“We cannot own the land, the land owns us”1

This quote encapsulates the fundamental premise of The Shadow King, the Australian indigenous reworking of Shakespeare's classic tale of greed, corruption and deception in the wretched tragedy of King Lear. The folly of the Shadow King, as he reflects the current circumstances of indigenous Australians and the tragedy of the erosion of traditional beliefs and connection to country, is that he forgets the fundamental tenants of his ancestry which has sustained the world's oldest people and foolishly believes he can not only own land but can divide it. As the enormity of his fallacy unfolds, so too does the struggle of indigenous Australians to retain a sense of traditional culture in the social construct of the ‘new worlds’. The concept of existing in the land and on the land without any claim to ownership places indigenous peoples' customary systems in an opposing trajectory with the western legal system and in particular the legal construct of ‘intellectual property rights’.

Intellectual property, inter alia, is a mechanism ‘which enable[s] people to earn recognition and benefit from what they invent or create’.2 It exists or operates within the premise that there will be a commercial return generated by the exploitation of the property in question albeit patent, design, copyright or trade mark. Exploitation necessarily implies an ownership of the invention and creation and an ability to estimate the value of the return to the property's owner.

Indigenous cultural property includes within its scope traditional knowledge, and the expressions of that traditional culture. It exists holistically and is not readily divisible or valued in parts. Ownership models are culturally inclusive rather than alienable. Sustainability rather than exclusivity of use is emphasized. Such features are problematic when attempting to utilize the intellectual property systems that are currently available.

Using Australia as a base reference point, this paper asks some of the questions which arise from attempts to apply Western intellectual property law frameworks to indigenous cultural property and the struggle to place a value on that property within the Western paradigm. Prior to engaging in that more specific discussion, there are a number of assumptions that we consider should be challenged. This article does not seek to answer these questions but identifies and addresses some of the issues that arise when attempting to apply Western intellectual property principles to indigenous cultural property. We first consider whether, as a base premise, indigenous cultural property should be valued; and having suggested that it is a necessity, subsequently identify the challenges confronting attempts to value. The significant issues addressed include ownership, property identification, innovation, tangibility and sustainability.

Should indigenous cultural property be valued?

There is a general reluctance to try and put a value on indigenous cultural property. This reluctance is motivated by a mixture of political, commercial and heritage concerns. It requires us to accept the guilt about our past colonial history, acknowledge the limitations of a Western-style valuation model and address the challenge of recognizing the contribution and integral role of indigenous cultures to the collective society. This reluctance is motivated perhaps by the more general concern that, when commodified, culture becomes an asset capable of compensation—a compensation able to be given for appropriation, misappropriation and amelioration of that property.

Valuing cultural property also allows for the possibility that it may be fragmented and disseminated, and ultimately decimated. Indigenous peoples generally recognize their rights ‘as a bundle of relationships, rather than a bundle of economic rights’.3 These relationships are interwoven between land or ‘country’, ancestors, plants and animals. ‘If there is one thing that unites indigenous systems of knowledge, it is the principle that most or all knowledge that is part of a groups system can be traced back to the acts of powerful ancestors. The acts of ancestors are the threads that connect different parts of an indigenous knowledge system.’4 Placing a value on different items or pieces of what is effectively a functioning system allows for the possibility that these individual items may be sold off or acquired individually. The fragmentation that results can effectively end the balance or functionality of that system: a ‘fragmentation into pieces until nothing remains’.5

In spite of this, there is a strong argument that valuation of itself is a positive action. It is recognition of the significance and the cultural value of the item being quantified. The recognition is integral to the identity and survival of the cultural property itself as well as the peoples who are the custodians of the property. By giving it a value, the property is deemed valuable. By giving it a value, the property also becomes visible. This visibility ensures that the property cannot be ignored. Thus, the process of valuation is necessary as a means of supporting the protection and recognition of indigenous cultural property. The retention of this cultural property is a pre-condition to the perpetuation of indigenous people as a separate identity. For this article we adopt the term ‘indigenous peoples’ to refer to peoples that possess their own cultural patterns, social institutions and legal systems (albeit to different degrees); that claim a historical continuity with pre-colonial societies; and that are determined to preserve and transmit to future generations their ancestral territories and identities as a basis for their continued existence as peoples.6

