General Assembly adopted a declaration on the rights of indigenous peoples, asking each country to take legislative steps to protect their rights. Japan was among the countries that supported the declaration.

In addition to the new Ainu law, the government is planning to open facilities to promote Ainu culture in Hokkaido in 2020, when Tokyo will host the Olympics.

In the past, politicians have made remarks drawing flak from the Ainu, including when Prime Minister Yasuhiro Nakasone said in 1986 that "Japan is a homogeneous nation."

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Japan's government to stipulate Ainu as 'indigenous people' for first time | The Japan Times

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The central government is likely to stipulate for the first time in law that the Ainu are an "indigenous people" of Japan, according to sources. Using the phrase "indigenous people" in a law would be an additional step by the government to clarify its stance on the Ainu, as it issued a statement in 2008 recognizing them as an "indigenous people that have their own language, religious and cultural identity."

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It has been 10 years since the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted at the UN General Assembly on 13 September 2007. The adoption of the UNDRIP was one of the most important achievements in the indigenous peoples' rights movement at the global level. As this year is the 10 th anniversary of the UNDRIP, its implementation is being reviewed to discuss the progress and challenges it presents at various places including the Human Rights Consortium at the School of Advanced Study, University of London. In this article, I will discuss the situation of the indigenous peoples' rights protection mainly for the Ainu people in Japan, particularly taking a look at the current Ainu policy and the recent development of the forest certification mechanism.

To understand and consider contemporary circumstances of indigenous peoples who have struggled for their rights for a long time, the history of the remaining colonialism would not be negligible. It is quite important to raise the fact that a significant part of indigenous peoples' identity derives from colonial rule such as mass-killings, genocide, marginalisation, assimilation, resettlement as well as cultural destruction. Through the indigenous rights movement, they have fought for the recognition of being "peoples" who hold the right to self-determination, requiring the protection and benefits of international law. In this regard, while independent statehood is not something indigenous peoples have pursued, the establishment and implementation of the UNDRIP could be regarded as an extension of the process of decolonisation.

In my country of Japan, one of the indigenous peoples, the Ainu people, have also suffered from colonialism. Originally, they inhabited Hokkaido, the northern island of Japan, and the far-eastern region of Russia. Currently, according to the latest survey on the Ainu living condition in Hokkaido in 2013, although it is not comprehensive, the number of the Ainu people was at least 16,786. It was soon after the Meiji Restoration and modern nation-state building in the 1860s that the Government of Japan began having direct control over Ainu traditional land by renaming it Hokkaido. Based on the justification of the doctrine of terra nullius, the Government dispossessed the Ainu of their lands and sovereignty, and their cultural manners and customs were prohibited or strictly limited with assimilative policies and legislations, notably the establishment of the "Former Native Protection Act" in 1899. Throughout colonial rule, the Ainu people were also regarded as a "dying race", and most notoriously, Japanese Prime Minister Yasuhiro Nakasone referred to Japan as an ethnically "homogeneous nation" in 1986. His statement became one of the factors that triggered the Ainu representatives to participate in the international indigenous network, which started in 1987.

However, until 2008, a year after the adoption of the UNDRIP, the Government had still failed to recognise the Ainu as an indigenous people. In addition, while the Government also began working on Ainu policy having recognised them as a people, it has been based on the "Japan-Specific Indigenous Policy" view. According to this view, sovereignty status and related rights such as the right to self-determination does not fit in the context of Japan, and indigenous rights outlined in the UNDRIP has been referred to only if they are relevant. For example, collective rights that consist of the major part of the rights of indigenous peoples are not necessarily protected because the Japanese Constitution is based on individualism. Moreover, cultural aspects are prioritised as they easily coincide with the benefits of the majority population in Japan. In this regard, the current Ainu policy has been moving away from what indigenous peoples including the Ainu have pursued through their rights movement and the implementation of the UNDRIP for decolonisation.

In this situation, private sectors' voluntary approaches have also been increasingly paid attention to. One of the most notable developments in recent years is forest certification, and the amendment of the Principles and Criteria (P&C) of the Forest Stewardship Council (FSC) in 2012. FSC is an international non-governmental organisation that runs the global forest certification mechanism, which certifies whether forests are environmentally responsible, socially beneficial, and economically viable. The P&C are a set of rules for it, and one of the 10 Principles (Principle 3) has been on indigenous rights, recognising indigenous peoples as rights holders including the Ainu people.

Before the 2012 revision, under the FSC scheme the primary normative reference for indigenous rights was ILO Convention 169. However, the Government of Japan has not ratified it, so indigenous rights protection under the scheme is considered not necessarily effective in Japan. On the other hand, the new standards have become stricter, and importantly, the UNDRIP has been included as a normative reference. As the Government of Japan voted in favor for the adoption of the UNDRIP and has recognised the Ainu as an indigenous people, FSC Japan has also acknowledged that Principle 3 would be applied to the Ainu people and forests in Hokkaido in 2013. In this regard, compared with the Governmental policy, the FSC scheme seems to go a step further for the implementation of the UNDRIP, and the revision of the FSC P&C is quite implicative for the Ainu rights protection.

Nonetheless, the situation of FSC certification does not warrant optimism as it still faces some challenges. One of them is for example, that the forest certification is a voluntary and market-driven mechanism. Although the price premium is recognised for the certified products in the Japanese market, it is not considered high. In this sense, the mechanism might not be influential enough to change forest practices, although certificates could be suspended depending on the scale and number of non-conformities against the standards. Also, not all of the forests in Hokkaido are FSC-certified. In addition, the certification process is not completely independent from local or national laws and policy. The lack of domestic laws on the Ainu rights might make it unclear, for instance, on which sites the Ainu hold their indigenous rights. Similarly, as there is no official representative or decision-making institutions consented among the Ainu people, who the Free, Prior and Informed Consent should be obtained from might also be ambiguous.

One of the notable relationships between forest managers and the Ainu is found in relation to the Saru Forest in Biratori, Hokkaido, which is owned by the Mitsui Bussan, a general trading company in Japan. In 2010, along the P&C revision process, the agreements on the Saru Forest were concluded among the Biratori Ainu Association, the municipality of Biratori and the Mitsui Bussan. In the agreements, it is acknowledged that some plants and trees that are important for the Ainu culture are nurtured in the forest, and the Ainu people can use the resources when necessary for their cultural activities. However, the focus of the agreements is on preservation and promotion of the culture, but not on their rights protection. In other words, it is failed to discuss the rights of indigenous peoples for the Ainu in relation to the forest. For example, the agreements do not necessarily acknowledge that the Ainu people have the right to manage or freely access the forest. Nonetheless, these agreements are considered as one of the models for the relationships between the Ainu and forest managers in Hokkaido under FSC certification. In this sense, there still remains room that the protection of indigenous rights for the Ainu through forest certification could be dodged as well.

Considering these concerns and challenges, although it might be difficult to completely exclude the possibility that forest certification is appropriated to make forest managers socially acceptable, for the effective work of the mechanism, it is clearly important that the Governmental policy changes its current direction and takes a step to implement the rights of indigenous peoples for the Ainu. Furthermore, another significant point might be the quality of auditors because they inspect forest practices on-site and decide whether the certificate is given or not. However, in general, auditors of forest certification are professional in forestry and not in indigenous peoples' rights, and the cost of fostering and training new auditors is high. Due to this, experts on indigenous peoples' rights might be included into an audit team as a technical expert, or some human rights activists have begun working on providing programmes for auditors to learn human rights and the rights of indigenous peoples. However, considering the balance between the cost for and the quality of the certification, it might not necessarily be easy to achieve either. In this sense, while the recent development of the FSC scheme is quite suggestive in Japan, further efforts would still be necessary in cooperation with the Ainu.

As seen in the case of Japan above, the situations of the implementation of indigenous rights have changed for a decade since the adoption of the UNDRIP in 2007. While various challenges still remain, there have been some implicative developments as well, including the FSC forest certification. Welcoming the 10 th anniversary of the UNDRIP, it is sincerely hoped that indigenous rights would be further promoted hereafter in Japan as well as in the globe.
* Fumiya Nagai is an MA student in Understanding and Securing Human Rights at the School of Advanced Study, University of London.

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Implementing the Rights of Indigenous Peoples in Japan: Ainu and Forest Certification

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It has been 10 years since the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted at the UN General Assembly on 13 September 2007. The adoption of the UNDRIP was one of the most important achievements in the indigenous peoples' rights movement at the global level.

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Māori settled in New Zealand from the eleventh century onwards. For over a century of European settlement Māori tended to remain in rural areas, but by the 2000s more than 80 per cent of Māori lived in urban areas. According to data from the 2013 census, there were 598,605 Māori in the country, making up 14.9 per cent of the total population. Of this group almost half (46.5 per cent) identified Māori as their only ethnicity, with the remainder identifying alongside one or more other ethnicities. The Māori population has increased by close to 40 per cent since 1991, when they totalled 434,847.
Historical context
Māori population numbers were probably about 1 million at the end of the eighteenth century, with an agricultural and fishing economy and a social organization similar to those of Polynesians in the smaller islands to the north-east. There were differences between tribal groups and warfare between them was not uncommon. The arrival of white settlers brought rapid population decline to the extent that the Māori were believed to be on the verge of extinction towards the end of the nineteenth century, when the population had fallen to not much more than 40,000. As in Australia, colonial policy towards the indigenous population was to 'smooth the dying pillow' of an 'inferior race'.
Treaty of Waitangi
One initial result of European contact was the introduction of guns, which resulted in the escalation of warfare between Māori tribes in the 'musket wars'. There were important divisions between Māori at the time of the signing of the Treaty of Waitangi in 1840. Māori chiefs were divided over signing the treaty and were uncertain about its provisions. The English text of the treaty guaranteed Māori 'the full, exclusive and undisturbed possession of their lands', while the Māori text used the words te tino rangatiratanga which could be translated as 'the sovereignty of their lands'. However, the Crown was promised kawanatanga, a Māori translation of 'governorship'. When the treaty was signed, there were some 2,000 white settlers, about 1 per cent of the population; many were uninterested in abiding by treaty regulations.

A number of Māori chiefs refused to sign the treaty, fearing that they would lose their mana (power) and their lands. Some, such as the Waikato Chief Te Wherowhero, were dispossessed of their lands following the 'Māori wars'.

In the 1840s, as Pakeha settlers increased in numbers, there were clashes in all parts of the country between Pakeha and Māori. Pakeha resented Māori ownership of much of the best land in the North Island. The purchase of land under the terms of the Treaty of Waitangi was too slow a process for many Pakeha and too rapid for many Maori. In 1852 the country had gained its first constitution, a parliament and six provincial councils. Maori, excluded from the electorate (as they were not individual property holders), sought to establish their own government and in 1858 elected a Māori king, Te Wherowhero. One intention of this King Movement (Kingitanga) was to halt the sale of land to Pakeha by placing it under the mana of the king, and to establish a legal administrative system in areas ignored by the British administration. Two years later the New Zealand wars began at Waitara in Taranaki province. During the wars, which lasted for 12 years, the New Zealand government sought to punish those tribes involved by confiscating their lands. Almost 3.25 million acres were confiscated, including much of the best Waikato land, the Taranaki coastland and land in the Bay of Plenty.

The wars demoralized the Māori. Even the 'loyal' Māori who had opposed Kingitanga and supported British troops lost land in the aftermath. In some cases it was taken in the confiscations ( raupatu), but a variety of semi-legal means were used to dispossess tribes throughout the remainder of the century. Increasingly, the government sought to assimilate the Māori but, as one analyst wrote in 1980, 'the white man's peace was more devastating than his war', as Parliament oppressed Māori and appropriated their resources.
Waitangi Treaty under strain
After the land wars there were intermittent Māori attempts to reopen discussions on the Treaty of Waitangi, and to seek the restoration of confiscated land. In 1884 the Māori King led a deputation to London, but was refused an audience with the Queen and their petition was sent back to the New Zealand government, despite repeated unsuccessful attempts to negotiate with that government. An earlier movement, Te Kotahitanga (the Māori unity movement) was revived late in the century; it introduced a Māori Rights Bill into the New Zealand Parliament (where Māori had four seats) in 1894, seeking Māori control over their own lands, fisheries and other food resources, which was rejected two years later.

Further attempts to restore the provisions of the Treaty were again made at various points in the twentieth century, and have remained the central theme of Māori history and political affairs. A Royal Commission's findings on raupatu in 1928 vindicated the Māori position, and offered the Waikato, Taranaki and Bay of Plenty tribes compensation, based on the value of their lands at the time and the degree of 'blame' that could be attached to them in the wars. Waikato refused the offer and many Māori demanded that the land and not money be returned to them. A revised offer was eventually accepted by the Waikato people in 1946, though the basic problem of land alienation was little changed.

By the time of the Second World War the Māori were still primarily a rural population, residing mainly in the North Island. Most lived in poor conditions, with inadequate housing, poor access to services and limited access to land, as no more than about 1 per cent of the land of New Zealand was actually owned and occupied by Maori. After the war much of the increased affluence of New Zealand escaped the Maori, despite new provisions for state housing, public health, education and other services. Many Māori began to migrate to the cities in search of employment, and a future outside traditional tribal ( iwi) areas, hence problems of race relations and inadequate economic and social status became more visible. By the 1990s more than 80 per cent of Māori lived in urban areas.
Protest movement
A more radical Māori protest movement began in the 1970s with the formation of Nga Tamatoa, a group of educated young militants who campaigned on issues such as language teaching in schools. In 1975 they organized a Land March down the length of the North Island to the Parliament in Wellington, which created a wide public consciousness of Māori issues. There was a renewed focus on the Treaty of Waitangi, centring on claims that it has failed to protect Māori land, forests and fisheries. In 1971 Nga Tamatoa attempted to disrupt the annual Waitangi Day celebrations that commemorated the signing; such disruptions continue up to the present day.
Waitangi Tribunal
The establishment of a conservative National Party government in 1975 resulted in a tendency to dismiss Māori issues as merely the grievances of militant radicals; this intensified Māori opposition. In the same year, however, the Labour government had passed the Treaty of Waitangi Act, which set up a tribunal to investigate land claims and related matters. A number of Māori mounted legal challenges to the government over land issues. These came before the Waitangi Tribunal, which had the power to investigate new legislation for breaches of the treaty. Prominent among these cases was one opposing government plans to develop a fuel plant on the Taranaki coast, where Māori land had long been confiscated, that would have pumped industrial waste into coastal waters and onto reefs used by the Te Atiawa tribe of Taranaki for fishing. The Tribunal concluded that the proposed outfall constituted a breach of the treaty and the Chairman of the Tribunal, Judge Edward Taihakurei Durie, stated that the tribunal itself was 'an acknowledgement of Māori existence, of their prior occupation of the land and of an intent that the Māori presence would remain and be respected. It made us one country, but acknowledged that we were two people. It established the regime not for uniculturalism, but for bi-culturalism.'

During the 1980s there was a growing demand for Māori sovereignty alongside renewed attempts to gain a public commitment from the government to honour the Treaty of Waitangi. The demand for sovereignty emphasized the necessity for the acknowledgement that New Zealand is Māori land, and that confiscated land be returned to Maori. In 1984 the Tainui of Waikato demanded that the provisions of the Treaty of Waitangi be enshrined in a constitution or bill of rights, and that there be a reform of the political system. The new Labour Party government increased the powers of the Waitangi Tribunal, enabling it to consider claims that had arisen since 1840, thus, for the first time, Māori were able to seek restitution and compensation for the loss of land and resources. Despite discussions of political reform no new Māori seats were created. Māori voters can choose either to be on the general electoral roll or to vote for one of the four Māori seats.

The provisions of the Treaty of Waitangi and the Waitangi Tribunal met more challenges in the second half of the 1980s. In 1987 the New Zealand Māori Council successfully opposed government plans to transfer certain assets to state-owned enterprises as a prelude to privatization, arguing that if Crown lands were sold off there would be no assets left to settle Māori claims before the Waitangi Tribunal. Two years later the Tainui Māori achieved a similar success when they challenged government plans to sell off coal-mining rights in the Waikato, when the coal was under land confiscated from the Tainui. The government also experienced problems when it ignored Māori fishing rights. At a time of economic recession, with the government seeking to restructure the national economy, these developments created tension in New Zealand society. There was a backlash as many Pakeha felt threatened by the apparently increasing scope and greater militancy of Māori claims. Simultaneously, Māori were critical of the continued slow progress in meeting their demands, though social changes resulted in the teaching of the Māori language and taha Māori (the Māori way) in schools, enabling some degree of biculturalism.
Resource management and conservation
Māori participation in resource management and conservation has become increasingly prominent as the effects of the Resource Management Act (1991) and the Conservation Act (1987) have become apparent. These acts included rights of reparation for past and ongoing violations of the treaty, including the right to have Crown land (and resources) returned to traditional owners, and the right of Māori to control and manage their natural resources according to their own cultural values. Nevertheless there was slow progress in making reparations by returning land and other resources. Few resources have been available to Māori to battle for the preservation and integrity of their resources. Despite a series of new statutes, laws and speeches, Māori had experienced little real change in practical terms; this increased the frustrations of militants and angered conservative Pakehas who believed that scarce financial resources were being wasted on ingrates.
Compensation
At the end of 1994 the New Zealand government sought a 'once and for all' settlement for all Māori grievances, with a 'fiscal envelope' of NZ$1,000 million, after which all treaty claims would be deemed by the Crown to have been settled. The attempt to reduce all issues of justice for Māori to a sum of money denied the social, political and cultural impacts of colonization and sought to eradicate Māori rights as established by the Treaty of Waitangi. It defined Māori rights within a colonial framework as 'limited management rights' rather than self-determination, and failed to recognize Māori spiritual attachment to their land. It was rejected by Māori activists in many places, though in December 1994 the Waikato Tainui tribe reached an agreement with the government concerning one of the largest of the 400 outstanding claims. The settlement cost the government NZ$170 million, involved the return of 14,000 hectares of land to the Waikato people and a government apology for raupatu. Generally Māori rejected the 'fiscal envelope', resulting in considerable unity in Māori society but frustration for the conservative National Party government.

During 1995 Māori demonstrators occupied a number of sites, including a public park in Wanganui and the tourist centre of Rotorua, in an ongoing series of protests over the Crown's allegedly illegal occupation of Māori land. Disputes within Maoridom over the distribution of settlement claims met conservative reaction. In May 1995 Prime Minister Jim Bolger and Dame Arikinui Te Atairangikaahu, Queen of the Tainui, the largest Māori tribal federation, signed an agreement under which the government would give cash and land to a total value of NZ$170 million in full and final settlement of land grievances. Under the agreement, which concerned 500,000 hectares of land illegally seized by European settlers in the 1860s, the government handed back thousands of hectares of land that remained under government control. Activists opposed the May 1995 settlement on the grounds that it was insufficient and land would go to the wrong people. Tribes with little claim on fishing rights and urban Māori without close links to their tribes protested that tribally based settlements deliver disproportionate benefits to some Māori simply because of the assets available in their region, and would disadvantage urban Maori. Most of the major Māori land claims had yet to be decided upon, including three-quarters of South Island and large tracts of North Island.

A small group of militant Māori continued to press for a version of sovereignty; they proved a disruptive force at Waitangi Day celebrations and on other occasions, alienated Pakeha, whose views on Māori issues have otherwise become less intractable. The slow settlement of historical grievances had yet to create an economic base enabling Māori to achieve greater self-determination in terms of economic sovereignty, and there remained a range of opinions on how self-determination might better be achieved. There were generational and rural-urban and regional divisions in Māori leadership but a growing acceptance of the need for Māori sovereignty. This has led to considerable turbulence and fluctuation in New Zealand politics.

The New Zealand Parliament passed the Foreshore and Seabed Act in November 2004. The bill overruled a June 2003 court ruling that found Māori may have customary interests in the foreshore, which could allow granting of title by the Māori Land Court. The new legislation effectively extinguished this native title and resulted in extensive public protest. In May 2004, a hikoi (protest march) of 20,000 people marched from the north of New Zealand's North Island to the capital Wellington. Associate Māori Affairs Minister Tariana Turia resigned from the government and formed a new Māori Party, a move that reduced Labour's traditional Māori support.

The Māori Party gained four of the seven Māori seats from the Labour Party in the 2005 elections. Many Māori voted strategically for the Labour Party in protest against the National Party's proposal to abolish the seven Māori parliamentary seats. The Māori Party failed to gain the support of Ngai Tahu, one of the most influential and wealthy iwi, which sought to avoid direct affiliation with any single party. Ironically, it also came to a degree of accommodation with the National Party.

Māori Party representatives accuse the government of 'eroding the relationship between the Crown and Maori' and applauded the September 2007 recommendation of the New Zealand Parliament's Justice and Electoral Committee that the 2006 Principles of the Treaty of Waitangi Deletion Bill not be passed. The bill, which was supported by all parties except the Green Party and the Māori Party, proposed to wipe the words 'the Treaty of Waitangi and its principles' from New Zealand's law books. The UN Committee on the Elimination of Racial Discrimination's August 2007 report confirmed Māori reservations about the government's will to yield to the standards of the Treaty. The Committee concluded that the New Zealand government was acting to 'diminish the importance and relevance of the Treaty and to create a context unfavourable to the rights of Maori'.

In July 2007 the New Zealand Law Commission began a project to develop a legal framework for Māori who want to manage communal resources and responsibilities. Existing legal structures in New Zealand, such as trusts, companies and incorporated societies, do not cater well for the cultural norms of Māori groups and the 'Waka Umanga (Māori Corporations) Act' project proposes an alternative that allows tribes to interact with the legal system.
Current issues
The Māori enjoy a relatively strong position in society compared to other indigenous peoples around the world, thanks to the Treaty of Waitangi. Māori have long been seeking more secure protection of their treaty rights through constitutional provisions. The government recently announced that it is planning to undertake a constitutional review process, which will include a review of Māori representation, the role of the Treaty of Waitangi and other constitutional issues.

Relative to most ethnic groups in New Zealand, other than Pacific Islanders, the Māori are disadvantaged socially and economically. Most Māori are concentrated in areas of unskilled employment, where wages are low and unemployment rates are high. While there have been significant improvements over the last two decades in many areas, such as employment levels and life expectancy, significant disparities remain. Poor living conditions and health, with inadequate housing in inner urban areas and relatively high rates of unemployment, have contributed to poor self-image, violence and criminal behaviour.

A number of positive initiatives have been developed to address some of these areas of disadvantage. For example, since the adoption of the Drivers of Crime initiative, a project developed to reduce Māori offending and reoffending, the number of young Māori appearing in court has reduced by 30 per cent over the last two years. The government also launched the Youth Crime Action Plan in 2013, aiming to reduce crime and recidivism for young Māori. The 2013 census results also indicate that more Māori are achieving formal qualifications at university, with over 36,000 stating a bachelor's degree or higher as their highest qualification - a more than 50 per cent increase since 2006.

In many parts of the country the Māori language lost its role as a living community language in the post-war years. In the past decade there has been a steady increase in the percentage of Māori at all levels of education, and at the same time there has been a renaissance in the teaching and learning of Māori language and culture, partly through increasing numbers of bilingual classes in primary and secondary schools. There have also been growing numbers of specifically Māori-language schools ( Kura Kaupapa Māori), extending from pre-school to secondary level. This focus on education has contributed to arresting the decline in Maoritanga (Māori culture) that tended to follow urbanization. Indeed, there has been a steady increase since the 1990s in the number of children being taught in te reo Māori. Policies promoting the recognition of Māori culture and the visibility of Māori identity in the national arena have been a positive factor in the revitalization of the language. An important step forward was taken in August 2017 when Rotorua became the first official bilingual city in New Zealand.

Issues attendant on reconciliation between white settlers and the Māori community are examined by the Waitangi Tribunal, which was created by an Act of the New Zealand Parliament in 1975. The Tribunal allows the retrospective resolution of grievances. Its findings are not legally binding but the recommendations are generally respected by society. While the fundamental issue of land return or compensation is at the forefront, most land claims remain outstanding, with Māori owning only 5 per cent of the country's land.

Through the policy of biculturalism, and the practice of the Waitangi Tribunal, New Zealand governments have sought to enable Māori development. Māori tribes (iwi) have developed programmes for local development, but have often lacked the land and capital to implement them. Much less attention has been given to the more intractable problems of urban Maori. In this regard, a major challenge is how to use Māori resources and other systems to enable development for the urban dispossessed, for whom social organizations other than the tribe (iwi) - which is of more significance in rural areas - have greater validity. The rapid urbanization of Māori from the 1960s saw the breakdown of iwi (tribe) and hapū (clan) systems. Māori leadership, however, worked to address the issues that arose from this breakdown and established multi-tribal urban authorities to help foster the economic, social and commercial development of urban Māori communities.
Updated January 2018.
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Māori settled in New Zealand from the eleventh century onwards. For over a century of European settlement Māori tended to remain in rural areas, but by the 2000s more than 80 per cent of Māori lived in urban areas.

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A group of young Māori leaders have advocated for greater protection of the rights of the land in a powerful presentation at the UN Indigenous Issues Permanent Forum in New York this week.

The 12 rangatahi were selected through The Moko Foundation, a charitable trust led by former New Zealander of the Year, Dr Lance O'Sullivan.

Te Wehi Omahuru Wright was chosen as the co-chair for the Pacific Caucus.

In his opening address to indigenous world leaders and members of the forum today, he and his rōpu challenged the theme of the forum all together.

"I'd like to touch on the theme of the forum which is, 'the collective rights of indigenous people to their land, their territories and their natural resources'. We are here to challenge that thought.

"We believe that the right isn't to the people, but the right itself belongs to the land. We have rephrased the theme for this forum to be, it's not us that has a right but it's the land, the territories and the natural resources that has the right to indigenous and collective protection and prosperity.

"We, as indigenous people, derive the privilege by virtue of our connection to that land. We speak to the land and we speak on behalf of the land."

Te Huia Taylor acknowledged that Papatūānuku or mother earth was dying.

As the life force of all living beings it was vital she be nourished and protected, she said.

"When she is thriving, we are thriving... As inhabitants of her land, we see her wounds but we are not listening to her cry.

"We continue to take, exploit, degrade and destroy. If we do not act today it will be too late. Our ecosystems will collapse, our relationship with Papatūanuku will be lost and there will be no turning back.

"We have to be the generation to save the world."

Te Rua Wallace said the government led the way in environmental protection when it recognised Whanganui River as a legal person last year.

But legal protection of her ancestral river was not enough, she said.

"The bigger and better goal would be for mother earth to hold the same legal rights just as Bolivia has implemented into their law."

Rangipare Belshaw-Ngaropo drew the audience's attention to Chinese water bottling company, Nongfu Spring, who have recently applied to extract 580 million litres of water from the Bay of Plenty.

"I would like to make reference to article ten of the United Nations Declaration on the Rights of Indigenous Peoples, 'indigenous peoples may not be removed or relocated or forced from their lands,'

"Well, actually, I would argue, we would argue, that our natural resources have their own respective rights to not forcefully be removed and relocated from their lands."

The 12 rangatahi have been documenting their experiences and will continue their journey at the UN forum for the next three weeks.

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Young Māori leaders advocate for land protection rights at the UN

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A group of young Māori leaders have advocated for greater protection of the rights of the land in a powerful presentation at the UN Indigenous Issues Permanent Forum in New York this week. The 12 rangatahi were selected through The Moko Foundation, a charitable trust led by former New Zealander of the Year, Dr Lance O'Sullivan.

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Over several decades, Māori were stripped of their land, their economy and many of their cultural touchstones. The very existence of Māori people came into question. Data journalist Andy Fyers quantifies the scale of the loss for Stuff's NZ Made/Nā Niu Tīreni project.
LAND

When the Treaty of Waitangi was signed in 1840, Māori land holdings encompassed most of New Zealand. Within a century, that had diminished to a few pockets of land, mostly in the middle of the North Island.

The land was lost through a combination of private and Government purchases, outright confiscation, and Native Land Court practices that made it difficult for Māori to maintain their land under traditional ownership structures.

Early purchases

There were some purchases of Māori land made before the Treaty was signed. The most significant by the New Zealand Company, whose business was buying land in New Zealand and then on-selling parcels of it to prospective settlers in Britain.

Starting in 1839, the Company went on a buying spree in the lower North Island and upper South Island. The towns of Wellington, Nelson, Whanganui and New Plymouth were all eventually established on this land.

In Wellington, there were conflicting claims to the land and some chiefs believed they were legitimising their claim, rather than extinguishing it. The Māori and European concepts of land ownership were at odds.

