Rights to Indigenous cultural knowledge
Retaining Indigenous people in the workplace as well as building long term relationships with the Indigenous community requires organisations to value Indigenous culture. Terri Janke, Solicitor Director of a law firm specializing in intellectual property, talks about how organisations can do this by building ‘culturally safe’ environments.
If you are engaging Indigenous people in the workforce, knowing about Indigenous cultural and intellectual property rights can assist you with managing a culturally safe environment. By a culturally safe environment, I mean a workplace where there is shared cultural knowledge but also shared respect for the cultural knowledge that is shared. In recent years, corporate employers have done well to increase the numbers of Indigenous employees. However, there is also a need to develop a ‘corporate culture’ that respects Indigenous people’s rights to cultural knowledge, and expressions of culture like art and stories.
Indigenous employees undertake work for corporate entities which often focuses on building relationships between the company and the Indigenous community. These individual Indigenous employees interact in a complex Indigenous social system, often using personal connections and experience to bring results. They make the commitments. They have the cultural responsibilities. They need to know that Indigenous culture and the knowledge of the Indigenous people they connect the company with, will be valued.
But what do I mean by valuing culture? From a context of Indigenous cultural and intellectual property rights, companies should focus on four main principles: respect, prior informed consent, attribution, integrity.
- Respect: Aboriginal and Torres Strait Islander people come from the oldest living cultures. This cultural continuum has survived colonization, but remains under threat in the global, digital economy of the 21st century. Indigenous cultural and intellectual property is holistic. Knowledge of plants and animals, art, dance, stories and connections to land and seas, documentation of experience, language all interconnect. These have value socially, culturally, and commercially. Systems of communicating are based on protocols and laws, depending on a person’s connection, and standing.
- Prior informed consent: Take a look at Article 31 of the Declaration on the Rights of Indigenous people. It says that Indigenous people have the rights to control, maintain and protect Indigenous cultural heritage, traditional cultural expressions and traditional knowledge. The Declaration is aspirational, but legal frameworks are being developed including in the World Intellectual Property Organisation for Indigenous people’s rights to their collective cultural knowledge, and to protect it from appropriation is not just about visual arts, but may include knowledge of cultural practices, language usage and knowledge of plants and animals and their healing properties. Intellectual property laws focus on protecting the material form and giving commercial rights. They do not adequately protect oral cultures and cultural rights. Indigenous people’s knowledge is at risk. Sharing the benefits from any commercial use of Indigenous knowledge or cultural expression should be treated the same as when you deal with other intellectual property. You should negotiate terms for use. The commercial use of Indigenous knowledge should benefit Indigenous people fairly and equitably.
- Attribution: When knowledge, stories, art, and other contributions are given by Indigenous people, they should be attributed. Recognising the source of knowledge is important for continuing connections and maintaining identity. Give attribution to individuals and the community. Indigenous people see attribution as a key indicator of respect for culture.
- Integrity: Sharing knowledge for a project means that an Indigenous person gives an insight to their cultural knowledge for a particular purpose. Whilst this of itself is not a problem when they know what their knowledge will be used for, issues may arise if there is wider dissemination, without consent, and without allowing time to consider the new context or to consult the collective. For instance, an Indigenous story might be recorded in a report for sharing in an agreed context. But consider whether it is appropriate for it to be freely used again and again, without consent, and without attribution.
Here’s an example: a Terra Nullius Inc (TN Inc) employs Dan as an Indigenous graduate, to develop an employment strategy. Dan spends time building relations and talking to key Indigenous people in authority in the Goodya community (a fictional community). Dan and the Goodya community agree to the work together collaboratively with set goals that Dan writes up in a report. Information about the Goodya community, including cultural knowledge, is collected. A Goodya artist is engaged to create the artwork (using Goodya clan designs). The art is used for the cover of the report. Then things get murky: Dan’s boss has edited the report and is using it as a wider model. TN Inc’s graphic designer has altered the artwork so it goes with their corporate colours. The artist is not paid. There is no attribution to him or the clan group.
TN Inc’s media and communications officer takes information about Goodya cultural knowledge from the report to promote another project in another region. The Goodya community is outraged that their knowledge is used in another context which Dan didn’t tell them about upfront. They are angry with Dan. The Goodya community does not want to be involved in the employment strategy. Dan leaves for another job. The Goodya community hasn’t heard back from TN Inc in a while.
Getting Indigenous people into your workforce is one thing, but if you want to keep them and build long term relationships with the Indigenous community, think about how you can provide a culturally safe environment. It doesn’t matter if you are a large organisation, the public service or a small business. Setting up systems to consult and seek consent with Indigenous people, is a good risk management strategy. Also, it builds better relationships that benefit the company.
Knowing about Aboriginal and Torres Strait Islanders cultural and intellectual property rights, can help you establish standards across all company practices that can go a long way to achieving true reconciliation.
©Terri Janke, 2011
Useful information:
The leading ethical practice in Indigenous research is the Australian Institute of Aboriginal and Torres Strait Islander Studies Guidelines for Ethical Research in Indigenous Studies. http://www.aiatsis.gov.au/research/docs/ethics.pdf.
The Australia Council for the Arts has five Indigenous protocols guides for the production of Indigenous art – music, new media, visual arts, literature, performing arts, and the framework is a useful model. Copies are available for download at www.australiacouncil.gov.au.
About the author:
Terri Janke is the Solicitor Director of Terri Janke and Company Pty Ltd, a Sydney based law firm specializing in intellectual property. The firm strengths are intellectual property (IP), commercial agreements, corporate governance, employment and mediation. Established in April 2000, Terri Janke and Company is the leading international authority on Indigenous Cultural and Intellectual Property (ICIP). The firm is a Registered Supplier with the Australian Indigenous Minority Supplier Council (AIMSC) and has developed internal management systems to look after the trademark requirements of large companies and organisations. Visit www.terrijanke.com.au.
Source: DCA's Diversity Matters May 2011.
