Other native title rights and interests?

8.166   The ALRC is aware, through consultations and submissions, that claims for other types of native title rights are evolving, for example in respect of reciprocal rights,[254] rights of conferral[255] and for new forms of resource utilisation, such as bio-sequestration that have origins in the traditional use of land and waters under traditional laws and customs. The ALRC has recommended statutory clarification around native title rights to be exercised for commercial or non-commercial purposes. That recommendation is intended to allow for the adoption of principles to facilitate the development of the law on a case by case basis.

8.167   The ALRC is not recommending that any other native title right or interest be expressly included in any revised s 223(2) as set out in Recommendation 8–1. This is not intended to preclude a finding on the evidence of other native title rights and interests that may be recognised in line with the adaptation of laws and customs. The ALRC stresses that the list in s 223(2)(b) is indicative—not exhaustive.

8.168   As CDNTS aptly put it, ‘[t]here is a danger that too indicative a list will result in native title rights and interests being unintentionally limited by virtue of the fact that an asserted right or interest is “not of the kind” found in the section’.[256] Apart from the issue of cultural knowledge, discussed below, the majority of stakeholders who addressed this issue[257] submitted that there was no need for express inclusion of anything else.[258]

Protection or exercise of cultural knowledge

8.169   Cultural knowledge is a core aspect of the law and custom of Aboriginal and Torres Strait Islander communities. The term ‘cultural knowledge’ signifies an intense affiliation with land and waters, where ‘places are discursively acknowledged as being essentially and primarily particular things in place, things that are resonances and signs of the ancestral past’.[259] It can encompass particular forms of expression of the knowledge of places—such as dance, art, stories and ceremonies, to knowledge of the medicinal properties of plants and genetic resources. It includes knowledge that is not to be openly-shared, but which is transmitted through particular genealogically and spatially referenced processes. Cultural heritage is a cognate term also adopted to describe this knowledge, as well as physical expressions of culture, such as paintings.

8.170   Section 223(1) of the Native Title Act has been construed as not extending to recognition of rights to protect cultural knowledge.[260] However, determinations of native title rights and interests under s 225 of the Native Title Act may, for example, comprise rights of access to sacred sites, and for groups to conduct ceremonies on traditional lands.[261]

8.171   Since the inception of the Native Title Act, there has been greater understanding of the links between Aboriginal and Torres Strait Islander laws and customs, as expressed through cultural knowledge, and the relationship with land and waters. The ALRC considered that it was within the scope of the Inquiry to seek views on whether rights related to the protection or exercise of cultural knowledge should be included expressly in the Native Title Act. The ALRC also considered the issue may be relevant to what is encompassed by ‘commercial purposes’. Could cultural knowledge, for example, be considered as a native title right which could be exercised for a commercial purpose?

8.172   Specifically, the ALRCasked whether the indicative list proposed for a revised s 223(2)(b) should include the right to protect cultural knowledge.[262] The ALRC also asked what stakeholders understand by the phrase ‘cultural knowledge’; whether a statutory definition is needed; and what such a definition should contain.

8.173   A number of stakeholders supported the inclusion of the protection or exercise of cultural knowledge in the indicative list in a revised s 223(2)(b).[263] CDNTS submitted that ‘there exists a great deal of cultural knowledge regarding the use and value of ecological and biological resources, which has the potential to provide economic benefit for groups’.[264] NTSV was supportive but considered that the issue requires further consideration.[265] Queensland South Native Title Services considered that such a reform would be ‘problematic and complex’, in part because of the interplay with copyright and intellectual property laws. But, in its view, it was ‘potentially a huge deal for traditional owners’.[266]

8.174   Other stakeholders were opposed to the suggestion that the right to protect cultural knowledge be included in the indicative list in a revised s 223(2)(b).[267]AIATSIS expressed the view that cultural knowledge would be better dealt with outside of the scheme of the Native Title Act.[268]

8.175   A number of stakeholders were of the view that the term ‘cultural knowledge’ should not be defined in the Native Title Act.[269] Few stakeholders provided a definition of ‘cultural knowledge’.[270]

8.176   There are complex considerations in respect of protecting cultural knowledge. While cultural knowledge is an integral aspect of the relationship to land and waters, it also has deep free-standing significance for Aboriginal peoples and Torres Strait Islanders. There has been extensive work already around cultural knowledge.[271] A complex balancing of interests is involved.

8.177   The ALRC considers that the question of how cultural knowledge may be protected and any potential rights to its exercise and economic utilisation governed by the Australian legal system would be best addressed by a separate review. An independent inquiry could bring to fruition the wide-ranging and valuable work that has already been undertaken but which still incompletely addresses the protection of Aboriginal and Torres Strait Islander peoples’ cultural knowledge.


