Università degli Studi di Milano Scuola di dottorato in Scienze giuridiche Filosofia del diritto - Settore disciplinare: IUS/20 XXX ciclo: 2014-2017 Indigenous ‘Intellectual Property’ A Conceptual Analysis Riccardo Mazzola Tutor: Prof. Paolo DI LUCIA Coordinatore: Prof. Claudio LUZZATI Matricola: R11059 - R31 1 Table of Contents 1. Introductory Remarks: Placing Indigenous ‘Intellectual Property’ 1.1. Land, Designs and Title Deeds: The ‘Gove Land Rights Case’ 1.2. Indigenous ‘Intellectual Property’: History, Issues and Terminology 1.2.1. Historical Background 1.2.2. Different Regimes 1.2.2.1. Conceptual Reasons 1.2.2.2. Practical and Logistic Reasons 1.2.2.3. Indigenous Cultural Expressions and Capitalism 1.2.3. Terminology 1.2.4. (Preliminary) Research Questions 1.3. Indigenous ‘Intellectual Property’ and Land 1.3.1. Local Cosmologies, Local ‘Intellectual Property’ 1.3.2. (New) Research Questions 1.4. ‘Property’, ‘Space’, ‘Place’ 1.5. Structure and Purpose of This Research Part 1 - The Western ‘Property’ Archetype 2. ‘Property’ as ‘Person-Thing’ Relation 2.1. Introduction 2.2. ‘Ownership’ v ‘Identity’ 2.2.1. The Etymology of ‘Property’ 2.2.1.1. ‘Res’ 2 2.2.1.2. ‘Proprietas’ 2.2.2. ‘To Be’ and ‘To Have’ 2.3. ‘Nature’ v ‘Culture’ 2.3.1. The ‘Nature-Culture’ Dichotomy 2.3.2. Improvement 2.3.3. ‘Nature’, ‘Culture’ and ‘Colonization’ 2.4. ‘Person’ v ‘Thing’ 2.4.1. Land, Power and Capital 2.4.1.1. Land-Power 2.4.1.2. Land-Capital 2.4.2. Alienation 3. ‘Property’ as a ‘Person-Person’ Relation 3.1. Introduction 3.2. The Dephysicalization of Property 3.2.1. Jeremy Bentham: ‘Abstract’ Property 3.2.2. John Stuart Mill: ‘Alienable’ Property 3.2.3. Wesley Newcombe Hohfeld: ‘Relative’ Property 3.2.4. Felix S. Cohen: ‘Non-Material’ Property 3.2.5. Frank Snare: ‘Imperceptible’ Property 3.2.6. Alf Ross and Karl Olivecrona: ‘Hollow’ Property 3.2.6.1. Alf Ross 3.2.6.2. Karl Olivecrona 3.3. From Property in tangibles to Intellectual Property Rights 3.3.1. The ‘Intellectual’ Object 3.3.2. Alexandra George’s Metaphysical Approach 3.3.2.1. Conceptual Criteria 3.3.2.2. Rights 3.4. Concluding Remarks: ‘Colonial’ Property 3 Part 2 - Territorial Cosmos 4. ‘To Be (in) Place’: Yolngu ‘Territorial Cosmos’ 4.1. Introduction 4.2. Yolngu Key Notions 4.2.1. Defining ‘Yolngu’ 4.2.2. Social Identity 4.2.2.1. Moieties 4.2.2.2. ‘Mala’ and ‘Ba:purru’: Strings of Connectedness 4.2.3. Language 4.2.3.1. The Yolngu ‘Matha’ 4.2.3.2. Semantic Levels 4.2.3.3. ‘Inside’ v ‘Outside’ 4.2.4. The ‘Sacred’ 4.2.4.1. ‘Wangarr’ 4.2.4.2. ‘Madayin’ 4.2.5. The ‘Law’ 4.2.5.1. Three Referents ‘Rom’ ‘Madayin’ ‘Ngarra’ 4.2.5.2. Western Conceptualization of Indigenous ‘Law’ The ALRC Report The NTLRC Report The LRCWA Report Conclusions 4 4.2.5.3. The Nature of Yolngu ‘Law’ 4.3. Territorial Cosmos: People, Places, Sacred Objects 4.3.1. The Likan Concepts 4.3.2. The ‘Territorial Cosmos’ 4.3.2.1. An ‘Interconnected Network of Meanings’ 4.3.2.2. Spiritual v Physical 4.3.2.3. Territorial Cosmos and ‘Property’ Nancy Williams: Yolngu Land Tenure 4.3.2.4. Territorial Cosmos and ‘Identity’ Marilyn Strathern Nancy Munn and Fiona Magowan 4.4. Concluding Remarks 5. Yolngu ‘Intellectual Property’: Knowledge in Place 5.1. Introduction 5.2. The ‘Propertization’ of Indigenous Knowledge 5.2.1. Indigenous Knowledge as ‘Property’ 5.2.1.1. Robert Lowie’s ‘Incorporeal Property’ 5.2.1.2. Howard Morphy’s ‘Ownership of Madayin’ Clan Ownership Differential Rights 5.2.1.3. William Lloyd Warner 5.3. Yolngu Knowledge and Land 5.3.1. Madayin and ‘Property’ 5.3.1.1. Similarities 5.3.1.2. The Peculiarities of Madayin ‘Exchange’ System ‘Property’ Equivalents in Yolngu Matha Commodities v Gifts 5 Three Dichotomies Madayin as ‘Inalienable Possessions’ Madayin and Land 5.3.2. Knowledge in Place 5.3.2.1. Yolngu Knowledge and Madayin 5.3.2.2. Yolngu Knowledge as ‘Place-based’ Knowledge Knowledge of Place Cosmological Connections Observe and Transmit 5.3.3. Territorial Cosmos on Trial 5.3.3.1. The Link between Madayin and Country Yangarriny Wunungmurra v Peter Stripes (1981) Bulun Bulun v Nejlam (1989) Milpurrurru v Indofurn Carpets (1994) Bulun Bulun v R & T Textiles (1998) Conclusions 5.3.3.2. Madayin as Proof of Land Ownership ‘Evidence-through-artefacts’ as ‘Evidence’ ‘Evidence-through-artefacts’ as Enactment of Rom 5.4. Indigenous ‘Intellectual Property’: A Case of Mistranslation 5.4.1. Refining Questions 5.4.2. The ‘Partition’ of Yolngu Territorial Cosmos 5.4.3. The ‘Subject-Object’ Relation 6. Concluding Remarks References 6 7 1. Introductory Remarks: Placing Indigenous ‘Intellectual Property’ El original es infiel a la traducciòn [The original is unfaithful to the translation]1 1.1. Land, Designs and Title Deeds: The ‘Gove Land Rights Case’ In 1971, the Gove case2 first tested the reliability of Indigenous Australians’ proprietary claims over North-East Arnhem Land territory.3 Three years before, the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT) stated the excision of a large part of Gove Peninsula (Northern Territory) in favour of the mining company NABALCO (North Australia Bauxite and Aluminia Company Ltd). In March 1969, several representatives of Yolngu community4 - which lived around the Methodist 1 J. L. Borges, ‘Sobre el “Vathek” de William Beckford’ in Obras Completas, 2nd ed., Buenos Aires, Emecé, 1974, at 732. 