True Tracks: Indigenous Cultural and Intellectual Property Principles for putting Self-Determination into practice By Terri Janke February 2019 A thesis submitted for the degree of Doctor of Philosophy (by Compilation) of The Australian National University. © Copyright by Terri Janke 2019 All Rights Reserved i Declaration of Authorship I hereby declare that, to the best of my knowledge, this thesis is entirely my own original work and has not previously been submitted for any degree or examination at any university. This is a Thesis by Compilation comprising seven published papers that form Chapters 3-9, and newly written Chapter 1: Introduction, Chapter 2: History of the Development of ICIP Protection and Chapter 10: Conclusion. The papers are refereed and have been published in edited books and journals between 2008 and 2018. I have obtained official permission to reprint them here for the purposes of this thesis, as well as relevant consent and ethics approval. Full citation details for each publication can be found at the beginning of each relevant chapter. Given the period of time over which the publications have been written, the publications vary in format according to the style requirements of the respective journals and publishers. For the sake of a uniform thesis format and ease of reading, the publications follow a sequential page numbering system and, including the footnotes, have been reformatted into a single consistent style according to ANU PhD Thesis policy guidelines. Where the publications included internal numbering, this has been subsumed within the overall thesis number system. The only change that has been made to the content of the footnotes is to update broken website hyperlinks to allow readers to access the referenced information. The original page numbers are indicated in the citations at the beginning of each chapter. The bibliographic material of each publication and new chapters appear combined at the end of the thesis. Importantly, as per ANU policy, no other changes have been made to the original text or content of any published work. In fulfilling this ‘original content’ requirement, firstly, no corrections have been made to any grammatical or spelling errors in the original publications, and secondly, some information and subject matter is repeated across the publications. ii Acknowledgements This thesis nearly didn’t happen. There were many occasions that I thought about giving up. When I started as a doctoral candidate in 2008, I was working as the sole lawyer in my firm. Over the subsequent 10 years, my firm has grown to 12 people. I have always been fascinated by Indigenous arts and culture. It connected me to my culture. As a law student, I found the topic of Indigenous intellectual property compelling. I worked at the Aboriginal Arts Board in the 1990s and learned of the issue in the course of listening to the Indigenous arts call for copyright protection. I was further encouraged to focus on this area when I was working at the National Indigenous Arts Advocacy Association in the mid-1990s. My thanks go to Colin Golvan QC, Bronwyn Bancroft, Michael McMahon and Banduk Marika who were all involved in the fight for greater recognition of Indigenous artists rights. Indigenous intellectual property was what I chose to focus on as a lawyer. When I set up my own firm in 2000, I was dedicated to providing advice to Indigenous clients, but I also loved the deeper debates and the visionary thinking about greater solutions. This thesis gave me the chance to take part in the deeper thinking, and I am grateful for this opportunity. I acknowledge fellow Indigenous lawyer and friend Robynne Quiggin, who has co- authored a number of key papers with me. It was great to have someone to bounce ideas off and to give guidance and feedback. There is also Lydia Miller, Executive Director of the Aboriginal and Torres Strait Islander Arts Board, who was influential and supportive of my research on the model for a National Indigenous Cultural Authority. I also acknowledge my many clients who gave us work to set my deep thinking into practice. Thanks must also go to the team who I work with at Terri Janke and Company. To my supervisors at the National Centre for Indigenous Studies at Australian National University (ANU): Diane Smith and Cressida Fforde. I express my sincere gratitude. Diane Smith took over as supervisor of my committee in 2016 and gave me her continuous support, guidance, motivation, and knowledge. Cressida Fforde gave endless notes to improve my writing particularly on the conceptual frameworks. iii Danielle Conway joined my supervisory panel when Matthew Rimmer moved to Brisbane. It was great to have the insight of an internationally leading thinker in Indigenous rights law. I would also like to thank Jane Anderson for assisting me with the conceptual framework. My previous supervisor panel members should also be thanked – Mick Dodson, Peter Veth and Matthew Rimmer. At times Asmi Woods also gave guidance. Thank you for being part of this long journey. Besides the ANU team, heartfelt thanks to Gabriela Dounis for assisting me bring the thesis together in the final six months. Thanks also to Sarah Grant, Peter Dawson, Adam Broughton and Rachel Durmush for their research assistance. Without this precious support it would not be possible to complete this work. Special thanks must also go to editor Hilary Bek for her patience and skill. Finally, the most precious thanks must go to my family; my husband, Andrew Pitt; and my children, Tamina and Jaiki Pitt. Thanks for continuously being the sun, the moon and the stars – I can do anything with you guys, you are my universe. iv Abstract The appropriation of Indigenous arts and knowledge is not adequately protected by Australian intellectual property laws. Indigenous Cultural and Intellectual Property (ICIP) rights include free, prior informed consent, integrity, attribution and benefit sharing. Appropriation of culture is demeaning but also steals economic opportunities from Indigenous people. The main argument of the thesis is that the True Tracks ICIP provide a framework for negotiating rights between ICIP holders and users. Part one examines the issues in law and policy. Part two presents case studies from my published papers. The case studies cover performing arts; Indigenous arts; records management; film protocols; and traditional knowledge and biological materials. This PhD research is an important contribution to understanding how Indigenous arts and knowledge is treated in the Australian legal system, in policy and practice. It outlines the issues and problems and then focuses on the 10 step True Tracks Framework, that can assist negotiations, planning and implementation of projects that include Indigenous cultural expression and knowledge. Seven published papers are presented which collectively provide valuable lessons for ICIP. They are laid out in three parts – the concepts are detailed in Part 1, with the inclusion of two chapters on Indigenous cultural heritage and the applications of the law. Part 2 presents case studies for the relevant fields and industries where ICIP rights are being applied. Part 3 makes recommendations for change with a solid paper on governance and infrastructure arguing for self-determination through a National Indigenous Cultural Authority. In effect, this structure can be used locally and regionally to assist communities deal with the issues. The publications provide extensive analyses derived from long-term research and practice as a lawyer over the past 25 years working with Indigenous people, organisations, companies and government. Three chapters are entirely new content. The Introduction chapter and the history and contextual chapter set the background for the work that has been done in the past, v both in terms of critical writing in the literature and the many responses, reviews and developments that have taken place over the past 40 years. The concluding chapter brings together a cohesive framework. The True Tracks ICIP framework has a proven track record for dealing with ICIP. This framework can be used and adapted in various industries including technology, tourism and business. This approach can assist Indigenous people assert their ICIP rights with the necessary supporting infrastructure and governance. The demand is growing for Indigenous knowledge and arts, so the True Tracks framework provides a framework to negotiate, plan, manage and implement projects that involve ICIP Furthermore, the True Tracks ICIP framework can inform new law. But most importantly, the framework addresses the deeper relationship between Indigenous and non-Indigenous people and the value they place on each other’s knowledge systems. The framework is called ‘True Tracks’ because it is about creating meaningful relationships and connections; and keeping tracks into the future to enable Indigenous descendants to actively manage and practice and strengthen their cultural life. vi Table of Contents Table of Contents ...................................................................................................... vii Chapter 1: Indigenous Knowledge, Indigenous Cultural and Intellectual Property Rights and Self-Determination ................................................................................... 1 1.1 Introduction ................................................................................................................. 1 1.2 The research topic ......................................................................................................