After the Treaty was signed, a land commissioner, William Spain, was tasked with investigating the legitimacy of all pre-Treaty land purchases by Europeans. By this time, settlers who had bought land in the New Zealand Company settlements were beginning to arrive.

Despite his reservations about most of the purchases, Spain ultimately found that at least part of each of the purchases was legitimate, with the exception of a purchase at Porirua. In many cases the New Zealand Company was made to pay compensation to Māori.

The commission he led investigated pre-Treaty land purchases around the country and when purchases were seen to be legitimate, a maximum of 2560 acres could be awarded to the buyer. But instead of the remainder being returned to Māori, it went to the Crown.

Crown purchases

The Treaty gave the Crown exclusive rights to buy Māori land. This was known as pre-emption.

It was occasionally waived to allow private parties to buy land - one such period resulted in large areas of land being bought by settlers in and around Auckland. For the most part, land was sold exclusively to the Crown in the decades immediately after the signing of the Treaty.

The Crown used pre-emption to buy two-thirds of the entire land area of New Zealand from Māori - including most of the South Island. They paid 21,150 pounds in total - the equivalent of $2.4 million in today's money, or about three residential properties in Auckland.

Treaty breaches have been identified by the Crown in the process of these purchases, these vary from purchase to purchase.

In some cases, iwi were made promises that helped to convince them to sell, but the promises were often broken or simply ignored.

Between 1848 and 1864, Ngāi Tahu sold most of the South Island to the Crown for 15,000 pounds - a sum that equated to a fraction of a penny per acre.

In return, the Crown promised to build schools and hospitals for the iwi and to set aside 10 per cent of the land for their occupation.

The schools and hospitals never materialised and Ngāi Tahu received only 37,000 acres of the purchased land - one-thousandth as opposed to one-tenth.

In the years that followed, the iwi fell into subsistence poverty and by the turn of the century there were just 2000 Ngāi Tahu left in their traditional lands.

Confiscations

In the 1860s, the Government passed legislation to allow confiscation of Māori land from those who had 'rebelled' against the Crown during the New Zealand Wars. The lands of pro-Government and neutral iwi were also taken.

The confiscated land was occupied by Pākehā settlers. The main confiscations were in the Waikato, Taranaki, Hawke's Bay and Bay of Plenty regions.

Some land was returned later, although not always to the original owners, and it was often then bought by the Crown.

Native Land Court

The Native Land Acts of 1862 and 1865 converted customary lands (generally in collective ownership) to individual title which could then be on-sold to private buyers. By 1872, over five million acres had been converted from customary to individual title.

The process of gaining title was often expensive in terms of survey costs and the long journeys many Māori had to make to attend the court hearings.

In some cases the cost of attending the hearings and surveying the land absorbed the entire value of land itself, leaving the original owners with nothing.

Putting the unfairness or fairness of the court's practises to one side, the outcome of the late-19th and early-20th Century period in which this court operated in this way was wholesale alienation of Māori from their land.

In 1865, some 19 million acres of land was in Māori customary title. It has been estimated that by 1909 at least 18 million acres of it was in individual ownership, almost none of it had been settled by Māori.

Total land loss

In the 20th Century there was further loss of Māori land to the Crown through private and Government purchases and under the Public Works Act, that sometimes breached the Treaty.

The cumulative effect of all the purchases, confiscations and acquisitions is that collectively owned Māori land now accounts for 4.8 per cent of New Zealand's total land area.

There is a more-detailed breakdown of the Treaty land breaches across the country on the NZ Made/Nā Niu Tīreni homepage.

ECONOMY

With loss of land, comes loss of the means of production.

Before the Treaty many Māori had developed lucrative trading relationships with Europeans.

This is cited as one of the reasons many were initially keen to sell land: to benefit from trading with Europeans.

It is difficult to quantify the full extent of the economic losses that resulted from the extensive land alienation.

But there are many historical accounts of the success of the Māori economy in the years before and immediately following the signing of the Treaty.

The first export crop grown by Māori was potatoes, which they traded with whalers in the early part of the 19th Century. The scale of the cultivation enabled whaling ships to purchase potatoes by the tonne.

In the 1820s and 1830s, the flax trade with Australia took off, while sealskins and spars for ships were exported to China and India.

In 1830, it was reported that 28 ships carrying an average of 100 tons of potatoes and milled grain made 56 journeys between New Zealand and Sydney. While the following year 1200 tons of flax was exported to Australia.

As the settler population grew following the signing of the Treaty, Māori were well placed to supply them with the goods they needed.

Settler towns such as Nelson initially depended entirely on Māori for food and other supplies.

In 1857, then-Attorney-General William Swainson estimated that the Tūwharetoa and Mataatua iwi, which consisted of about 8000 people, owned about 9000 acres of wheat, potatoes, maize and kumara, 2000 horses, 200 cattle, 5000 pigs, four water-mills, 96 ploughs, 43 coasting vessels and 900 canoes.

Māori owned flour mills throughout the country. Fifty were built in the Waikato region alone in 1840s and 1850s.

However, in the late-1850s the price for potatoes and wheat crashed in Australia and the land wars began in the 1860s, which diverted resources towards fighting and resulted in the confiscation of some of the most productive land in New Zealand.

POPULATION

In 1769, Captain Cook estimated the Māori population at 100,000, while life expectancy was about 30 - similar to Western Europe at the time.

By 1840, the Māori population was estimated between 70,000 and 90,000.

After the signing of the Treaty of Waitangi diseases brought by the influx of European settlers - to which Māori had no immunity - had a devastating impact on the population and life expectancy.

Poverty and overcrowding as a result of land alienation made it easier for diseases to spread and by the end of the century the Māori population had roughly halved and was estimated at 42,000.

In 1891, Māori life expectancy was 25 for men and 23 for women. In 1886, 51 per cent of Māori who died were younger than 15, compared with 14 per cent of non-Māori.

In the 20th Century the trend began to reverse as Māori developed better resistance to European diseases and received better healthcare.

After WWII, the population boomed again thanks to lower mortality rates while fertility rates remained high. More people began to identify as Māori after 1981, which partly explains the spike.

At the 2013 Census, Māori numbered 600,000 with life expectancy of 73 for men and 77 for women - still below the figures for Pākehā.

CULTURAL LOSS

Loss of land often meant Māori lost access to culturally significant sites such as burial grounds and pa. It often also meant their access to forests, waterways, food resources, wāhi tapu and other taonga.

In the 1980s, a claim was made to the Waitangi Tribunal that te reo Māori was a taonga and that the Crown had a responsibility under the Treaty to nurture it.

The claimants further argued that Crown actions in suppressing use of the language in schools had contributed to its decline. The Tribunal asked whether the promises of the Treaty could be met if, "there is not a recognised place for the language of one of the partners to the Treaty".

In 2013, 21 per cent of the Māori population spoke te reo Māori, down from 25 per cent in 2001. Over 40 per cent of Māori aged over 70 can speak the language, compared to less than 20 per cent of those under 30.

* Map outlines for gifs courtesy of Click Suite. A 3D animation of the Māori land loss video, which the gifs are based, on can be viewed at the He Tohu exhibition at the National Library in Wellington.

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Two-thirds of the entire country was bought for the modern equivalent of the price of about three residential properties in Auckland.

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Last week, a United Nations committee noted concerns about the lack of constitutional protection in New Zealand for some types of human rights, including rights of Māori. Treaty and constitutional law lecturer Carwyn Jones recommends the government revisit the relevant documents.
Concerns were expressed last week by the United Nations Committee on Economic, Social and Cultural Rights - a panel of experts established to monitor the implementation of rights recognised in the ICESCR - that New Zealand still isn't pulling its weight.

The ICESCR covers a range of fundamental human rights such as labour rights, rights to education, adequate living conditions, housing, and health. As a party to the ICESCR, New Zealand formally reports to the committee every five years. Alongside the government report, this process also provides the opportunity for the Human Rights Commission and NGOs to submit reports to the committee. Following consideration of the submitted reports, including oral presentations and questions from committee members, the committee releases its 'concluding observations'.

The committee's concluding observations on New Zealand's recent report included positive comments about work undertaken by government to protect migrant workers from exploitation, secure health rights for Pasifika, and advance gender equality in public life. The committee also welcomed the government's commitment to prioritising matters such as reducing child poverty, increasing the minimum wage, overhauling both mental health and education systems, and more effectively addressing the housing crisis in New Zealand.

However, the committee also identified a number of areas of concern. These included issues relating to equality between men and women (in employment and other contexts), matters relating to conditions of work, the minimum wage, unemployment and underemployment, concerns about the unaffordability of housing in New Zealand, mental health and addiction services that are insufficiently responsive, and the prevalence of domestic and gender-based violence. In many of these areas, the committee expressed particular concerns about the disparities that persist between Māori and Pasifika and other population groups.

An overarching concern expressed by the committee is that economic, social and cultural rights are not fully incorporated into New Zealand law and do not have effective enforcement mechanisms or remedies. The committee specifically pointed to the lack of enforceability of Māori rights under the Treaty of Waitangi and recommended that the New Zealand government 'take immediate steps' to work with Māori in developing the constitutional role of the Treaty of Waitangi, including addressing the proposals put forward in the 2016 Matike Mai Aotearoa report. The committee expressed concern that Waitangi Tribunal recommendations are not binding and are frequently ignored. The committee determined that the government should ensure that it acts on all recommendations from the tribunal, 'including in its landmark report Ko Aotearoa Tēnei'.

The recommendations for constitutional protection and other mechanisms to ensure enforceability of rights are of particular concern to the committee because if rights are not enforceable, then they really just exist subject to political whim, and so they cannot really be said to be effectively protected at all. Which is why similar concerns about the lack of constitutional recognition of Māori rights have previously been expressed by other UN entities (see, for example, reports on the state of Indigenous rights in New Zealand written by successive special rapporteurs on the Rights of Indigenous Peoples here and here).

It is notable that the committee identified the recommendations made in the report of Matike Mai Aotearoa - the Independent Working Group on Constitutional Transformation - as an essential part of constitutional development and the effective protection of human rights here in Aotearoa. Matike Mai Aotearoa was formed under the auspices of the National Iwi Chairs Forum. Professor Margaret Mutu was appointed to chair the group and Moana Jackson was invited to be its convenor. Further members were nominated by iwi and other organisations or co-opted for particular expertise or experiences. The terms of reference given to the groups were:
"To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition."
The group held over 250 hui between 2012-2015 and gathered feedback on Māori constitutional aspirations. The working group produced a report in 2016, which identified six different constitutional models. These models are intended to indicate the range of possibilities that may be deployed to give effect to the values in tikanga and the Tiriti relationship. These models, described at a relatively high-level, aim to recognise the integrity and independence of both rangatiratanga and kāwanatanga and provide options for further discussion.

To date, the government has not really engaged with the Matike Mai report. It would be great to see the government participate in a constitutional discussion that begins from the basic premise of the Matike Mai report, that New Zealand's constitutional arrangements ought to be underpinned by tikanga and Te Tiriti.

It is also significant that the committee made specific reference to the Waitangi Tribunal's report, Ko Aotearoa Tēnei. Released in 2011, Ko Aotearoa Tēnei is the Waitangi Tribunal's report on claims in the long running Wai262 inquiry that related to mātauranga Māori and New Zealand law and policy affecting Māori culture and identity. Although the Tribunal explicitly stated that the inquiry was not addressing constitutional issues, the broad ranging nature of the subject matter meant that the Tribunal was dealing with Māori participation in decision-making across the whole of government - from intellectual property to environmental management to rongoā Māori to international treaty-making. Across the range of policy areas that were considered, the key for the Tribunal was to ensure Māori are able to exercise genuine decision-making authority and that government agencies are required to deal with the Māori interests in a way that is consistent, transparent and accountable. These are important characteristics for the kind of protection and enforcement mechanisms with which the committee is concerned. If, for example, the Tribunal's recommendations that aimed at ensuring that Māori have a more substantial and more direct role in New Zealand's international treaty negotiations had been adopted, it is likely that the Trans Pacific Partnership agreement would have included more certain and effective protections for Māori rights.

The committee's recommendations may well be timely. On Saturday, Kelvin Davis kicked off a series of consultation hui to inform the setting of the scope and priorities for the new Crown/Māori Relations portfolio. The observations made by the Committee on Economic, Social and Cultural Rights provides important guidance on developing that relationship in ways which better recognise and protect Māori rights. Let's encourage the minister to take that guidance on board.
Carwyn Jones is lecturer at Victoria University specialising in Treaty and constitutional law.

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Why the UN wants New Zealand to strengthen Māori rights

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Last week, a United Nations committee noted concerns about the lack of constitutional protection in New Zealand for some types of human rights, including rights of Māori. Treaty and constitutional law lecturer Carwyn Jones recommends the government revisit the relevant documents. Concerns were ex

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The thought snuck up from nowhere while watching a US television reality show. Hey, that chick just sat her bum on the kitchen bench!

Even as a Pakeha Kiwi - as old and white as they come - it struck a jarring note. So am I starting to get the first stirrings of an authentically bicultural identity? Mixing bottoms and food preparation areas is now instinctively felt as tapu?

Biculturalism is a tricky subject. As still a young country, New Zealand is on a journey of discovering itself. It wants to grow into something that is both authentic and distinctive in the world.

And a conscious browning of its culture seems a good thing. It would strengthen the national sense of identity. A "Maori cool" could even be taken as a international branding exercise - the way to cement New Zealand as a distinctive proposition in the world's eye.

READ MORE:
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* Cheeky French steal moko

Just witness the part the haka, moko-style tattoos and corded hunks of greenstone now play as markers of their Kiwi-ness when the young take off for abroad these days.

And yet biculturalism is awkward too. There is a fine line to cultural appropriation. And no-one wants to be accused of that.

JK Rowling, the Harry Potter author, has walked straight into such a fuss with her reworking of the Navajo legend of the skinwalker - a shadowy witch figure - into a faux North American history of wizardry on her new website, Pottermore.

Rowling says obviously it is just fictional fun. But she was blasted by native American academics for her disrespectful colonial attitudes and "commodification of spiritual practices".

The blogosphere erupted with "PC gone mad" rejoinders. "Does that mean all those superhero movies featuring Norse Gods and Greek Gods were cultural appropriation too?" cried one comment.

However it makes you think about the rules for Pakeha New Zealanders.

Since the All Blacks began to do it properly, the haka has become something we generally don't like seeing being mucked about with. If it is going to be done, it has to be done in the right way, in the right spirit, not made fun of in an Italian car advertisement or college football game in Arizona.

And ta moko - which correctly is an incision, a carving on the skin, using uhi, or chisels made of albatross bone - has become like that too. There is a Kiwi context that demands respect. So some people felt it off when UK singer Robbie Williams got one tattooed on his shoulder.

Boxer Mike Tyson caused a double stir because first he had one inked on his face, and then his US tattoo artist sued Warner Bros for copyright infringement after it used the design on a character in its top-grossing comedy movie, The Hangover II.

Surely an American couldn't claim to be the owner of that particular piece of intellectual property?

But even within New Zealand, how are respectful boundaries to be drawn? Online, there are now continual debates about whether ta moko on white boys counts as a cultural offence.

Or with pounamu, there are anxious queries about whether it is right that carved greenstone can only be accepted as a gift, never bought for yourself? And do Maori really insist a stone must be washed and blessed to remove the tapu of its maker?

So when is it play-acting and when is it genuine? How do we share a culture without becoming simply its thieves? Yep, biculturalism has the potential to be the new social minefield.

IT'S ABOUT OWNERSHIP

Auckland University law professor and Waitangi Tribunal expert Dr David Williams says it starts with a formal framework.

New Zealand is working towards institutionalising its bicultural identity and before anything can be shared, first its proper ownership must be established.

The issue of cultural appropriation is being tackled internationally. There is a growing push to protect the myths and customary knowledge of indigenous people as intellectual property.

One of the milestones was the 1993 Mataatua Declaration in the Bay of Plenty. Tribal delegates from 14 countries - including Aboriginal Australians, Japanese Ainu and Native Americans - met to claim copyright protection and "control over the dissemination" of their traditional cultures.

Williams says that international fight has rolled on through various United Nation's resolutions and is being carried forward by intergovernmental agencies like the World Intellectual Property Office (Wipo).

Big business is now well aware of the feelings about cultural appropriation. In the past, Maori had to embarrass overseas firms into dropping products that were felt offensive.

Lego was made to back down over using Maori spiritual names on a range of its Bionicle toys. Phillip Morris ditched an Israeli brand of cigarette it had dubbed Maori Mix.

The way things are going, indigenous people may one day also have laws under which they can take action.

And then New Zealand has its own Treaty attempts at a creating a suitable regulatory framework. In 1997, Maori launched the Wai 262 "flora and fauna" claim.

Williams says that was radical because it was the first "whole of government" claim.

It stepped back from questions about ownership of land and other material assets to consider what Maoridom brought to the Treaty partnership in terms of its distinctive culture and historical relationship to the nation's plants and wildlife.

"Wai 262 asked what was going to be the post-Treaty relation between Kupe's people and Cook's people," says Williams.

And finally in 2011 it resulted in a book-length report, Ko Aotearoa Tenei, or "This is New Zealand", which documented what Maori considered to be its taonga, or cultural treasures, as well as suggesting how that should be protected.

Williams says so far the Crown has bottled giving a formal response to Wai 262 - saying nothing in reply that might commit it to a legislative programme to secure taonga as intellectual property.

Perhaps that is understandable. "My guess is government officials probably said it's too big, it's too hard", says Williams.

But informally there seems to be movement.

There are now Maori advisory committees to deal with both trademarks and patent applications. Although these exist simply as a source of Maori cultural expertise to warn of what might prove offensive in a general public sense, not to uphold any new property rights.

More significant says Williams is that Maori co-governance arrangements are being taken increasingly seriously. Maori are getting a seat at the table with regional councils, water bodies and other agencies, allowing the Maori view actively to shape the design of new policy.

"We've got beyond the ethnic wallpaper approach with government departments. The fact the Inland Revenue Department might decide it can also be called Te Tari Taake, the Department of Tax, doesn't change anything really.

"But I think there's a genuine commitment in the public service that they have to do more than just make a token nod to Maori culture now."

Thus while Wai 262 looks to have been ignored, Williams says he is of the glass half full opinion that the report has created a basis for treating Maori concerns as a living conversation. He points to the formula the Crown is using on the foreshore and seabed issue.

"When the legislation was repealed, the answer was that it had been in Crown ownership and now it's in no-one's ownership. So we will just have to work out how it is to be managed in relation to customary interests and the general public's interest."

Williams says this seems the healthy approach - wind back matters to a pre-Treaty state so as to allow room for a modern post-Treaty partnership solution to evolve.

And a further clear principle to emerge from Wai 262 is that cultural ownership needs to be considered as a continuum.

The report suggested there should be three categories of protection - Taonga works, Taonga-derived works, and "closely-held matauranga Maori", the third being things special to particular tribes.

"Usually there's a continuum from where something is of such cultural significance, that really Maori ought to have strong control over its use in any form.

"And then the other extreme, where while something might have origins as a Maori motif, it's very much part of the public domain - and if Robbie Williams wants to put it on his shoulder, well that's probably OK," says Williams.

WHAT ABOUT BICULTURALISM?

Talk about who owns what when it comes to Maori culture seems both necessary yet also rather off-putting.

Proprietorial rights sounds like the intent to impose tight restrictions. And where would that leave the development of a fully fledged Kiwi biculturalism?

However Maori designer and Auckland University of Technology lecturer, Dr Johnson Witehira, offers his own disarming take. He says think about it and what Maori would want is actually more cultural appropriation.

"If you look back at how Maori engaged with European ideas and technology, or philosophy and religion, we were really happy to adopt those things in ways that shaped our own culture.

"And why cultural appropriation becomes problematic is because Pakeha weren't so happy to take on-board Maori things originally."

So the goal is to stop in order to get started again, Witehira says.

Biculturalism needs a formal base like the Wai 262 flora and fauna report to create an understanding of what matters historically to Maori. But the hope is that, in turn, it will act as a springboard to a new level of partnership.

Witehira says ta moko is a good example. Carving in general holds a special place in Maori culture, being permanent and steeped in ritual. So moko are worn as a record of tribal connection, not simply as body decoration.

"Stories about the origins of ta moko talk of the ancestor Mataora first receiving the knowledge of moko from Uetonga, who resided in Rarohenga (the underworld)."

But tattoos, being merely painting - albeit permanent - on the skin, are already a lesser order of thing - sometimes called kirituhi. And tattoos merely inspired by moko designs are even more distant from cultural concerns.

Witehira says the more ephemeral and earth-bound the art form - like painting or ornaments - the less it matters. And once Pakeha understand this, they can feel more confident about how to weave Maori influences into their own lives.

Yet Witehira says Maori culture does need its protection as indigenous intellectual property. While the desire is for a free exchange, the reality is still that Pakeha represent the dominant culture.

"If Maori go and borrow things from Pakeha culture, like photography or whatever, we're not going to affect that larger culture itself. It's too massive. But if non-Maori start using Maori things in uninformed ways, then they're actually going to dilute that culture."

This is the problem with an example like Mike Tyson's facial tattoo.

"Tyson is someone with a large presence on the world stage - probably more than Maori do themselves. So if he has a tattoo which he's calling Maori, then you can see how that could change perceptions about what Maori things really are."

Likewise, says Witehira, the oft-heard comment that New Zealand should skip biculturalism because its real future lies in a multicultural identity involving Asians and Pacifica as well. The true melting pot.

However Witehira says multiculturalism is different because it is about an integration of cultures which retain a living connection with some other country.

"If you're talking about Indian, Chinese or Samoan cultures, they all still have a home somewhere else. But Maori culture doesn't have a home anywhere else. And that's the critical difference."

WHAT ABOUT TRADITION?

So the traditional should be protected in a way that fosters an understanding. In that way the outcomes will have meaningful roots.

But nothing is going to be comfortably cut and dried. Or at least that would be what some of the side stories, like the tourist trade in pounamu, might suggest.

John Sheehan, a US immigrant who founded New Zealand's largest greenstone jewellery business, Rotorua-based Mountain Jade, in 1986, says the truth of cultural debates is always complicated.

"In the late 1950s and early 1960s, it was Pakeha carvers who brought the carving of pounamu back to an art form. Prior to that, it was pretty much a dead duck. Nobody was carving very much anywhere."

As a small community nobody was taking much notice of, Sheehan says it had to work out its own rules of respect.

"I had a conversation with this old guy in Rotorua. I asked if he was offended by my carving pounamu. He said the only rule you have to follow as a contemporary carver is never to copy any of the old work.

"If you copy, you're taking the mana away from that old piece. But you can use the old work as the basis for new work, and that new work is yours."

However Sheehan says there are only about seven traditional forms that would have this close protection. And also historically, some favourite pounamu objects like tiki were once traded as trinkets themselves.

Sheehan says production was cranked up in early settler times because something was needed to swap for the tools being offered by the whalers.

"And once you have your metal axe, what do you want with your pounamu adze? So Maori just started turning their adzes into tiki to trade for more axes. Its funny, but Maori were the first souvenir manufacturers in the pounamu industry."

The past may be less precious then it seems, he says.

But regardless, for New Zealand jade carvers, the whole argument is now having to be worked through again as part of a more formal bicultural debate.

Under its 1997 Treaty settlement, the South Island iwi Ngai Tahu gained tribal ownership of New Zealand's best quality pounamu deposits. Sheehan says the promise was that properly authenticated stone would create a market that better represented New Zealand to the world.

Instead, the pounamu became locked up for years because of internal divisions within Ngai Tahu. Head office supported commercial development, but the West Coast runanga - particularly Haast - wanted the pounamu kept as traditional property.

Sheehan says he has had to build up his business sourcing jade from China, Siberia and Canada. It is only this year that Ngai Tahu has begun to release New Zealand stone.

"They have a really good system. It's like Icebreaker. The stone is labelled so you can track it right back to its place of origin." So while it has taken a long time, there is the opportunity now for a pounamu trade that properly respects Maori values like a tribal attachment to place, Sheehan says.

The lack of local stone sent carving into reverse. "We had about 15 carvers in Hokitika but we had to let most of them go. The industry has shrunk by about 80 per cent in the past three years."

For its part, Ngai Tahu says the priority has to been to protect and manage its pounamu resource sustainably. And also, the supply of stone for ceremonial use has naturally had first call.

So for pounamu, there are still tensions playing out. Sheehan says the push for a biculturally acceptable formula has had its casualties. It is not all sweetness and light. However generally he is optimistic.

"In New Zealand we are lucky compared to Canada or where I came from in upstate New York, where the Mohawk Indians live. There, there is a wall, a big divide. You can't live in their world.

"We don't have that here. We do have two worlds, but we work together pretty well. And everything evolves. It's nothing to be afraid of," Sheehan says.

- Stuff

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Sharing the taonga: who owns Maori intellectual property?

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The thought snuck up from nowhere while watching a US television reality show. Hey, that chick just sat her bum on the kitchen bench! Even as a Pakeha Kiwi - as old and white as they come - it struck a jarring note. So am I starting to get the first stirrings of an authentically bicultural identity?

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Australia is being held back by its unresolved relationship with its Indigenous population. Drawing on attempts at reconciliation overseas, this series explores different ways of addressing this unfinished business. Today, lessons from New Zealand.
The relationship between Māori and the British Crown (which delegated its authority to the New Zealand government) has historically been filled with broken promises. Māori reached their nadir at the turn of the 20th century when their population had fallen to half of what it was at first contact.

Ever since the 1840 signing of the Treaty of Waitangi (New Zealand's founding document), a raft of government initiatives have resulted in Māori losing both resources and power. To tackle grievances stemming from these actions, reconciliation efforts were established in the country 30 years ago.

These efforts generally fall within three mechanisms: the Treaty of Waitangi settlement process; the Office of the Race Relations Conciliator; and public education platforms.

Treaty settlements

The Treaty of Waitangi contains three articles which recognise Māori retaining their mana (authority) and allow the British Crown to govern its own people; protect Māori resources and culture; and require Māori to enjoy equal rights with British citizens.

Despite all this, acts by both the British Crown and successive New Zealand governments have had detrimental effects on Māori. These span the loss of lives to the taking of land through various measures, with Māori becoming culturally and economically bereft within their own lands.

But there is recourse. The New Zealand government established a forum to hear treaty-based grievances, known as the Waitangi Tribunal, in 1975. The current framework for settling historical grievances focuses on the restitution of Article II rights: the taking of resources including land and the absence of protective measures regarding Māori culture.

According to the Office of Treaty Settlements, the government entity responsible for negotiating agreements with iwi (tribes), 51 claims were settled between 1990 and 2014; three others dealt specifically with resources rather than being solely iwi-based; and another 35 are at various stages.

Each settlement contains financial and commercial redress, cultural redress and an apology for the offending acts.

The process is often criticised for being dependent on the government determining parameters of the settlement framework, and on the basis that settlements don't necessarily equate to actual losses suffered by the iwi. Despite the iwi Ngai Tahu settling for NZ$170 million, for instance, the actual economic loss the tribe suffered is estimated at NZ$20 billion.

But it's had positive outcomes too: the creation of an increasingly powerful Māori economy, with iwi such as Tainui and Ngai Tāhu estimated to be worth NZ$1 billion in assets. Both iwi have attributed their success to property investment.

Crown apologies are received differently by various iwi. Some believe they aren't important, while others consider an apology to be a significant part of the process that allows both parties to move forward.

The conciliator, the media and education

The Office of the Race Relations Conciliator was formed under the Race Relations Act 1971 and releases reports that serve as educational resources for the public. Its purpose is to "work to promote positive race relations".

The office has dealt with a number of complaints that have generated national publicity. An example is the 1979 He Taua incident, when a Māori protest group confronted Auckland engineering students who mocked the haka.

Reuters

But the most influential educational platform for indigenous reconciliation in New Zealand is the media, which have experienced something of a transformation since the 1990s. This reflects, to some extent, the growing awareness of treaty and Māori issues.

Trends that were commonplace in the media 30 years ago - such as the dearth of Māori broadcasters; poor pronunciation of Māori names and words; and, at times, racist reporting of stories involving Māori - are now largely absent.

This transformation also includes programming that focuses on Māori; Māori language being televised by the main state broadcasting network; and the establishment of Māori Television in 2004.