2 Millirpum v Nabalco Pty Ltd (1971) (‘Milirrpum case’, ‘Gove land rights case’). 3 This study follows the current naming convention for ‘Indigenous Australians’ as the native population of Australia, and does not make use of the widespread term ‘Aborigines’. While the etymology of ‘Aboriginal’ refers to the fact of being somewhere ‘from the beginning’, the name itself was a European invention and has represented an erasure of identities that came before the arrival of colonizers in Australia in 1788. As Marcia Langton and William Jonas commented, before the coming of non-Indigenous ‘everyone was simply a person, and each language had its own word for person’. See M. Langton & W. Jonas, The Little Red, Yellow and Black (and Green and Blue and White) Book: A Short Guide to Indigenous Australia, Canberra, AIATSIS, 1994, at 3. More in general, as is known, there is some argument over whether the notion of ‘Indigenous’ is capable of a precise, inclusive definition that can be applied in the same manner to all regions of the world. ‘Indigenous’ and ‘indigenous peoples’ will be used throughout this work without any intention to comment on this debate. 4 This work follows the current practice of using the term ‘Yolngu’ (‘person’, in the Yolngu language) for the Indigenous population of North-East Arnhem Land. In fact, an agreement among anthropologists for an appropriate collective name for this people was decided only as of late. The name ‘Murngin’ (literally, ‘fire sparks’) had first become famous after its use in W. Lloyd Warner’s classic ethnography A Black Civilization (1937) to define the population around Milingimbi, a Methodist mission in Central Arnhem Land. Other names referring to Arnhem Land people were ‘Miwuyt’, ‘Wulamba’, ‘Malag’, and ‘Miwoidj’. See W. L. Warner, A Black Civilization: A Social Study of an Australian Tribe, New York-London, Harper & Brothers, 1937, at 15. More broadly on the ‘Murngin’ naming issue, see B. Shore, Culture in Mind: Cognition, Culture, and the Problem of Meaning, New York, Oxford University Press, 1996, at 231-232. Moreover, not all those referred as ‘Yolngu’ by linguists and ethnographers identify themselves in that way, since even today they most frequently refer to themselves by more specific names that identify more 8 mission of Yirkkala - sued both NABALCO and the Government of Commonwealth, complaining about the unconstitutionality of the mining lease agreed between the two parties. Yolngu people claimed they enjoyed legal and sovereign rights over Yirkkala and sought declarations to occupy the land free from interference pursuant to their rights. According to Yolngu people, the agreement violated the constitutional principle of fair compensation, and the right of Indigenous community to be previously informed and consulted in case of governmental decisions that could potentially harm the Gove Peninsula territory.5 Yolngu were particularly concerned about the disruptive impact of mining activities on the Yirkkala environment, and to be limited - or even forbidden - to access sacred places, fundamentally bound to Indigenous cultural identity. In 1970, two anthropologists - William Stanner and Roland Berndt - were involved in the preliminary proceedings of the lawsuit as ‘expert witnesses’ and asked to present to the Court a survey on the Indigenous ‘land tenure’ system.6 Stanner travelled to Yirkkala (along with Yolngu appointed representative in the Court, Frank Purcell) and his account of the expedition - eventually presented at the monthly Seminar of Anthropology of the Australian National University - described a peculiar - to the eyes of a Western observer - episode: [w]e were then taken by the hand and led towards the singing. As we walked we were asked to look only at the ground and not to raise our heads until told to do so. We went into a patch of jungle, and then we were given a sudden command to look. At our feet were the holy rangga or emblems of the clan, effigies of the ancestral beings, twined together by long strings of coloured features. I could but look: it was not the time or place to start an inquisition into these symbols. A group of dancers, painted - as far as I could see - with similar or cognate design, then went through a narrowly defined groups of peoples.