The controversy concerning a large outdoor artwork in Katoomba (in the Blue Mountains, west of Sydney) highlights the difficulties faced by indigenous communities when it comes to safeguarding their cultural heritage. The work, called ‘Wandjina Watchers in the Whispering Stone’, by Benedict Osvath (illustrated below), is a 2 metre high sculpture covered with crudely drawn representations of Wandjina spirit figures by a non-indigenous artist on commission from a non-indigenous gallery owned by the Tenodis.
Local aboriginals in Katoomba and members of the Worrara, Wunumbal and Ngarinyin tribes (in the remote Kimberley region in Western Australia) were appalled by its presence, the latter group regarding Wandjina as their supreme creator and regarding themselves as being recognised as the only tribes entitled to portray images of it. For thousands of years, artists from the Worrara, Wunumbal and Ngarinyin tribes have painted Wandjina images on sacred rocks sites and in caves -- and more recently on canvass and paper. As such, an unauthorised depiction of Wandjina is considered to be offensive and is viewed as an attack on the integrity of their identity and the legitimacy of their cultural and religious beliefs.Article 31 of the Declaration of the Rights of Indigenous Peoples was adopted by the United Nations in 2007 and provides that:
‘1. Indigenous people have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestation of their science, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights.’
Although Australia has now declared its support for the Declaration (despite, with Canada, New Zealand and the United States, voting against the proposals at the UN stage) , it is still not clear exactly how Australian law would protect their ‘intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions’.
Copyright law does not assist the the Worrara, Wunumbal and Ngarinyin tribes in this instance. As readers will be aware, copyright only protects works by artists who died less than 70 years ago. The unknown original artists of the Wandjina paintings on rocks and in caves are long dead and the images on the sculpture in Katoomba were not copies of works by indigenous artists whose works were still protected by copyright.
The Competition and Consumer Act 2010 (Cth) (the statute formerly known as the Trade Practices Act 1974) prohibits misleading and deceptive conduct in the course of trade and commerce. Previously, in the case of Australian Competition and Consumer Commission v Nooravi [2008] FCA 2021, this legislation had been relied upon to prosecute gallery owners who purported to sell art from indigenous artists which was in fact by non-indigenous artists. The Worrara, Wunumbal and Ngarinyin people tried a similar argument against the gallery owner of the Katoomba sculpture (who by this time also had images of the sculpture on the gallery’s website and in an accompanying book); namely, that the conduct falsely suggested an association or permission from Worrara, Wunumbal and Ngarinyin people would be likely to confuse, mislead or deceive not only indigenous communities, but also non-indigenous people with an interest in acquiring genuine Wandjina artworks. In a short curt response, the Australian Competition and Consumer Commission determined in May 2010 that it was unable to conclude that the gallery owner, through the public display of the sculpture and the inclusion of the images online and in a gallery book, had misrepresented that it had permission to use Wandjina imagery.
With the situation looking rather bleak after not finding success under either copyright or consumer law grounds, an unlikely saviour materialised in the form of planning laws. As it turned out, the sculpture needed planning approval from Blue Mountains City Council which required it to consider, amongst other factors, the social impact by the public display of the sculpture. In October 2010, the Council declined to grant the necessary approval, stating:
Copyright law does not assist the the Worrara, Wunumbal and Ngarinyin tribes in this instance. As readers will be aware, copyright only protects works by artists who died less than 70 years ago. The unknown original artists of the Wandjina paintings on rocks and in caves are long dead and the images on the sculpture in Katoomba were not copies of works by indigenous artists whose works were still protected by copyright.
The Competition and Consumer Act 2010 (Cth) (the statute formerly known as the Trade Practices Act 1974) prohibits misleading and deceptive conduct in the course of trade and commerce. Previously, in the case of Australian Competition and Consumer Commission v Nooravi [2008] FCA 2021, this legislation had been relied upon to prosecute gallery owners who purported to sell art from indigenous artists which was in fact by non-indigenous artists. The Worrara, Wunumbal and Ngarinyin people tried a similar argument against the gallery owner of the Katoomba sculpture (who by this time also had images of the sculpture on the gallery’s website and in an accompanying book); namely, that the conduct falsely suggested an association or permission from Worrara, Wunumbal and Ngarinyin people would be likely to confuse, mislead or deceive not only indigenous communities, but also non-indigenous people with an interest in acquiring genuine Wandjina artworks. In a short curt response, the Australian Competition and Consumer Commission determined in May 2010 that it was unable to conclude that the gallery owner, through the public display of the sculpture and the inclusion of the images online and in a gallery book, had misrepresented that it had permission to use Wandjina imagery.
‘The sculpture contains an interpretation of sacred Aboriginal images that is offensive, disturbing or distressful to some members of Aboriginal and non-Aboriginal communities … and consequently has an adverse social impact and is not in the public interest’.
The Council also stated that: 'The existing large sandstone sculpture located in front of the property and called 'Wandjina Watchers in Whispering Stone' is not approved by this consent. This sculpture has not been approved and is to be removed from the site'.
In February 2011, the gallery owner appealed the decision of the Council to the Land and Environment Court. In June 2011, the Court upheld the Council’s decision and dismissed the gallery owner’s appeal: Tenodi v Blue Mountains City Council [2011] NSWLEC 1183 (21 June 2011). Accordingly, the sculpture had to be removed. This was done in November 2011.
In February 2011, the gallery owner appealed the decision of the Council to the Land and Environment Court. In June 2011, the Court upheld the Council’s decision and dismissed the gallery owner’s appeal: Tenodi v Blue Mountains City Council [2011] NSWLEC 1183 (21 June 2011). Accordingly, the sculpture had to be removed. This was done in November 2011.The IPKat thinks that this case exemplifies the obstacles faced by indigenous Australians in protecting their cultural heritage. Despite government publicly supporting Article 31, the Declaration was of no assistance to the Worrara, Wunumbal and Ngarinyin people, who instead had to rely on planning regulations to ensure the removal of the sculpture. Indeed, had the case not involved the public display of a sculpture to trigger the planning regulations, the IPKat wonders what the Worrara, Wunumbal and Ngarinyin people could have done. For instance, could they have prevented the manufacture and sale of Wandjina tea towels?
Merpel, always liking to throw other proverbial cats amongst the pigeons, wonders whether indigenous cultural heritage should be an IP issue in the first place.
For further information and resources on protecting Indigenous Culture in Australia, visit the Arts Law Centre of Australia at www.artslaw.com.au
Credit for the first two photos: Rein Van der Ruit
WIPO has also published an article, "Safeguarding Cultural Heritage -- the Case of the Sacred Wandjina" by Delwyn Everard (Arts Law Centre of Australia), which you can read here.