Detailed Discussion

First Nations creatives are increasingly recognised not only domestically, but also internationally, and First Nations creativity has become a source of income for many (including non-First Nations people). The First Nations arts sector has grown because of the skills of artists and the cultural value artists and communities derive from the practice of cultural expression.  

Key Issues

While there is much emphasis placed on the financial and cultural value of First Nations works, such value is not always reflected in Australian policy and law and the commercial arrangements artists may enter. 

Some artists still face challenges in being able to get fair deals and payment in relation to their work, difficulties with enforcing their copyright and ICIP, while also fighting against the continued existence of inauthentic Indigenous art and craft in the souvenir market. 

Such challenges are impacted by various factors that are unique to an artist, but also connected to the underlying colonial framework, which is by its nature exploitative of people, land and waters, sites, art, culture and knowledge. 

Cultural Expression 

‘Cultural expression’ refers to the culture of First Nations people, whose styles and expressions have originated from traditions, practices and knowledges of ancestors, country and family. Cultural expression is real, living and maintained in many forms across the country.

Cultural expressions, and ICIP more broadly, are grounded in the thousands of generations of First Nations people observing and living with the all-encompassing environment and the resultant knowledge that comes from that multigenerational and multidimensional lived experience.

The content of such expression is unique to First Nations people and used as a vehicle to transmit knowledge, culture and stories. Such cultural expression, and the knowledge that informs the cultural expression, forms both tangible and intangible cultural heritage.

Collectively owned, this heritage is continuously looked after and forms the identity of the First Nations’ groups from which the heritage originates. 

Indigenous Cultural and Intellectual Property (ICIP)

First Nations people have customary laws that outline who can access, share and use their cultural and intellectual property (IP) in accordance with law and custom, which are referred to as Indigenous Cultural and Intellectual Property (ICIP).

ICIP refers to the rights of First Nations people to their heritage.

Heritage includes:

• literary, performing and artistic works (including songs, music, dances, stories, ceremonies, symbols, languages and designs)

• scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and the phenotypes of flora and fauna)

• all items of movable cultural property

• human remains and tissues

• immovable cultural property (including sacred and historically significant sites and burial grounds)

• documentation of First Nations peoples’ heritage in archives, film, photographs, videotape or audiotape and all forms of media

Heritage comprises all objects, sites and knowledge, the nature or use of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular First Nations group or its territory. So, when First Nations artists incorporate ICIP into their art practice they are generally guided by cultural protocols.

ICIP remains the property of the Traditional Custodians. Use of ICIP must follow the cultural protocols of the source community. It includes the right of attribution, the right of integrity and the right to benefit sharing.

Use of ICIP without the consent of the First Nations artist who created the work, undermines the principle of self-determination. The artist and their community have the right to control the use of communally owned knowledge. This control is their right, and is necessary to ensure that the integrity of the knowledge is maintained through cultural protocols.

Misuse of ICIP can result in cultural harm to the artist, their family and their community. Though not protected by law, the observance of ICIP is a good-practice ethical standard.

The term originates from the 1992 United Nations Draft Declaration on the Rights of Indigenous Peoples and is detailed in the Australia Council’s Protocols for Using First Nations Cultural and Intellectual Property in the Arts, and by Dr Terri Janke in her book True Tracks®.

For more information on First Nations cultural expression and ICIP, see Dr Terri Janke’s True Tracks®: Respecting Indigenous Knowledge and Culture, which outlines good practice for projects that include ICIP. The protocols outline good practice for meaningful engagement of First Nations people in the arts sector, where First Nations people are given space to lead projects or collaborate on agreed terms and with recognition of their IP and ICIP rights. Also view Arts Law's Artists in the Black video about ICIP.

Self-Determination

First Nations people have long called for increased autonomy within the structures of the Australian state, which is referred to as the concept of ‘self-determination’. 