Other public education platforms involve treaty educators, the education system and public education initiatives. Treaty educators, who are invited to present to communities or organisations on a largely voluntary basis, run workshops and produce multiple resources.

The public education system teaches material regarding Māori and the Waitangi Treaty, and also has readily available resources. It does all this despite the treaty not being a compulsory educational component or course, although the national curriculum:

... acknowledges the principles of the Treaty of Waitangi, and the bicultural foundations of Aotearoa New Zealand.

In effect, public education initiatives have tended to fluctuate. And efforts over time have coincided with nationwide events and political policies, such as the 1990 sesquicentenary celebrations of the signing of the Waitangi Treaty, or the release of the 1995 Fiscal Envelope (the government policy to settle historical grievances).

Lessons that other countries can learn from New Zealand's experience of reconciliation is for indigenous people and governments to have a genuine and robust discussion at the outset of any attempt to resolve grievances.

The government established both the Waitangi Tribunal and the Fiscal Envelope with little or tokenistic consultation with Māori. An approach like this can result in recurring accusations of unfairness because one party clearly has more power when equality is needed for fair and enduring settlements.

Along with efforts to address the past that are satisfactory to both indigenous people and the government, there is the need to better educate the wider public. The New Zealand education system was monocultural for a long time, teaching all that was great about the British Empire with little or no attention to the poor treatment Māori had received.

This resulted in the majority of New Zealand citizens believing that race relations between Māori and the Crown had historically been harmonious, when that was clearly not the case.

Finally, a forum is needed where race issues can be raised and discussed in a mature and sensitive fashion. New Zealand has the Race Relations Conciliator, but that office has been criticised in the past for not having enough legislative clout to impose penalties.

Real progress toward indigenous reconciliation requires fairness and equality.
This is the second article in our series on efforts towards indigenous reconciliation in settler countries around the world. Look out for more snapshots of other countries' progress in the coming days.

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Boats and boating--Equipment and supplies

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New Zealand's indigenous reconciliation efforts show having a treaty isn't enough

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Australia is being held back by its unresolved relationship with its Indigenous population. Drawing on attempts at reconciliation overseas, this series explores different ways of addressing this unfinished business. Today, lessons from New Zealand. The relationship between Māori and the British Crown (which delegated its authority to the New Zealand government) has historically been filled with broken promises.

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The term Arctic peoples in Canada generally refers to the Inuit population, descendants of the Thule people, who lived in the Arctic from 400 to 1,000 years ago. The Inuit refer to their homeland as Inuit Nunangat. In 2011, there were nearly 60,000 Inuit in Canada, 73 per cent of whom lived in Inuit Nunangat.

Who are Arctic Indigenous Peoples?

Indigenous peoples in Canada, both historical and contemporary, have inhabited six cultural areas that, unlike provinces and territories, do not have strict boundaries, and instead refer to areas in more general terms. The Arctic is one of these cultural areas. The others include the Plains, Plateau, Subarctic, Northwest Coast and Eastern Woodlands.

Referred to as Inuit Nunangat, the Inuit homeland comprises those inland and coastal areas north of the treeline. It is for this reason that the terms Inuit - itself a generic term - and Arctic peoples are often used interchangeably.

There are nine main Inuit groups in Canada:

A tenth group, the Sallirmiut (Sadlermiut), are no longer in existence.

In 2011, there were nearly 60,000 Inuit in Canada, 73 per cent of whom lived in Inuit Nunangat.

The Inuit are not the only northern Indigenous peoples in Canada. In areas close to the treeline, Indigenous peoples, including some Innu, Dene and Cree nations, have traditionally occupied similar environments to the Inuit (though rarely at the same time), and have hunted and fished similar game species. These northern Indigenous peoples have lived in parts of the Yukon, Northwest Territories, Nunavut, Québec and Labrador.

Geography and Traditional Territory

Inuit Nunangat is comprised of four regions: Inuvialuit (in the northern parts of the Northwest Territories and Yukon), Nunavut, Nunavik (in northern Québec) and Nunatsiavut (in northern Labrador.)

Inuit Nunangat.
(courtesy Victor Temprano/Native-Land.ca)

These arctic regions are characterized by long daylight hours in summer with moderate temperatures. Winters are long and cold, and at more northerly locations there is a mid-winter period when the sun is entirely absent. Plant cover may be continuous, especially in well-watered locations, although rocky outcrops and barren dry areas are common. Trees are entirely lacking in the Arctic, though low shrubby plants occur, including several varieties of edible berries. Landforms are variable, from lake-studded lowlands to glacier-strewn alpine areas.

Society

Historically, Inuit communities contained 100 -1,000 members. These regional bands were the most important social and political unit. Band members often congregated for short periods during the winter months, when people gathered in sealing or hunting camps.

Several regional bands made up the larger Inuit groups. Marriages occurred within these larger groups and all members spoke a similar dialect.

During the rest of the year, Inuit lived in smaller bands, often composed of two to five families. Each household generally consisted of a married couple and their children, though elderly or unmarried relatives might also be present. Many economic and social activities involved inter-household co-operation, and widespread sharing was, and still is, a fundamental characteristic of Inuit social life.

Most families who chose to live together were closely related, with leadership of the group generally assumed by the family heads. In some groups, the isumataaq, an informal leader who was often a young man with proven hunting and leadership skills, also held authority on social matters, such as adoption and marriage.

Family Structure

Marriage was nearly universal among Inuit and customarily took place in early adulthood; it was common for the young couple to reside close to the parents of one or the other spouse. Many households included adopted children, an indication of the high value accorded to children. Children were an important means of establishing valued inter-family relationships through adoption, engagements, adult-child relationships established at birthing ceremonies, and naming practices. The family was an important economic unit, relying on a decided division of responsibilities among all household members, including children and elderly relatives.

Inuit society associated birth with several socially significant rituals. Among some groups, in addition to an attending midwife, there was another adult who served as the child's ritual sponsor, assuming responsibilities for the child's moral upbringing. Throughout life, special terms of address were used. For example, according to a Netsilingmiut elder interviewed in 1991 for Betty Issenman's Sinews of Survival (1997), a godfather calls his goddaughter arnaliaq, which means "making you a woman," while she calls him sanajiarjuk, "dear little maker." Naming occurred at birth and had special significance, as Inuit names included part of the identity and character of the name bearer.

The arrangement of children's future marriages could occur at any time, even before birth. Young people promised to each other used a special form of address, and their families related in ways appropriate to the future relationship. Marriage, an exceptionally stable institution among Inuit, was customarily preceded by a period of trial marriage. Polygyny, having multiple wives, and more rarely polyandry, having multiple husbands, also occurred, but were not common practices.

Traditional Life

Food and Economy

Most Inuit groups based their economy on sea-mammal hunting, particularly seals. In summer and fall, many groups hunted caribou or moved to favoured coastal locations to hunt and fish a variety of game species. Fishing and food gathering (for bird eggs, shellfish and berries) were important seasonal activities, as were hunts for polar bear and whale. Though high value was placed on fresh food, people also preserved and stored goods for future use. Drying and caching in cool areas were common techniques, although several special techniques (such as storing in oil) were also used.

Traditional technology was based on locally available materials, principally bone, horn, antler, ivory, stone and animal skins. In some areas people used grass or baleen (the material used by whales to strain krill and plankton) for basketry and other containers. They also substituted wood or copper for antler or bone, and bird or possibly fish skins for animal skins. Many Inuit inventions are considered technological masterpieces for their resourcefulness and strength of design, like the igloo, the toggling harpoon head and the kayak.

There was an important relationship between location of settlements and seasonably available food resources. The composition of settlements might change periodically in response to social needs and desires to interact with kinsmen residing elsewhere. Many hunting methods became more effective when several hunters worked co-operatively, such as during winter seal hunting.

In many contemporary northern communities, foods such as fruit, vegetables and milk must be transported long distances. The resulting high costs, limited availability and lower quality of the food is somewhat eased by the availability of "country food" - wild foods such as seal, caribou, duck, whale and fish. A 2005 report found that 68 per cent of Inuk adults in Inuit Nunangat harvested country food. ( See Social Conditions of Indigenous Peoples.)

Transportation and Dwellings

All Inuit used sleds and skin-covered boats, though regional variations in both design and use were common. Dogs historically served as hunting animals, locating seal breathing holes in the sea ice, hunting muskoxen, holding bears at bay and serving as pack animals in the summer. Men used single-seat kayaks for hunting sea mammals, and for hunting caribou in rivers and lakes. In the Beaufort Sea and along the Alaskan coast, large skin-covered umiaks were used for whale hunting, although in the Canadian Arctic (and Greenland) women more often used such boats to transport households from place to place.

The skin tent, often with a short ridgepole, was generally made from sealskins and weighted down along the ground with rocks. Among the Kivallirmiut, the tent was often conical shaped and constructed from caribou skins. When suitable snow was not available for igloos, or when away from the sites of sod and stonewalled houses, tents served as temporary shelters.

Igloo design varied. At winter settlements, the main living chamber could be quite large, perhaps four metres in diameter and almost three metres in height. In addition, igloos featured chambers for storage and an entrance passage, and often, extra living chambers attached to the side. In some regions it was customary to line the walls with caribou skins for insulation. Most igloos had a snow sleeping platform and a window (made from clear lake ice) set into the roof. Smaller, less elaborate igloos are still used during winter travel.

In the western Arctic, where driftwood logs were available, permanent dwellings were constructed for winter use. Windows in this case were made from translucent animal skin parchment.

Clothing

Inuit skilfully manufactured footwear and clothing from animal skins. Even though parkas, gloves and boots followed a similar basic design, regional variations in pattern and technique persisted. Most Inuit made sealskin footwear for both winter and spring or summer use; the latter were entirely waterproof. In some areas, caribou skin replaced sealskin, especially for winter boots.

The parka traditionally consisted of an inner and outer jacket, usually of caribou fur. Some groups wore sealskin parkas and pants in the spring and summer, and caribou fur in winter. Women's clothing was often more elaborate than men's, with a voluminous hood on the tailed and aproned parka. Women carried infants in a pouch against the woman's back, not in the hood.

To adorn their bodies, women generally practiced facial and arm tattooing. Men sometimes had tattoos on their faces and bodies. Women also generally wore headbands made of copper or bone, while some men had facial piercings. Both men and women were known to have pierced ears and noses.

Culture

As in many Indigenous cultures, the drum is a sacred cultural item among the Inuit. Made by stretching an animal-skin membrane across a wooden hoop, drums served as traditional musical instruments. Among Western Arctic Inuit, several sitting drummers usually accompanied one or several dancers; whereas in the Central and Eastern Arctic, the drummer would not sing.

Following contact with outsiders, instruments such as concertinas, accordions, fiddles, harmonicas, jaw harps and, more recently, guitars became widespread. Square dancing, often in extended and intricate performances, sometimes without a caller, has remained very popular.

Inuit vocal games, also known as throat singing, occurred among some groups, usually performed by two women producing a wide range of sounds from deep in the throat and chest. This art is still practised in the Arctic.

Artisans made decorative art by sewing skins or inscribing on utensils. Recent innovations in Inuit art, such as soapstone carving, printmaking and wall hangings, stem from traditional skills, sometimes using new materials or techniques.

In terms of sport and recreation, many Inuit compete in physical challenges that test one's ability to high-kick (one and two foot varieties), kneel-jump, and perform many other feats of strength and dexterity. Many of these games are featured in the Arctic Winter Games, held every two years in a new location across the Arctic, including Alaska and Greenland. The Games attract competitors from Inuit Nunangat, as well as from other arctic regions.

Cultural Change

Since contact with outsiders, Inuit society and culture has undergone change. The early adoption of iron tools, firearms, cloth, and wooden boats altered or replaced certain material items. The spread of Christianity resulted in the loss of many traditional religious ideas and practices, and Canadian law has been superimposed on customary law in areas concerned with marriage, dispute settlement and wildlife management. ( See Indigenous Law.) Even the language has changed; written Inuktitut, for example, uses Arabic letters - the same letters as English and French - as well as syllabics.

Many items traditionally used by Inuit remain in use by all peoples in the Arctic; among these are harpoons used in marine mammal hunting, sealskin boots and caribou parkas required for winter hunting, and sleds used in winter travelling. Techniques of preparing animal skins and sewing skin clothing have also been preserved.

Important elements of the value system have also resisted change, including traditional childrearing practices, concerns about environmental matters, the continued survival of the Inuit language and culture, and respect for individual autonomy. ( See Inuit Co-operatives.)

Religion and Spirituality

Prior to contact with Europeans, Inuit religious leaders were shamans, who underwent lengthy and arduous training. Shamans were intermediaries between the Inuit and the various spiritual forces that influenced activities. Inuit life required strict adherence to various prohibitions and rules of conduct, so the role of the shaman was usually to determine wrongdoers and to prescribe appropriate punishment or compensation. ( See Religion and Spirituality of Indigenous Peoples.)

Early missionary activity was similarly constituted, with many new rules and prohibitions introduced and penitence demanded after sinning. In the 20th century, the intensive efforts of missionaries led many Inuit to adopt Christianity; ordained Inuit clergy or catechists serve many communities.

Inuit mythology, a system based on oral traditions and used to explain and instruct daily life, has experienced resurgence as a vehicle for cultural vitality. Programs exist to support the oral traditions and encourage interaction with traditional stories through youth and elders. Young Inuit are expected to learn by example, through close association with adults. Many of the values and beliefs of the society are demonstrated implicitly in behaviour. For instance, the constant sharing of food and other commodities exemplifies the value of generosity and co-operation, and discourages stinginess, greediness and selfishness. Stories that elders like to tell, especially to children, reinforce these important lessons.

The Inuit Language

Inuit in Canada traditionally speak Inuktitut, of which there are many different dialects. ( See Indigenous Languages in Canada.) However, because of improved travel opportunities and the development of Inuit-language radio and TV programming, language differences are diminishing. ( See Communications in the North and Indigenous People: Communications.) Traditionally, there was no written language, but after contact with missionaries, the Inuit widely adopted writing systems.

In the 2011 census, 34,110 people reported Inuktitut as their mother tongue, with 63.1 per cent of these residing in Nunavut and 32.3 per cent in Québec. In the majority of communities in both Québec and Eastern Nunavut, over 90 per cent of the population reported having Inuktitut as a first language. One exception is Iqaluit, which reported only 46.6 per cent. Percentages were significantly lower in Labrador; for example, Nain reported 36 per cent and Rigolet had only 5 per cent.

European Contact and Colonization

Evidence exists of Norse settlement in the Arctic in the 14th century. ( See Norse Voyages.) However, the first sustained contact with outsiders occurred between Moravian missionaries and Labrador Inuit in the late 18th century. ( See Moravian Missions in Labrador.)

At a few other locations in the Arctic, the Inuit and Europeans established fleeting trade contacts, but most contact occurred nearly a century later. During the latter half of the 19th century, explorers and commercial whalers introduced various trade items to the Inuit, though it was only following the end of commercial whaling, effectively after 1910, that trading posts became more or less permanently established in the arctic regions.

Inuit were largely ignored by the federal government until 1939, when they were deemed the government's responsibility. During the Second World War, Inuit were given disk numbers in lieu of names, for ease of government administration. ( See Project Surname.) After the war, there was an intensification of government activity, including the establishment of schools, nursing stations, airports and communication installations, and housing programs in the newly established settlements and hamlets. These impositions caused much cultural tension, as many Inuit were forcibly relocated to areas with which they were unfamiliar.

Political Organizations

In the early 1970s, a national organization, the Inuit Tapirisat of Canada (now known as Inuit Tapiriit Kanatami), was established to protect Inuit cultural and individual rights. The organization created several agencies in response to expressed needs. An Inuit Language Commission, for example, was formed to seek the best means of ensuring the increased use of Inuktitut for governmental, educational and communications purposes, and a Land Claims Office was established to research and negotiate Inuit land claims.

Many of these issues, such as protection of the arctic environment, are international in scope. Therefore, an international Inuit organization, the Inuit Circumpolar Council, was formed with committees seeking to strengthen pan-Inuit communication, cultural and artistic activities, and international co-operation in environmental protection. This organization has affiliation with numerous international bodies, including the United Nations, thereby ensuring that Inuit concerns become widely understood throughout the world.

Contemporary Life

Significantly altered by the long-lasting effects of colonization, many northern communities face significant socio-economic challenges, such as overcrowding, food scarcity, chronic health issues and high rates of youth suicide. ( See Social Conditions of Indigenous Peoples and Economic Conditions of Indigenous Peoples.)

A 2006 survey found that in Inuit Nunangat more than 15,000 Inuit were living in overcrowded conditions, and were the most likely to live in households with more than one family. Living conditions and lack of access to health care partially contribute to an increase in chronic health conditions, including obesity, diabetes and respiratory infections. The suicide rate among Inuit youth is markedly higher than for the rest of Canada, making suicide prevention a key priority for continued cultural growth. ( See Suicide among Indigenous Peoples in Canada.)

Despite these challenges, Inuit peoples in Canada have celebrated many achievements in numerous fields, most notably self-government and the creation of Nunavut. The Inuit have also been active in discussions surrounding environmental policy, business and education in the North and the revitalization of Inuit culture and language.

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The term Arctic peoples in Canada generally refers to the Inuit population, descendants of the Thule people, who lived in the Arctic from 400 to 1,000 years ago. The Inuit refer to their homeland as Inuit Nunangat. In 2011, there were nearly 60,000 Inuit in Canada, 73 per cent of whom lived in Inuit Nunangat.

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The Trudeau government intends to introduce legislation on a Recognition of (Indigenous) Rights Framework this fall. The initial drafts are not encouraging. Beware of federal politicians bearing beads and trinkets. This framework is not emancipatory and cannot produce reconciliation.

The proposed framework functions like a cage, a legal apparatus that assumes all sovereignty and jurisdiction belong to the federal and provincial governments. It provides Indigenous nations with little more than space to administer federally approved governance within legislated boundaries. No land is returned with the framework, and it's principles fall far below the floor set by Canadian constitutional law, the Royal Commission on Aboriginal Peoples, Indigenous laws, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The legislation is intended to be available to Indians, Inuit and Metis governments, and according to the justice minister in her speech to the Business Council of British Columbia in April, is intended to provide "certainty."

"Certainty" means clarity and predictability for non-Indigenous corporate investment interests. While the government's language suggests self-determination is a desirable objective to be secured through Recognition of Rights, there is nothing proposed that recognizes or facilitates self-determination, a fundamental right recognized at international law.

The third order of government model in the Canadian federal structure was suggested by the 1983 Penner Report and by the 1996 Royal Commission on Aboriginal Peoples. Why, then, have the feds opted for this anemic delegated model proposal?

The legislated "self" governance approach floated by successive Liberal and Conservative governments since 1982 all proposed a delegated subordinate municipal-style framework to replace the Indian Act. All have been largely rejected by Indigenous leaders. Yet the "new relationship" reads like an updated version of the Indian Act; it amounts to self-administration, and leaves no doubt that the federal and provincial governments do not plan on sharing jurisdictional power or tax and resource wealth.

The feds are holding consultations, but are they listening? One overarching theme missing, despite being raised as a primary concern by critics and supporters of the framework alike, is the all-important but constantly evaded topic of land.

Ah, the land. It is the heart of Indigenous laws, governance, culture and relationships, to which we hold both rights and responsibilities. It is the foundation of the colonial impulse and the source of wealth of Project Canada. It's the key to our pasts and our futures. And land is precisely what the feds and provinces want, but never want to talk about. That discussion would include jurisdiction, relationships between provincial, federal and Indigenous governments, treaties, tax room and revenue sharing. Continuous evasion of this subject produces the questions of title and jurisdiction at the centre of every major conflict and contradiction in Indigenous-Canadian relations past, present and evidently, future.

To be clear: The Supreme Court of Canada decided in 2014 in Tsilhqot'in that in cases where Aboriginal title has never been extinguished, jurisdiction and title to the land remain with the relevant Indigenous nation. The UNDRIP, the gold standard for Indigenous rights at international law, unequivocally states that Indigenous peoples retain rights to unceded land and resources. Further, it requires settler states to provide redress for dispossessing Indigenous peoples of lands, territories and resources.

The UNDRIP recognizes the Indigenous right of "free, prior and informed consent" over Indigenous lands - which, like any other form of consent, includes the right to say no. Yet, in her April speech, the justice minister argued: "The proposed rights recognition framework should not prescribe or define a new way of consulting and accommodating, or of obtaining consent, but rather should focus on establishing legislative space and standards ..." In this way, the government expects to find the processes to ensure "certainty." And that arguably is what the Recognition of Rights Framework is really all about.

Indigenous peoples are not going to let our inherent rights and jurisdiction be legislated into oblivion. The Canadian state's own laws, commissions of inquiry, and the international laws it has endorsed, impose state obligations to redress land theft. Efforts to address Indigenous-state relations without adhering to the limits that Indigenous rights place upon federal and provincial actions, and without engaging in the restructuring required for a return of land and jurisdiction, are doomed to fail, no matter how many people are "consulted" in the process.
Joyce Green is a professor in the Department of Politics and International Studies at the University of Regina. Gina Starblanket is an assistant professor in the Department of Political Science at the University of Calgary.

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Opinion: Recognition of Rights Framework risks terminating right

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The Trudeau government intends to introduce legislation on a Recognition of (Indigenous) Rights Framework this fall. The initial drafts are not encouraging. Beware of federal politicians bearing beads and trinkets. This framework is not emancipatory and cannot produce reconciliation.

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The Inuit Circumpolar Council wrapped up its 2018 General Assembly Thursday in Utqiaġvik.

Iñupiat, Yupik and Cup'ik from Alaska and Inuit from Canada, Greenland and Russia got together to discuss a range of common issues and interests across the Circumpolar North. The meeting concluded with the signing of the Utqiaġvik Declaration, which will guide the ICC's work for the next four years.

In the Utiaġvik high school gym, translators were kept busy for four days, working to translate content live into the languages of the listening audience: Iñupiaq, Yupik, Inuktitut, Russian, English and Kalaallisut, the main dialect of Greenlandic.

This meeting happens every four years, when the Inuit Circumpolar Council gets together to set priorities for the next term and elect new leadership.

On Thursday, Alaska's own Dalee Sambo Dorough was elected Chair of the ICC, a position she will hold until 2022. Sambo Dorough has been to every ICC General Assembly since the first one was held in Utqiaġvik in 1977. This is her first time elected Chair.

"I am deeply humbled by the recognition, and the support, and the confidence that people expressed in me," Sambo Dorough said.

Sambo Dorough is Iñupiaq with family roots in Unalakleet. She's also a professor of political science at the University of Alaska Anchorage, specializing in international law and Indigenous human rights.

In her closing address, Sambo Dorough underscored the importance of Inuit engagement in global decision-making, as more and more countries show interest in the Arctic.

"We can't underestimate it. We've already seen the growing compounded interest and pressure," Sambo Dorough said. "Therefore, we must become more assertive about our status and rights to effectively safeguard what is indeed ours: the lands, territories and resources of the Arctic."

On the last day of the meeting, the ICC passed the Utqiaġvik Declaration, a document that outlines some of the ways forward on issues ranging from education and economic development, to wildlife management and food security.

It includes a provision advocating for the phase out of heavy fuel oil, a type of fuel used in shipping that can present unique clean-up challenges, especially in the Arctic. The UN group that regulates international shipping is currently considering banning its use.

James Stotts, the President of ICC Alaska and a member of the ICC executive council, says the declaration also deals with a range of social and cultural issues. One thing that stood out to him from this year's meeting was the frank discussion of suicide, especially suicide among young people.

"It's an issue that's been more or less hidden or silent for a long time," Stotts said. "And I heard a very strong desire to bring it out into the open."

The declaration directs ICC to hold a summit sometime in the next four years on health and well-being that will look at suicide, addiction and general mental health.

The next General Assembly meeting will be held in Greenland in 2022.

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Ravenna Koenig, Alaska's Energy Desk - Fairbanks

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Inuit Circumpolar Council signs guide for Arctic action for the next four years

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The Inuit Circumpolar Council wrapped up its 2018 General Assembly Thursday in Utqiaġvik. Iñupiat, Yupik and Cup'ik from Alaska and Inuit from Canada, Greenland and Russia got together to discuss a range of common issues and interests across the Circumpolar North.

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A permit for mineral exploration on the traditional territory of a remote First Nation has been cancelled by judges who say the Ontario government and the mining company failed to adequately consult with Indigenous people who hunt and fish in the area.

The decision issued this week by a three-judge panel of the Divisional Court of Ontario's Superior Court of Justice reinforces the obligation of governments to reach out to First Nations, Inuit and Métis when development could affect their way of life.

The court said Landore Resources Canada will have to complete consultations with the Eabametoong First Nation before a permit can be issued for the company's claim near Keezhik Lake in Northwestern Ontario.

The judges agreed that the duty to consult was "at the lower end of the spectrum" in this case, both because the land had been surrendered to the Crown in a treaty in 1905, and because the permit was for simple exploration. But they pointed to Supreme Court decisions that say the Crown must consult in a meaningful way whenever Indigenous interests are at stake.

In issuing a permit for exploration, the Ontario Ministry of Northern Development and Mines should have engaged in conduct that promotes reconciliation with Indigenous people "as opposed to misunderstanding and betrayal," the court wrote.

Krista Robertson, the lawyer for the Eabametoong First Nation, said the ruling means that, even when development is at an early stage, consultation must be carried out at a high standard with transparency and honour.

"Disingenuous consultation is epidemic across Canada," Ms. Robertson said. "First Nations constantly feel betrayed by it. I think many Nations will feel vindicated by this decision and I hope it brings change."

Elizabeth Atlookan, the Chief of Eabametoong, said the decision "goes a long way in making sure that both levels of government, as well as the companies that wish to come and do exploration or any other work going forward, follow proper procedures."

Landore staked the property between 2000 and 2003 and conducted drilling campaigns in the early part of that decade. Although the Eabametoong reserve is 42 kilometres away, the land is still used by Eabametoong families who maintain cabins, trap lines and fishing sites around the lake.

When the rights to the site were first acquired by Landore, a permit was not required for mineral exploration. But that changed in 2012, when permits and consultation became mandatory.

Landore advised the First Nation in 2013 that it intended to drill more exploratory holes. The chief at the time responded by saying Eabametoong wanted Landore officials to meet with the people who use the area, and to sign a memorandum of understanding outlining the company's intentions. Landore agreed to do both.

Company officials met with the chief and council in December, 2013. Then in July, 2014, they held a community meeting with land users that turned acrimonious. Landore committed to a follow-up meeting but that did not happen despite efforts by the First Nation to arrange it.

The company did have a private meeting with ministry officials in January, 2016, and wrote to the ministry a month later saying it had an "urgent need" for the permit.

The ministry wrote to the First Nation saying the decision on the permit would be made on Feb. 16, 2016, and Eabametoong's outstanding concerns would be taken into consideration.

Eabametoong's lawyer replied that Landore had terminated consultations and the promised memorandum of understanding had never been completed.

But the ministry granted the permit on March 31, 2016.

"There was no real and genuine attempt by the ministry or Landore to listen to Eabametoong's concerns, provide feedback about those concerns and to discuss ways to meet those concerns," the court said.

Ken Coates, a Munk Senior Fellow with the Macdonald-Laurier Institute who is an expert in Indigenous rights, said the Supreme Court confirmed that consultations must take place fairly, openly and transparently but left it up to future courts to clarify what meets that standard.

"This is part of the work in progress that shows up for every single right that is defined by the courts," Mr. Coates said. "Even when you get a victory that says you have a duty to consult and accommodate, unless you have a handbook that comes with it, these kinds of court decisions are going to be inevitable."

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Court cancels mining permit after Ontario failed to adequately consult First Nation community

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A permit for mineral exploration on the traditional territory of a remote First Nation has been cancelled by judges who say the Ontario government and the mining company failed to adequately consult with Indigenous people who hunt and fish in the area.

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There are over 370 million indigenous people in some 90 countries, living in all regions of the world. The Sami are the indigenous people living in the very north of Europe, in Sápmi, which stretches across the northern parts of Norway, Sweden, Finland and the Kola Peninsula. They are a minority in today's Finland, Russia, Sweden and Norway, but a majority in the innermost parts of Finnmark county in Norway and in the municipality of Utsjoki in Finland. However, although regarded as one people, there are several kinds of Sami based on their patterns of settlement and how they sustain themselves. Furthermore, their rights and general situation differ considerably depending on the nation state within which they live.