If it is accepted that valuation should occur, then it becomes a critical challenge to select a valuation model that recognizes and retains the integrity of cultural property as a holistic functioning system. In determining an effective model, a number of issues must be addressed. In this article we will confine our discussion to the following (which will be outlined below and then discussed in more detail in the rest of the paper):

  • ownership: indigenous versus Western concepts of ownership and assets;
  • property identification: attributing cultural properties to traditional owners rather than an assumption of ‘public domain’ status;
  • innovation: the dynamic and evolutionary nature of cultural property (not merely historical or in the past);
  • tangibility: the unique nature of indigenous cultural properties and the inclusion of aspects of cultural heritage and customary values; and
  • sustainability: the inclusion of indigenous concepts of sustainability into business plans and commercial valuations; sustainability as a concept in resource use as well as the long-term sustainability of the indigenous groups and their culture.

Ownership

The indigenous concepts of ownership are often very different from those of Western cultures. The common concept among most indigenous peoples is one of collective rights. In Australia, for example, whilst there exists a great diversity of aboriginal cultures, across those cultures there are consistent principles of ownership and control.7 These principles include notions of ownership that is collective, socially based and continually evolving, and in which group attribution is a cultural right.8 Dealing with the question of ownership of indigenous cultural property requires an understanding of the operation of community and customary laws, rights and responsibilities. These principles include the concept of the indigenous people as custodians rather than owners of the property on behalf of future generations. As custodians, their ability to deal (in a commercial sense) with the properties is limited, ‘as a trustee (they have) a binding role to pass on the knowledge in the best interests of the community’.9

These collective rights and responsibilities are a challenge when an attempt is made to determine a value for use in valuation/compensation discussions. For example, land is not subject to individual acquisition and is attached to the indigenous culture. While the land may be used to support current peoples, there is an obligation to ensure that it will provide returns for future generations. ‘Aboriginal culture is inseparable from the land to which the title attaches. The loss or impairment of that title is not simply a loss of real estate, it is a loss of culture.’10 Thus, any valuation of the land cannot adequately account for this cultural connection or its past and on-going role.

Fundamental to Western intellectual property principles is the concept of ownership. The challenges discussed above also exist when attempts are made to utilize intellectual property laws to protect aspects of indigenous cultural property. Bangarra Dance Theatre, Australia's pre-eminent indigenous dance company, having been concerned that copyright law did not adequately recognize the collective and traditional ownership of the artistic works from which they derive their dance, has developed its own ‘legal’ model to attempt to redress this situation.11 ‘There was no one individual who owned or had choreographed the dances: they belong to the Clan, and they have done for thousands of years.’12

Property identification

In discussing ownership and its role in the recognition of indigenous cultural property, consideration must be given to a correct attribution of cultural properties to traditional owners rather than to an assumption of ‘public domain’ status. The fact that traditional ownership is derived ancestrally and continues its existence within the community as a collective is not akin to the passage of that property to the public domain. Furthermore, the on-going and custodial nature of the indigenous cultural property is not functionally equivalent to the otherwise time limited properties associated with Western intellectual property systems. These systems allow for knowledge to move in to the public domain after a set period of time of exclusive ownership (eg upon the expiry of a patent, design or copyright). This is not to say that indigenous peoples are not willing to share their knowledge; indeed, it has been suggested that there is considerable evidence to the contrary. However, this is not the equivalent of that knowledge passing into the public domain.13 What does remain a constant is the belief that as traditional custodians there is an on-going right to retain control of that knowledge: ‘Each indigenous community must retain permanent control over all elements of its own heritage … this continuing, collective right to manage heritage is critical to the identity, survival and development of each indigenous society.’14

Innovation

A commonly held misconception is that indigenous cultural property is static and a-historical in nature. This implies a lack of innovation and therefore is problematic when attempting to determine ownership as discussed above in the ownership and property identification sections. Innovation is an on-going reality as a consequence of the custodial role played by many contemporary indigenous leaders on behalf of their communities. These obligations require the leaders to consider their responsibility to future generations to ensure on-going cultural sustainability. This innovation is going on as part of the interaction between the communities and their ‘country’. Indigenous innovation is place based innovation. In the case of Aboriginal people in Australia, it takes place on ‘Country’ (a place of spiritual affiliation and connection). … A focal point of Maori innovation is also place. … It is this place based network that maintains and advances knowledge.’15