Self-determination includes the rights:

• not to be discriminated against

• to enjoy culture, lands and waters

• to be economically self-sufficient

• to be involved in decision-making processes that impact upon First Nations lives

• for a community to govern and manage its own affairs 

Self-determination can also be referred to as an ‘ongoing process of choice’ to ensure that communities are able to meet their social, cultural and economic needs. 

Dr Terri Janke identifies rights that Aboriginal people sought to have instated including ‘the right to own and control Indigenous cultural and intellectual property (self-determination)’. For Janke, self-determination is the key concept relating to ICIP rights. That is, the right of First Nations people to own, control and manage their own ICIP, including the right to maintain and develop cultures, knowledge systems and social organisation.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

The concept of self-determination, that all peoples have the right to be in control of their own destinies equally, is an international concept. 

Article 3 of the UNDRIP states that Indigenous people have the right to self-determination. While the UNDRIP does not define ‘self-determination’, two key elements of the concept have been identified being ‘participation in decision-making and freedom from discrimination’. 

Similarly, Article 31 of the UNDRIP identifies the right of Indigenous people to maintain and protect their cultural expressions and knowledge and control the intellectual property associated with such culture. This ability to ‘control’ is linked to self-determination and the need for First Nations people to control the way in which their creative and cultural works are used and shared in order to meet their social, cultural and economic needs. 

While Australia has not yet implemented the UNDRIP into domestic law, its principles can be used to inform relationship building and agreements with First Nations people. 

Political Change

Organisations and individuals wishing to work with First Nations people have a responsibility to stay abreast of changes in the recognition of the rights and powers of First Nations people as they seek legal reforms. These changes impact on many areas of engagement with First Nations peoples, including negotiation, agreement making and payment to artists.

• Uluru Statement and a Voice to Parliament The Uluru Statement from the Heart was issued to the Australian people in May 2017 following two years of broad discussion and deliberation among First Nations communities. It calls for three clear reforms: Voice, Treaty and Truth. The first reform (Voice) is a First Nations Voice to Parliament. This requires constitutional reform through a referendum. In 2022 the Prime Minister committed the incoming government to holding a referendum on this subject in its first term. The Uluru Statement also calls for a Makarrata Commission to supervise agreement-making (Treaty) and truth-telling (Truth) processes.

• Treaty-making In 2022, the Victorian Government passed legislation to create the first Treaty Authority in Australia to oversee treaty negotiations between First Nations people and the state government. Other states and territories, including Queensland, Northern Territory, South Australia and Western Australia, have pledged to undertake treaty processes and have started negotiations and allocated resources towards this.

Diversity

While there are common threads of respect and building good relationships, there is no ‘one-size-fits-all approach’ to engaging with First Nations people or artwork across the country. In keeping with the diversity of the hundreds of First Nations groups across the country, artists also operate and do business in diverse ways. 

Like any other business relationship or partnership an organisation or individual may have, artists also have their own way of considering requests and making decisions which can be influenced by the community which the artist comes from or lives in. This includes owed obligations to cultural protocols, Elders and community members to represent culture properly and do things in the right way. 

Importantly, the diversity of artists also speaks to the diversity of mediums and styles that are living across the country and is not limited to the most recognisable type of First Nations art. The impact of colonialism continues to impact First Nations' communities in everyday life, including in relation to art and cultural practice.  

Indigenous Art Code – Visual Arts 

The Indigenous Art Code was established in 2010 following the 2007 senate inquiry, ‘Indigenous Art – Securing the Future Australia’s Indigenous Visual Arts and Craft Sector’ and is aimed at promoting fair and ethical treatment of First Nations artists. The Indigenous Art Code administers a voluntary industry code of conduct which sets out guidelines for Indigenous and non-Indigenous businesses to commit to when engaging with First Nations artists and their work.

