Janke, Terri --- "Respecting Indigenous Cultural and Intellectual Property Rights" [1999] UNSWLawJl 16; (1999) 22(2) UNSW Law Journal 631

[*] Solicitor, Michael Frankel and Company.

[1] In 1997, a National Australian Indigenous Cultural and Intellectual Property Project (‘ICIP Project’) was conducted, funded by ATSIC and coordinated by the Australian Institute of Aboriginal and Torres Strait Islander Studies (‘AIATSIS’). As part of the ICIP Project, AIATSIS appointed Michael Frankel and Company, Solicitors, to conduct research in this area and prepare a report. Ms Terri Janke was the Principal Consultant on the Project. The Project is the first of its kind in Australia comprehensively to map the rights Indigenous Australians wanted in relation to their Cultural Heritage, analyse existing Australian laws and policies, and comment on their application to Indigenous cultural and intellectual property rights. The Project also puts forward a range of proposals on how Indigenous Australians might realise these rights in light of the existing legal and policy landscape. This paper is based on some of the key findings and recommendations of the Report.

[2] ‘Indigenous’ refers to ‘Aboriginal and Torres Strait Islander people’, the original inhabitants of mainland Australia and the Torres Strait Islands.

[3] Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians, A Submission to the Commonwealth Government (1995).

[4] Ibid, Recommendation 51 at 12.

[5] Ibid at 72.

[6] Council for Aboriginal Reconciliation, “The Path to Reconciliation, Issues for A People’s Movement”, presented at the Australian Reconciliation Convention, 26-28 May, 1997.

[7] T Janke, Our Culture: Our Future, Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, (Discussion Paper) Michael Frankel and Company, July 1997.

[8] Ibid at 25.

[9] Ibid.

[10] (1998) 3 Australian Indigenous Law Reporter 547 (hereafter, Bulun Bulun) at 552.

[11] Mr Ashley is an Indigenous artist and member of the Ganalbingu people who stands in the position of Waku or Djungayi, that is a kind of cultural policeman who has the obligation to ensure that the owners of certain land and knowledge associated with the land is dealt with in accordance with Indigenous custom, law and tradition.

[12] Note 10 supra at 552.

[13] T Janke, note 7 supra at 25.

[14] Ibid at 8.

[15] See M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, “Indigenous Social and Ethical Issues: Control of Research and Sharing the Benefits”, presented at the Scientific, Social and Ethical Issues Symposium, 22 July 1997, p 8.

[16] Ibid p 10

[17] Note 7 supra at 71-4.

[18] Ibid at 65.

[19] Ibid at 79.

[20] C Oddie, “Bioprospecting” (1998) 9 Australian Intellectual Property Journal 6 at 9.

[21] Note 7 supra at 82.

[22] Ibid at 84.

[23] Australian Science, Technology and Engineering Council, Environmental Research Ethics, National Principles and Guidelines for the Ethical Conduct of Research in Protected and Environmental Sensitive Areas (1998), principle 3.4.

[24] Ibid, principle 1.2.

[25] Note 7 supra at 75.