Valuation of indigenous innovation has become more important as commercial interests are being increasingly forced to recognize the role of traditional knowledge in innovation, and to develop benefit-sharing schemes. It has become more apparent to researchers in recent years that the intimate knowledge of traditional owners of the land can best be translated by in-field research. In some cases, the indigenous community is also heavily involved in research activities which are set up to identify commercial applications of indigenous traditional knowledge. In Cape York, Australia, traditional owner and chair of the Chuulangun Aboriginal Corporation, David Claudie, is working with scientists in ethnobotany and ethnopharmacology to develop guidelines and protocols in relation to ensuring culturally appropriate development of medicinal plant products while maintaining their intellectual property. ‘It is now widely recognised that projects in indigenous communities that are locally run, locally owned and culturally relevant will deliver more meaningful outcomes.’16 Claudie argues that ‘those engaged in research on medicinal plants need to move beyond using indigenous peoples as ‘informants’. Indigenous peoples must become researchers and share in the benefits of research.’17

Tangibility

In the discussion of ownership above, we raised the idea that items that are collectively owned also have values or features that are not easily captured using Western style valuation or accounting methods. Indigenous cultural properties extend beyond. An attempt to value an ‘asset’ from an accounting perspective will not capture intangible notions associated with ‘social, cultural, human and spiritual wealth’.18 Within many indigenous cultures is terminology which refers to these broader notions, for example New Zealand Maori use the phrase ‘Taonga’ to express the concept of rights and obligations across the generations, as well as to ‘evoke awareness of cultural and spiritual attributes that are regarded to be of incomparable and immeasurable value.Taonga are irreducible to an economic exchange value and are not substitutable with other items in the ordinary course of trade.’19

While the inclusion of these additional considerations makes the direct comparison between an indigenous concept of an item's value and accounting or commercial valuation difficult to determine, it does offer an alternative perspective. Many of the additional attributes discussed above are aspects that are now being considered in discussions on best practices in reporting for sustainability considerations or for the purposes of social accountability.

Sustainability

‘Westerners, raised with a Judaeo-Christian worldview, think of themselves as separate from the natural world in which they live. Aboriginal people considered themselves integrated with and part of the natural world.’20 As previously discussed, the custodial nature of traditional ownership carries with it obligations towards future generations. These obligations imbue a sense of interest in ensuring the sustainability of the land and the parts that combine to help the ‘system’ operate successfully. Sustainability of the land includes all its associated natural resources. Like other indigenous cultures, ‘Maori embrace the idea of intergenerational wealth: they are committed to ensuring future generations have these means and resources in order to be self sustaining.’21

This ‘take only what you need’ principle is in conflict with contemporary business practices which emphasize commercialization of resources solely for economic gain. While there may be a possibility of negotiating a commercial arrangement that does not overly deplete the resources that are targeted, the risk of depletion through commercial exploitation is ever present. A valuation model that recognizes the indigenous concept of the cultural capital value of sustainability would benefit these interests. This concept is closely aligned to the increased interest in sustainability concepts that are now frequently present in corporate agendas.

The valuation discussion in relation to sustainability also encompasses the issue of sustainability of indigenous cultures and communities. A contribution from the commercialization of indigenous intellectual property towards the survival and growth of these groups is an increasingly important consideration. Models that consider the long-term implications of commercial applications must take into account the period of the likely flow of benefits and plans for the future, post commercialization. ‘The building of social capital and sustainable economic development through the use of indigenous knowledge is an essential step in “closing the gap”’22 (i.e. the gap referencing the difference between average life expectancy for indigenous and non-indigenous peoples).

