In this blog, CourtHeath shares some discoveries made about Indigenous Cultural and Intellectual Property (ICIP) whilst developing its Reconciliation Action Plan (RAP).

Recognising and Protecting Indigenous Knowledge

ICIP encompasses the rights of Indigenous peoples over their cultural heritage, traditional knowledge, and intellectual property. Unlike conventional intellectual property laws, which are time-limited and focused on individual ownership, ICIP recognises collective ownership and its intergenerational significance.

When looking at terms to include in the contract with the Aboriginal artist who created the artwork for our RAP, it became apparent that we needed to better understand this concept. We came across this helpful definition of ICIP: “…a broad term which is used to refer to the rights Aboriginal and Torres Strait Islander people have to their heritage and culture. ICIP includes knowledge, songlines, language, dance, symbols and art as well as medicines, language, bush foods, sacred sites and ecological knowledge” (Commonwealth Department of Infrastructure, Transport, Regional Development, Communications and the Arts).

Being familiar with conventional intellectual property rights commonly used in government contracts, we realised that the concept of ICIP is very different. ICIP is dynamic and living. Intergenerational cultural property cannot be owned by individuals or organisations.

Global Context

As a member of the United Nations Global Compact, we seek to link our work to relevant UN declarations and conventions to enhance our understanding of where local laws and protections are founded.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Article 31 affirms Indigenous People’s right to control, protect and develop their cultural heritage and intellectual property:

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

This global context prompted us to explore what Australia is doing to “take effective measures to recognize and protect the exercise of these rights”.  So, we researched existing frameworks in Australia that support Indigenous communities in protecting their cultural expressions and knowledge.

Australian Context

Australia endorsed the UNDRIP in 2009 but ICIP rights currently have only limited protection under Australian law. However, ICIP is being increasingly recognised. The Federal government is developing a National Cultural Policy to protect traditional knowledge and cultural expression. The policy is based on the following ten principles for respecting Indigenous Cultural and Intellectual Property: respect, self-determination, consent and consultation, interpretation, cultural integrity, secrecy and privacy, attribution, benefit sharing, maintaining First Nations culture, and recognition and protection (Janke 2021).

“The Australian Government has committed to introducing new laws to protect First Nations traditional knowledge and cultural expressions, including to address the harm caused by fake art, merchandise and souvenirs. First Nations traditional knowledge and cultural expressions can also be referred to as 'Indigenous cultural and intellectual property' or 'ICIP'.”

Victorian Context

Victoria has legislation that protects many categories of tangible and intangible Aboriginal and Torres Strait Islander heritage, such as places, rock art, tools, and intellectual creations and innovations. The Aboriginal Heritage Act 2006 recognises intangible heritage, which may include new intellectual creations and innovations derived from or based on cultural traditions or expressions, such as:

• A new song based on a traditional story
• A new dance based on a traditional performance
• A new cultural use for traditional medicinal plant using its traditionally known properties.

We did not find guidance about protecting ICIP in Victorian government contracts, although Aboriginal VPS personnel were aware of the concept. Standard Victorian government contracts we work with do not mention ICIP but can be amended to reflect ICIP protections where relevant.

When we came across this example clause used in the Queensland government sector, we gained a clearer understanding of how ICIP can be applied in government procurement.

1. Indigenous Cultural and Intellectual Property Rights

1.1.    The Parties will, at all times, show respect for Language Owners, Aboriginal peoples, Torres Strait Islander peoples and Indigenous Cultural and Intellectual Property. Where appropriate, the Parties will observe the trust placed in them through the disclosure by Aboriginal people or Torres Strait Islander people to the Parties of knowledge or information concerning languages, traditions, customs, cultural expression (song, dance, arts, stories, ceremonies) and beliefs.

1.2.     The Parties acknowledge that Aboriginal people and Torres Strait Islander people have the right to control, own and maintain their ICIP in accordance with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples.

1.3.     The Parties agree that ownership of any ICIP rights will remain with the traditional owners and custodians of such ICIP.

1.4.     The Parties will:

1.4.1.    Comply with any restrictions on using and dealing with any ICIP in the Deliverables;

1.4.2.    Attribute the Language Owners and any people who contribute to the Deliverables;

1.4.3.    Not use the ICIP for any purpose other than as part of the Deliverables and as contemplated by this Agreement.

Conclusion

Recognising and respecting ICIP is essential to ensuring that Indigenous communities retain control over their knowledge and cultural expressions. Protecting ICIP not only prevents the exploitation of Indigenous heritage but also supports cultural sustainability and economic opportunities for Indigenous peoples. Businesses, researchers, and organisations engaging with Indigenous knowledge should take proactive steps to understand and uphold ICIP principles.

Respecting ICIP means collaborating with, and seeking prior and informed permission from, Aboriginal and Torres Strait Islander traditional owners for any use of ICIP. In the context of Victorian government procurement, standard government contracts can be amended to protect ICIP associated with contract deliverables.

Resources

• First Nations Cultural and Intellectual Property in the Arts (Creative Australia)
• Indigenous Cultural and Intellectual Property (ICIP) (The Arts Law Centre of Australia)
• National Cultural Policy – Revive: a place for every story, a story for every place (Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Office of the Arts, Australian Government)
• Protecting Indigenous cultural and intellectual property rights (Department of Infrastructure, Transport, Regional Development, Communications and the Arts, Office of the Arts, Australian Government)

***

CourtHeath acknowledges the Traditional Aboriginal Owners of Country throughout Victoria and pays respect to Elders past and  present, and to the ongoing living culture of Aboriginal people.

A participant in the UN Global Compact, CourtHeath seeks to raise awareness about the sustainable development goals and the principles of the Global Compact with business and government organisations in Victoria.

***

IMAGE: Bridges of Connection. Original artwork created by Jedess Hudson.

***

Click here to read CourtHeath Consulting’s Reconciliation Action Plan.