Aboriginal stories – Aboriginal intangible heritage

NewsFlash

The Victorian Government in 2016 amended the Aboriginal Heritage Act 2006 (‘AH Act’) to include ‘Aboriginal intangible heritage’. The amendments significantly expand the aspects of Aboriginal cultural heritage that receive protection under the AH Act. Previously, the AH Act only protected ‘Aboriginal heritage’, which was narrowly defined as ‘Aboriginal places, Aboriginal objects and Aboriginal ancestral remains’ – ie only physical things.[1] Examples of Aboriginal intangible heritage include knowledge of traditional medicine or navigational methods, dreaming stories and performing arts based on such stories, and Aboriginal art. The ABC recently reported on an application by traditional owners to register a ‘dreaming story’ as Aboriginal Intangible Heritage.[2] The new definition excludes anything ‘widely known to the public’. It remains to be seen how the Department of Premier and Cabinet, which is responsible for administering the AH Act, or the Victorian Aboriginal Heritage Council will regard Aboriginal stories, particularly where the story is already widely published online and in books. Aboriginal intangible heritage can be registered under s 79C AH Act. Once registered, it becomes an offence for any person to knowingly use the Aboriginal intangible heritage for ‘commercial purposes’ without the consent of the traditional owners: s 79G AH Act. Under s 79D AH Act, the traditional owners of registered Aboriginal intangible heritage can enter into agreements dealing with compensation or rights of commercial exploitation. At the Commonwealth level, several proposals have been advanced to protect Aboriginal traditional knowledge and require consent from or compensation for traditional owners.[3] None were acted upon. Those proposals, as well as attempts to protect communal interests in traditional art through litigation,[4] demonstrate the vulnerability of traditional knowledge and culture to commercial exploitation, and the unsuitability of western intellectual property laws for this fragile but important Australian heritage. Victoria’s new legislation represents a national first in the protection of intangible aspects of Aboriginal cultural heritage and an important opportunity for traditional owners to take control over their cultural heritage. In particular, Aboriginal intangible heritage agreements are an important tool for setting out and negotiating the economic rights of all interested parties in a particular aspect of traditional knowledge or culture. [1] ‘Aboriginal intangible heritage’ is defined much more broadly:     (1)     For the purposes of this Act, Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.     (2)     Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1). [2] http://www.abc.net.au/radionational/programs/lifematters/tchngal-the-emu-story/9059492. [3] See, eg, Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986); Attorney-General’s Department, ‘Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples’ (Issues Paper, Commonwealth of Australia, October 1994); Terri Janke, Our Culture Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1998). [4] Yumbumul v Reserve Bank of Australia (1991) 21 IPR 481; Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240; Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244. Copyright © Kellehers Australia Pty Ltd 2018 Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.