THE SAMI IN NORWAY

In Norway, the Sami have their own parliament which promotes political initiatives and manages missions and laws delegated to them by national authorities. As a political organ, the Samediggi work with issues they perceive as being of particular concern to the Sami people. However, as with many indigenous peoples, the Sami in Norway have suffered a past dominated by discrimination, particularly regarding religion and language. Their traditional animistic/shamanistic way of life was replaced by in the 18 th century, and today their characteristic drums can only be found in museums. According to the School Laws from the end of the 19 th century, all education was to be taught in Norwegian, a policy which remained in place until the Second World War.

Today, the situation is much improved, but far from ideal. The Sami experience ten times more discrimination than ethnic Norwegians according to a new study. Furthermore, their language is severely threatened - UNESCO has classified three of the Sami languages which are, or have been, spoken in Norway as extinct, two as severely threatened, and the last one as threatened.

The issue of land rights is also pressing. Norway was the first country to ratify the protection of land rights pursuant to ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries in 1990. However, they have interpreted the phrase "ownership and possession" narrowly, and concluded that a "protected right to use" was also covered by the phrase. As a result of increased Sami activism, the controversial Finnmark Act of 2005 gave Sami and the population in Finnmark rights to the land and water in Finnmark when about 95% (about 46,000 km ²) of the area in the Finnmark county was transferred to the inhabitants of the county.

THE SAMI IN FINLAND

The Sami were recognized as an indigenous people in the Finnish Constitution in 1995. Therefore, the Sami have a right to maintain and develop their language and culture as well as their traditional livelihood. Since 1996, the Sami have had constitutional self-government concerning their language and culture in their homelands. According to Finnish law, the Sámi are entitled to service in their own language in official matters. There are roughly 9,000 Sami living in Finland. More than 60 per cent of them live outside their homelands, which means there are particular requirements for teaching, services and communication in the Sami language.

Just as in Norway, land rights and language issues are the top concerns of the Sami in Finland today. Not enough services are provided in Sami, and even those that are provided are inadequate. The Sami do not have secure land rights in Finland because 90 per cent of the Finnish Sami land belongs to the government. Finland has not ratified ILO Convention No. 169, which makes the land rights issue more challenging to handle. According to Martin Scheinin, a professor at the Åbo Akademi in Turku, Finland, the Sami way of life is threatened by the competing uses of land. If the government decides to cut down forests in the reindeer herding area, it destroys the pastoral areas.

In 2011, the European Council criticized Finland for handling the Sami and other minority issues poorly. They suggested some actions that Finland could take, firstly the ratification of the ILO Convention. Other proposals include a Sami language newspaper and better Sami representation in the political decision making.

The Sami themselves fear assimilation into the Finnish population. This will affect their traditional livelihood, such as reindeer herding. Very often the Sami are treated only as a linguistic minority and not as a people. Johanna Suurpää, Finland's Minority Ombudsman, has stated that the government does not practice a deliberate assimilation policy. The Sami are not the only ones practicing reindeer herding in Northern Finland, therefore, "there are no simple solutions that would be fair for all parties", but the language issue, she adds, is becoming a crisis.

A UN report examining the human rights situation of Sami people in Sweden, Finland and Norway calls on the Nordic states to provide Sami parliaments with more funding to help boost general knowledge of the indigenous Arctic people, their language and their culture.
Sources: http://www.galdu.org http://www.nrk.no/nyheter/distrikt/nordland/1.7690898 http://www.regjeringen.no/nb/dep/fad/tema/samepolitikk/samiske_sprak/fakta-om-samiske-sprak.html?id=633131 http://www.euractiv.com/culture/un-report-calls-sami-language-boost-news-501319
Joona, 2005, "The Political recognition and Ratification of ILO Convention No. 169 in Finland, with some comparison to Sweden and Norway". Nordic Journal of Human Rights, Vol. 23 (3), pp 306-321
http://www.regjeringen.no/nb/dep/jd/dok/Veiledninger_brosjyrer/2005/fakta-om-finnmarksloven.html?id=88240
http://www.samediggi.fi/index.php?option=com_content&;task=view&id=71&Itemid=104
http://yle.fi/alueet/lappi/2011/04/en_saamelaisten_maaoikeudet_kuntoon_2515355.html http://ipsnews.net/news.asp?idnews=41887

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The Sami of Northern Europe - one people, four countries

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There are over 370 million indigenous people in some 90 countries, living in all regions of the world. The Sami are the indigenous people living in the very north of Europe, in Sápmi, which stretches across the northern parts of Norway, Sweden, Finland and the Kola Peninsula.

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Aboriginal Rangers program to be established

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Regional Development Australian Whyalla and Eyre Peninsula (RDAWEP) has completed a scoping study highlighting paths and actions for the establishment of an Aboriginal Rangers program across Eyre Peninsula.

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Updated December 10, 2017 08:00:17

A unique Native Title determination recognising commercial rights with no qualifier for the first time in New South Wales has been settled 19 years after the claim was first made.

More than 300 people gathered in the tiny town of Urunga, south of Coffs Harbour, to hear the Federal Court rule that Gumbaynggirr people have Native Title rights over 130 hectares of land and sea.

Justice Berna Collier handed down the determination in favour of the applicants, granting the Gumbaynggirr people their second claim.

The original claim was filed in 1998 by Marg Boney, a Gumbaynggirr woman who was living in a camp on the land until she died in 2007.

Mrs Boney was remembered with sadness by Justice Collier and the community.

"Mum was a very strong woman, she always lived in the truth of things my mother," said Frances Witt, one of her five children.

"She realised her role was to claim some land because she knew her ancestral history was here, her connection through the ages.

"This land is our sustenance, it's our livelihood, it's our future."

A unique determination

The determination was unique as it was the first to allow Indigenous people to access natural resources and to take, use, share and exchange those natural resources for any purpose, including commercial with no qualifier in place.

Michael Bell, Chairman of Native Title Services Corporation (NTSCORP) said this new language demonstrated that the use of resources for trading and exchange was part of the ongoing culture of Aboriginal people.

"Black fellas, from the mountains to the sea, have always loved to get together, not just for a yarn, but to barter and exchange," he said.

"The recognition of commercial rights means that Native Title isn't just about the symbolism, although that's important.

"Its also about giving the mob an economic foundation to support culture and family. And there's nothing more important than that."

Justice Collier said the claim was also unique in that it was submitted alongside two Indigenous Land Use Agreements and one Aboriginal Land Agreement, involving eight other bodies.

"I understand this is the first such agreement executed in NSW and the parties are to be congratulated in their innovation in their use of that Act," she said.

A long wait

At 19 years and six months, the claim was one of the longest-running in the country.

Many of the elders involved were not alive to see it happen, including Mrs Boney, and other significant claimants such as Uncle Tom Kelly, Uncle Barry Phyball and Uncle Eddie Briggs.

The chief executive of NTSCORP, Natalie Rotumah, questioned why the process had taken so long.

She marked the loss of these people, and the sadness that they were not with the community to see the determination come down.

"Native Title needs proper funding for all sides and stronger commitment from those who oppose claims to see just results in shorter times," Ms Rotumah said.
Mrs Boney's eldest daughter said the length of the claim had made it painful.

"It's been horrible. Many a times I just felt like I couldn't do it anymore, but I think mum was just prodding me to keep going. It's been a long hard road."

For the children

Frances and Christine Witt were hopeful that the result would mean a brighter future for Aboriginal children, and the community generally.

"The vision I have of the future is our children are not going to walk out the door not knowing who they are," Ms Witt said.

"Not like 10 or 20 years ago when you walked out your door you were a black Australian. Now you are somebody. You are first Australian, you are of Aboriginal descent.

"That parcel of land, that's our launching pad into the future and I would like to have a great part in that and assisting our community to walk towards that future.

Topics: aboriginal, indigenous-aboriginal-and-torres-strait-islander, community-and-society, law-crime-and-justice, rights, native-title, courts-and-trials, urunga-2455, raleigh-2454, missabotti-2449, valla-beach-2448, sawtell-2452, nambucca-heads-2448, coffs-harbour-2450, bellingen-2454

First posted December 09, 2017 14:47:54

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Unique Native Title claim settled after 'painful' 19-year wait

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Updated December 10, 2017 08:00:17 A unique Native Title determination recognising commercial rights with no qualifier for the first time in New South Wales has been settled 19 years after the claim was first made.

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Updated November 28, 2017 17:11:20

A landmark native title determination has been handed down in central Queensland after a long running effort to recognise the traditional owners of more than 4,000 square kilometres of land and waters around Gladstone and Bundaberg.

The claim by the Bailai, Gooreng Gooreng, Gurang and Taribelang Bunda peoples is believed to be the first to include multiple language groups.

Kerry Blackman from the Port Curtis Coral Coast Native Title group said the consent determination, handed down by the Federal Court of Australia in a special on-country hearing in Gladstone today, had been a hard-fought claim that overcame many hurdles.

"Twenty five years we've been at it, trying to get recognition," he said.

A long road to recognition

Separate applications were first lodged in the 1990s and Dr Blackman said uniting the four groups over such a long period had not been easy.

"We started out with the Gurang Land Council and then they had a change in representative bodies and we moved to the Queensland South Native Title Unit to progress the claim, so it has been a long journey," he said.

"We've had our battles within and without and for four groups to eventually work together, even though we've had our differences, I think it's unique that four groups can get to this point and work together and get consensus."

One of the claimants, Gooreng Gooreng elder Nat Minniecon, said he was extremely proud of his people in achieving the native title recognition.

He said during the early proceedings, the court ordered the five original claims be combined because of uncertainty around the individual area boundaries.

"It's been a very robust discussion amongst our people to get this far but certainly we all had our eyes on the end goal," he said.

Sacred sites and meeting places

The claim area extends from Raglan Creek at Port Alma, south of Rockhampton to Elliott River, south of Bundaberg and west to Callide and Monto.

The determination gives traditional owners various non-exclusive native title rights to 4,205 square kilometres of land within the 19,000 square kilometre boundary including access to camp, fish, hunt, take and use natural resources and water, hold meetings and maintain areas of cultural significance.

Natural Resources and Mines Minister Dr Anthony Lynham said the area included 26 national parks, and the Bailai, Gurang, Gooreng Gooreng and Taribelang Bunda People had an Indigenous Land Use Agreement with the Queensland Government to protect the parks.

"This agreement confirms the Bailai, Gurang, Gooreng Gooreng and Taribelang Bunda People's commitment to the care of their ancestral lands as they have done for countless generations," Dr Lynham said.

He said the determination also had potential to provide economic development benefits well into the future from future infrastructure and other major projects.

Gladstone Mayor Matt Burnett said it was an historic event for the region and he counted family and friends among the newly recognised traditional owners.

"Today is just unbelievable," he said.

"You can feel it in the room and you can feel it in your heart."

Native title versus Indigenous Land Use Agreements

PCCC representative Cherissma Blackman, a Gooreng Gooreng and Gurang woman, said a separate Indigenous Land Use Agreement made between the traditional owners and the Gladstone Ports Corporation had also set a precedent.

"We've done a ILUA with them, per tonnage, which is in confidence of course, but it just shows that we have set a precedent here today," she said.

She said representatives from a number of liquefied natural gas companies were also invited to witness the proceedings, even though some elders were unhappy the companies' local sites weren't included in the native title consent determination.

Ms Blackman said some believed the alternative ILUAs effectively extinguished native title rights for traditional land owners.

"A lot of our people don't understand that we've had to mould to the shape of the common law," she said.

"At the end of the day, I said to our elders, because some of them weren't happy, let's not get angry anymore, let's get smarter."

"Let's think about our future generations."

Bitter sweet celebrations

While it is a time of celebration for many in the community, for others it is another reminder of the hardships and injustices faced by indigenous peoples since white settlement.

Gooreng Gooreng elder Tony Blackman said he felt let down by successive Queensland governments since the 1990s.

"They weren't up front with us. I think the Queensland government treated us poorly," Mr Blackman said.

"I'd like to see us have more say in the development of minerals and construction and a whole array of things that give aboriginal people work for starters," he said.

Native title lawyer Jesse Land said there had been 408 consent and litigated determinations made by the Federal Court of Australia since the historic Mabo High Court decision in 1992.

"Three hundred and forty two of those have been that Native Titles does exist," he said.

More than 400 indigenous people from around the country gathered in Gladstone to hear the determination handed down and attend the following celebratory events.

But Dr Blackman said the battle was not over.

"There's more work to be done, we just can't sit back," he said.

"It's just one chapter closing and another one has to open up on our native title sea country rights."

The Port Curtis Coral Coal Native Title Group was still working to have more than 26,000 square kilometres of adjacent sea country recognised.

"It should go hand in glove with our land claim," Dr Blackman said.

Despite the challenges, setbacks and compromises of the last 20 years, Dr Blackman said the native title determination was a significant event in the history of the Byellee, Gooreng Gooreng, Gurang and Bunda peoples.
"As we regain some of our land and we work on regaining our languages, it's all about your identity and a sense of belonging - which is powerful," he said.

"A lot of our first nations people don't have that.

"It's a day we can stand on the shoulders of our ancestors who are giants in our eyes," Dr Blackman said.

Topics: native-title, rights, indigenous-aboriginal-and-torres-strait-islander, community-and-society, indigenous-policy, gladstone-4680, bundaberg-4670, monto-4630, callide-4715, qld, port-alma-4699

First posted November 28, 2017 16:44:09

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Landmark native title determination for central Queensland Indigenous groups

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Updated November 28, 2017 17:11:20 A landmark native title determination has been handed down in central Queensland after a long running effort to recognise the traditional owners of more than 4,000 square kilometres of land and waters around Gladstone and Bundaberg.

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Now, just four months out from the 2018 Commonwealth Games on the Gold Coast, industry sources say there's so much fake stuff flooding Australia that genuine Indigenous products are being priced out of the market. Politicians have joined with exasperated Indigenous lobbyists to fight the problem: a federal government inquiry into the complexities of the trade concluded in November, with recommendations expected shortly, and federal independent MP Bob Katter has called for the sale of phoney Aboriginal products to be made illegal, however they're labelled.

"If there be one thing that First Australians [should] be allowed to keep and own, it is their own culture," Katter said while introducing a private members' bill on the theme this year, adding, "I'm sick of buying for my kids clapsticks that don't clap, bullroarers that don't roar, boomerangs that don't come back and woomeras that won't mount a spear."

Surprisingly, though - given pleas for only the best and most authentic Indigenous souvenirs to be showcased during the April Commonwealth Games - it turns out the wholesaler chosen as the Games' official "gift supplier", Jabiru Australia (also known as Jabiru Boomerangs), has no Indigenous ownership or full-time staff. The Gold Coast company is solely owned by white businessman John Palombo, who admits he has never paid royalties to the Aboriginal artists he engages on casual rates, and has no intellectual property agreement with them.

This boomerang was made in Indonesia and there's no way it will return. If you throw it, it will just keep going, which is probably a good thing.
Stephen Hogarth

Since the federally funded Fake Art Harms Culture campaign began last year, relationships within the souvenir industry have come under intense pressure. In March, Aboriginal artist and craft retailer Michael Connolly mounted a bitter attack on the wholesaler he'd dealt with for two decades at Redcliffe on Brisbane's northern fringes. Connolly, proprietor of Dreamtime Kullilla-Art, used his company website to accuse Birubi Art Pty Ltd, and its managing director Ben Wooster, of importing Indonesian-made Aboriginal artifacts "by the container loads" and "steal[ing]" the "livelihood" of Indigenous artists.

He said Wooster used Indonesians to copy images created by local artist Trisha Mason, who is paid royalties by Birubi for allowing this to occur. Connolly claimed Wooster told him and his wife, Jo, that Indonesians are "better artists of Aboriginal art than Aboriginal artists themselves ... and very cheap", and that was why Birubi used them.

Connolly's attack on Wooster's company highlights how tangled and divisive the issue has become. He no longer buys stock from Birubi Art, yet at the time of writing was still leasing retail premises owned by Wooster at Clontarf, south-west of Redcliffe and just a few kilometres from Birubi's headquarters and warehouse at Kippa Ring.

Compact and fiery, Connolly is an acclaimed didgeridoo maker and player who has performed for VIPs here and overseas. Although proud of his Indigenous background, he was aware from the time he and Jo began dealing with Birubi - then run by Wooster's father, Gary - that it dealt in so-called fake art.

"When we started our business 21 years ago," explains Jo in a room behind their store, "Gary Wooster showed us his company catalogue and said, 'This is the genuine stuff done by an Aboriginal artist, and this is our non-genuine.' We asked what he meant because we were pretty naïve then, and he said the non-genuine stuff was done by backpackers in Aboriginal style. Michael said, 'What! You can't do that!' and Gary Wooster said, 'It's all about supply and demand ... you guys [Aborigines] can't supply it, so we have to get it done somewhere.' "

But Connolly insists local supply has never been a problem. "The problem is they won't pay Aboriginal artists their due fees. The problem is their greed ...that's why they go overseas." For him, the "last straw" with Birubi came early this year when Ben Wooster admitted he was selling Indonesian-made didgeridoos throughout Australia.

Connolly: "So I said, 'You're a f...ing wanker!' and we had a big blue." He says Wooster retaliated by cancelling an order that Connolly had placed for Aboriginal-flag products: a range of badges, stickers, caps and the like bearing images of the officially gazetted and copyrighted Aboriginal flag, which is the intellectual property of its designer, the award-winning Northern Territory artist Harold Thomas.

Birubi is one of only two companies licensed by Thomas to sell Aboriginal flag products. "And for every item sold, Harold Thomas gets 10 per cent of the wholesale price," explains Connolly. "For the last 10 years, we've spent about $60,000 a year buying Harold's products ... so you can imagine what it amounts to nationwide."

That most of the Aboriginal flag products are manufactured and printed in China doesn't trouble Connolly. "Australia doesn't have the industry to do that stuff," he reasons. "And because an Aboriginal artist was getting royalties, we thought that was fair."

He ended the open letter with a vow to stop Birubi "and any others who are exploiting my culture... I am like a dog with a bone - I won't go away." Since then, he has used Facebook to name six other companies he believes are dealing in fake Indigenous products.

Wooster doesn't deny Connolly's assertions about his use of Indonesian artists, but argues he's "compelled" to do so because "a lot of the local [Indigenous] artwork just wasn't acceptable; it wasn't commercially saleable". Conversely, Wooster tells me, souvenir items painted by popular Birubi artist Trisha Mason were so much in demand by retailers she couldn't keep up with orders.

"So over the last 10 or 15 years we've trained a partner group of Indonesian artists to mimic Trisha's style. She gets a percentage ... and now she's doing very well out of it, and she continues to paint for us, doing canvases mostly."

Wooster heatedly denies telling the Connollys that Indonesians are better artists than Aborigines - "That's categorically untrue!" - and claims he can no longer buy what he calls "the good stuff" (meaning handmade artefacts by recognised Aboriginal artists).

"No ... if an artist, black or white, creates something, and is [subsequently] provided with a means by which he can make more money ... by having someone else reproduce it, and it comes back [to Australia], and I get a return, then that's what it is."

Thomas calls Wooster "a fine young man" and accuses me of "pursuing a line from a few grumbling people". Suddenly furious, he demands to know why I don't write about white people "plagiarising" the Aboriginal flag. "But no, you haven't got the guts to! You want to pick a little story and twist it around for your benefit!"

Me: "Harold, that's bullshit."

Thomas: "You can get lost!" He hangs up.

In a conference room at the Australian National Maritime Museum in Sydney's Pyrmont, Gabrielle Sullivan, chief executive of Indigenous Art Code, reminds her audience how the code came to be drawn up in 2009. Two years earlier, a Senate inquiry had heard horrifying details of elderly artists being coaxed from their desert communities to Alice Springs, then locked in sweltering sheds and forced to paint dot canvases, which exploitative art dealers promptly sold for thousands of dollars more than the artists were paid.

The code, which stemmed from that inquiry, is aimed at promoting ethical trading in Indigenous art. But because it was denied regulatory teeth, the abuses predictably continued. In the little examined area of crafts and souvenirs, things became steadily worse, and artists and community members began asking Sullivan what could be done about "all this fake crap" on the market. "I'm sorry if I swear sometimes," Sullivan tells her audience from the Museum Shops Association of Australia and New Zealand, "but it's hard not to when you're talking about this stuff."

She gestures at a table behind her, laden with samples of the garish imported souvenirs she's picked up at stores around Australia. Part of the Fake Art Harms Culture campaign devised by the code and two other Indigenous bodies (The Arts Law Centre and Copyright Agency-Viscopy), Sullivan's bad-taste shopping spree left her stunned by the extent of the problem.

She found that most shops, deliberately or otherwise, seemed to stock a bewildering mix of fake and genuine souvenirs. "It's as though they set out to sanitise the fake stuff with authentic products... even with my background in art [as arts and business manager with Martumili Artists in Western Australia] I was confused about what was real and what wasn't."

Predictably enough, cheaper items, often decorated by deliberately distorted and much-copied images for which the original artists were never paid, tend to outsell genuine products, especially in tourist zones like the Gold Coast and Cairns. Retailers can be seen to be doing the right thing by paying $150 to join the code, but only if they agree to stop selling fake products.

"Some of them actually ask if they can start up separate businesses with different ABNs to sell the fake stuff," Sullivan reveals. "That gives you some sort of insight into the mentality involved ... it's all about [making money] ... and profit margins are so much higher with the fake stuff because no money goes back to the artists."

Also addressing the crowd is Girramay descendant Abe Muriata, a master craftsman from the Cardwell area in far north Queensland, and one of only 10 artists who can still make jawun, or bicornual baskets, in the intricate, labour-intensive style of his ancestors. The British Museum recently commissioned Muriata to craft a jawun for its Enduring Civilisation exhibition, then flew him to London where he found himself exchanging "budgie-smuggler jokes" with museum patron Prince Charles.

Softly spoken and direct, Muriata seems about as far as it's possible to be from the machinations of the fake art world. Before the conference, he listens to Sullivan and me talking about Aboriginal artists being paid piecemeal rates to daub animals on Indonesian-made souvenirs. "Up where I come from," he offers, "most artists put their culture first and wouldn't get involved in any of this ... but some people, especially city-bred people, have lost a lot of that culture. So they have to borrow it from maybe a book. Then they say, 'This is a story about the wallaby I've painted in this dot painting.' Whereas with us the spirituality is still there, and gives the story great significance, part of the landscape from where we come."

Muriata is troubled that the flag designer Harold Thomas derives income through a company that uses Indonesians to decorate its wares. "That flag has become a spiritual thing to Aboriginal people, it's how they identify themselves. So much so that they cry for it!"

The use of Aboriginal art and crafts by souvenir wholesalers didn't catch on until the mid-'90s. A spin-off from the worldwide fascination with so-called dot paintings, it was introduced to the keepsake industry by a handful of sales reps who'd previously criss-crossed the nation peddling lines like Chinese-made stuffed koalas and miniature swagmen to stores serving mostly domestic tourists.

In the process, they grew to know the craftspeople in remote Aboriginal communities who would later be used to produce items like boomerangs and didgeridoos for the wholesalers. One of those pioneering salesmen was Michael Micallef, who would become both a wholesaler and retailer of art and souvenirs. Now working from his Gold Coast home as a picture framer, Micallef, 51, says the use of Indonesian artists to copy Aboriginal designs - for a fraction of the already modest cost - has ruined the market for genuine Indigenous crafts.

"They're going to have to either tax the Indonesian imports to get pricing parity, or ban them completely," he ventures. "Because now almost everyone is buying non-authentic stuff, and it's wiping out [employment] for many young Indigenous people."

Micallef entered the industry as a salesman for the now defunct Southern Cross Souvenirs, then owned by Gary Wooster - the father of Birubi Art's Ben Wooster - whom he describes as "a good businessman, but a bit ruthless". (As Michael Connolly tells it, Gary Wooster was himself a sales rep when he met and befriended the flag designer Harold Thomas in the Northern Territory decades ago.)

In the mid-'90s, Micallef started his own company, wholesaling boomerangs and didgeridoos made and painted by Aborigines. Micallef admits he didn't pay royalties to his artists, and that some of the names on "artist ID" labels on his products were false "because the artists also painted [on canvases] and didn't want their names on the mass-produced stuff in case it reduced the price of their paintings".

John Palombo maintains that he has never imported stock from Indonesia - "Jabiru does not sell anything like that" - which contradicts what I've been told by Michael Micallef, Janelle McQueen and others.

How was Jabiru selected as a sub-licensee? Peter Beattie tells Good Weekend that Jabiru's sub-licence had been issued by GOLDOC's master licensee, Matevents, after Jabiru provided a statutory declaration stating that "all designs, creations, artwork, painting of Indigenous elements submitted as [Games products] are done by our [four nominated] Aboriginal artists".

GOLDOC's Indigenous advisory group was satisfied that Jabiru "met its obligations by providing meaningful employment opportunities to local First Nations people". Beattie adds that the Yugambeh elders' advisory group was "also satisfied with the process that ensures the authenticity of Aboriginal art and products that will be sold through Matevents and sub licensees, including Jabiru". (The Gold Coast is part of the land of the Yugambeh people).

During her travels in aid of the cause, Indigenous Art Code's Gabrielle Sullivan began noticing that tourists seem to prefer keepsakes decorated in the gaudy pastiche evolved by the fake-art merchants to authentic items. "The fake stuff is [so prevalent] now that tourists have come to think it's the real thing," she says in her Sydney office. "For me, the triumph of that lie is one of the most disappointing things about this whole process."

At Katherine in the Northern Territory, Sullivan showed an Indonesian-made bullroarer to a group of senior tribal men sitting around a campfire. (The flat wooden instruments, spun at the end of a cord to create a pulsating sound, still have "secret-sacred" status in remote communities.) "One of the old men, who knew nothing about fake art, said, 'Where did you get that?' And I told him, 'From a local tourist shop here. But it came from Bali.'

"He looked at me absolutely baffled and said, 'But how did it get to Bali?' She laughs forlornly. "The old man said, 'Get rid of it! You shouldn't even be looking at that, or touching it.' So I had to burn my fake bullroarers on the fire that night."

Sullivan stares at the collection of mutant icons that has now taken over a room within her offices and continues to grow, like something with a life of its own. "The worst thing," she says, "is that this stuff is just so bloody insulting to the people it's supposed to represent ... If I could, I'd like to burn every last piece of it."

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aboriginal art copies how to spot a fake

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Dead heart: the booming trade in fake Indigenous art

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Now, just four months out from the 2018 Commonwealth Games on the Gold Coast, industry sources say there's so much fake stuff flooding Australia that genuine Indigenous products are being priced out of the market.

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Michael Davis
Consultant
Social Policy Group
Major Issues Summary Introduction Indigenous Peoples and Intellectual Property Rights
Indigenous Peoples and Cultural Appropriation Examples of Appropriation of Indigenous Cultures

Arts and Cultural Expressions: Aboriginal Art and Copyright

Indigenous Knowledge and Biodiversity: Bioprospecting

Human Genetic Material: the Human Genome Diversity Project

Intellectual Property Rights Indigenous Critiques of Intellectual Property Rights
International Developments
Setting Standards: International Instruments and Intellectual Property Laws Statements and Standards Supporting Indigenous Cultural Protection

United Nations Statements and Developments

Indigenous Statements

Developments in Australia
Reports and Developments to 1996

Folklore, Culture, Customary Law, Arts and Crafts and Social Justice

Heritage, Biodiversity and Native Title

Possible Avenues for Reform

Reforms to Existing Intellectual Property Laws

Other Legislative Reforms Options: Heritage Protection and Native Title

Non-Legislative Reform Options

Sui Generis Legislative Options and Community Rights

Other Models: Traditional Resource Rights and Intellectual Integrity Rights

Conclusions
Indigenous peoples claim that existing intellectual property rights (IPR) systems do not provide adequate recognition and protection of their cultural products and expressions. Some critics consider IPR systems to be a threat to Indigenous peoples' cultural maintenance.

Western intellectual property rights systems create individual property rights, which can be subject to transactions, and which are designed to foster commercial and industrial growth. These systems are conceptually limited in their ability to afford recognition and protection of Indigenous intellectual property rights.

Internationally, the incorporation of Trade Related Aspects of Intellectual Property Rights (TRIPS) into the General Agreement on Tariffs and Trade (GATT) in 1994 has, in some critics' views, provided the impetus for further commercialisation by predominantly affluent industrialised countries of the knowledge and products of Indigenous and local communities.

