?The challenges faced By Indigenous Peoples in achieving justice, are both complex and extensive. These issues stem from successive centuries of asserted colonial power, which consequently has resulted in the undermining of rights for many Indigenous communities, including the Australian Aboriginal Peoples and Maori Peoples of New Zealand. Systemic abuse of power has resulted in the gradual erosion of Indigenous culture, and as thus, rights of Indigenous communities, including Intellectual Property and Cultural Rights, have been neglected.
As a result, a growing body of declarations, statements, and other developments both within governmental systems, as well as in the wider international justice arena have been received. However, many issues in regards to achieving justice still remain. Existing Intellectual property rights, or lack thereof, pose significant challenges for Indigenous Peoples of Australia. This is attributed to the fact that Indigenous peoples’ intellectual property rights extend to include a wide range of subject matter, beyond what is recognised within existing intellectual property laws.
This notion is clearly evident from the ‘Wading into the Wandjina Controversy’ , Law Report of 2007 , in which host Damien Carrick outlines an Incident involving NSW Resident, Vanessa Tenodi, who erected a two metre high statue of Wandjina, a spiritual character sacred to the Indigenous Kimberly communities of Western Australia. Miss Tenodi commissioned this statue in a public business enterprise and did not request permission from the Indigenous community to use the spiritual figure for her project, as she claims that it wasn’t necessary because ‘it was not against the law regarding copyright’Fortnightly review of IP and Media Law, 2007).
As can be deduced by this report, the current Australian legislation regarding copyright, (Copyright Act, 1968, Cwt), poses great challenges for the Indigenous Community, because of the requirements that ‘ the work must be original, have been reduced to material form and have an identifiable author’, meaning that due to the oral nature of Indigenous culture, their ownership could not be proven under current Australian legal mechanisms,’ 4) This highlights the inadequacies of current Australian law to protect intellectual property rights for Indigenous peoples, as the current judicial systems not aligned to provide adequate recognition and protection of Indigenous cultural products and expressions.
Subsequently, the Maori People of New Zealand face similar challenges in relation to Intellectual Property Rights. The most prominent document used to protect Maori culture (including that of intellectual property) is the Treaty of Waitangi(1840) , established by the British upon colonisation. The Maori people have not been able to achieve justice in relation to their intellectual property rights because upon colonisation, the British presented the Maori with one copy of the document, and themselves with another. This, in turn, has created many challenges regarding the legality and validity of the rights outlined within the treaty.
In addition, the New Zealand Government has recently established the NZ Trade Marks Registry to monitor and rule on the proper use of Traditional Maori trademarks and icons. Although this has been somewhat effective in providing cultural protection, it has no international power to provide protection from offshore markets, and does not fully encompass all areas of intellectual property.
A current Article from the NZ Herald, ‘The tale of two monsters’ (2013), describes the illegitimate use of a registered Maori trademark by Australian Drinks Manufacturer, Bickfords, in offshore markets, which the NZ Government has jurisdiction over. This case demonstrates the obstruction of justice for Indigenous Maori Communities, due to the lack of adequate internationally binding laws.
Although there are internal justice issues within New Zealand, many international forces are working to help achieve justice for Indigenous people, worldwide. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007, is the most comprehensive and cohesive document outlining the minimum entitlements of Indigenous people, on a Global Scale. The ineffectiveness of domestic laws in relation to intellectual property highlight the need for both Australia, and New Zealand to implement Article 31 of the UNDRIP; …. They also have the right, to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions……
It is evident that both Australian and New Zealand Indigenous communities face significant challenges in relation to intellectual property rights. In addition to Intellectual Property, Indigenous communities also face significant challenges in relation to Cultural Rights. This term encompasses a broad range of aspects that relate to heritage, including the active practice of language, ecological activities, and the preservation of sacred lifestyles and locations. Both Australian Aboriginal Peoples and New Zealand Maori Peoples face significant challenges in achieving justice in relation to their cultural rights. Although the UNDRIP was implemented in both Australia and New Zealand in 2009, domestic laws are still not effective in the protection of Indigenous culture.
This is mainly due to the complexities of Cultural Rights, that is, there is no sole law that encompasses all aspects of Cultural rights. Australian Indigenous Peoples face vast challenges in relation to cultural rights. The government has attempted to legislate to protect various rights of Indigenous Peoples’ culture and heritage through the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 , which, enables the Australian Government to respond to requests to protect traditionally important areas and objects that are under threat. However, this act does little to protect non- physical aspects of culture, such as language and sacred knowledge, aspects that are equally important to the survival of their culture.
This notion is demonstrated within the Royal Commission into Ngarrindjeri (1994), which saw the erection of a bridge connecting the South Australian mainland to Hindmarsh Island, a place which was said to hold significant value to the Indigenous community that lived there due to it’s spiritual significance, including ceremonial elements. This investigation found that because there was no anthropological significance to the area, the claims that this land held cultural value to the Peoples, was effectively denied, and as was the justice of Indigenous Peoples.
This case demonstrates the lack of protection that domestic laws hold in relation to culture, and the denial of justice as a result of that. New Zealand Maori Peoples also face significant challenges in respect to cultural rights. Prior to 1989, there was a 54% deficiency rate in the use of Maori Language, which is key to the continuation of Maori Culture.
Although the 1989 New Zealand Education Act was amended to include Section 155, which oversees the revitalisation of traditional language through the mandatory implementation into school classrooms, like the Heritage Protection Act in Australia, this legislation only protects one aspect of culture, and as thus, justice can not be fully achieved through this mechanism alone.
However, good practices to ensure respect for, and protection and promotion of, access to justice for indigenous peoples are currently underway with the Implementation of The UNDRIP, particularly the activation of article two which dictates that ‘In conjunction with indigenous peoples, States shall take effective measures to recognize and protect rights outlined in the document’.
It is evident that although domestic law currently undermines the rights of Indigenous Maori Peoples, the Government is co-operating with International mechanisms to ensure the cohesive protection of all cultural rights, as outlined in the UNDRIP. It is clear that although both Australia and New Zealand have attempted to implement international documents to improve the protection of cultural and intellectual property rights, Indigenous People still face significant challenges in relation to the achievement of Justice.
This is mainly due to the inadequacy of domestic legislation to protect Indigenous People, as their culture does not conform to the conventional provisions of Western legal systems. In order for justice to be fully achieved, a more coherent and holistic approach to Indigenous Rights would be necessary.
Courtney from Study Moose
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