8.178   In Ward HCA, the majority of the High Court noted the ‘imprecision’ of the term ‘cultural knowledge’.[272] In that appeal, the submissions referred to ‘such matters as the inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives’.[273]

8.179   The World Intellectual Property Organization (WIPO) has undertaken extensive investigation into the protection of indigenous cultural knowledge.[274] WIPO distinguishes between ‘traditional knowledge’ and ‘traditional cultural expressions’.[275]

8.180   Traditional knowledge is conceived of broadly, as the living inter-generational body of knowledge[276] forming part of the spirit and culture of its indigenous community.[277] Traditional knowledge is important in respect of the exploitation of genetic resources;[278] and arises in a wide variety of fields including agriculture, medicine and traditional lifestyles.[279]

8.181   Traditional cultural expressions are

any form of expression, tangible or intangible, or a combination thereof, such as actions [such as dance …], materials [such as material expressions of art …], music and sound [such as songs …], verbal [such as stories …] and written, regardless of the form in which it is embodied, expressed or illustrated[280]

8.182   Traditional cultural expressions will often embody traditional knowledge.

8.183   In this Report, the ALRC uses ‘cultural knowledge’ as an umbrella term for all types of indigenous knowledge. Moreover, the concept of protection of cultural knowledge has both positive and negative aspects. ‘Positive’ protection can encompass giving Aboriginal and Torres Strait Islander communities control over how their cultural knowledge is used—for example, moral rights of attribution—whereas other protection may provide for compensation for misappropriation.

International instruments and models for reform

8.184   Cultural knowledge is discussed in several important international instruments to which Australia is a party. Principal among these is UNDRIP.[281] The Preamble to UNDRIP recognises that ‘respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’. Under art 31, States undertake to ‘take effective measures’ to recognise and protect the exercise of Indigenous peoples’ right to protect their cultural heritage, traditional knowledge and traditional cultural expressions. Cultural knowledge is also protected in the context of particular fields.[282]

8.185   WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (‘IGC’) oversaw a major project identifying gaps in existing protections for cultural knowledge and strategies to address them.[283] The IGC’s work noted that intellectual property systems provide inadequate protection for traditional knowledge. The IGC has developed draft provisions for the protection of traditional knowledge and traditional cultural expressions.[284]

Australian framework

The position under the Native Title Act

8.186   In Ward HCA, the majority held that the Native Title Act cannot protect ‘a right to maintain, protect and prevent the misuse of cultural knowledge’ if it goes beyond denial or control of access to land or waters.[285] The opening words of s 223(1) of the Native Title Act require native title rights and interests to be ‘in relation to’ land or waters.[286] Section 223(1)(b) requires the Aboriginal peoples or Torres Strait Islanders, by their traditional laws acknowledged and their traditional customs observed, to have a ‘connection with’ the land or waters.[287]

8.187   The majority of the High Court, stated in a joint judgment:

To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land …

However, it is apparent that what is asserted goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1). The ‘recognition’ of this right would extend beyond denial or control of access to land held under native title. It would, so it appears, involve, for example, the restraint of visual or auditory reproductions of what was to be found there or took place there, or elsewhere.[288]

8.188   Native title rights and interests in respect of cultural knowledge—variously described[289]—had been claimed in some early cases. In Bulun Bulun v R & T Textiles Pty Ltd, von Doussa J remarked that the pleadings ‘appear to assert that intellectual property rights of the kind claimed by the applicants were an incident of native title in the land’,[290] ‘such that they constituted some recognisable interest in the land itself’.[291] That was not a case for the determination of native title[292] and the claim with respect to native title was not pressed.[293]

8.189   In Commonwealth v Yarmirr, the majority of the High Court observed that there was no clarity as to the meaning of the rights and interests ‘to visit and protect places within the claimed area which are of cultural or spiritual importance’ ‘or how effect might be given to a right of access to “protect” places or “safeguard” knowledge’.[294]

8.190   The ALRC is aware that ‘[f]or Indigenous people there are unbreakable links between their knowledge systems, the land and waters, and its resources’.[295] Further, for such communities, ‘spiritual or religious obligations could infiltrate almost all undertakings, including transactions, transfers, exchanges and activities undertaken for value or benefit’.[296] As noted in Chapter 6, in both Ward FFC and Ward HCA the majority acknowledged that ‘the relationship of Aboriginal people to their land has a religious or spiritual dimension’.[297]

8.191   Different views have been expressed about the appropriate statutory construction of s 223(1) in respect of cultural knowledge in strong dissenting judgments in the High Court[298] and in the Full Federal Court.[299] In Ward FFC, North J discussed an extract from the evidence—an anthropologist’s report—that showed that the respective cultural knowledge was ‘intimately linked with the land’:[300]