Indigenous peoples' intellectual property rights extend to include a wide range of subject matter, beyond what is recognised within existing intellectual property rights and other protection systems. They are closely linked to land, cultural heritage and environment, and also to cultural property. In addition, Indigenous communities possess some unique features of their knowledge, creative expressions and innovations, which emphasise communal rights, in which many creative works are of an indefinable antiquity, and in which cultural products, expressions and manifestations are tightly integrated into all other aspects of society. These features are at odds with conventional western notions of intellectual property.

Indigenous peoples' intellectual property rights are being exploited in many and diverse ways. Works of art are misappropriated, and Indigenous peoples' biological resources, knowledge and human genetic materials are collected and patented without due recognition being given or benefits distributed to the Indigenous peoples concerned.

A growing body of declarations, statements, and other developments both within the United Nations and its agencies, and by Indigenous peoples, calls attention to the unique features of Indigenous intellectual property systems and provides potential opportunities for countries to introduce measures to recognise and protect these.

Discussions within the World Intellectual Property Organisation (WIPO) and UNESCO may provide some scope for expanding international copyright systems to embrace intangible expressions of culture (termed 'folklore' in these discussions).

The International Labour Organisation (ILO) Convention 169 provides potential opportunities for those countries which ratify the Convention to develop frameworks, partnerships, or other 'special measures' to protect Indigenous cultures.

Some international developments in the environment and conservation area can also provide avenues for introducing measures to recognise and protect Indigenous cultural knowledge. The framework provided by the outcomes from the 1992 United Nations Conference on Environment and Development (UNCED) is significant in this regard, especially the program statement Agenda 21. The Convention on Biological Diversity required countries to conserve and protect Indigenous peoples' knowledge, innovations and practices relevant to the conservation of biological diversity.

The standard setting activities currently being pursued by the United Nations and its agencies on Indigenous rights - though some way from being fully realised - also provide important opportunities for recognition and protection of Indigenous peoples cultural rights, including their rights to cultural and intellectual property. Key areas of work in this regard are the Draft Declaration on the Rights of Indigenous Peoples and the study on Indigenous Cultural heritage by U.N. Special Rapporteur Erica Irene-Daes.

A series of developments, legislation, reports and recommendations have been made in Australia over the last two decades, not only in intellectual property laws but across a range of land, heritage and environment issues. To date there has, however, been little action to provide recognition and protection for Indigenous intellectual property rights.

The development of new sui generis legislative systems that provide recognition of the full range of Indigenous peoples' cultural products and expressions, and which enable community empowerment for the control of their cultures, is the only way to achieve a just solution to the problems faced by Indigenous peoples in the exploitation of their intellectual property rights.

Indigenous peoples claim the western system of intellectual property rights does not provide adequate protection of their cultures. Some Indigenous critiques go further, and oppose intellectual property rights systems as inherently antithetical to their interests.

In western legal systems intellectual property rights denotes a specific set of laws designed to foster commercial creativity and industrial innovation by protecting the rights of individual creators and innovators.

Indigenous peoples assert that intellectual property systems not only fail to provide adequate protection for their cultural forms, products and expressions; they serve the interests of the dominant, non-Indigenous cultures as against the distinct rights and interests of Indigenous systems of creativity and cultural products and expressions.

This paper outlines Indigenous perspectives on cultural protection, and discusses some of the ways in which their cultures are appropriated or exploited. The paper then explores where existing intellectual property laws fail to meet Indigenous peoples' expectations and aspirations regarding protection of their cultures.

The paper surveys a range of reports and developments internationally and within Australia that have either direct or indirect implications for Indigenous peoples' intellectual property rights and cultural protection. Some possible avenues for reform are then explored which may provide better recognition and protection for Indigenous cultural forms, products and expressions.(1)

Recognition and protection of Indigenous intellectual property rights is not only relevant to arts or copyright issues. To Indigenous peoples artistic designs are an integral part of the cultural system that also includes language, dance, song, story, sacred sites and objects. The many elements that make up this system might also be thought of as cultural heritage, and are maintained and managed according to a complex set of rights and responsibilities, which are determined by customary rules and codes. In a general sense, these rights are considered to be 'owned', and managed communally, or collectively, rather than inhering in particular individuals. If an individual wishes to perform, transmit, or make manifest an aspect of culture - such as a design or motif - he or she will require the authority, consent or permission of others who may have rights and interests in the particular design or motif.

These rights and responsibilities, which might also be considered a system of law, are in turn informed by a knowledge system that is derived from, and integral to, the dreaming. This knowledge system links the diverse elements of culture with country, and also informs the ways in which culture is expressed and made manifest through material forms.

In conventional western legal terms, intellectual property rights refers to copyright, patents, trademarks, designs and trade secret laws, and breach of confidence. To Aboriginal and Torres Strait Islander peoples, however, the cultural products, forms and expressions for which protection is sought do not strictly conform to the limited provisions of intellectual property laws. This is because it is not only the material forms and created or invented products for which protection is sought. Indigenous peoples also consider that they have rights in the substance that underlies these cultural products. That is, the knowledge, innovations and practices that give rise to cultural products and expressions are significant elements of their culture. These intangible aspects are not considered within the scope of copyright and related laws. Indigenous knowledge is also essential to Indigenous peoples' rights and interests in medicinal substances, biological diversity, land and ecosystem management, and sacred sites and objects, as well as arts and other cultural expressions. The performance aspects of Indigenous cultures, such as language use, story, song, dance and ceremony are vital to Indigenous identity and cultural expression - and these are inextricably linked to land and sacred sites and objects, and religious, cultural and political systems. Given these connections, reforms to provide protection for Indigenous cultures cannot be purely confined to copyright and related intellectual property law systems. The rights in cultural knowledge, expressions and manifestations for which Indigenous peoples seek recognition and protection will ultimately require a wide ranging system of law reforms, and legislative and administrative solutions that can better accommodate the holistic and collective nature of Indigenous cultural rights.

The scope of Indigenous peoples' intellectual property rights has become increasingly apparent as these people have raised concerns about infringements or exploitation of their cultures. To Indigenous peoples, intellectual property is part of their cultural heritage in its widest sense. This includes:

moveable cultural property

all literary and artistic works (including music, dance, song, ceremonies, symbols and designs, narratives and poetry)

scientific, agricultural, technical and ecological knowledge

human remains

sacred sites, burials and sites of historical significance

documents of Indigenous peoples' heritage (including film, photographs, video and audio recordings, and archival collections).

In all these components appropriation and exploitation may occur, and three examples are outlined below. Not only are art works and designs misappropriated, but we see exploitation of Indigenous peoples' rights in biological resources through 'bioprospecting', and of their rights in their own genetic and bodily material, notably through the Human Genome Diversity Project.

Arts and Cultural Expressions: Aboriginal Art and Copyright

Since at least the 1970s there have been instances of exploitation and misappropriation of Aboriginal peoples' artistic expressions, and artists have brought actions under intellectual property laws. These cases have shown that existing intellectual property laws can be of some, although limited, use in accommodating Indigenous peoples' perspectives. The most recent of these cases, Milpurrurru v Indofurn Pty Ltd (1995), known as the 'Aboriginal carpets case', has been considered a 'landmark' in Indigenous intellectual property protection. The case was significant for its recognition of the 'cultural harm' suffered by the plaintiffs in the awarding of damages, and its implied recognition of the communal ownership of Indigenous designs in the distribution of the damages.(2)

Indigenous Knowledge and Biodiversity: Bioprospecting

One of the most significant issues raised by Indigenous peoples is the collection, screening, and use for commercial and industrial purposes of their knowledge and of genetic and biological products which come from their lands or which are important to their societies. This 'bioprospecting', as its critics refer to it, raises some important questions about the nature of innovation, and of the relationships between natural resources, knowledge, and intellectual property rights.

The ecosystems within which Aboriginal and Torres Strait Islander peoples have lived, and which they have managed sustainably for millennia, are not only vital for their survival; they also figure significantly in their cultural, religious and social systems. These ecosystems also comprise some of the most biologically diverse areas in the world, and the products they yield are sought after by a large and growing biotechnology industry for use in a vast array of medicinal, cosmetic, industrial, and food and agricultural products. Biological products and Indigenous peoples' knowledge about these products and their properties form a vital contribution to the commercial products and processes that sustain the rapidly growing biotechnology industry. The industry isolates and modifies biological and genetic products, and registers patents for them; and in doing so it is dependent on Indigenous peoples' knowledge of these products and their properties.

The Indigenous communities from which these products and knowledge are obtained receive little or no recognition for their contribution, and generally do not share equitably in benefits resulting from uses of biological products and knowledge. The intellectual property laws which foster commercial and industrial uses of biological products and processes, and which protect the interests of the biotechnology industry, cannot effectively be used to protect Indigenous peoples' claims. This is because of the strict requirements for inventions registered as patents.(3) Products and knowledge from Indigenous communities are, in this way, increasingly being transformed into intellectual property in the western industrialised world.

The patenting of inventions derived from biological and genetic resources raises some critical questions for Indigenous communities. There are ethical concerns regarding the collection and use of such products and their derivatives without the informed consent or equitable participation of Indigenous communities who claim rights in the products and knowledge. There is also the concern that companies and researchers that collect such knowledge and products usually provide for few (if any) financial benefits to be returned to the Indigenous communities.

Another critical concern is the fundamental inappropriateness of patent laws to Indigenous peoples' ability to protect their own biological knowledge and resources. As a legal instrument, a patent confers exclusive rights on an inventor which for a fixed period prevent others from producing, using, or engaging in commercial transactions for the invention. A patent requires that an invention should be useful: that is, it must have an industrial application. It also requires an invention to be novel, or recent and original, and not previously known. An invention can also only be accepted for patenting if it is non-obvious: that is, it must have been produced by a reasonable level of technical know-how, rather than having merely been a discovery of what already exists in nature.

These requirements create an essential incompatibility between patents and Indigenous knowledge and innovations. Innovation and knowledge in Indigenous societies generally does not fit the patent laws' requirement for novelty of invention, which hinges on the isolation and modification of biological and genetic products using highly technological processes. Moreover, patents confer rights in individuals or corporations, and are not applicable to communal rights which often pertain in Indigenous societies. Indigenous peoples' notions of property differ generally from those which form the basis of patent laws. Biological knowledge in Indigenous communities is generally regarded as being a community resource, and is shared and transmitted 'freely' within communities according to customary rights, rules and obligations.(4) The private ownership rights which patent laws confer for inventions are thus antithetical to Indigenous peoples' world views.(5)

Although, as with all intellectual property rights systems, patent laws are available for use by Indigenous peoples, the incompatibility outlined above means that Indigenous peoples are unlikely to use these laws to protect their knowledge and innovations. Moreover, use of such laws is usually costly and time consuming, and usually necessitates the services of skilled legal professionals. For these reasons, Indigenous peoples' access to patent laws, like copyright laws, is likely to be limited.

Although article 8(j) of the Convention on Biological Diversity may provide scope for countries to develop systems for recognition and protection of Indigenous knowledge and innovation, this is still a long way from becoming a reality in Australia. One potential problem is that, in its current form, and where there is no effective implementation of its provisions to actively preserve Indigenous knowledge and innovations, the Convention provides implicit support for contractual agreements between countries, which may disadvantage Indigenous communities within those countries.(6) Implementation of article 8(j) of this Convention may also be subject to some constraints, as discussed below.

Human Genetic Material: the Human Genome Diversity Project

Indigenous peoples have in recent years begun asserting that their rights in their bodily substances such as blood and genes are being violated. This problem has attracted attention since the early 1990s with the commencement of the Human Genome Diversity Project (HGDP). This project, dubbed the 'Vampire Project' by its critics, is being carried out by scientists throughout the world, with the aim of mapping the broad genetic diversity of humans. The HGDP involves the taking of genetic samples from a large number of communities, including a significant proportion of Indigenous communities. These Indigenous communities are 'targeted' for sampling on the grounds of being considered 'rare' or 'endangered'.

The HGDP has serious implications for Indigenous peoples, as the blood and genetic samples that are collected can be modified and patented, and as such may potentially provide products and processes which are commercially valuable. Not only do Indigenous peoples receive no share in the benefits that might result from these products and processes, but the sampling itself, without their informed consent, represents a grave violation of their rights, and raises serious ethical questions. As with biological sampling, patent laws do not protect genetic or other human products unless these have been modified or altered. There are currently no laws to protect the rights of Indigenous communities to their bodily products.(7)

Intellectual Property Rights

The western concept of intellectual property rights is based on the notion that ideas, innovations and inventions, expressed through various material forms, can be owned, and that individuals have distinct property rights to these forms of creative expressions and products. Intellectual property laws are aimed at protecting rights to literary and artistic property, as well as industrial property. The 1967 Convention Establishing the World Intellectual Property Organisation (WIPO), at article 2(viii) defines 'intellectual property' to include rights relating to:

literary, artistic and scientific works;

performances of performing artists, phonograms and broadcasts;

inventions in all fields of human endeavour;

scientific discoveries;

industrial designs;

trademarks, service marks, and commercial names and designations;

protection against unfair competition; and

all other rights resulting from intellectual property activity in the industrial, scientific, literary or artistic fields.(8)

The western system of intellectual property law includes Patents Act 1990, the Trademarks Act 1955, the Designs Act 1906, the Plant Breeders Rights Act 1994, and common law areas of trade secrets and confidentiality. While all these intellectual property laws are available to Indigenous peoples, some, such as copyright and patent laws, are more potentially relevant or useful than others. The Copyright Act, for example, has received most prominence, as it has been used by Aboriginal artists to seek redress for exploitation of their designs. As a result of these actions this Act has been tested to the extent to which it adequately protects the intellectual property rights of Indigenous peoples (see discussion above).(9)

The Copyright Act 1968 is designed to protect copyright, defined by McKeough as 'a form of property, a personal right, or a combination of both'.(10) Golvan defines the copyright law as that which 'protects the form of expression of ideas, or the way in which ideas are expressed in a literary, artistic, dramatic or musical form, as well as in the form of cinematographic films and broadcast signals.' As such, Golvan states, the Copyright Act 1968 'thus founds the basis upon which creators of such forms of ideas can claim monopoly rights in them.'(11) Although there is no requirement for registering copyright works, works must be in material form, and must be original. The term for copyright protection is limited to the life of the author plus fifty years.(12)

Golvan claims that advances in technology (such as the facsimile, and computer and data based technologies) are providing a challenge for copyright, which is 'increasingly having to be protected on a collective basis, with copyright ownership, as such, providing an entitlement to the distribution of centrally collected fees'.(13) However, the need to rethink the fundamental bases of copyright and other intellectual property laws is created not only by advances in technology, but also by the increasing assertion by Indigenous peoples of their cultural rights.

The requirement that 'ideas expressed are in a tangible medium in order to attract protection under the Copyright Act', and the fact that operation of the Act is 'based on the concept of copyright as an individual property right that can be transferred or subdivided through commercial transactions', are, in McKeough's view, the primary impediments to proper protection for Indigenous peoples' cultural products and manifestations under existing copyright laws.(14) The requirement that works are 'original' is an additional limiting factor, since it is often argued that artistic and other cultural expressions in Aboriginal or Torres Strait Islander societies are not necessarily produced by a single, identifiable individual; rather, there may be various levels of rights and interests in a work of cultural production. A person who produces a painting in Aboriginal society is not necessarily thought to be the 'owner' of the work, but may have been given authority to produce certain designs or images by others within the community, who may be members of a clan to whom the designs or images are said to 'belong'. The case of rock art is often cited to illustrate the difficulties in conforming to the requirements for 'originality', and for the term of protection under the Copyright Act.

The Patents Act may also be considered in terms of its applicability to the protection of Indigenous cultural products, forms and expressions. As discussed above, the requirements under patent laws concerning the novelty, usefulness, and non-obviousness of inventions, as well as the limited period for protection, and the individual nature of these rights, renders these laws incompatible with Indigenous peoples' interests.

The Designs Act is more limited than the Copyright Act in terms of Indigenous rights, as it requires registration, has similar requirements regarding originality, and offers a shorter term for protection.(15)

The use by Aboriginal people over the past decades of the Copyright Act (and to a lesser extent other laws such as breach of confidence) and the judgements resulting from those actions, have extended the boundaries of the interpretation of intellectual property laws. They have also emphasised the conceptual gaps between western notion of intellectual property and Aboriginal and Torres Strait Islander peoples' perspectives, derived from their cultural systems.

Although other intellectual property laws such as plant variety rights legislation are also relevant to Indigenous peoples, there is not scope in this paper for a discussion of these.

Indigenous Critiques of Intellectual Property Rights

Western intellectual property rights (IPR) systems have been criticised by Indigenous peoples (and Third world critics) as promoting the commercialisation and commodification of cultural products and expressions at the expense of Indigenous and local cultures. Although Indigenous people may have access to intellectual property laws, they are generally inadequately informed about these laws, and to bring actions under such laws is a costly and time consuming exercise, usually requiring the services of legal expertise.

Some Indigenous people argue that western intellectual property laws are fundamentally incompatible with Indigenous cultural systems and ignore the complexities of such Indigenous systems. The IPR system is based on western notions of property that emphasise individual ownership and alienability. The property rights established by these systems are essentially managed as commercial transactions, and are not designed to protect cultural products and expressions.(16) In some critics' views, IPRs pose a threat to Indigenous peoples' systems of informal innovation, and communal rights and responsibilities in cultural products and expressions.(17) There is a spectrum of views which range through arguments for the development by communities of their own sui generis systems, to include community empowerment rights; arguments advocating greater use by Indigenous peoples of a range of existing IPR systems together with land, heritage, and environment laws and statements and human rights regimes; support for the need for integration between Indigenous and western systems of innovation; and a position which claims the existing IPR system is adequate, requiring only minimal amendments.

Western intellectual property laws have been developed from a context of international developments. These have set the terms and definitions for the concept of intellectual property, and established standards for its protection. The Berne Convention for the Protection of Literary and Artistic Works was formulated in 1886, and has been subject to several revisions. The most recent revision to this Convention, to which Australia became a signatory in 1928, was at Paris in 1971.(18) The scope of subject matter under this Convention is 'literary and artistic works', which is interpreted broadly to embrace 'any production whatsoever in the literary, scientific or artistic domain'.(19)

Extensions to copyright laws were introduced in 1989 to provide some protection of rights for live performers, and consideration is being given to amendments to protect moral rights. The inclusion of moral rights protection offers potential for better recognition of Indigenous peoples' rights, as it may shift the balance away from the focus on economic dimensions under present intellectual property rights systems and towards a system that recognises and protects the 'right of integrity' or 'right of attribution' - aspects that are fundamental to Indigenous peoples' claims regarding exploitation of their cultural rights. A moral rights provision within the terms of the Berne Convention would provide avenues for redress in cases of distortion, mutilation or modification of an author's work.(20) The inclusion of moral rights within amendments to copyright laws, and its implications for Indigenous people is discussed below.

Protection of folklore

The protection of cultural expressions of Indigenous peoples has been a developing area internationally. Recognising that copyright laws are not adequate for many aspects of Indigenous cultural protection, developments have occurred under the rubric of 'folklore'. The 1971 revision of the Berne Convention provided for countries to nominate a 'competent authority' to 'control the licensing, use and protection of national folklore'. Although the concept of 'folklore' is a potentially useful one for Indigenous concerns, as it embraces a more holistic notion of culture, the term is relatively contentious in its relevance, applicability or appropriateness to describe and define Indigenous cultures.(21) Moreover, the notion of state control over cultural products and expressions of the peoples within them is antithetical to Indigenous peoples' aspirations for self-determination.(22) It is useful to examine some developments that have considered this concept as a possible means of broadening the scope of what may be protected within copyright type regimes. These discussions have occurred mostly within the World Intellectual Property Organisation (WIPO) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO).

An early development that provides potential for recognition of 'folklore' is the 1976 Tunis Model Law on Copyright, developed through WIPO. This instrument defines folklore as:

all literary, artistic and scientific works created on national territory by authors presumed to be nationals of such countries, or by ethnic communities, passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage.(23)

The Tunis Model Law provides for protection of cultural expressions without the requirement for these to be 'fixed' (as required by copyright laws), and provides protection for an indefinite period of time. It also includes a provision for 'moral rights' to 'prevent the desecration and destruction of folklore works'.(24) While a number of African and other countries have adopted the Tunis Model Law, it has not as yet been considered in Australia.(25)

Both WIPO and UNESCO have also considered parallel developments to protect 'folklore', resulting in 1985 to the formulation of draft sui generis Model Provisions for National Laws for the Protection of Folklore Against Illicit Exploitation and Other Prejudicial Actions. The Model Provisions do not define 'folklore', but rather 'expressions of folklore' as

productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of the country] or by individuals reflecting the traditional artistic expectations of such a community, in particular:

(i) verbal expressions, such as folk tales, folk poetry and riddles;

(ii) musical expressions, such as folk songs and instrumental music;

(iii) expressions by action, such as folk dances, plays and artistic forms or rituals,
whether or not reduced to a material form; and

(iv) tangible expressions, such as:

(a) productions of folk art, in particular, drawings, paintings, carvings, sculpture, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes;

(b) musical instruments;

(c) architectural forms.'(26)

One of the central issues raised by these developments is whether such instruments should protect heritage as that belonging to the nation or state, and therefore the extent to which there is recognition of the heritage rights of distinct peoples within nation-states.

GATT-TRIPS

Intellectual property rights have recently become a component of international trade. The General Agreement on Tariffs and Trade (GATT), established in 1948 by mainly developed countries sets out a regulatory framework for trading between member countries. The GATT aims to promote free trading by allowing negotiation of, concessions on, or removal of tariff protection.(27)

The 1994 Uruguay Round of negotiations on the GATT resulted in the incorporation of intellectual property rights and the establishment of the World Trade Organisation as the administering body of the GATT. The incorporation into the GATT of intellectual property rights, known as the Trade Related Aspects of Intellectual Property Rights (TRIPS), has brought about an additional set of concerns for Indigenous peoples.

The TRIPS provisions in GATT have the general objective of harmonising intellectual property rights protection at the global level, and require countries without IPR systems to develop them in accordance with the GATT provisions. As Darrell Posey argues, the requirement in Article 27(3b) for the protection of plant varieties either by patents or by the creation of effective sui generis systems is viewed by some Indigenous and Third World critics as a threat to their community rights, as it 'would create legal monopolies on common resources'.(28) The TRIPS provisions in the GATT are regarded both as a threat and as creating potential opportunities. The new regulations place some pressure on countries without effective intellectual property rights systems to develop these quickly, thus creating a risk that the IPR systems that are introduced will be incompatible with local and Indigenous customary rights and practices. At the same time, there may be potential opportunities for countries currently lacking in effective IPR systems to create innovative sui generis systems that are in accordance with, and offer protection for, community based rights.

Some Indigenous and Third World critiques of the GATT/TRIPS have argued that this is a further development towards appropriation and control of the biodiversity rich south by the industrialised, affluent, yet biodiversity deficient north - a move which imposes additional constraints on recognition of the contribution made by Indigenous peoples to innovation and development. To these critics, the global integration of intellectual property rights regimes favours industrial innovation and discriminates against informal and communal knowledge systems and innovations.(29)

There have been a number of standard setting and other developments internationally which provide the basis for an understanding of Indigenous intellectual property rights within a wider concept of cultural heritage and Indigenous cultural systems, and which appear to reflect more closely Indigenous peoples' perspectives on cultural protection. Some of these developments are occurring within mainstream agencies of the United Nations and its agencies, while a parallel series of developments is being pursued by Indigenous peoples and Third World peoples, thus signalling a strongly emerging 'soft law' for Indigenous cultural protection.(30)

United Nations Statements and Developments

Developments within the United Nations and its agencies have generally adopted an integrated approach to Indigenous peoples' cultural protection. A 1992 Report of the United Nations Secretary-General on the Intellectual Property of Indigenous Peoples states that Indigenous peoples' intellectual property can, for analytical purposes, be 'usefully divided into three groups: (i) folklore and crafts; (ii) biodiversity; and (iii) Indigenous knowledge'.(31) This report concludes that, given the complexity of finding improved ways to protect the intellectual property rights of Indigenous peoples, 'a greater understanding of the concerns of Indigenous peoples...; may be needed before determining the specific legal remedies which might be appropriate'.(32)

The protection of Indigenous peoples' intellectual property rights has also been on the agenda of the United Nations Working Group on Indigenous Populations, established in 1982 by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. The Draft Declaration on the Rights of Indigenous Peoples developed by the working group includes important provisions concerning intellectual property rights. Article 24 states that:

Indigenous peoples have the right to their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals...(33)

Article 29 states:

Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.

They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.(34)

The comprehensive study on Indigenous Cultural and Intellectual Property prepared by Erica Irene-Daes for the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities provides further discussion of the nature of Indigenous intellectual property and the need to consider it as a component of Indigenous cultural heritage. That study recommended that, consistent with the views of Indigenous peoples, intellectual property and cultural property cannot be considered in isolation from each other, as they are both integral components of Indigenous cultural heritage.(35) This holistic view is also supported by the principles in the Draft Declaration discussed above.

Indigenous cultural rights are also recognised in International Labour Organisation Convention 169, Concerning Indigenous and Tribal Peoples in Independent Countries.(36) As this Convention is primarily concerned with labour and employment, it contains only general provisions that are relevant to intellectual property rights. Article 4 states, for example, that:

Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.

Article 5 states that:

(a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;

(b) the integrity of the values, practices and institutions of these peoples shall be respected.

Article 8 states that:

1. In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws.

2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle.

Article 13 states:

1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable.

Article 23 states:

1. Handicrafts, rural and community-based industries, and subsistence economy and traditional activities of the peoples concerned, such as hunting, fishing, trapping and gathering, shall be recognised as important factors in the maintenance of their cultures and in their economic self-reliance and development.

Although this Convention has been criticised by Indigenous peoples and others for providing insufficient recognition and protection of rights, and for its assimilationist orientation, unlike the Draft Declaration it provides binding obligations on countries that have ratified the Convention.(37) It is also argued that the Convention can be used to encourage governments to establish structures and processes for greater Indigenous participation in the political, economic and social life of that country.(38) It remains questionable, however, as to how rigorously countries fulfil such 'binding obligations' through legislative enactments or policy measures.

Developments in Environment and Conservation

Given that Indigenous peoples consider their intellectual property rights to include rights related to environment, biological diversity and knowledge, developments in international standard setting relating to environment and conservation have particular relevance in so far as these include provisions concerning the need to recognise and protect Indigenous peoples' rights. These instruments and statements are especially useful in that they build up a body of statements recognising, and advocating protection for Indigenous peoples' knowledge systems - aspects of Indigenous culture which are currently beyond the scope of conventional intellectual property laws. The most significant of these international developments have resulted from the 1992 United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil (the 'Rio Earth Summit'). The principal statements are the Rio Declaration, Agenda 21, the Convention on Biological Diversity, and the Statement of Forest Principles - all of which contain provisions relevant to, or implications for, the recognition and protection of Indigenous peoples' intellectual property rights.

Perhaps the most comprehensive and potentially useful outcome of the Rio Earth Summit was Agenda 21, which provides a charter and programme for action for sustainable conservation and development into the next century. While there is much of relevance for Indigenous peoples throughout Agenda 21, Chapter 26 on Recognising and Strengthening the Role of Indigenous Peoples and their Communities contains some important provisions directly relevant to Indigenous peoples' intellectual property rights. Section 26.3 states that Governments should 'in full partnership with indigenous people and their communities' aim to fulfil objectives that include:

(a) Establishment of a process to empower Indigenous people and their communities that include:

(iii) recognition of Indigenous peoples' values, traditional knowledge and resource management practices with a view to promoting environmentally sound and sustainable development.

Section 26.6(a) contains a programme statement to implement this principle, stating that Governments, 'in full partnership with indigenous people and their communities should, where appropriate':

(a) Develop or strengthen national arrangements to consult with Indigenous people and their communities with a view to reflecting their needs and incorporating their values and traditional and other knowledge and practices in national policies and programmes in the field of natural resource management and conservation and other development programmes affecting them.

These statements in Agenda 21 are reinforced by similar principles in the Rio Declaration. Agenda 21 is currently being reviewed by the UN.

One of the binding statements resulting from the Rio Earth Summit, the Convention on Biological Diversity, contains a number of provisions relevant to Indigenous peoples' intellectual property rights. One of the most important is article 8(j) which requires countries (subject to their national legislation) to:

...respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices.

