Protecting aboriginal cultural heritage in Australia: looking for solutions in the Canadian experience

In recent decades Australian aboriginal paintings have become increasingly sought after as "high art" and as part of the nationalist iconography. The paintings often incorporate the communal designs of the artists' communities or clan groups, which are subject to aboriginal laws administered by traditional custodians. The popularity of the paintings has fostered increased respect for aboriginal cultures and has provided a source of income for many aboriginal communities. However, a corollary of their popularity is their unauthorised reproduction by tourist industry operators onto t-shirts and other mass produced objects, causing serious violations of aboriginal laws. Aboriginal sanctions are not enforceable in Australian settler courts. Aboriginal artists and their communities have therefore turned to copyright law for relief in what are now know as the "aboriginal copyright cases". However, it has become increasingly apparent that copyright law neither recognises the communal, ancient and spiritual aspects of the paintings, nor adequately compensates the serious spiritual or religious damage caused by the unauthorised reproductions. Australian government bodies and commentators have therefore turned to exploration of reform proposals. Reform proposals to date range from amendments to copyright law to the recognition of aboriginal rights in communal designs as an extension of the Mabo doctrine of native title. However, some commentators have argued that the issues raised by the aboriginal copyright cases are intricately linked with other debates concerning appropriation of aboriginal cultures and, more widely, issues of decolonisation. Taking this wider approach, the thesis turns to the Canadian experience of decolonisation, and in particular developments in the areas of aboriginal rights and self-government. The thesis examines the potential advantages and disadvantages of using aboriginal rights litigation and self-government agreements to address the issues raised by the aboriginal copyright cases. It concludes that the Canadian experience in these two areas is instructive and worthy of further consideration as reform proposals are considered. Drawing on this experience, the thesis argues for reforms which acknowledge aboriginal peoples' right to cultural self-determination within a state constitutional framework.

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