The protection of ritual knowledge is required by traditional law. Traditional law treats both elements as incidents of native title. There is no reason why the common law recognition of native title should attach to one incident and not the other. Because common law recognition is accorded to the entitlement to land as defined by traditional laws and customs the contrary conclusion should follow.[301]

8.192   Kirby J, in Ward HCA, focused on the ‘very broad’ phrase ‘in relation to’ in the opening words of s 223(1).[302] He saw the right to protect cultural knowledge as sufficiently connected to the area to be a right ‘in relation to’ the land or waters for the purpose of s 223(1).[303] Kirby J concluded:

Recognition of the native title right to protect cultural knowledge is consistent with the aims and objectives of the NTA, reflects the beneficial construction to be utilised in relation to such legislation and is consistent with international norms declared in treaties to which Australia is a party. It recognises the inherent spirituality and land-relatedness of Aboriginal culture.[304]

8.193   The KLC submitted that the

‘range of traditional indigenous relationships to country’ are not adequately comprehended by common law native title nor, relevantly for the purposes of the Inquiry, section 223. For example, images of country and spirit beings connected to country are afforded no protection whatsoever by the NTA notwithstanding the fact that, from the perspective of the authorised custodians of those images, they are inherently connected to, and part of, country (land and waters).[305]

Intellectual property laws

8.194   Existing intellectual property laws have been successfully used to protect against some forms of misuse and misappropriation of cultural knowledge. Key forms of protection include:

  • trade marks—which appear relatively unproblematic because they can be used to protect logos and words used by indigenous communities in the course of trade and because others’ marks that would be offensive may be opposed;[306]

  • copyright—while it has been used to protect some cultural knowledge,[307] the requirements for expressions to be in material form, for authorship, and for originality may serve to limit legal recourse;[308] and

  • patents—the scope for protection by way of patents may be relatively limited for a number of reasons.[309]

8.195   There are deep divergences between the perspectives of Indigenous peoples and conventional intellectual property systems:

[T]he very conception of ‘ownership’ in the conventional IP system is incompatible with notions of responsibility and custodianship under customary laws and systems. While copyright confers exclusive, private property rights in individuals, indigenous authors are subject to dynamic complex rules, regulations and responsibilities, more akin to usage or management rights, which are communal in nature.[310]

8.196   Other laws that may provide some protection include the equitable doctrine of breach of confidence.[311]

Calls for reform

8.197   The decision in Ward HCA, and its approach to cultural knowledge, predates key international developments, including UNDRIP. Contemporary understanding of connection to country is being shaped by a growing body of academic and anthropological literature which is not reflected in the current state of the law. Terri Janke has pointed to a ‘paradox’ where cultural material is used in native title claims as evidence of continuing connection, but where cultural knowledge is not recognised as a native title right.[312]

8.198   Some stakeholders considered the protections for cultural knowledge under existing law as inadequate. The Arts Law Centre of Australia described existing common law remedies as ‘deeply complex and costly’, as well as ineffective. The Centre stated that

there are many situations where Aboriginal and Torres Strait Islander people have no effective legal remedies and therefore no absolute right to keep secret their sacred and ritual knowledge or prevent the use of their traditional knowledge and traditional cultural expressions.[313]

8.199   AIATSIS and some Native Title Representative Bodies and Service Providers echoed these sentiments, in particular, pointing to the inadequacies of current intellectual property laws.[314]

8.200   On the other hand, state governments highlighted the progress made using current frameworks.[315] Consent determinations in South Australia and the Northern Territory, for example, already include rights to conduct and participate in cultural activities and practices on their traditional lands.[316] The Northern Territory has agreed consent determinations of native title over the pastoral estate recognising, as part of the suite of non-exclusive native title rights and interests, the rights of native title holders to conduct and participate in cultural activities and practices on the land and waters subject to the determination area.[317]

8.201   Some stakeholders that supported amending the Native Title Act to directly cover cultural knowledge stressed the need to connect this with land or waters, as opposed to creating a new form of intellectual property.[318]

8.202   Cultural knowledge has been the subject of numerous government reviews and inquiries.[319] In 2012, IP Australia initiated an Indigenous Knowledge Consultation inviting views about how ‘Indigenous Knowledge’ can work with the intellectual property system.[320] Stakeholders pointed to positive steps towards protecting cultural knowledge including through voluntary protocols. Protocols cover only specific areas rather than considering the protection of cultural knowledge more generally, leading to a lack of consistency. IP Australia’s stakeholders provided strong support for reform, favouring a stand-alone, sui generis framework for the protection of cultural knowledge.

8.203   In summary, the ALRC has raised the potential for a native title right to protect cultural knowledge and for cultural knowledge to be considered in relation to rights to be exercised for any purpose, including commercial purposes. The ALRC does not have a concluded view on whether this would be a desirable development, but has identified the need for an indepth inquiry that can assess the legal and policy issues.