The provisions in the Convention on Biological Diversity relating to Indigenous knowledge are subject to some discussion in the literature, in terms of the extent to which these provisions relate to conventional intellectual property systems, and matters regarding national, versus local and Indigenous rights in biological resources.(39)

While this Convention provides a potentially useful opportunity for countries to introduce sui generis systems to recognise and protect Indigenous knowledge and innovations, it also imposes some constraints. The requirement that implementation of article 8(j) should be subject to national legislation may be problematic for Indigenous peoples, especially if existing national laws take precedence, and where these might contravene or place limitations on any measures that may be introduced under 8(j). The use of 'traditional lifestyles' in the wording of this article may also be interpreted to exclude many Indigenous communities who have not retained their direct connections with lands and resources, but who wish to protect and preserve their knowledge and innovations.(40)

Although a more comprehensive discussion of the recognition and protection of Indigenous knowledge and biodiversity is outside the scope of this paper, it is sufficient to point out that, given that Indigenous peoples regard their knowledge systems and rights in biological diversity to be components of their intellectual property, developments such as the Rio Declaration (and more particularly Agenda 21 and the Convention on Biological Diversity) present potentially significant means for recognition and protection measures to be formulated within the legal system.

Darrell Posey has written extensively on the ways in which relevant provisions in the Rio Declaration, the Convention on Biological Diversity, and a wide range of human rights and other instruments, in addition to emerging Indigenous and other standards and statements can be used by Indigenous peoples to achieve better recognition and protection for their 'intellectual property' rights (or what Posey terms 'traditional resource rights'). Posey's work on alternative solutions that go 'beyond intellectual property rights' is outlined below.(41)

Another outcome from the Rio Earth Summit was the establishment of a new body, the Commission on Sustainable Development (CSD), within the United Nations Environment Program. The CSD has established an ad hoc Intergovernmental Panel on Forests (IPF) to consider a range of matters concerning sustainable forest management. Part of the program of work of this body includes considering the role of 'traditional forest related knowledge', a significant area of work relevant to Indigenous peoples' interests. The recommendations and future actions arising from the work of the IPF are included in the agenda for a current United Nations General Assembly review of international environmental issues.

Other developments relevant to Indigenous peoples' intellectual property rights are being considered within the United Nations Food and Agriculture Organisation (FAO) and its agencies (such as the Commission on Plant Genetic Resources). In 1983 the FAO adopted an International Undertaking on Plant Genetic Resources as part of the establishment of a Global System to coordinate and regulate plant genetic resources relevant to food and agriculture.(42) This Undertaking has gone through several revisions, one of which in 1989 resulted in the inclusion of the recognition of a concept of 'Farmers' Rights'. These 'Farmers' Rights' are currently subject to debate, especially in terms of clarifying what is meant by the term, and its implications for the rights of local and Indigenous communities regarding food and agricultural knowledge and production, and access to, control and ownership of plant genetic resources. Current revision of the International Undertaking is also considering possible harmonisation with relevant provisions of the Convention on Biological Diversity.

Indigenous Statements

In addition to the standard setting developments surveyed above, there is a growing body of declarations and statements by Indigenous peoples concerning recognition and protection of intellectual property and related rights.

The Draft Declaration, which has now assumed the status of a well established process within the formal United Nations machinery, has been developed by Indigenous peoples and their representatives during the annual sessions of the United Nations Working Group on Indigenous Populations (WGIP). As such, this draft Declaration is a strong statement of Indigenous peoples' aspirations, and reflects their thinking on a wide range of cultural and associated rights. The Draft Declaration is currently being further considered by a special Working Group established by the United Nations Commission on Human Rights - a higher level body of the UN. This Commission is, however, a body comprised of government representatives. Government representatives that may oppose or be less supportive of the language in the Draft Declaration are therefore likely to be able to wield greater influence than was the case during the development of the Draft Declaration in the WGIP sessions. In any case, it is still many years before the Draft Declaration is to be considered for adoption by the United Nations General Assembly. Even when that occurs, as a Declaration it does not place binding obligations upon countries to uphold it as law, or to implement its provisions. It is more a statement of international customary law.

Indigenous peoples are also developing a series of statements proclaiming their rights in intellectual property. Usually such statements, consistent with the views expressed in the Daes report, reflect a more inclusive understanding of intellectual property, and incorporate variously 'cultural property', 'knowledge', and 'biodiversity' - components that are generally considered outside the scope of western thinking on intellectual property.(43) These include the following.

In February 1992 an Open Forum held as part of the Seventh Asian Symposium on Medicinal Plants, Spices and Other Natural Products in Manila, Philippines, produced the Manila Declaration Concerning the Utilisation of Asian Biological Resources.

A World Conference of Indigenous Peoples on Territory, Environment and Development, held in Kari-Oca, Brazil, in May 1992, produced a statement known as the Kari-Oca Declaration and the Indigenous Peoples' Earth Charter.

In June 1993 a meeting of Indigenous peoples took place in Whakatane, New Zealand. This was the First International Conference on the Cultural and International Property Rights of Indigenous Peoples. The meeting produced a statement called the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples. This Declaration was submitted to the 1993 Session of the UN Working Group on Indigenous Populations.

In November 1993 an international conference on Indigenous intellectual and cultural property was held at Jingarrba in north east Queensland issued a statement, known as the Julayinbul Statement on Indigenous Intellectual Property Rights.

A series of regional consultations and meetings of Indigenous peoples to discuss intellectual property rights took place in Bolivia, Malaysia and Fiji during 1994 and 1995. These meetings, sponsored by regional non-Government organisations, including the Coordinating Body for the Indigenous Peoples' Organisations of the Amazon Basin and the United Nations Development Programme, issued statements concerning the recognition and protection of intellectual property rights.

The regional meeting in Fiji also produced a Treaty for a Lifeforms Patent-Free Pacific and Related Protocols, to prevent exploitation of local and Indigenous peoples in this region by biological prospecting and the collection of human genetic materials.

These Indigenous statements are generally more inclusive in their coverage than statements in western law, incorporating a wider range of subject matter which Indigenous peoples consider to be their cultural and intellectual property. They form an important emerging body of principles which ultimately must influence western legal systems to provide improved protection for Indigenous cultures.

There have been various developments in Australia that have proposed recommendations concerning protection for Aboriginal and Torres Strait Islander peoples' intellectual property rights.(44) Most of these have focussed on the protection of Indigenous intellectual property rights in artistic works; relatively little comprehensive consideration has been given to protecting other components of Indigenous intellectual property such as secret or sacred material, cultural heritage, knowledge, or biodiversity. This section surveys some of these developments.

Folklore, Culture, Customary Law, Arts and Crafts and Social Justice

Report of the Working Party on the Protection of Aboriginal Folklore, 1981

During the 1970s, partly as a result of the copyright cases brought by Aboriginal artists and the increasing entry of the works of Aboriginal artists into the national and international art markets, there was a growing recognition of the need to address inadequacies in legal protection for Aboriginal and Torres Strait Islander peoples' intellectual property rights. In May 1973 the first National Seminar on Aboriginal Arts, held in Canberra, resolved that the Aboriginal Arts Board of the Australia Council should initiate procedures which would 'enable each tribal body to protect its own particular designs and works and to strictly control the use of them by non-Aboriginals'.(45) The Copyright Committee of the Australia Council referred that resolution to the Government, with a recommendation that a committee be established to 'examine the nature of legislation required to protect Aboriginal artists in regard to Australian and international copyright'. This led to the establishment by the then Commonwealth Department of Home Affairs and Environment of a Working Party on the Protection of Aboriginal Folklore. The working party comprised representatives from the Attorney-General's Department, the Australia Council, the Australian Copyright Council, the Department of Prime Minister and Cabinet and the Department of Aboriginal Affairs. The working party's report released in 1981 recommended a draft law called the Aboriginal Folklore Bill, designed to establish an Aboriginal Folklore Board and a Commissioner for Folklore empowered to make determinations about uses of Aboriginal cultural items.

In deciding that the object of its study should be directed towards the protection of Aboriginal 'folklore', the report concluded that 'folklore' was a useful term if applied in an expanded sense, and that its use is also justified on the basis of its recognition in some international legal contexts. The report states that 'use of the term 'folklore' recognises that traditions, customs and beliefs underlie forms of artistic expression, since Aboriginal arts are tightly integrated within the totality of Aboriginal culture'. It argued that 'folklore is the expression in a variety of art forms of a body of custom and tradition built up by a community or ethnic group and evolving continuously.'(46) The Report draws on the Tunis Model Law which defines folklore as:

all literary, artistic and scientific works created on national territory by authors presumed to be nationals of such countries, or by ethnic communities, passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage.(47)

The recommendations from the working party report have not been implemented, although the model it outlines is one of the options for reform being considered by an interdepartmental committee. One potential difficulty posed by the model suggested in the folklore report is the centralised nature of the structure to be established; this is likely to be at odds with the concept of localised community decision making about uses of folklore.

A further difficulty is in the definition and scope of the term 'folklore'. Although this terminology is used in the WIPO/UNESCO discussions, it is not appropriate to uncritically impose it onto the Aboriginal and Torres Strait Islander context. As some writers have argued, although the term 'folklore' is used in some discussions about African societies, it is derived from an early European and British context, and when used to denote Indigenous cultures connotes an entity that is subordinate to culture or heritage.(48)

Report on the Recognition of Aboriginal Customary Law, 1986

In February 1977 the Australian Law Reform Commission (ALRC) was asked by the then Federal Attorney-General, the Hon. R.J. Ellicott, to inquire into the extent to which the existing system of laws might recognise Aboriginal customary laws.(49) The terms of reference for this inquiry were:

(a) whether existing courts should be empowered to apply Aboriginal customary law and practices in the trial and punishment of Aborigines; and

(b) to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.

The ALRC report discussed the definition of customary law, finding that there was some agreement among the many writers on this subject that 'there existed, in traditional Aboriginal societies, a body of rules, values and traditions, more or less clearly defined, which were accepted as establishing standards or procedures to be followed and upheld ... [and] ... furthermore, these rules, values and traditions continue to exist, in various forms, today'. There remained some difficulties, however, in the ALRC report's discussion, about the extent to which this body of 'values, rules and traditions' may be considered, in the legal and anthropological tradition, as 'law'.(50)

The main focus in the ALRC report was on criminal law and justice issues, and it considered only very briefly other aspects of customary law.(51) With regard to cultural heritage, and intellectual property rights in art and cultural expressions, the ALRC touched briefly on these, but mostly stated that these matters were adequately covered in the report of the Working Party on the Recognition of Aboriginal Folklore, and that the Commonwealth Government was 'considering the implementation of the recommendations' of that report. The ALRC report recognised the inadequacies in existing copyright law for protection of Indigenous intellectual property, stating that 'the protection of traditional designs is difficult to reconcile with the law relating to intellectual property, which grants a short term monopoly to the artist on the condition that the design or idea will eventually be available in the public domain.' In the light of these incompatibilities, the ALRC report supports special legislative protection for Indigenous cultural items not adequately protected by copyright laws, stating that 'such special legislative measures, together with careful use of the general law, and greater use of existing by-law powers, offer greater assistance to Aboriginal people than the enactment of a broad range of customary offences as part of the general body of criminal law.'(52)

The relationships between Aboriginal and Torres Strait Islander customary law (defined as the body of rules, values and traditions in Aboriginal and Torres Strait Islander societies) and intellectual property rights as protected under existing copyright laws have been explored by various writers.(53) The general conclusion is that there is a fundamental difference between copyright laws, which exist to encourage creativity and investment by creating a private property right that can be transferred within a commercial market economy, and the 'production and regulation of imagery within Indigenous communities ... [which] ... is not based upon notions of talent or individual expression, but stems from systems of inherited rights and obligations'.(54)

The problem of recognising Aboriginal and Torres Strait Islander peoples' intellectual property rights has mostly been discussed as these relate to works of art. As such, a number of reports and other processes regarding what has come to be known as the Aboriginal and Torres Strait Islander 'arts and crafts industry' often have some regard to intellectual property issues. Most of these reports emphasise the need to support commercial and economic aspects of Indigenous 'arts and crafts', and focus on discussions about industry viability, improvement of marketing strategies, and funding initiatives for arts and crafts enterprise development. While the achievement of commercial success is undoubtedly an important component of the path towards self-determination for Aboriginal and Torres Strait Islander peoples, so too is the recognition of their distinct cultural rights as Indigenous peoples. The promotion of Indigenous art as a significant industry must equally have regard to the 'cultural integrity' of the art.(55)

Report of the Review Committee on the Aboriginal Arts and Crafts Industry, 1989

In recognition of the increasing income generating potential of the Aboriginal arts and crafts industry, a committee appointed in 1989 by the then Aboriginal and Torres Strait Islander Affairs Minister, the Hon. Gerry Hand, was asked to conduct an inquiry into this industry. Although this committee's primary concern was with matters relating to the commercial viability of the Aboriginal arts and crafts industry, and the need for a more effective marketing strategy, in its report of 1989 it did recognise the importance of protecting Indigenous intellectual property rights, and the difficulties in achieving adequate protection within existing laws. The report's recommendations were more cautious than those of the Working Party on Protection of Aboriginal Folklore, but nonetheless supported the consideration of the latter report.(56)

Report of the Royal Commission into Aboriginal Deaths in Custody, 1991

The Royal Commission into Aboriginal Deaths in Custody included consideration of Aboriginal arts and crafts in its discussion on increasing economic opportunity. The Commission added its support to the recommendations of the Arts and Crafts Industry Review Report, which advocated the establishment of an Aboriginal and Torres Strait Islander arts and crafts industry strategy, improved coordination of activities relating to Indigenous arts and crafts development, increased support to Indigenous arts and crafts centres, and special programs to assist these activities. Copyright issues are included in the Royal Commission's discussion, supporting the views propounded in the previous Report.(57)

The central issue here is that a pattern is emerging wherein each report has merely reasserted what is already well known, and reinforced the need to implement recommendations advocated in previous reports. While there is some merit in reasserting the same recommendations, relatively little of substance has been added to the comprehensive analysis in the 1981 Working Party Report. The same recommendations are being recycled, with little regard to serious consideration of implementation.

The need to support arts and crafts industry development is certainly of great importance. Indeed, the increasing entry of Indigenous arts and crafts into commercial markets brings an increasing urgency to protect the cultural sensitivities and customary rights of the producers and their communities. It is clearly not viable to argue that Indigenous arts and crafts are purely an industrial activity; the cultural dimensions are integral, and must be given added consideration as the industry continues to grow.

Creative Nation, 1994

The Keating Government released a Commonwealth cultural policy in October 1994. This document drew attention to the inadequate protection of Aboriginal and Torres Strait Islander peoples' intellectual property rights under existing laws, and added to the body of reports and statements advocating reforms to protect Indigenous peoples' intellectual property rights. Creative Nation stated that any measures should include consultations with Indigenous communities.

Discussion Paper, Proposed Moral Rights Legislation for Copyright Creators, June 1994

In June 1994 the Commonwealth Government released a discussion paper on moral rights. This paper examined the possibility of introducing the recognition of moral rights into the Australian legal system, to provide protection for creators. Moral rights, as distinct from the economic rights that are currently the focus of copyright law, comprise two components: 'the right to be identified as the author of a work (the right of 'attribution'), and the right to object to distortion, mutilation or other modification of, or derogatory action in relation to, the work which is prejudicial to the author's honour or reputation (the right of 'integrity')'.(58)

The introduction of moral rights would fulfil obligations under the Berne Convention, and would also enhance the ability of the Copyright Act to protect Indigenous peoples' rights. Moral rights would provide legal recognition of the 'use of works', and provide mechanisms for redress where works have been misused. As such, the discussion paper says, these rights might 'provide an additional and significant means of redress for some Aboriginal artists'. Since moral rights are 'personal' in nature, and therefore cannot be transferred, in the view of the authors of the discussion paper, they allow potentially greater control by Indigenous creators over their works.(59)

Issues Paper, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples, October 1994

One of the more comprehensive developments since the 1981 Report of the Working Party on the Recognition of Aboriginal Folklore was the release in October 1994 of the issues paper Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples. This was prepared by the Commonwealth Attorney-General's Department and issued under the auspices of three Ministers in the Keating Labor Government: Duncan Kerr, Minister for Justice; Robert Tickner, Minister for Aboriginal and Torres Strait Islander Affairs; and Michael Lee, Minister for Communications and the Arts.

This issues paper expanded on recommendations in Creative Nation and outlined the problems in achieving adequate protection for Indigenous peoples intellectual property rights under existing intellectual property laws. It surveyed some of the existing international and domestic laws relating to intellectual property, and suggested a range of possible options for improving protection for Aboriginal and Torres Strait Islander peoples' intellectual property rights.

The paper adopts the terms 'intellectual property', and 'arts and cultural expressions' to denote aspects of Indigenous cultures, and defines 'arts and cultural expressions' to 'encompass all forms of artistic expression which are based on custom and tradition derived from communities which are continually evolving'. Since this paper is bound within a conceptual framework of 'copyright', its discussion is limited to 'those aspects of the protection of arts and cultural expression that have a close connection with copyright law'. It therefore precludes consideration of 'other areas such as biodiversity and indigenous knowledge ... [which] ... are sometimes considered to be protected by intellectual property laws', since 'these areas often touch on aspects of intellectual property protection without involving property rights themselves'.(60) The paper is thus problematic in that it denies the potential for Indigenous rights and interests in biodiversity and knowledge to be considered as 'property rights'. As such, this paper does not adequately address Indigenous intellectual property rights: it deals only with one aspect.

An interdepartmental committee convened by the Department of Communications and the Arts is currently developing a response to the Stopping the Rip-Offs paper.

Social Justice Reports, 1995

Following the passage of the Native Title Act in 1993, and establishment of a body to administer the Indigenous Land Fund, the former Government proposed a series of additional measures to address Aboriginal and Torres Strait Islander peoples' disadvantage. The proposed social justice strategy recognised that not all Aboriginal and Torres Strait Islander peoples would be able to claim native title or other forms of land rights, and that there were many areas of Indigenous disadvantage that would not be addressed by these initiatives. In formulating its social justice strategy, that Government released a discussion paper and called for submissions. Among the most prominent submissions received were those by the Aboriginal and Torres Strait Islander Commission (ATSIC), the Council for Aboriginal Reconciliation (CAR) and the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity Commission.

The submission from ATSIC, presented in 1995, consistent with United Nations statements and Indigenous perspectives, recognised that to Indigenous peoples 'intellectual property' and 'cultural property' comprise integral components of what this report termed 'cultural integrity and heritage protection'.(61) This report provided the following three specific recommendations for the protection of Indigenous intellectual property rights:

The Commonwealth Government should amend statutes relevant to intellectual property rights to safeguard the integrity and ownership of indigenous cultural [and intellectual] property in a manner which recognises the particular features of Aboriginal and Torres Strait Islander ownership, including perpetual and communal rights. (Recommendation 81)

The Commonwealth Government should introduce measures to regulate and ensure appropriate compensation for agreed use of indigenous intellectual and cultural property. (Recommendation 82)

The Commonwealth Government must ensure that ATSIC and appropriate indigenous organisations are fully involved in negotiating the legislative reform and other aspects of the recommendations relating to cultural protection. (Recommendation 83)(62)

Similar recommendations were made in the submissions by the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner.(63)

The social justice package is not part of the Coalition Government's agenda, although the Aboriginal and Torres Strait Islander Commission is carrying out some work on intellectual property.(64)

Coalition Government Policy, 1996

The policies of the Coalition Government support the need for improved protection for Aboriginal and Torres Strait Islander peoples' intellectual property rights. In its Aboriginal and Torres Strait Islander Affairs policy the Coalition says that it will 'ensure that relevant copyright laws fully recognise the cultural and economic rights of Indigenous artists.' It is not certain at this stage whether the Coalition's policies will be limited to reforms to the Copyright Act to provide better protection for Indigenous artists, or extend to recognising the full range of Indigenous peoples' intellectual property and include consideration of new sui generis legislation.

Australian Copyright Council Discussion Paper, Indigenous Intellectual Property Rights: A Copyright Perspective, March 1997

In March 1997 the Australian Copyright Council released a discussion paper on Indigenous intellectual property rights. This paper is a valuable contribution to the literature, and provides a very comprehensive coverage of the issue. As it openly states, this paper is working within a copyright framework, and its conclusions therefore remain cautious regarding reforms, suggesting that there may be sufficient remedies within existing copyright law to provide 'a measure of protection to the communities of individual indigenous creators'.(65)

Heritage, Biodiversity and Native Title

The protection of intellectual property is integral, in Indigenous peoples' views, to heritage and land. A number of legislative and other developments on heritage, biodiversity and land are relevant to Aboriginal and Torres Strait Islander intellectual property rights.

Protection of Indigenous Heritage

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 provides for the Commonwealth Minister to make declarations for protection over significant areas, sites or objects that are under threat of desecration. This Act is a 'last resort' to be used when State or Territory processes have failed. The Commonwealth Act does not include provisions for protection of non material aspects of heritage, but there is scope in Part IIA of this Act, enacted for Victoria. Part IIA includes 'folklore' in its definition of 'Aboriginal cultural property', which refers to:

...traditions or oral histories that are or have been part of, or connected with, the cultural life of Aboriginals (including songs, rituals, ceremonies, dances, art, customs and spiritual beliefs) and that are of particular significance to Aboriginals in accordance with Aboriginal tradition.(66)

The Heritage Protection Act was the subject of a review carried out in 1996 by the Hon. Elizabeth Evatt, AC. The Evatt Report has added to the growing number of reports and recommendations advocating the need to consider 'intellectual property' and other intangible aspects of Indigenous heritage in legislative and policy reforms.

This report made many recommendations aimed at improving the operation and effectiveness of the Act for protecting Indigenous heritage, and for achieving better coordination of heritage protection across all levels of government. Included in these recommendations are the need to include consideration of intangible components of heritage (including intellectual property) in protection measures, and matters concerning the need to respect confidentiality, and customary restrictions on information in dealing with heritage protection. The report also recommended that, if State and Territory governments do not establish appropriate bodies, the Commonwealth Government should establish an Indigenous cultural heritage committee to ensure that Indigenous peoples have primary responsibility in deciding the significance of sites. This may allow the potential for the inclusion of intangible aspects of cultural heritage, including knowledge in frameworks for protection.

A discussion paper was released by the Aboriginal and Torres Strait Islander Commission in March 1997, on Proposed Minimum Standards Framework for the Accreditation of State and Territory Aboriginal and Torres Strait Islander Heritage Protection Regimes. This paper proposes that protection should be accorded to 'areas and objects which are culturally significant to Aboriginal and Torres Strait Islander people, including human remains, cultural property and historic and archaeological areas (including buildings).'. The paper considers that the 'significance of, and the nature of the threat or desecration to, an area or object is a matter for indigenous people to decide in accordance with their contemporary traditions'.

The Minimum Standards paper retains the emphasis on notions of physical places or objects as the primary (or only) manifestations of Indigenous cultural heritage, omitting any discussion of non-physical aspects. Although there may be some scope within the approach in this paper for Indigenous peoples to promote the non-physical dimensions of their heritage in ascribing significance, since the interpretation and management of heritage ultimately rests with government (the Commonwealth in this case), the focus appears likely at this stage to remain squarely on physical heritage.

The importance of incorporating Indigenous perspectives on heritage in Government approaches is recognised in some reports. This has been usefully discussed in a report by the Australian Heritage Commission released in February 1997, Australia's National Heritage: Options for Identifying Heritage Places of National Significance, which drew attention to the importance of knowledge:

Indigenous people have a strong sense of heritage as including intangible aspects such as language, song, stories and art, and can be critical of a notion of heritage based too narrowly on 'place'. Protecting knowledge associated with a place may be equally or more important than physical protection of a place. Indigenous understandings of heritage will need to be acknowledged...(67)

Other developments which have raised the problems in protecting Aboriginal and Torres Strait Islander peoples' intellectual property rights have included an Inquiry into Aboriginal and Torres Strait Islander culture and heritage that was commenced by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, and which was discontinued with the change of government in March 1996. The full reference for that inquiry was:

...to inquire into and report on the maintenance and promotion of Australia's Indigenous arts, cultures and cultural identity. This encompasses the full range of artistic and cultural activities, both traditional and contemporary, including visual art, craft, language, design, dance, music, drama, storytelling, folklore, writing, sound, films, heritage, traditional cultural practices and spiritual beliefs.

Of those components that the inquiry was to pay 'particular attention to', was the inclusion of 'intellectual property rights, including the ownership and integrity of artistic work'. The inquiry received many comprehensive submissions, and conducted public hearings throughout several States before it was discontinued.

Indigenous Cultural Property

As advocated in international and Indigenous statements, to Indigenous peoples cultural property is inseparable from intellectual property, and these together comprise integral components of their cultural heritage.

Cultural property is generally considered to include a range of objects such as human remains, artefacts, items of a secret or sacred nature, and historical materials (including archival and other records). Much of this material is held in museums and other collecting institutions (both overseas and within Australia), for research and display purposes. Indigenous peoples claim their rights in this material, as it forms an essential component of their collective heritage, and is crucial to cultural identity.

Although many museums are actively working with Indigenous people to repatriate cultural property, there is little or no nationally consistent approach or policy, and no legislative obligation to repatriate. While the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and some State laws may be used to a limited extent for this purpose, the Commonwealth Act provides only for protection orders of a limited duration to be placed over collections, while attempts are made to negotiate regarding repatriation.

Some progress towards the development of a national policy was made in the early 1990s following lengthy and difficult negotiations between Indigenous peoples, museums, and governments, but this ultimately fell short of achieving an agreed national policy. Limited success was achieved by the museums association and by the Aboriginal and Torres Strait Islander Commission, each of which independently finalised policy positions and guiding principles.

The challenges to successful achievement of a national policy include matters such as ownership rights and interests in cultural property, questions of access and provision of information about such material, and relative roles and responsibilities (including financial) of key stake-holders, including governments, museums and their organisations, and Indigenous peoples.(68)

Protection of Indigenous Secret or Sacred Information

Indigenous peoples consider information to be part of their intellectual property, and such information is regulated and managed according to strict cultural codes and rules. Matters of confidentiality and secrecy in Aboriginal and Torres Strait Islander societies are integral to the functioning of these societies, and are closely interconnected with religious, cultural, political and social systems.(69)

As with all their forms of intellectual property, knowledge is frequently obtained as information from Aboriginal or Torres Strait Islander people by researchers, scientists, government officials and a host of others, often without the consent of the people who 'own' the knowledge. As such, rules of confidentiality, often little understood or appreciated by the recipients of the information, are breached. Few actions have been brought by Indigenous people under western laws for breach of confidentiality, despite the fact that such information is very frequently sought. One case ( Foster v Mountford (1976)) that has been documented is the action brought by members of the Pitjantjatjara Council who in 1976 sought to prevent information obtained by an anthropologist (Mountford) from being published in the Northern Territory. This action was taken using breach of confidence rules, and the court granted the plaintiffs an injunction to prevent sale of the book.(70)

The problems of confidentiality, especially with regard to Indigenous peoples' secret or sacred information, are particularly pertinent to the taking of evidence in courts, and to hearings and provision of evidence in land and heritage matters. These issues have been discussed in the 1986 Law Reform Commission's Report on the Recognition of Aboriginal Customary Laws, and were prominent in relation to claims that were made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 by Aboriginal people for heritage protection around the Hindmarsh Island Bridge area. The Hon. Elizabeth Evatt, AC, devoted some considerable discussion of secret and sacred information in her 1996 report of the review of the Heritage Protection Act, and produced a number of recommendations aimed at ensuring that heritage protection laws and procedures have respect for customary restrictions on information.(71)

Protection of Indigenous Knowledge in Biodiversity

Indigenous peoples assert that their intellectual property rights extend to protection for biological diversity. Although international developments are proceeding in the complex area of Indigenous cultural rights, there has been relatively little consideration of possible measures that may provide recognition and protection for Indigenous peoples' rights in biological diversity in Australia.

The most significant international development that provides potential for protection of Indigenous knowledge is the Convention on Biological Diversity, discussed above.

The Conference of Parties to the Convention on Biological Diversity and its technical advisory body, the Subsidiary Body on Scientific, Technical and Technological Advice, include in their programs of work consideration of the implementation of Article 8(j).(72) Issues raised by this work include the clarification of the relationship between Indigenous knowledge and intellectual property rights, and whether Indigenous knowledge can be construed as a property right.

