The role for First Nations cultural laws and practices in regulating Australia’s art market

What issues might the regulation address?

Fakes and cultural misappropriation

Despite the value of the industry, the Productivity Commission found that First Nations artists do not see the vast majority of the money due to “Indigenous-style” fakes that are “inauthentic, with no connection to Aboriginal and Torres Strait Islander people”.² The harm caused by these fakes can extend not only to the individual artist, but to the community as a whole.³ As acknowledged by Dr Kylie Pappalardo and leading First Nations lawyer Stephanie Parkin:

For Aboriginal and Torres Strait Islander people, the nexus between cultural expression, land, heritage and spirituality serves as the foundation of the practice and creation of Aboriginal art. Obligations exist to protect the ancestral land and relationships, including the ongoing transmission of cultural knowledge through art and cultural expression. This means that for many Indigenous artists, the pain of seeing cultural expression misappropriated by people without any connection to Indigenous land or culture cuts to the very core of Indigenous identity.⁴

In its 2022 Report on Aboriginal and Torres Strait Islander Visual Arts and Crafts, the Productivity Commission recommended that legislation be implemented which:

1. recognises the interests of First Nations communities or groups in their traditional cultural assets (not just individuals);
2. gives First Nations peoples the automatically accrued right to control their cultural assets, choose whether to authorise and place conditions on their use, and protect them from misappropriation without the need for registration; and
3. allows First Nations peoples to enforce their cultural rights in court.⁵

As was suggested by the Productivity Commission’s report, any new legislation or regulations should work alongside “traditional cultural authorisation processes — by empowering traditional owners to decide what uses of cultural assets are legally permissible and by enabling those decisions to be made in accordance with customary law.”⁶  Genuine engagement with First Nations communities is necessary throughout the drafting process for new legislation to enable them to control the use and sale of their cultural assets and prevent misappropriation. The Government has undertaken that its implementation of stand-alone legislation will include “consideration of protections for communally-held knowledge and all forms of First Nations cultural expressions handed down between generations”⁷  and be “founded on the following ten principles for respecting Indigenous Cultural and Intellectual Property: respect, self-determination, consent and consultation, interpretation, cultural integrity, secrecy and privacy, attribution, benefit sharing, maintaining First Nations culture, and recognition and protection”.⁸

Stand-alone legislation and regulation is particularly important due to the insufficient protection currently afforded to Traditional Knowledge and Traditional Cultural Expressions under Australia’s existing legal framework. Australia’s consumer and intellectual property laws⁹ are insufficient to protect both the community’s and the artist’s interests in Indigenous Cultural Intellectual Property.¹⁰ While individuals and the Australia Competition and Consumer Commission (ACCC) can take action against a company for misleading its customers in relation to First Nations Art,¹¹ the Australian Consumer Law (ACL) is aimed at regulating this conduct in ‘trade or commerce’. Further, although ‘injured persons’ who have suffered as a result of the conduct can apply for compensation under the ACL,¹² financial compensation alone may not be the appropriate remedy to adequately address an entire community’s suffering. As such, the ACL is not focused on remedying the impact such conduct can have on the broader First Nations community and “the likelihood that the unauthorised reproduction of the artworks has caused anger and offence to those owners, and the potential for them to suffer humiliation and repercussions in their cultural environment”.¹³  Although injunctions to stop the use of particular Expressions can be sought under the ACL,¹⁴ they are not an adequate long term remedy. However plaintiffs bringing claims under the ACL may consider pointing to their community’s suffering as a result of the conduct when making submissions as to penalties under the ACL which may have a general deterrent effect on this behaviour.

Further, although copyright laws offer individual artists extensive protection, the focus of copyright law on the individual copyright holder does not necessarily align with First Nations’ customary law conception of ownership rights as being held by the community of traditional owners of the dreaming stories and the imagery used in artworks.¹⁵ The Australian Government has committed to allocating $13.4 million to establishing stand-alone legislation ‘to recognise and protect First Nations traditional knowledge and cultural expressions, including addressing the harm caused by fake art, merchandise and souvenirs’.¹⁶ In drafting this legislation, it must be considered that the dissemination of cultural information and heritage through art requires more specific, community-orientated legal protections.¹⁷

