True Tracks

Author: Terri JankePublisher: NewSouth BooksReviewer: Stephen Keim

In the early nineties, Terri Janke found herself studying law in Sydney at the University of New South Wales. She had been born, and grew up, in Cairns in far north Queensland. She was not a perfect law student and dropped out during her third year. Dropping out of university is not always the worst thing that can happen to a person. Janke ended up working at the Australia Council for the Arts for its Aboriginal Arts Board. In this role, Janke found her abiding interest in intellectual property and what it could and could not do to protect First Nations culture in Australia. ln this way, when she returned a few years later to complete her degree, Janke escaped the expectations that weigh heavily upon many an Indigenous Law Student that they will serve their social purpose in life by becoming criminal lawyers.

Janke’s heritage is complex befitting Australia’s mix of Indigenous and immigrant cultures. Janke has both Meriam and Wuthathi (among others) strands to her Indigenous heritage along with Malay and Philippines origins.

Having discovered the law of intellectual property at the Australia Council, Janke’s social purpose in life has turned out to involve understanding more deeply the inadequacies of intellectual property law, particularly, to meet the needs of Indigenous Australians and to work to overcome those adequacies in every possible way.

Janke graduated in 1995; started her own law firm in 2001; and completed her doctoral thesis in Indigenous Cultural and Intellectual Property (“ICIP”) at the Australian National University in 2019. True Tracks is Dr Janke’s doctoral thesis adapted for the general reader.

The title of the book, True Tracks, is taken from a set of principles intended to lay down best practice for ethical engagement with Indigenous people, particularly, when dealing with Indigenous culture and Indigenous information and knowledge.

The name for the set of principles has a more interesting origin. Janke recounts how she addressed a seminar in her home town of Cairns and found her image and her story and the cultural descriptor, cultural crusader, on the front page of the next day’s edition of the local newspaper, the Cairns Post. On an ensuing flight to the Torres Strait, a Torres Strait woman recognised Janke from the newspaper and began a conversation. Fearing condemnation for being too big for her boots, Janke was surprised and gratified to receive only praise from the Auntie who told Janke to stay on track; to listen to her heart; and that she would, in her work, lay down true tracks for the future. Janke has obtained inspiration and security of heart in the words of the Auntie.

There are ten True Tracks principles but they have, as the Auntie predicted, provided the basis for other sets of protocols developed by Janke, working for different organisations and agencies, to guide the ethical engagement with Indigenous persons and their cultural property across many different fields of endeavour.

The principles are relatively short and accessible but the moral imperatives they carry are clear to the reader. They comprise the need for respect; self-determination and empowerment; free, prior and informed consent which is dependent on ongoing consultation and engagement; maintaining the integrity of the cultural property; ensuring secrecy and privacy where that is appropriate and necessary; proper attribution; built in benefit sharing; the maintenance and strengthening of Indigenous culture; and the recognition and protection of ICIP rights.

Janke lists different aspects of Indigenous cultural heritage or ICIP as falling within the fields of artistic works; literature; performance; languages; knowledge; cultural property (including objects held in museums); human remains; immovable cultural property such as sites and places; and documentation of Indigenous people and culture.

Janke having explained the concept of ICIP and the content of the True Tracks principles in the opening chapter, each subsequent chapter of the book involves a case study of the state of protection for Indigenous cultural heritage in a different field of endeavour. Chapter 2 deals with property in Indigenous languages; chapter 3 with the visual arts; and chapter 4 with Indigenous architecture and Industrial design.

Each chapter pursues a similar methodology. The operation of intellectual property protections within the existing law, to the extent they are relevant to the particular field of endeavour, is carefully explained. The deficiencies of the existing legal protections are also explained. Generally, the elements of Indigenous cultural heritage are not protected. In many areas, this is because, under the existing law, no one owns the heritage or the knowledge. Despite the importance of Indigenous languages to the communities who traditionally have spoken them, no intellectual property exists in the language or the individual words of the language. So anyone can take an Indigenous word and appropriate it to their commercial or other use without permission or even consultation. In many areas, the valuable community knowledge is unprotected but the act of stealing the heritage creates things which are protected by the law. Thus, the performance of a traditional dance may not be an artistic work capable of protection but the filming of a performance creates property in the resulting film protected by the law which can not only be exploited by the film-maker but which can exclude the original dancers and the community who preserved the dance over many generations even from accessing that film.

