Traditional Aboriginal artwork is like a human map. It tells you a story of people and their country. That story may be simple and for no other purpose but entertainment, or it can be profound in its commentary on cultural values.

More so than Western art, traditional Aboriginal art weaves a story of life around people and country. In fact it is becoming common to see art being asserted to confirm the right to a native title claim. One early example of art being asserted to make a point to emphasize the authority of culture took place with the Yolngu people in eastern Arnhem Land in 1963. There, Yolngu people challenged the right of mining companies to mine on their traditional lands. The petition they put to the federal government was in the form of a typed sheet of paper with their message, on a stringy-bark painting. This painting asserted their rights to the land and called upon government to compensate them for the protection of sacred sites.

But back to more general statements - the stories depicted on paintings are in every sense a legitimate basis for asserting cultural rights in modern times. These stories can also be told in song, dance and stories. Unfortunately the laws (especially intellectual property rights) in Australia do not give adequate recognition and protection. In my opinion, many of these problems arise from the fact that the Indigenous culture is the oldest in the world and modern Australia is a young nation, a young nation which has made a few fundamental blunders in dealing fairly with an ancient culture.

For example, if you take a key federal legislation, the Commonwealth Copyright Act, the basic criterion for protecting intellectual property rights is that:

A the work of art must exist in material form,

B there must be an identifiable author, and

C the protective measures subsist for a limited period           only (50 years plus the life of the author).

This not the place to analyze the fine points of the law, but in terms of a policy perspective, I say that there has to be a more creative way to accommodate Aboriginal cultural values. In response to each of the three points above, consider the following:

• Songs and story telling are not things that exist in material form but still they are a vital part of our cultural asset and have been so for many thousands of years. Why can’t legislation be drawn to protect aspects of our culture where the test of "materiality" is not present? Although parties can enter into contracts, for instance where filming is being done, to protect their intellectual property rights there still must be concerted legislative action in this area. Not every Aboriginal party is in the position of retaining legal advice to protect their rights in contractual agreements - therefore overriding protective legislation is needed to compel fair dealing where Aboriginal culture is the subject matter of the agreement. And I say that Universities and Museums, among other institutions, must assist in this process because historically, they were among the main offenders in not respecting the cultural heritage rights of Aboriginal people. Unless an informed consent is granted by the appropriate Aboriginal person or community, the taking of art, objects or knowledge is unethical and amounts to cultural piracy.

• With traditional Aboriginal art ownership does not always vest in an individual (author), more often than not it vests in a community of people. Aboriginal notions of communal ownership cut right across the centrality of the individual in the English common law system, which is the inherited legal system in Australia. Here, there has been some recent development at the Federal Court level in recognizing that ownership may vest in a community of people. Legislation at the federal level needs to catch up with this development because waiting for appropriate cases to come before the court system will take far too long and cost much in the loss of Aboriginal cultural heritage.

• The limited period of protection covers the life of the author plus 50 years. For a culture that spans 50,000 years this period of protection is simply unacceptable. In fairness to government, there is legislation in existence at the federal and state levels to address the issues of cultural heritage protection. For people active in protecting Aboriginal cultural heritage in this country there is much agony over the effectiveness of the relevant laws at both levels. There have been reviews upon reviews and frustration at the level of resourcing to ensure adequate protection of cultural heritage. Many of course would not share the concerns I am expressing here in favor of "protection".

I acknowledge that these comments may not have much relevance in some contexts involving Aboriginal people, for instance "urban" or "contemporary" art. Such works are as vitally Aboriginal as artwork from anywhere else.