What Wandjuk Wanted?

What Wandjuk Wanted? Martin Hardie1 Introduction In many ways this story is the story as to how I became a lawyer. It is also most likely also why I stopped being a lawyer, or more specifically it is the basis upon which I commenced my foray into philosophy and theory and thinking about the forms of law that are becoming increasingly prevalent in a global networked world. I do not intend to deal with this latter point here as it requires a detailed consideration and explanation in itself2. The immediate purpose here is to outline the series of cases which might be collectively known as the Aboriginal Copyright cases. In doing so what is important is the manner in which the common law and equity were able to act in the face of longstanding and dogmatic legal ‘truths’. Because of the place of these cases in my own legal education the story set out here is necessarily a personal one. As a law student it not only brought me into direct contact with the Bar but it also saw me, as I was reminded on a number of occasions by my Aboriginal colleagues, attending two law schools, Anglo- Australian and Aboriginal, at once. Looking back on these cases now obviously I have a feeling of great achievement, but also one that involves great loss and sadness. One reason for this loss and sadness is that so many involved in these cases have now past away, and in respect of my Aboriginal friends at an age the West would regard as young. The other reason is that with that passing the momentum for dialogue and law making we achieved in these cases has not been continued. If there is anything that strikes me about the current production of 1 School of Law, Deakin University, Geelong, Australia. This paper is dedicated to the memory of my friend and brother, John BB 1946-2010. In accordance with Aboriginal law I have referred to some more recently deceased people by their initials or title. This paper appears as a chapter in Matthew Rimmer (Ed), Indigenous Intellectual Property: A Handbook of Contemporary Research. Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015. 2 For the beginnings of an outline of this project see A Shape of Law to Come? http://auskadi.com/files/shapeoflaw.html 1 Electronic copy available at: http://ssrn.com/abstract=2631862 things Aboriginal is that the lessons of these cases have not been heeded. So much of what is passed off as Aboriginal art and craft these days, especially in the tourist market, seems to be the product of China or of others who do not necessarily have the rights to do so under Aboriginal laws. A further contributing factor is that others, who could have carried on the momentum, seem to have been coopted by national or international apparatuses that still cry for a legislative or codified solution. If there is anything that can be learnt from these cases it is that strategic litigation and dialogue with the Courts is more likely to yield results than waiting for a solution to be granted from above. Art Centres, T-Shirts and the Stolen Campaign. During the time leading up to the ‘celebrations’ of the bicentennial of the transportation of the first fleet of convicts from the British Isles to the Australian continent, many within the Australian community and in particular some within the tourist industry found themselves gaining a appreciation of things Aboriginal. This appreciation was not necessarily based in altruism, empathy or a feeling of solidarity towards the indigenous art producers and their communities. It was in many cases firmly based in a desire to make a quick and easy buck. To the souvenir producers, the members of the rag trade and those within the retail world that provided the outlets, this new found appreciation of things Aboriginal was firmly manifested by a desire to cash in quickly. They sought to gain from the expected influx of visitors to Australia by simply taking advantage of the occasion, providing them with an opportunity to purchase affordable and transportable items adorned with Aboriginal artworks or the like. Throughout the 1980´s Aboriginal art production in Australia had experienced a rapid growth spurt. This growth was directly linked to the homeland movement - the return of Aboriginal people from the government or church run settlements to their traditional homelands; that accompanied the coming of Land Rights to the Northern Territory. The return to home country allowed the nurturing of the creative arts so intimately intertwined with country. The enlightened support of the Aboriginal Arts Board of the Australia Council, under the Directorship of Gary Foley and his staff, had provided the ongoing fuel for this growth in art production. 2 Electronic copy available at: http://ssrn.com/abstract=2631862 Foley's Directorship saw an increase in support by the Arts Board that facilitated the establishment and operation of an expanding network of community based art and craft centres throughout northern and central Australia. Estimates made during the late 1980´s placed Aboriginal art production as the largest manufacturing industry in the Northern Territory of Australia3, a region characterised by near sighted politicians, massive Aboriginal unemployment, vast cattle empires, rednecks and marketed tourist images of the red centre and Crocodile Dundee. In noting this connection between the growth and vitality of Aboriginal art and the homeland movement it must be emphasized that it is this movement that is directly under threat by governmental measures such as the Northern Territory Intervention or its reworking under the rubric of ‘Stronger Futures’. Favoring as they do market based and neoliberal solutions, these governmental policies have as their ultimate object the undermining of the basis for what we might call the ‘Aboriginal mode of production’. Unfortunately, the fact that the industry was growing and doing so well meant that even at that time there were certain threats to its independence and even existence. The first came in the form of a plan, backed and advocated by the then Commonwealth Minister for Aboriginal Affairs, Clyde Holding, which sought to, in effect, nationalise the community based art and craft centres that had been nurtured by the Aboriginal Arts Board. Holding sought to place the centres under the control of a Sydney based company, known as Inada Holdings, which was funded by the Minister´s Department. This move at monopolisation by the Minister led directly to the creation by the community art centres of the Association of Northern and Central Australian Aboriginal Artists (ANCAAA, as it then was known, and ANKAAA as it is now known). ANCAAA and its members campaigned against the move and lobbied the Minister. Eventually Holding’s successor, Gerry Hand, was convinced to establish an enquiry into the industry4. The enquiry put an end to any plans of creating a monopoly. The second threat was not as easily dealt with. What is more they struck at the 3 Department of Aboriginal Affairs, 1989, The Aboriginal Arts and Craft Industry. Report of the Review Committee, Canberra: AGPS, July. 4 Department of Aboriginal Affairs, 1989, The Aboriginal Arts and Craft Industry. Report of the Review Committee, Canberra: AGPS, July. 3 heart of the raison d´etre of Aboriginal art. It came in the form of the rag trade and the souvenir industry seeking to market more and more works reproducing Aboriginal artworks just in time for their expected bicentennial boom. This was not necessarily a new phenomenon, but the scale of unauthorised reproduction during the late 1980´s had not been seen before, although as adverted to above in opening, it may now have been surpassed in some areas. At this time the vast majority of these items reproduced artworks or images without the permission of the artists involved. Given that what was taken as granted as being an artist's rights hadn't even been deigned to be considered it was no real surprise that neither had there been any thought of consultation with the communities of Aboriginal people. It was of course these communities that, had since time immemorial, regarded the images in question as their collective property. But as I will outline, it was this idea of community ownership that was used to argue that the works of Aboriginal artists did not fall within the realm of copyright law and its assumed acceptance and focus on individual creativity and ownership. At that time it fell on myself as acting coordinator of the ANCAAA to coordinate the artists' and art centres' response. During the latter months of 1988 a team came together that in effect ran the copyright campaign that lasted for the next 10 or so years. The team initially consisted of the late Lin Onus, then Chairperson of the Aboriginal Arts Board and a great contemporary Aboriginal artist in his own right, Colin Golvan, a Melbourne barrister and intellectual property specialist and myself. For the next few years we worked closely together to keep the campaign in motion. We had fortuitously come together after Lin and I had been interviewed by ABC Radio while on a visit to Darwin. Colin heard the interview, rang Lin on his return to Melbourne, who in turn rang me and within days we had the copyright campaign under way. We were later joined in our team by Michael McMahon who was for some time the senior officer of another organisation that grew out of the copyright campaign, originally known as the Aboriginal Artists Management Association (AAMA) and later as the National Indigenous Arts Advocacy Association (NIAAA). Much to the consternation of local shopkeepers, the late John BB and I commenced the campaign with a vengeance, by holding press events outside tourist shops in 4 the Darwin Mall.

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