Each study then looks at the way in which the law’s deficiencies have expressed themselves in the particular field. In many cases, the issues go back to the beginnings of the colonising of the Australian continent. Aboriginal objects, and even human remains, have been collected and removed to museums, in Australia and overseas. Aboriginal words have been collected in notebooks by anthropologists who now have exclusive rights to the contents of the notebooks. Aboriginal stories have been collected and republished in books the copyright of which now belongs to the collecting author. On many occasions, the expropriation has been, and is still being, done without any compliance with the True Tracks principles, that is, without respect, consent, consultation, attribution or any sharing of the benefit.

In each of the fields, however, Janke documents the steps taken to supplement the law with agreements and protocols based on the True Tracks principles. In each field of endeavour, Janke, not only, documents shameful incidents of cultural theft but, also, recounts examples where activists have confronted those who would act, exploitively, and brought them to heel. There are also many stories of individuals and organisations who have consulted Janke and other Indigenous lawyers for guidance and who have, willingly, developed their own best practice guidance implementing the True Tracks principles. Consultation carried out over time with the communities to whom the cultural knowledge belongs has led to the deficiencies of the underlying law being supplemented by agreements which have protected the interests of the communities while allowing for mutually beneficial use of various forms of knowledge and information and creative endeavour.      

The surprising thing for the reader is that True Tracks becomes much more than a study of the deficiencies of the law and the ways in which those deficiencies may be addressed. It becomes a series of narratives of heroic endeavour in which a new beneficial paradigm has been created and of the positive benefits which have flowed therefrom. But it has also become a guide to the rich field of creative work being carried out by Indigenous Australians in the fields of painting; craft; education; architecture; linguistics; music, dance, environmental management and regeneration; cooking and gastronomy and business and many more.

The reader comes away with a list of Indigenous authors that one must read and a list of Aboriginal performers to whom one must listen and whose videos one must watch, as well as a number of arts and craft exhibitions that one must simply not miss.

Thus, in the chapter on Indigenous languages, not only has Wiradjuri woman and author, Tara June Winch, written a highly decorated novel called The Yield, she has promoted aspects of the Wiradjuri language in her book in a way that respected the community to whom the language belongs. Her respect and consultation for the owners of the language has led to a strengthening of the community’s pride in itself and its sense of well-being. A different less respectful approach is likely to have had very different impacts both for Winch and the Wiradjuri people, everywhere. Other Indigenous writers include Dr Jared Thomas: Calypso Summer and Songs That Sound Like Blood and Anita Heiss: Yirra and her Deadly Dog Demon and River of Dreams.

A heart warming story of struggle involves the copyright to all of Albert Namatjira’s artworks. In what seems to have been a thoughtless act, in 1983, the Public Trustee of the Northern Territory sold those rights to a private publisher for $8,500. A large number of people and institutions, including lawyers and filmmakers, ran a campaign that led to that copyright being, voluntarily, returned in October 2007 to a trust created to benefit Namatjira’s family. A careless wrong of the past had been righted by persuasion.

Indigenous recording artists working closely with communities include Shellie Morris and Jessie Lloyd. Dance companies such as Bangarra Dance Theatre and NAISDA College are, of course, well-known for performing and developing traditional dances with the support and permission of traditional communities.

True Tracks also provides the names and websites of artisans, tourism operators and bush food producers who are working in their respective fields producing authentic product respecting the cultural property on which they draw and applying the True Tracks principles of respect, consultation, prior informed consent and sharing of benefits.

 Something deeper and more pervading also emerges. The reader, gradually, learns that the concept of ethical dealing with First Nations people is not only something for the filmmaker about to journey into the Outback to shoot a documentary or the music producer about to sign up a talented group from Cherbourg. And, gradually, the reader learns that acknowledgement of traditional owners is not something merely for formal occasions. And, gradually, the reader learns that being a Wuthathi man or a Turrbul or Quandamooka woman is not something for show but rather goes to the very heart of a person’s sense of self. We should acknowledge country and its traditional ownership, every day. We can remind ourselves to do this by incorporating it in our signature blocks and on our home pages. We can be interested in whose country we are on when we travel and very conscious of whose country we tread upon when we are at home or at work.   

I am indebted to Dr Janke. True Tracks has taught me much: many things of which I am now aware and other things that I will perceive more clearly with time and reflection. True Tracks is a fascinating read as well as a scholarly work. I recommend it, highly.