The ‘Rekindling Youth Program’ at Bangarra Dance Theatre in Australia, funded from commercial and donor contributions, is an example of using culture to reinvigorate itself. Bangarra has a long history of investing in building and maintaining relationships with the traditional owners of the cultural property from which it derives its artistic dance expression. The youth program focuses on connecting the next generation, ‘rekindling’ their commitment to their traditional language and customs, thereby ensuring its longevity.23

Towards a valuation model

In coming to a conclusion as to the requirement for a valuation model, and in considering appropriate options for it, it is evident from significant contemporary indigenous writings that a framework for protection and valuation needs to be developed primarily by the relevant indigenous peoples in order that they ‘retain permanent control over all elements of its own heritage’.24 Some discussion in this area is based on the premise that indigenous people, while having a right of ownership of their traditional knowledge, do not necessarily have any rights to the commercial application of that traditional knowledge. The issue seems to be that indigenous peoples may have a right to the benefits that derive from their own use of their traditional cultural property, but not the commercial benefits that derive from the use by corporations. Any discussion of compensation of indigenous peoples for the commercial use of their traditional knowledge must be informed by a level of understanding of a ‘reasonable value’ of that traditional knowledge. The questions seem to be: How do we determine a price for that value? What is the value being priced? And to take a step back, what do we even mean by value?

When something has been held or used by indigenous people and their ancestors over many centuries, it may be difficult to understand the processes to be used in determining or calculating a commercial value. A number of steps or processes could be determined, a model if you like, as a means of assisting the valuation calculation. What factors should be considered? What facts are necessary to be known? Should the value be based around the likely commercial outcomes? Should it be based on the opportunity costs of the indigenous groups giving up these commercial rights? Is there a need for a clause in the agreement which recognizes future commercial potential in other uses or, recognizes the possibility that other commercial uses may be determined in the future? To be involved in negotiations as equal partners, indigenous people and their representatives require assistance to understand these concepts in determining values to be used in those negotiations.

Fundamental to any consideration of these questions is whether it is culturally insensitive to even consider some of these factors? Should we be going about this process in a different way? While we are considering this process as a means of assisting indigenous people in commercial negotiations are we in fact being insulting by suggesting that a commercial value can be put on aspects of their cultural property? While it may be helpful to come up with a methodology that will assist in determining a value for commercial negotiation purposes, will the act of putting a value on the traditional knowledge demean it? Is the very act of attempting to put a dollar value on something which may have been the basis of a group's culture, part of its own recognition of what it means to be part of their group, something that by doing it simplifies it or denies it is very importance?

The need for custodian input

In order to ensure the sustainability and longevity of indigenous culture, it is essential that the custodians of the property of that culture have the primary role in its determination. To suggest otherwise would be to invoke another form of colonial imperialism. That is not to say that, with certain adaptations, Western intellectual property protection regimes could not be utilized, at least to some extent, to protect the integrity of certain aspects of indigenous cultural property, for example, a certification trademark scheme for protection of product source. However, it has to be recognized that until those regimes can accommodate notions of collective rights, communal ownership and custodian obligations, their contribution as a vehicle for maintaining cultural heritage is limited. While some indigenous cultural organizations such as Bangarra Dance Theatre have sought to adapt Western legal frameworks to help recognize and respect the ancestral derivation of their works, and other communities such as David Claudie's in Cape York have utilized aspects of the patent regime to protect cultural innovation, these options have yet to be fully utilized by indigenous peoples because of their inherent limitations. Nevertheless, we would argue that those mechanisms that are available should be utilized if only to pave the way for cultural survival by placing it in a construct that is recognized within both the Western legal and commercial systems. The encouragement to do so would be facilitated by the construction of a valuation model that recognises not only the value of the property within the pure commercial compensation paradigm, but also its intangible contribution to the survival of culture for the benefit of both indigenous and non-indigenous people.

Having concluded that indigenous cultural property should be valued, this article has asserted the need for a valuation model that recognizes and retains the integrity of the indigenous cultural property as a holistic functioning system. In doing so, it has identified a number of issues that must be addressed: ownership, property identification, innovation, tangibility and sustainability. In dealing with these issues effectively, the article argues for a path through this dangerous ground towards a position that may allow for a more positive treatment of indigenous cultural property. The journey towards a valuation model, however necessary, requires far more considered input, and most particularly input from the custodians of that cultural property.

First published: Journal of Intellectual Property Law & Practice, April 2014

Brian Burfitt