Customary Law Obligations – an example

In discussing the notion of Aboriginal & Torres Strait Islander secret knowledge that could cause problems if a person was to die without a Will – as intestacy rules are applied making no provision for Indigenous kinship groups. An example of this type of information was decided in a copyright matter in relation to the reproduction of an artwork.

In 1987, a T-shirt manufacturer reproduced a well known aboriginal artists painting, known as “At the Waterhole”, on T-shirts without his permission. Subsequently, a revised version of the T-shirt was created, which drew on another of his paintings, known as “Sacred Waterholes Surrounded by Totemic Animals of the Artist’s Clan”; again, no permission was sought.

The artist, a member of the Ganalbingu people described the artwork as depicting the location where Barnda the creator ancestor of the Ganalbingu emerged from inside the earth. According to Ganalbingu custom, Barnda shaped the natural features of Ganalbingu land, including the waterhole depicted in the artwork, known as Djulibinyamurr. Barnda also is believed to have created the Ganalbingu people and given them their ceremonies and customs.

The artist referred to this place as his soul; its importance was such that desecration of the site (which may include inappropriate depiction of the place) was believed to result in punishment to the Ganalbingu.

“I am permitted by my law to create this artwork, but it is also my duty and responsibility to create such works, as part of my traditional Aboriginal land ownership obligation. A painting such as this is not separate from my rights in my land.”

The artist had encoded messages of a secret and sacred nature in the work which only an initiate can understand. He believed that the unauthorised reproduction of “At the Waterhole” threatened the stability and continuance of his society.

“It interferes with the relationship between people, their creator ancestors and the land given to the people by their creator ancestor. It interferes with our custom and ritual, and threatens our rights as traditional Aboriginal owners of the land and impedes in the carrying out of the obligations that go with this ownership and which require us to tell and remember the story of Barnda, as it has been passed down and respected over countless generations.”

The artist brought action in the courts where it was held that the Australian Legal System should protect ritual knowledge from exploitation which is contrary to Gnalabingu law and custom.

As a corollary the artist has a fiduciary obligation to act for the benefit of the Ganalbingu people not to exploit the artistic work in a way that is contrary to their laws and customs, and, in the event of infringement by a third party, to take reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work.

Similarly as the Ganalbingu people have entrusted this knowledge to the artist on the basis that he will protect it they have a right to bring an action against the artist in his role as fiduciary to enforce the obligation.

 

 

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