The Indigenous Art Code is aimed at achieving and promoting throughout the market: 

• fair and ethical trade in Aboriginal and Torres Strait Islander visual artwork

• transparency in the process of promoting and selling authentic artwork

• efficiency and fairness in how disputes are dealt with

These three key pillars and the work of the Indigenous Art Code is tied to the vision of fair and ethical treatment of First Nations visual artists and universal respect for First Nations arts and culture. Information on fair and ethical practice and Indigenous Art Code membership including for dealers, artists and supporters, campaigns and FAQs can be found on the Indigenous Art Code website. 

Artists in the Black 

Organisations or individuals should also actively encourage artists to receive independent legal advice or support in relation to any agreements being entered into. Artists in the Black is Arts Law’s dedicated legal service which provides free legal advice to First Nations artists. 

Legal obligations in the areas of ICIP (see above), intellectual property (see Intellectual Property) and anti-discrimination (see Racial Equity and Representation) apply in this area.

In considering an approach to an artist or developing a proposal, a key starting point is understanding why you wish to engage with an artist, their artwork or community. This is particularly important given the growing demand from government, business, and the broader community to engage with First Nations artwork and communities.

Individuals and organisations should undertake research about the artist, their community and style of work. It is the obligation of the organisation or individual to reflect on why they wish to engage with an artist, and to recognise that unequal bargaining power is likely to exist at times. In assessing any engagements or proposals to work with third parties, First Nations artists and communities have the right to agree, request changes or say ‘no’ to any proposal to engage, provide support or work together.

It is good practice to ensure engagement features:

• clear and respectful communication

• enough time for requests to be considered and negotiated

• free prior and informed consent provided by the artist 

• clear understanding of the intentions of each party

The Australia Council for the Arts' Protocols for Using First Nations Cultural and Intellectual Property in the Arts promote the rights of First Nations people to their cultural heritage and support First Nations creative practice and respectful engagement. The protocols encourage self-determination and help build strong and diverse First Nations art and cultural collaborations. 

Organisations or individuals wanting to engage with First Nations creatives are strongly encouraged to refer to and use the protocols as a framework to guide engagements and processes. The protocol document spells out clearly the legal, ethical and moral considerations for the use of ICIP and First Nations material in arts and cultural projects.

The True Tracks® Framework, developed by Terri Janke, provides 10 principles offering a ‘best practice framework for ethical Indigenous engagement’.

1. Respect

2. Self-determination

3. Consent and Consultation

4. Interpretation

5. Integrity

6. Secrecy and Privacy

7. Attribution

8. Benefit Sharing

9. Maintaining Indigenous Cultures

10. Recognition and Protection
    

An organisation should also reflect inwardly at its own business practices and policies to assess whether it is conducive to properly engaging with First Nations artists and culture. 

This includes, for example, a commitment to:     

• respectful collaboration      

• obtaining free prior and informed consent on an ongoing basis (not just once)      

• providing meaningful governance and employment opportunities and payment     

• negotiating and having hard conversations including, for example, on resolving disputes and organisational cultural safety, see Racial Equity and Representation

Organisations may need to consistently reflect on, audit and improve business practices relating to engagement with First Nations art and culture including in relation to Reconciliation Action Plans: Reconciliation Action Plans - Reconciliation Australia and comply with racial equity considerations and requirements, see Racial Equity and Representation.

It is good practice to ensure public art works, opening events, gatherings and websites include an Acknowledgement of Country or Welcome to Country led by an Elder from the Country on which the event or gathering is held.

For good practice recommendations for working with Art Centres specifically, see Working with First Nations Art Centres.

Despite long-standing calls for reform, Australia is yet to implement comprehensive policy and law that protects and recognises First Nations artists and culture. It is therefore important that clear agreements are created, negotiated, and understood by all parties to properly address ICIP and artist rights. 

Funding bodies also often require applicants including ICIP in a project to provide evidence of First Nations participation, endorsement and adherence to respectful use of ICIP. 

Engagement and agreements with artists should also reference any of the artists own protocols, and should use the Australia Council for the Arts' Protocols for using First Nations Cultural and Intellectual Property in the Arts as a framework.