Developments in Australia gained some momentum following the 1992 United Nations Conference on Environment and Development. In 1992 the then Commonwealth Government, with State and Territory governments, endorsed the Intergovernmental Agreement on the Environment, which includes an agreement to conserve biological diversity. Following that, in the same year a Task Force on Biological Diversity was established by the Australian and New Zealand Environment and Conservation Council (ANZECC) to oversee and report on the implementation of the Convention on Biological Diversity. Following recommendations from the Task Force, the Council of Australian Governments agreed in 1992 to implement a National Strategy for Ecologically Sustainable Development, which includes the conservation of biological diversity as one of its central objectives.

The Australian Government ratified the Convention on Biological Diversity in June 1993, and in 1996 the Commonwealth, State and Territory governments endorsed the National Strategy for the Conservation of Australia's Biological Diversity. Action 1.8.2 of this Strategy is to:

Ensure that the use of traditional biological knowledge in the scientific, commercial and public domains proceeds only with the cooperation and control of the traditional owners of that knowledge and ensure that the use and collection of such knowledge results in social and economic benefits to the traditional owners. This will include:

(a) encouraging and supporting the development and use of collaborative agreements safeguarding the use of traditional knowledge of biological diversity, taking into account existing intellectual property rights; and

(b) establishing a royalty payments system from commercial development of products resulting, at least in part, from the use of traditional knowledge.

The Commonwealth Government is also considering implementation of the Convention in various committees. The ANZECC Task Force on Biological Diversity recommended that a Commonwealth/State Working Group (CSWG) should be established to 'investigate and report on the strengthening of existing controls governing access to genetic resources'. This CSWG was established in May 1994, and an interdepartmental committee convened by the Department of Industry, Science and Tourism was subsequently formed to monitor the work of the CSWG and to develop a Commonwealth position on issues raised by the CSWG.(73)

The CSWG has prepared a draft discussion paper which includes a brief outline of Indigenous peoples' rights in biological and genetic resources, and the inability of existing intellectual property rights systems to adequately protect these. The paper concludes however that questions of Indigenous rights and ownership are too complex, are outside the scope of the Working Group's concerns and being dealt with in other forums. The paper therefore limits its discussion to the management of access to biological and genetic resources.

There are important implications particularly for Indigenous peoples post Mabo for ownership and control of biological and genetic resources. Given these implications and the multiple, intersecting and competing rights and interests in these resources, the CSWG's consideration of these aspects appears to be relatively inadequate.

Another intergovernmental committee convened by the Department of Environment, Sport and Territories is considering strategies for implementing the Convention; and a committee convened by the Department of Primary Industries and Energy is dealing with the FAO International Undertaking and related matters.

It remains to be seen how effectively these developments can incorporate consideration of Indigenous perspectives, including Indigenous intellectual property rights, particularly in the light of Australia's obligations under the TRIPS Agreement.

The links between protection and conservation of biological diversity, and the role of Indigenous peoples' knowledge, practices and innovations, are of more than academic interest. Indigenous peoples are increasingly concerned about exploitation of plants and animals, and other biological products and derivatives, and of the knowledge about them. Indigenous biological knowledge is being collected and utilised by pharmaceutical, cosmetic and other research companies, without regard to the custodians and holders of this knowledge, and with little or no financial returns to the Indigenous communities.(74) The protection of Indigenous biological and other types of knowledge is not within the scope of existing patent or other intellectual property laws.

Native title

The High Court's 1992 Mabo decision, the Native Title Act 1993, and the 1996 Wik decision carry potentially large implications for recognition of Indigenous intellectual property rights. Some writers have suggested that the recognition in common law of native title rights, could extend to recognising customary laws, including those related to ancestral designs.(75)

Given the close connections between intellectual property and land in Indigenous peoples' perspectives, it is feasible that claims could be made under the Native Title Act, using the Mabo Decision principles, to assert Indigenous peoples' rights in intellectual property. Whatever interpretations are made of these connections, there is no doubt that the Mabo Decision, the Native Title Act, and the more recent Wik Decision provide firm principles for the recognition of Indigenous customary laws within the western legal system.(76)

There are many possible ways in which reforms can be introduced to provide better protection for Indigenous intellectual property rights. These range from amendments to a range of existing laws, through more creative uses of these laws, a variety of common law and non-legislative approaches, to new sui generis systems which would be designed specifically for Indigenous peoples' intellectual property rights and which would provide greater community control over cultural products and expressions.

While a relatively comprehensive discussion of reforms is contained in the Australian Copyright Council's recent discussion paper, given the focus of that paper on a copyright approach it is ultimately cautious in its recommended solutions.(77)

Reforms to Existing Intellectual Property Laws

One possible avenue for providing improved protection for Aboriginal and Torres Strait Islander peoples' intellectual property rights is through amendments to existing laws. The problem with this 'minimalist' approach is that it will not go far enough to sufficiently address intellectual property rights from Indigenous peoples' perspectives.

Amendments to the Copyright Act might be usefully considered that extend, or waive the fifty year period for copyright protection, and expand the scope of the Act to include provisions for copyright protection of non-corporeal forms of work, such as performances. The provisions in the Copyright Act for performers' rights may offer some scope for protecting Indigenous ceremonial performances, but do not recognise the communal rights in these performances, and protection would still be subject to the limitations within the Act discussed above. The inclusion of moral rights protection would go some way towards better protecting Indigenous creators, and enabling them to seek redress for misuse of their works.

Ultimately, however, copyright and allied intellectual property laws are reactive. They operate retrospectively: persons who consider that their copyright has been infringed bring actions under the Copyright Act for redress. Effective use of the Copyright Act also requires sufficient knowledge of the workings of that Act, access to legal assistance, and adequate resources to cover costly litigation. These latter requirements may provide constraints on Aboriginal and Torres Strait Islander people seeking to use this legislative option.

The Australian Copyright Council has discussed the concept of domain public payant as a possible avenue for reform. This system would establish a system for the payment of royalties to be made, for the commercial uses of works that are in the public domain. As that paper argues, however, this type of system would be likely to be antithetical to Indigenous peoples' interests, as it would depend for its operation on cultural products and expressions being in the public domain, and therefore freely accessible. This would increase the risk of exploitation of Indigenous cultural works. Since a domain public payant system also requires state control, this would deny Indigenous peoples' wish to control their own cultural products and expressions, and to receive benefits from the wider uses of these.(78)

Other Legislative Reforms Options: Heritage Protection and Native Title

Greater protection for Aboriginal and Torres Strait Islander intellectual property rights may be achieved by considering amendments to heritage laws. This avenue is particularly interesting, as it would be a recognition (consistent with international developments surveyed above) that Indigenous peoples' intellectual property is a component of their cultural heritage.

The principal Commonwealth law for protection of Indigenous heritage is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. This Act is designed as a 'last resort' to enable the Minister to issue protection declarations over sites, areas or objects which are deemed to be of 'significance' and which are in threat or danger of desecration.

This Act currently does not include in its provisions scope for protection over non-tangible aspects of heritage. There is, however, increasing recognition of the fact that Indigenous heritage is a more inclusive entity, which incorporates the intangible and the expressive (i.e. song, dance, ceremony, etc) aspects of heritage as well as physical sites or places. A recent discussion paper produced by the Australian Heritage Commission in relation to the national heritage register drew attention to the importance of the intangible dimensions of heritage, and the knowledge associated with sites. Similar assertions have been made in the recommendations of the report by Elizabeth Evatt on the review of the Aboriginal and Torres Strait Islander Heritage Protection Act. Some writers have argued that amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act may be a more fruitful way to better protection for Aboriginal and Torres Strait Islander peoples' intellectual property rights.(79) It is also significant to note in this regard the provisions of Part II of the Heritage Protection Act which were introduced for Victoria. These provisions go further than those in the Commonwealth Act, in that they allow for the inclusion of items of heritage other than purely physical places or objects in determining protection. This part of the Act also provides for a system of community control over heritage - an important aspect also absent from the Commonwealth law.

The Native Title Act 1993, as discussed above, establishes principles for recognition of Indigenous customary rights. This Act may also be interpreted to include recognition of Indigenous knowledge as intellectual property rights, within the meanings and definition of native title. One writer argues that since native title is defined according to the customs and traditions of the claimant group, this by definition must imply the inclusion of intellectual property rights, because to Indigenous peoples the 'knowledge of the properties of fauna and flora' - a component of their intellectual property - is determined according to customary laws.(80)

Non-Legislative Reform Options

There are options for considering common law reforms, using such mechanisms as 'blasphemy', and 'prerogative rights'. These are also canvassed in the Australian Copyright Council's discussion paper.(81) While they may establish some useful precedents, these approaches are of limited effectiveness in providing adequate recognition and protection for the full subject matter of Indigenous peoples' intellectual property rights, and incorporating their cultural perspectives in areas such as communal rights.

The development of guidelines, agreements, protocols, codes of conduct and similar arrangements are important areas for considering effective reforms. There are some significant emerging standards internationally, such as the Principles and Guidelines for the Protection of the Heritage of Indigenous People recommended in the 1995 study of Indigenous heritage prepared by the United Nations Special Rapporteur, Erica Irene-Daes.(82)

The development of regional agreements, either within the provisions of the Native Title Act or independently, provides scope for including for Indigenous control of, and full participation in, management - which could include management of natural and cultural resources, products and expressions. These regional agreement type developments are currently being negotiated in the Cape York Peninsula region of Far North Queensland and in the Kimberley region of West Australia.

One non-legislative measure with some potential to protect Indigenous intellectual property is the development by the National Indigenous Arts Advocacy Association of an authentication mark or trademark for Aboriginal and Torres Strait Islander art and cultural products. This is a label that will attach to cultural products, and which will be used to protect the origin and 'authenticity' of the products.(83) Although the authenticity label is essentially a 'marketing tool', designed to protect the consumer more than the Indigenous producer or community, by ensuring that products are 'authentic' it may in time act as an inducement for galleries, traders, and others in the commercial art and cultural products market to recognise and respect Indigenous art, and thereby mitigate the potential for exploitation and misappropriation. It is also proposed that the development of the label be accompanied by an information and education strategy about Indigenous art and authenticity - an initiative that would also assist in protecting Indigenous peoples' intellectual property rights.

The development and introduction of effective reforms requires an active and committed approach throughout the entire machinery of government. A proliferation of committees, working parties and other bodies within the government bureaucracy may be an impediment to effective reforms. Conversely, with commitment and resources, these bodies can provide the impetus and the momentum necessary for meaningful and long term change.

Sui Generis Legislative Options and Community Rights

The inadequacies of existing intellectual property rights systems, and the challenges imposed by the GATT TRIPS are increasingly moving some communities to consider developing their own innovative solutions. One of the most potentially powerful is the development of sui generis systems for cultural protection, and community rights schemes. Some model legislation has been developed, notably by Third World countries, which seeks to establish a system for community control over cultural and resource rights. One such model, outlined by Nijar, suggests a conceptual framework and essential elements of a rights regime.(84)

Legislation has been introduced in India providing for community control over cultural items and resources. This Act, the Provisions of the Panchayats (Extension to the Scheduled Areas) Act 1996 provides a model which, as well as that suggested by Nijar, could well be considered by other communities with a view to formulating approaches to recognition of their community rights. There are also debates among some Third World development scholars and advocates about sui generis systems for protection of biodiversity related community intellectual rights biological resources. Some writers have advocated such an approach, called the Model Biodiversity Related Community Intellectual Rights Act.(85)

Other Models: Traditional Resource Rights and Intellectual Integrity Rights

Some emerging developments suggest a potential for introducing a more integrated approach to provide recognition and protection of Indigenous peoples' intellectual property rights, and which incorporate the 'holistic' approach advocated by Indigenous peoples. For example, British ethnobotanist Darrell Posey is developing a model based on what he terms 'traditional resource rights'. Posey bases his model on a notion of rights rather than on a model of commercialisation and commodification. 'Traditional resource rights' defines a 'bundle of rights', and Posey advocates an integrated process through which Indigenous peoples can employ a range of international human rights instruments and principles of equity and justice to assert their claims to property.(86) The advantage this approach offers is its foundational assertions about social justice, equity and self-determination: it embraces a more far-reaching set of Indigenous rights issues than more limited arguments for intellectual property reforms and other legislative measures.

Another model has been suggested in a 1994 Report by the Canadian based advocacy group Rural Advancement Foundation International (RAFI). In RAFI's report Conserving Indigenous Knowledge: Integrating Two Systems of Innovation the authors argue that Indigenous peoples have a number of options available to them for protecting their knowledge.(87) These include utilising existing intellectual property systems, developing a new sui generis legal regime, entering bilateral contractual arrangements, and establishing a system that combines each of these strategies. The RAFI report advocates an integrated system that combines all these approaches in what the authors term an 'intellectual integrity framework'.

The RAFI model and Posey's work are two emerging developments that move beyond simply restating the problem, towards attempting to develop some useful approaches based on a terminology largely free of value laden assumptions.

This paper has reviewed a range of international and national developments, legislation, policies, reports and recommendations concerning protection for Indigenous peoples' intellectual property rights. It is evident that existing copyright and other intellectual property protection laws do not provide a sufficient basis for protecting Indigenous peoples' intellectual property rights. Although the Copyright Act, and to a certain extent other intellectual property laws, have been used relatively successfully by Aboriginal people to obtain redress and compensation for misappropriation of their cultural products and expressions, there is a conceptual gap between Indigenous perspectives and western intellectual property laws.

The cases that have been brought by Aboriginal artists under the Copyright Act have demonstrated that this Act can be extended and interpreted in a way that is more accommodating of Indigenous interests, but there remain some fundamental problems with the conventional intellectual property approach.

There can be no doubt that amendments to the Copyright Act and other intellectual property laws are required to provide more effective protection for Indigenous peoples' intellectual property. The Copyright Act could, for example, be amended to extend the range of items for which copyright can attach. The term for protection under the Copyright Act could be extended beyond the current fifty year term to allow for Indigenous cultural products and expressions of some antiquity to be protected. A greater degree of information and education is required, so that Indigenous people especially are in a far better position to understand the laws that are available, and to have improved access to, and assistance in, using the existing legal framework.

There is a conceptual gap between existing intellectual property systems and the protection and recognition of Indigenous peoples' rights to their cultural knowledge, products and expressions. Indigenous peoples consider their intellectual property rights are an integral component of a 'holistic' cultural heritage, which includes a wider range of subject matter than can be accommodated within existing intellectual property laws. Given this, it becomes apparent that a different system is necessary to protect Indigenous peoples' rights, and it is for this reason that reforms to existing laws are best accompanied by the formulation of a new sui generis legislative arrangement that provides for community controlled decision-making, and financial benefits to Indigenous communities for the use by the wider community of their cultural products, expressions and knowledge. Although the terminology will need to be revised so that it is more appropriate to Indigenous concepts and perspectives, the model proposed in the 1981 folklore report offers a good basis for consideration of a suitable approach. The proposed model law could be harmonised with the provisions in the Convention on Biological Diversity, so as to provide a more integrated scheme for recognition and protection of Indigenous intellectual property. If a system for community decision-making and financial returns is devised, it could also pave the way for greater economic, as well as cultural self reliance.

1. A recent paper by the Australian Copyright Council provides an excellent comprehensive discussion: see Ian McDonald, Protecting Indigenous Intellectual Property: A Copyright Perspective, Australian Copyright Council, Sydney, March 1997.

2. There is a voluminous literature on Aboriginal art and copyright. For useful summaries of cases, see for example Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples, Issues Paper, Canberra, October 1994: 4-6; McDonald, op. cit: 23-30; Aboriginal and Torres Strait Islander Commission (ATSIC), 'The application of copyright and other intellectual property laws to indigenous art and cultural expression: Cases, matters settled out of court and disputes that never went to court', paper prepared by Terri Janke, Michael Frankel and Company, Sydney, April 1996; Duncan Miller, 'Collective ownership of the copyright in spiritually-sensitive works:Milpurrurru v Indofurn Pty Ltd', Australian Intellectual Property Journal, 6(4), Nov. 1995: 185-207.

3. A full discussion of bioprospecting and Indigenous peoples is outside the scope of this paper, but see for example Josephine Axt, M.L. Corn, M. Lee and D.M. Ackerman, Biotechnology, Indigenous peoples, and Intellectual property Rights, Congressional Research Service, Library of Congress, Washington DC, 1993; Andrew Gray,Between the Spice of Life and the Melting Pot: Biodiversity Conservation and its Impact on Indigenous Peoples, IWGIA Document 70, Copenhagen, August 1991; Clark Peteru, 'Indigenous peoples' knowledge and intellectual property rights', consultation working paper for consultations in Suva, Fiji, April 1995, Pacific Concerns Resource Centre (Inc.); Michael Blakeney, 'Bioprospecting and the protection of traditional medical knowledge', paper presented to Symposium on Intellectual Property Protection for the Arts and Cultural Expression of Aboriginal and Torres Strait Islander Peoples, Perth, 1 October 1996; Jean Christie, 'Biodiversity and intellectual property rights: Implications for Indigenous peoples', conference papers and resolutions, Ecopolitics IX Conference, Northern Territory University, Darwin, 1-3 September 1995; Dinah Shelton, 'Fair play, fair pay: Laws to preserve traditional knowledge and biological resources', WWF Research Report, May 1995.

4. See for example, Howard Morphy, ''Now you understand': An analysis of the way Yolngu have used sacred knowledge to retain their autonomy', in Aborigines, Land and Land Rights, eds Nicolas Peterson and Marcia Langton, AIAS, Canberra, 1983: 110-133; Deborah Bird Rose, 'Whose confidentiality? Whose intellectual property?', inClaims to Knowledge, Claims to Country: Native Title Claims and the Role of the Anthropologist, ed. Mary Edmunds, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994: 1-11; Stephen Brush, 'Indigenous knowledge of biological resources and intellectual property rights: The role of anthropology,American Anthropologist, 95(3): 653-671.

5. Darrell Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities, International Development Research Centre, Ottawa, 1996: 76-81; Peteru, op. cit: 14-18.

6. Rural Advancement Foundation International (RAFI), 'Bioprospecting and indigenous peoples: An overview', paper prepared for the Asian Regional Consultation on the Conservation and Protection of Indigenous Knowledge in the Context of Intellectual Property Systems, Sabah, East Malaysia, 24-27 February 1995, para. 2.

7. RAFI communique, 'Patents, Indigenous peoples, and human genetic diversity', May 1993; Stephen Gray, 'Vampires round the campfire', Alternative Law Journal, 22(2), April 1997: 60-63; Michael Mansell, 'Barricading our last frontier: Aboriginal cultural and intellectual property rights', inOur Land Is Our Life: Land Rights, Past, Present, and Future, ed. Galarrwuy Yunupingu, University of Queensland Press, St Lucia, Brisbane, 1997: 195-209.

8. Jill McKeough, ed., Blakeney and McKeough, Intellectual Property: Commentary and Materials, 2nd edn, Law Book Company, North Ryde, NSW, 1992: 1-2.

9. Useful summaries of these actions are to be found in Stopping the Rip-Offs op. cit: 4-6; ATSIC, 'The application of copyright and other intellectual property laws to indigenous art and cultural expression', op. cit: 23-30.

10. ibid: 13.

11. Colin Golvan, An Introduction to Intellectual Property Law, Federation Press, Sydney, 1992: 1.

12. ibid: 4-12.

13. ibid: 1-2.

14. McKeough, op. cit: 16.

15. See Department of Home Affairs and Environment, Report of the Working Party on the Protection of Aboriginal Folklore, Canberra, 4 December 1981: 15.

16. Posey and Dutfield, op. cit: 60; Gray, Between the Spice of Life and the Melting Pot, op. cit: 51-3; Peteru, op. cit: 3; Axt et al, op. cit: 32-36; Darrell Posey,Indigenous Peoples and Traditional Resource Rights: A Basis for Equitable Relationships?, Green College Centre for Environmental Policy and Understanding, Oxford, 1995.

17. Vandana Shiva, Afsar H. Jafri, Gitanjali Bedi, and Rhadha Holla-Bhar, The Enclosure and Recovery of the Commons: Biodiversity, Indigenous Knowledge and Intellectual Property Rights, Research Foundation for Science, Technology and Ecology, New Delhi, India, 1997; Chakravarthi Raghavan,Recolonization: GATT, the Uruguay Round and the Third World, Zed Books, London, 1990.

18. See Sam Ricketson, Intellectual Property: Cases, Materials and Commentary, Butterworths, Sydney, 1994, especially ch. 8. Also,Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, report by Erica Irene-Daes, Special Rapporteur to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, ECOSOC, E/CN.4/Sub.2/1993/28: 31-32.

19. Ricketson, op. cit: 350

20. ibid.: 360-362.

21. See Michael Davis, 'Competing knowledges? Indigenous knowledge systems and western scientific discourse', paper presented to international conference Science and Other Knowledge Traditions, James Cook University, Cairns, 23-27 August 1996.

22. Daes, op. cit: 32, Kamal Puri, 'Australian Aboriginal People and their Folklore', Ngulaig Monograph No. 9, University of Queensland, St. Lucia, Brisbane, 1992: 37-39.

23. Section 18(iv), cited in Puri, op. cit: 3, fn.14. Puri has a useful discussion about the term 'folklore' and its derivations and uses in international and domestic contexts.

24. ibid: 36.

25. ibid: 35-36; Blakeney, op. cit.

26. WIPO/UNESCO, Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, Section 2, 'Protected Expressions of Folklore'. For discussion of the model provisions see Michael Blakeney, 'International protection of indigenous arts and cultural expressions', paper presented to Symposium on Intellectual Property Protection for the Arts and Cultural Expression of Aboriginal and Torres Strait Islander Peoples, Perth, 1 October 1996; Daes, op. cit: 31-32.

27. Peteru, op. cit: 23.

28. Posey and Dutfield, Beyond Intellectual Property, op cit.: 102.

29. See for example Posey and Dutfield, op. cit: 102-103; Vandana Shiva et. al, op. cit; Shelton, op. cit: 35-36; Chakravarthi Raghavan, op. cit: 114-138; Gurdial Singh Nijar, 'A conceptual framework and essential elements of a rights regime for the protection of Indigenous rights and biodiversity', Third World Network, Paper prepared for Intergovernmental Committee on the Convention on Biological Diversity, Nairobi, 20 June - 1 July 1994.

30. Posey defines 'soft law' as 'a variety of instruments, declarations of principles, codes of practice, recommendations, guidelines, standards, charters, resolutions, etc'. See Posey and Dutfield, op. cit: 120.

31. United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fourth session, Discrimination Against Indigenous Peoples, Intellectual Property of Indigenous Peoples: Concise Report of the Secretary-General, E/CN.4/Sub.2/1992/30, 6 July 1992: 2.

32. ibid: 7.

33. United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-sixth session, Discrimination Against Indigenous Peoples, Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples, Addition: Draft Declaration as Agreed upon by the Members of the Working Group at its Eleventh Session, E/CN.4/Sub.2/1994/2/Add.1, 20 April 1994: 7.

34. ibid: 9.

35. Daes, op. cit: 708.

36. See Manuela Tomei and Lee Swepston, Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169, International Labour Organisation, Geneva, July 1996.

37. For a critique of Convention 169 see Sharon Venne, 'The new language of assimilation: a brief analysis of ILO Convention 169', Without Prejudice, vol. II, no. 2, 1990: 53-57.

38. Arguments in support of ILO Convention 169 have been propounded by Lee Swepston,
'A new step in the international law on indigenous and tribal peoples: ILO Convention 169 of 1989',Oklahoma City University Law Review, vol. 15, 1990: 677-714, and Russel Barsh, 'An advocate's guide to the Convention on Indigenous and Tribal Peoples',Oklahoma City University Law Review, vol. 15, 1990: 209-253.

39. See for example, Donna Craig, 'Implementing the Convention on Biological Diversity: indigenous peoples' issues', contribution to IUCN Commission on Environmental Law Technical Paper on Legal and Institutional Issues Arising from the Implementation of the Convention on Biological Diversity, presented to Regional Conference on the Biodiversity Convention, Manila, 6-8 June 1994; and see Posey and Dutfield, op. cit., for discussions about the Convention on Biological Diversity and indigenous knowledge.

40. Craig, op. cit; Lyle Glowka, Francoise Burhenne-Guilmin and Hugh Synge, A Guide to the Convention on Biological Diversity, Environmental Policy and Law Paper No. 30, IUCN, Gland, Switzerland, 1994.

41. Posey and Dutfield, op. cit; Darrell A. Posey, Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities, IUCN/World Conservation Union, Gland, Switzerland, 1996

42. Glowka et al, op. cit: 76-84.

43. See Posey and Dutfield, op. cit. for a good summary of these developments.

44. There is a good overview and discussion of many of these developments (as they relate predominantly to protection of art) in the Copyright Council's Discussion Paper: McDonald, op. cit.

45. Department of Home Affairs and Environment, Report of the Working Party on the Protection of Aboriginal Folklore, Canberra, 4 December 1981: 2.

46. ibid., para. 502.

47. ibid: 3, 17 (citing the 1976 WIPO/UNESCO Tunis Model Copyright Law for Developing Countries).

48. See for example Davis, op. cit; MacDonald, op. cit: 10-11.

49. Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31, Australian Government Publishing Service, Canberra, 1986, vol. I: 7. Note that this report did not specify whether 'Aboriginal' was taken to include 'Torres Strait Islanders'.

50. ibid: 76.

51. ibid: 153-155.

52. ibid: 337-338.

53. e.g. Davis, op. cit; McDonald, op. cit: 38-46.

54. ibid: 38.

55. ibid: 34.

56. Australian Government, Department of Aboriginal Affairs, Report of the Review Committee on the Aboriginal Arts and Crafts Industry, Canberra, 1989; McDonald, op. cit: 34

57. Commonwealth of Australia, Royal Commission into Aboriginal Deaths in Custody, National Report, vol. 4, Canberra, AGPS, 1991: 406-408.

58. Commonwealth of Australia, Proposed Moral Rights Legislation for Copyright Creators, Discussion Paper, Canberra, June 1994: 5.

59. ibid: 23-25.

60. Stopping the Rip-Offs, op. cit: 2.

61. Aboriginal and Torres Strait Islander Commission, Recognition, Rights and Reform: Report to Government on Native Title Social Justice Measures, Canberra, 1995: 99-125.

62. ibid., Overview and Recommendations Report, vol. 2: 30.

63. Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians, submission to the Commonwealth Government's Native Title Social Justice Measures, Canberra, 1995; Aboriginal and Torres Strait Islander Social Justice Commissioner,Submission to the Parliament of the Commonwealth of Australia on the Social Justice Package, Sydney, April 1995.

64. For a summary of current developments see Michael Davis, 'Indigenous intellectual property protection consultations with Aboriginal and Torres Strait Islander peoples', Aboriginal Law Bulletin 3(90), March 1997: 22-23.

65. McDonald, op. cit: 68.

66. See Hon. Elizabeth Evatt, AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Report, August 1996: 365.

67. Australian Heritage Commission, Australia's National Heritage: Options for Identifying Heritage Places of National Significance, Discussion Paper, Canberra, February 1997: 13.

68. A useful summary of events up to 1993 is in Michael Davis, 'Policy development on Aboriginal and Torres Strait Islander cultural property', paper presented to the international conference Post-Colonial Formations: Nations, Culture, Policy, Institute for Cultural Policy Studies, Griffith University, Brisbane, 7-10 July 1993; for museums policy see Council of Australian Museum Associations, Previous Possessions, New Obligations: Policies for Museums in Australia and Aboriginal and Torres Strait Islander Peoples, Melbourne, December 1993.

69. See Deborah Bird Rose, 'The public, the private and the secret across cultural difference', in Heritage and Native Title: Anthropological and Legal Perspectives: Proceedings of a Workshop, ed. Julie Finlayson and Ann Jackson-Nakano, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1996: 113-128; Deborah Bird Rose, 'Whose confidentiality? Whose intellectual property?', op. cit; Morphy, op. cit: 110-133; James F. Weiner, 'Anthropologists, historians and the secret of social knowledge',Anthropology Today 11(5), October 1995: 3-7.

70. See ATSIC, 'The application of copyright and other intellectual property laws', op. cit: 5; McDonald, op. cit: 23-24; Miller, op. cit.