The Productivity Commission also found that existing cultural heritage laws also do not typically protect visual arts and crafts, and where they do as in Victoria, this protection is reliant on the cultural property being registered.¹⁸ Notwithstanding this, it must be acknowledged that the law has attempted to find creative avenues through which to acknowledge the impact of such illicit activity on the community. For example in the case of Milpurrurru v Indofurn Pty Ltd (also known as the ‘Carpets Case’) damages were awarded under section 115(4) of the Copyright Act 1968 (Cth) to reflect cultural based harm,¹⁹ as the Court recognised that “painting techniques, and the use of totemic and other images and symbols are in many instances, and almost invariably in the case of important creation stories, strictly controlled by Aboriginal law and custom. Artworks are an important means of recording these stories, and for teaching future generations. Accuracy in the portrayal of the story is of great importance. Inaccuracy, or error in the faithful reproduction of an artwork can cause deep offence to those familiar with the dreaming.”²⁰

Controversies around creative control

The recent controversy involving the National Gallery of Australia’s display of 28 artworks in its major winter show ‘Ngura Pulka – Epic Country’ demonstrates the need for consideration of First Nations laws and practices. It was alleged that the paintings by Anangu Pitjantjatjara Yankunytjatjara (APY) artists had been interfered with by non-Indigenous art workers and triggered a review by intellectual property law experts.²¹ The review ultimately found that the artists had exercised "effective creative control" over their work and complied with the Gallery’s provenance policy.²² However this controversy demonstrates the need to consider First Nations artistic practices and laws when regulating the industry, as the artists unequivocally argued that the works had been made by them and denied any improper interference.²³

Repatriation

A recurring issue faced by museums and galleries around the world is that of repatriation. Much of the controversy in this space has centred on whether museums are willing to return human remains and sacred objects to their traditional owners.²⁴ Some complications which can arise include when museums are willing to return remains or objects, how they can determine who the rightful traditional owners are, in particular when there are many communities living in the geographical location that the object or remains were located in, and whether the traditional owners have a keeping place in which to keep those objects or remains.²⁵ A key development in this area which demonstrates the importance of First Nations’ voices in any conversation about cultural heritage is the establishment of the Federal Advisory Committee for Indigenous Repatriation (Committee). The Committee provides advice to the Australian Government on repatriation matters and its members must consist of people with Aboriginal and/or Torres Strait Islander descent with an understanding of Aboriginal and Torres Strait Islander culture and traditions, and who have experience in Indigenous repatriation and/or cultural heritage work.²⁶ Some museums have even put in place their own Indigenous advisory bodies to lead the way with repatriating sacred objects.²⁷ As repatriation becomes more of a social imperative it also becomes a commercial one for museums. In an interview for a National Apology Foundation podcast, Director, First Nations at the Australian Museum, Laura McBride stated:

‘Museums are just going to have to come to terms with the fact that you need to repatriate these objects with their communities of origin or you at least need to engage with the owners of particular objects in a way that you can come up with a partnership on how to tell the stories around those particular objects and how over a period of time you might be able to return those objects back to those countries of origin.’²⁸

The importance of consultation in light of the Voice

With the upcoming Voice referendum and the sizable contribution of both First Nations individuals and communities to the art market, regulators need to meaningfully engage with First Nations when implementing any regulation or stand-alone legislation, in particular, regarding how First Nations understand the concept of effective creative control, how best to consult communities around the repatriation of objects and human remains, and how best to regulate cultural theft. The effect that this can have on First Nations communities cannot be understated. In the words of Laura McBride:

‘things like the repatriation of ancestral remains, the engagement of culture, the fact that people are able to learn their language in school is an empowering thing that can change people’s lives and when you start to put all the pieces of the puzzle together, like repatriation or giving people agency, all of these things eventually grow into something that is fantastic, not only for Aboriginal and Torres Strait Islander people, but for everybody living around them as well.’²⁹

As a party to the United Nations Declaration on the Rights of Indigenous Peoples, Australia is required to

‘consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’³⁰

As a result meaningful and culturally-informed consultation with First Nations communities around any regulation of the art industry will not only help to mitigate many of the issues discussed above, but is also required for Australia to act in line with its international obligations. Establishing stand-alone legislation, as the Australian Government has proposed, to support First Nations peoples to protect and commercialise their Indigenous Knowledge and art is necessary. More importantly, however, First Nations should have their voices heard and acted upon at all stages of any legislative or regulatory development in this space.³¹ Any meaningful consultation should involve, at a minimum:

• ascertaining what cultural losses or gains First Nations people are experiencing as a result of the commercialisation of their art;
• determining what supports will assist First Nations artists in developing systems and standards which legally protect their interests and empower them to properly consider any commercialisation of their work (including in relation to negotiating contracts);³²
• ensuring that First Nations people are involved in the drafting of any regulation around repatriation of human remains or objects; and
• consulting First Nations individuals in the art space on the use of Indigenous language words and respectfully representing Indigenous people and art in their galleries.³³