71. Evatt, op. cit., especially recommendations 4.1 to 4.4, 6.7, 7.1 to 7.6, and 9.4.

72. See UNEP, Convention on Biological Diversity, Subsidiary Body on Scientific, Technical and Technological Advice, Second Meeting, Montreal, 2-6 September 1996, 'Knowledge, innovations and practices of indigenous and local communities', note by the Secretariat, UNEP/CBD/SBSTTA/2/7, 10 August 1996; UNEP, Convention on Biological Diversity, Conference of the Parties to the Convention on Biological Diversity, Third Meeting, Buenos Aires, Argentina, 4-15 November 1996, 'Knowledge, innovations and practices of indigenous and local communities: implementation of article 8(j)', note by the Executive Secretary, UNEP/CBD/COP/3/19, 18 September 1996.

73. There is a useful summary of developments in Blakeney, 'Bioprospecting and the protection of traditional medical knowledge', op. cit: 11.

74. There is an extensive and growing body of literature on indigenous knowledge, intellectual property, and bioprospecting; see for example Axt et al, op. cit; Stephen B. Brush, 'Indigenous knowledge of biological resources and intellectual property rights: The role of anthropology', American Anthropologist, 95(3), 1993: 653-671; Peteru, op. cit. and United Nations Development Program, Crucible Group,People, Plants and Patents: The Impact of Intellectual Property on Conservation, Trade, and Rural Society, International Development Research Centre, Ottawa, 1994.

75. Kamal Puri, 'Cultural ownership and intellectual property rights post-Mabo: Putting ideas into action', Intellectual Property Journal, vol. 9, 1994-95: 324-325; Kamal Puri, 'Copyright protection for Australian Aborigines in the light of Mabo', inMabo: A Judicial Revolution: The Aboriginal Land Rights Decision and its Impact on Australian Law, eds M.A. Stephenson and Suri Ratnapala, University of Queensland Press, St. Lucia, Brisbane, 1993: 132-164.

76. Mabo v State of Qld (No. 2) (1992) 175 CLR 1;Native Title Act (Cth) 1993; Wik Peoples v State of Qld (1996) 141 ALR 129; McDonald, op. cit: 26, 56-7, 62-3.

77. ibid: 50-67.

78. ibid: 61-62.

79. Colin Golvan, 'Aboriginal art and the protection of Indigenous cultural rights', European Intellectual Property Review, vol. 7, 1992.

80. David Bennett, 'Native title and intellectual property', in Land, Rights, Laws: Issues of Native Title, ed. Paul Burke, Issues Paper No. 10, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, April 1996.

81. McDonald, op. cit: 56-59.

82. Erica Irene-Daes, Annex to Protection of the Heritage of Indigenous People, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 48th Session, 28 August 1996, E/CN.4/Sub.2/1996/L.51.

83. Marianna Annas, 'The label of authenticity: a certification mark for goods and services of indigenous origin', Aboriginal Law Bulletin, 3(90), March 1997: 4-8.

84. Gurdial Singh Nijar, op. cit.

85. Vandana Shiva et al, op. cit.

86. Posey, op. cit. and Posey and Dutfield, op.cit.

87. Rural Advancement Foundation International, Conserving Indigenous Knowledge: Integrating Two Systems of Innovation, Ottawa, 1994.

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Indigenous Peoples and Intellectual Property Rights

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Major Issues Summary Introduction Indigenous Peoples and Intellectual Property Rights Indigenous Peoples and Cultural Appropriation Examples of Appropriation of Indigenous Cultures Arts and Cultural Expressions: Aboriginal Art and Copyright Indigenous Knowledge and Biodiversity: Bioprospecting Human Genetic Material: the Human Genome Diversity Project Intellectual Property Rights Indigenous Critiques of Intellectual Property

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Native title system 'embeds racism', Australia's first Indigenous silk says

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Australia's first Indigenous silk, Tony McAvoy, says the native title system "embeds racism" and puts traditional owners under "duress" to approve mining developments or risk losing their land without compensation. McAvoy, speaking at a forum in Brisbane on Monday night, said Indigenous people must "resist, in whatever fashion we can" to protect their land and culture.

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Near the top of the world, in Canada's sparsely populated northern Nunavut territory, the Inuit are known to have as many as 50 different words for snow.

Languages everywhere, from Nunavut's tree-less tundra to the southerly coral atolls of the South Pacific, are intertwined with the environments in which they are spoken.

But many are being lost at an alarming rate.

Approximately 600 languages have disappeared in the last century, with one dying every two weeks, according to UNESCO, the UN's education, science and culture agency.

If trends continue, up to 90 percent of the world's languages could be lost before 2100, with indigenous varieties - those native to a country, or region - deemed most vulnerable.

The social, economic and environmental impacts of language loss among some of the world's estimated 370 million indigenous people could be catastrophic.

On Thursday, to coincide with International Day of the World's Indigenous Peoples, Al Jazeera spoke to Fiona Watson, a research director for campaign group Survival International aboutindigenous language loss and why our words matter.
Al Jazeera: Why are indigenous languages dying?
Fiona Watson: One way languages are being lost is quite simply through the massacre of tribal peoples, we are seeing the extinction of people and their languages in our time. Another reason is forced schooling and development, people like the Bushmen in Southern Africa, who in the last two centuries have had their land stolen from them and been forced in countries like Botswana into resettlement camps where the mainstream population, through racism and ignorance, say their way of life is backwards and primitive.

People are taken from their communities and put into schools - places like Canada, the United States and Australia have already undergone this - and that's where they are taught that everything about their identity, culture and language is wrong. There's a colonial mentality, where a national language is forced on them.

When your language goes you lose your historical and geographical context.

There's also homogeneity and globalisation, some indigenous peoples' communities are being fragmented and broken up through land theft.

Loss of land means people often have no other alternative than to migrate to towns and cities in search of work and they have to speak the national language in order to be able to work.
Al Jazeera: How does this loss of language affect indigenous people?
Watson: The ultimate human right for anyone is self-determination, it's the right to decide how you wish to live. Language is a vital part of that, its part of choice.

Language is also part of identity, so all that it means to be whatever your people is, when your language goes you lose your historical and geographical context.

Indigenous and tribal people have such amazing knowledge, they're botanists, zoologists and healers, and their knowledge of the natural world is often massive. And language can be extremely valuable in terms of our future, the planet and science.

For example, the Inuit have so many words for snow, because they are such skilled observers and they have to be, because their life depends on it. They can grade very finely what type of snow it is, which has an impact on where they might hunt or where it's dangerous or not dangerous to tread.

These fine descriptions could be very important for scientists looking into the melting of the ice caps and climate change, because it's extremely detailed knowledge that anyone who hasn't lived in that environment wouldn't know.
Al Jazeera: What can be done to save languages?
Watson: One of the most important things is to school people in their maternal tongue. Where educational materials are in the native tongue, it instils not just identity but also a sense of pride that this is our language and now, we can read and write in it.

Language, like people, is not static. It's always changing. [But where] indigenous people still have their language, even if it's continually adapting and changing, they are much more successful in surviving and living in their environment and passing on knowledge to a younger generation, which is going to keep the language alive.

What is [also] important is that non-indigenous people who are working with indigenous people, particularly health workers or teachers, learn some of the language so they can communicate with them.
Al Jazeera: Are new languages yet to be discovered?
Watson: Yes, because certainly there are tribes, mainly in the Amazon basin, who have their own languages and we don't know anything about them.

We might know they (the people) exist, but we don't know if their language belongs to a language trunk or whether it is an isolated one - such as Basque, which doesn't bear any relation to other languages in Europe.

The ultimate human right for anyone is self-determination, it's the right to decide how you wish to live. Language is a vital part of that, its part of choice.

Elsewhere, in Papua, the western part of New Guinea, there are some very remote if not uncontacted tribes and I should think there is massive linguistic diversity there which we don't know anything about.

And then there are the Sentinelese, the indigenous people of North Sentinel Island in the Andaman Islands, who are uncontacted. They don't want contact, they have made that very clear, and we still have no idea what language they speak.
Al Jazeera: Why should non-indigenous language speakers care?
Watson: Language is part of diversity. We value biodiversity in an ecological sense, it's considered important to the planet, and I would hope that people value human diversity, too. We are living in an increasingly globalised and homogenised world, but actually, diversity is hugely important because it informs the way we think.

If you lose a language you're losing part of a window onto a people. It may not practically affect us if a language is lost on the other side of the world, but in terms of our human diversity, it does affect us in a remote way. If we don't have the ability to appreciate difference, then what sort of a humanity is that?
This interview has been edited for length and clarity.

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Indigenous Peoples Day: What can be done to save dying languages?

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Near the top of the world, in Canada's sparsely populated northern Nunavut territory, the Inuit are known to have as many as 50 different words for snow. Languages everywhere, from Nunavut's tree-less tundra to the southerly coral atolls of the South Pacific, are intertwined with the environments in which they are spoken.

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UniSA appoints new Chancellor Hinkley's discomfort ahead of crunch game Under pressure PM to take "big stick" to energy companies Former Families SA carer jailed for 12 years Glenelg

It's time to end the cycle of treating Aboriginal and Torres Strait Islander representative bodies as political footballs, writes Morry Bailes.

An Indigenous voice to parliament should be enshrined in the constitution, says Morry Bailes. Photo: AAP/Lukas Coch

In the shadow of Uluru they gathered, more than 300 Aboriginal and Torrens Strait Islander First Nations people, delivering a plea for recognition and reconciliation, asking their voices be heard so they may play a role in shaping the policies that affect their people. At the Uluru Statement's core was the desire for a constitutionally-enshrined "voice to Parliament".

It was a landmark call for a different method of communication and dialogue between Aboriginal and Torres Strait Islander peoples and government - a means of engaging with the Commonwealth Parliament in a way not yet seen or realised in this country. It is a call which ought to be answered.

Yet the fact remains that since that significant day on May 26 last year, the Australian Government has rejected the idea of a referendum to constitutionally enshrine a voice to Parliament, despite the Referendum Council backing such a move.

The decision was disappointing, to say the least. Not only was it disappointing from the perspective of halting progress toward a more unified nation and healing some of the trauma of the past, but it was also a major blow to the very sentiment on which the Uluru Statement was based - mutual co-operation and respect.

It's time to consider the next steps in the process toward a constitutionally-enshrined voice to Parliament. That was the message recently delivered to the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples 2018 on behalf of the Law Council of Australia.

The committee is currently in the throes of producing an interim report, having been tasked with recommending options for constitutional change and examining potential complementary legislative measures to advance self-determination for Aboriginal and Torres Strait Islander peoples.

Aboriginal and Torres Strait Islander representative bodies have been a political football kicked back and forth for the better part of 30 years.

It is an unenviable position - determining the "how" behind what will undoubtedly be the most significant step toward the self-determination of Aboriginal and Torres Strait Islander peoples in Australia since voting rights were instilled in 1962 and the 1967 referendum, which sought to recognise Aboriginal Australians in the nation's census and population count.

The Law Council has consistently supported the capacity of Aboriginal and Torres Strait Islander peoples to determine their own political future and a constitutionally-enshrined voice to Parliament is an essential part of that process.

There is no legal impediment to making such a provision through the Australian Constitution.

The proposal put forward by the Referendum Council is consistent with parliamentary sovereignty and seeks to give Aboriginal and Torres Strait Islander peoples a voice to the Australian Parliament, not in the Australian Parliament.

It does not call for decision-making power to be afforded to the representative body and the proposal would not affect the structure or operation of a bi-cameral parliament.

Throughout this process, the Law Council has been reluctant to provide evidence about matters which should be essentially the subject of dialogue between a duly mandated Aboriginal and Torres Strait Islander body or bodies and the Australian Government.

However, the Law Council's primary position remains that respecting the principle of self-determination, and its manifestation in practice by empowering communities and individuals, is a critical issue in any discussion on constitutional recognition. As such, there is a positive role for the legal profession to play in assisting to realise the aspirations and wishes of Aboriginal and Torres Strait Islander peoples.

While it is possible for a representative body to be legislatively introduced, a constitutionally-enshrined voice to Parliament would acknowledge the significance of the will of the Aboriginal and Torres Strait Islander peoples as determined by the Uluru Statement and later adopted by the Referendum Council.

Constitutionally enshrining a voice to Parliament also offers greater protection against future political or legislative change.

Aboriginal and Torres Strait Islander representative bodies have been a political football kicked back and forth for the better part of 30 years. It is little wonder there is an appetite to have any such body constitutionally enshrined to protect it from the political cycle of the day.

It began with the National Aboriginal Consultative Committee, established by the ALP in 1973, which was disbanded in 1977. This was replaced with the National Aboriginal Conference - disbanded in 1985. In 1990, the government replaced the National Aboriginal Conference with the Aboriginal and Torres Strait Islander Commission - ATSIC was subsequently disbanded in 2004.

Of course, it is highly probable there will be challenges with ensuring that any voice to Parliament is a body that is able to represent the diverse local and regional views on a national level in an efficient and timely manner. These challenges, however, are not insurmountable and legal experts, parliamentarians and, most importantly, Aboriginal and Torres Strait Islander peoples, have a strong willingness to make this a reality.
The Uluru Statement's call for a constitutionally guaranteed voice is not just a "nice idea" that can be easily given up. It was a historic First Nations consensus. We will not settle for anything less than a constitutionally enshrined voice in our affairs. The First Nations have made our position clear. It is a modest and achievable request. It is now up to parliament to show leadership - both left and right. The future of our nation depends on it.
Aboriginal and Torres Strait Islander peoples' empowerment benefits the whole of the country.

A constitutionally enshrined voice, shielded from the whims of political mores, serves the purpose of providing a formal and consistent notion of independence and self-determination.

Wiradjuri/Wailwan woman and lawyer Teela Reid recently surmised this position brilliantly, when she wrote:

Ms Reid is correct - the First Nations have made their position clear.

It is time to enact their will as expounded at Uluru and documented so clearly in the Statement from the Heart.

It is a modest and achievable request, which does require leadership at all levels.

As a community, we ought to do all that we can to constructively engage with the committee and the process of supporting the advancement of those objectives expressed in the Uluru Statement, the recommendations of the Referendum Council, and the views of those bodies that have preceded it.

The future of our nation would be better for it.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.
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Why the Law Council backs an Indigenous voice to Parliament - InDaily

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UniSA appoints new Chancellor Hinkley's discomfort ahead of crunch game Under pressure PM to take "big stick" to energy companies Former Families SA carer jailed for 12 years Glenelg It's time to end the cycle of treating Aboriginal and Torres Strait Islander representative bodies as political footballs, writes Morry Bailes.

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BY AARON MOSS

As the 2018 legal year kicks off, one inevitably begins to reflect upon the year that was, and the year that will be. As this post will demonstrate, 2017 was a particularly significant year for native title law in Australia, and 2018 looks set to contain a number of equally significant developments.
Facts & Figures
2017 marked two anniversaries of immense significance for native title law, and Indigenous affairs more generally. First, 2017 saw the 50th anniversary of the 1967 Constitutional Referendum which led to the amendment and removal of sections 51(xxvi) and 127 of the Constitution, removing the prohibition on the use of the races power to legislate for Indigenous Australians, and requiring Indigenous Australians to be counted in the census. Second, 2017 marked the 25th anniversary of the High Court's judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1.

Although the High Court did not consider native title in 2017 (beyond dismissing a single special leave application), the Federal Court recorded 86 decisions within the Court's Native Title National Practice Area. 28 of those decisions involved determinations of native title, with 23 of those determinations finding that native title continued to exist in part or all of the determination area. Four of those determinations, including Western Australia's Yindjibarndi and Yilka determinations, were the result of long-running litigation as to the continued existence of native title.

Chief amongst these decisions were four matters, which together deal with many key issues in native title law. All eyes were focused on the first litigated compensation determination in the Timber Creek litigation, which is due for consideration by the High Court in 2018. No less important, however, was the decision of Justice Rares in Yindjibarndi, which provided some further guidance on what indigenous "possession" of land looks like in modern Australia. From a practical perspective, Justice Jagot's comments in Western Bundjalung provided some much needed clarity and guidance as to the standards applicable to the negotiation of consent determinations, and the Full Court's decision in McGlade had significant ramifications for the validity and operation of ILUAs across Australia. Each of these decisions will be considered, in turn, below.
The First Litigated Determination of Compensation: Timber Creek
The Full Court appeal ( Northern Territory of Australia v Griffiths [2017] FCAFC 106) in the "Timber Creek" litigation marked the first contested determination of compensation for the doing of acts inconsistent with native title. In doing so, these decisions marked the first time the courts were required to consider the principles applicable to such calculations of compensation.

The Timber Creek litigation saw the Ngaliwurru and Nungali peoples seeking compensation as a result of the doing of approximately 50 acts which were inconsistent with native title rights recognised over an area of 23km 2 in the Northern Territory. At first instance, Mansfield J made an award of compensation in the amount of $3,300,661, comprising of $512,000 for the economic value of the extinguished native title rights, $1,488,261 in interest, and a solatium payment of $1,300,000 for non-economic/intangible losses arising from loss or diminution of the native title rights and interests. On appeal, this was reduced to a total of $2,899,446, with the economic value element reduced to $416,325, and the interest amount reduced accordingly. Although the Full Court accepted Mansfield J's use of the freehold value of the land as a "benchmark" for the calculation of compensation, the Full Court considered that the inalienability of the native title rights, and their "non-exclusive" nature, meant that Mansfield J had "overvalued" the rights by calculating compensation at 80% of the land's freehold value ([115]-[139]).

Much has been written about the particular details of the valuation methodology adopted in the Timber Creek appeal (see, for example, here, here and here). Given the High Court granted special leave to appeal in these proceedings on 16 February 2018, I do not propose to exhaustively address the points of contention addressed in the Full Federal Court's judgment. However, it is significant that the Full Court noted that Mansfield J's calculation of an award of solatium was not affected by error ([374]-[420]).

This is significant as the calculation of an award of solatium for loss of native title rights poses immense difficulty for the common law. It inevitably involves an attempt to identify and quantify the various different types of "loss" which Indigenous people have suffered as a result of the interference with native title rights. In circumstances where the full extent of the Indigenous peoples' connection with land (and thus the loss suffered by its severance) is not fully cognisable by non-Indigenous peoples, such a decision will inevitably be imprecise.

Timber Creek represents the first time the courts have been required to confront these questions. The Full Court openly acknowledged these difficulties (see [377] of the appeal judgment) and recognised that the process inevitably involved some "instinctive synthesis" ([382]-[396], borrowing the language of sentencing law). However, the Court demonstrated a willingness to grapple with some of these difficulties, and drew on both scholarly writings and decisions of the Inter-American Court of Human Rights in reaching its conclusions ([397]-[409]). This decision therefore provides at least a philosophical foundation on which future judges may begin to build a cogent body of principles governing the awarding of compensation.

Applications for special leave to appeal to the High Court from the decision in Timber Creek have recently been granted for each of the claim group, the Northern Territory, and the Commonwealth. These applications seek to re-open effectively all aspects of the Full Court's decision and will mark the first time the High Court has been called on to resolve a question of native title compensation.
Lowering the Threshold for "Exclusive Possession"? Yindjibarndi
A second major decision in 2017 came in the form of Justice Rares' decision in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia [2017] FCA 803, delivered on the same day as the Timber Creek appeal. In Yindjibarndi, Rares J confirmed that continuous insistence upon a customary law requirement for "strangers" to country to seek and obtain permission from Indigenous elders to enter onto country, on pain of sanction, was sufficient for native title rights to be recognised on an exclusive basis, notwithstanding adaptations in the method by which these spiritual obligations were implemented and enforced.

In Yindjibarndi, native title rights were claimed on an "exclusive possession" basis over an area of the Pilbara approximately 2700km ² in size. Fortescue Metals staunchly opposed this claim on the basis that recognition of such rights could lead to extensive compensation liability, as the claim area encompassed Fortescue's Solomon Hub Iron Ore Mine. A key aspect of their defence was that the Yindjibarndi had not established that traditional law mandated "strangers" (or "manjangu") seek consent from Indigenous elders before entering onto country.

Justice Rares comprehensively rejected this argument. Following an extensive recitation of the evidence given by Indigenous elders, Rares J was satisfied that the Yindjibarndi people had an obligation under customary law to "protect" Yindjibarndi country from being "damaged" by unauthorised entry of "manjangu" ([54]-[56]). His Honour considered that this was more than a matter of mere cultural "respect" (as argued by both the State and Fortescue), but was a requirement under spiritual law ([98]-[102]). This was because the Yindjibarndi's relationship with country was akin to a landowner's expression of ownership over private property, being a right which the common law jealously guards ([102]-[106]).

In doing so, his Honour's decision marks the most recent in a line of authority (including two Full Court decisions in Griffiths v Northern Territory (2007) 165 FCR 391 and Banjima People v State of Western Australia (2015) 231 FCR 456) which confirm that "exclusive possession" does not necessarily require exclusive occupation or presence upon the land by Indigenous peoples. Although controversial, in circumstances where Indigenous customary law is inextricably intertwined with access to land, these decisions are important as they serve to recognise the unique ways in which Indigenous people interact with, and express ownership over, traditional country.

Justice Rares also rejected a submission that these customary law obligations were no longer continuously observed because seeking consent by way of binjimagayi (where a smoke signal was used to indicate a wish to enter Yindjibarndi country) had been supplanted by SMS and telephone ([108]-[138]). His Honour considered that although the original form by which consent was sought may have fallen into desuetude, modern mechanisms of seeking consent fulfilled the same function under customary law, such that native title could be found to exist ([128]-[138]). In that respect, Yindjibarndi is a welcome recognition that native title and customary law are not irreconcilable, nor unaffected by, the forces of physical and cultural displacement and modernisation.

Despite attempts from the State of Western Australia to dissuade against such an appeal, Fortescue Metals has appealed to the Full Federal Court against Rares J's finding in Yindjibarndi that the claim group had successfully demonstrated an entitlement to "exclusive possession" of the claim area. Those proceedings (WAD611/2017) are yet to be listed before the Court.
A Warning to Native Title Practitioners: Western Bundjalung
Thirdly, in Western Bundjalung People v A-G (NSW) [2017] FCA 992, Justice Jagot delivered a timely reminder of the importance of proper case management, and the operation of the "overarching purpose" provisions in native title litigation. In that case, her Honour identified six "apparently systemic issues" plaguing the State of New South Wales' processes for the negotiation of, and entry into, consent determination agreements under ss 87 and 87A of the Native Title Act (at [65]). These issues, which included a routine disregard for court orders, dysfunctional inter-agency communication, and an inappropriate insistence on an evidentiary standard which departed from the Native Title Act, led Jagot J to note that she had "no confidence" that NSW's response to the Western Bundjalung claim satisfied the "just, quick and cheap" objective of the civil procedure rules (at [70]).

This decision will hopefully mark the start of a "culture shift" in the conduct of native title litigation. Consent determinations, such as in Western Bundjalung are designed to provide a faster, more flexible and consensual alternative to the litigated resolution of native title claims. However, as this decision starkly reveals, these objectives have been largely frustrated by the conduct of parties (both government parties and claimants) in native title litigation. This has led to native title jurisdiction being characterised by extensive delays, exorbitant costs and an inappropriately "adversarial" approach to mediation and litigation. For practitioners, Western Bundjalung should therefore serve as a reminder of the central importance of one's professional obligations, and the State's obligations as a model litigant and parens patriae, when conducting native title proceedings.
Who is the "registered native title claimant?": McGlade
Finally, in McGlade v Registrar National Native Title Tribunal [2017] FCAFC 10, the Full Court held (contrary to existing authority) that section 24CD of the Native Title Act required every native title claimant to sign an Indigenous land use area agreement (ILUA) for it to be valid.

McGlade involved what was, in effect, the determination of a separate question of law by the Full Federal Court, who were called on to determine whether an ILUA can be entered on the Register of Indigenous Land Use Agreements if not all individuals who jointly comprise the relevant registered native title claimant or claimants have signed the ILUA. Registration is critical for ILUAs, which only bind third parties (including persons established as native title holders in the future) once registered.

The direct issue at hand in the Court's decision was the validity of a number of agreements which sought to resolve a long-running dispute over the Noongar peoples' native title claims over approximately 200,000km ² of south-west WA (including metropolitan Perth), reportedly worth $1.3 billion. Each of those agreements were signed by at least one person who was "authorised" to do so, but were not signed by all the persons who were registered as native title claimants on the Register of Native Title Claims.

By virtue of ss 24CA and 24CD(1) of the Native Title Act, an agreement will only meet the definition of an ILUA if "all registered native title claimants" as defined in s 253 of the Act are parties to the agreement. In McGlade, the Court noted that for as long as a person remains a "registered native title claimant" under the Act, they were required to sign the ILUA for it to be valid. This remained the case, even if for example (as occurred in one instance in McGlade) that individual was deceased.

The Full Court decision overruled previous authority which held that it was sufficient if at least one of the registered claimants was a party to the ILUA. In doing so, it raised serious doubt about the validity of a large number of existing ILUAs which were registered or negotiated on the basis of this decision.

Accordingly, in June 2017, the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) was passed. The legislative amendment retrospectively validated ILUAs which were invalidated by McGlade, and amended section 24CD to allow claim groups to specify those individuals who are required to sign an ILUA, in an effort to remove the "veto" power which McGlade effectively vested in every claimant. Although the amendments attracted " largely bipartisan political support", some ( including the Wangan & Jagalingou Family Council, a body representing the traditional owners of the land on which Adani's controversial Carmichael Mine project is proposed to be built), opposed the passage of the bill. Major points of opposition included the lack of any demonstrable "harm" from the McGlade decision (beyond the mere invalidity of certain agreements), and the lack of any meaningful consultation with Indigenous groups.

Additionally, and in the wake of McGlade, the Commonwealth Government launched an Options Paper which was heavily focused on the process of negotiating ILUAs. Drawing upon the Court's holding in McGlade that a claim group could not "authorise" the registered claimants to act any way other than unanimously, the reforms proposed in the Options Paper are likely to result in significant amendments to the role and powers of the named "applicant", and the decision-making procedures which may be adopted by claim groups.

Significantly, the Paper also contemplates the creation of a new form of agreement which would permit future acts to be authorised without requiring entry into a formal ILUA. Such reforms are likely to have significant impacts on how native title rights are claimed, recognised and enforced on a day-to-day basis throughout Australia.
Looking Forward: What does 2018 Hold?
As the above demonstrate, 25 years after Mabo, native title continues to be a vibrant and complex area of law. The law and practice in this area continues to presenting fascinating challenges to lawmakers, practitioners and judges across Australia. More significantly, however, the matters raised by this post go to the heart of Australia's relationship with its Indigenous peoples, and the common law's recognition of the visceral and inextricable relationship between Aboriginal and Torres Strait Islander people and the land.

Whether they take the form of disputes about the calculation of compensation for extinguishment of native title, the thresholds which must be satisfied before native title can be established, or the ways in which this occurs in practice, 2017 will be remembered as a significant year for the growth of native title law.

Equally, 2018 looks set to be similarly significant, with a number of pending decisions looming large on the landscape. The fate of the appeals in Timber Creek and Yindjibarndi will hopefully continue to shed further light on the complex questions of ownership and dispossession which are at the heart of native title law.

Such questions have significant consequences for all areas of Australian life, a proposition which is likely to be brought into sharp relief in 2018. In addition to the High Court decisions mentioned above, and ongoing disputes as to the native title aspects of Adani's proposed Carmichael Mine project, the Full Federal Courts is also likely to deliver its decision in the appeal from Mansfield J's decision in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899. This decision will be significant as the potential recognition of the Kokatha, Adnyamanthanha and Barngarla peoples' native title claims over the lands and waters of Lake Torrens would likely have a significant impact on the viability of BHP Billiton's Olympic Dam mine and a number of other proposed copper, iron and gold projects in the area.

Underlying each of these disputes is a complex range of legal principles, values, philosophies, and identities which are rightfully shaped by, and themselves shape, the evolution of Australian public law. These questions go to the heart of the ancient, rich, and diverse identities, cultures, and experiences of Aboriginal and Torres Strait Islander people. As a result, these matters deserve to be of central interest to all practitioners (and non-practitioners alike)!

Aaron Moss is a lawyer with Clayton Utz, Sydney.
Suggested citation: Aaron Moss, 'Looking forward, looking back: Native Title in 2017 and 2018' on AUSPUBLAW (26 February 2018) <https://auspublaw.org/2018/02/native-title-in-2017-and-2018/>

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Looking forward, looking back: Native Title in 2017 and 2018

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BY AARON MOSS As the 2018 legal year kicks off, one inevitably begins to reflect upon the year that was, and the year that will be. As this post will demonstrate, 2017 was a particularly significant year for native title law in Australia, and 2018 looks set to contain a number of equally significant developments.