No place for PC politics of cultural ownership

Bush Fire Dreaming, by Kaapa Tjampitjinpa, the ‘most influential of the innovators’.

“Aboriginal art”, wrote Margaret Preston in 1941, is not merely “great art”; it is “the natural heritage of the Australian artist who can, from this work, produce a national art like none other in the world”. And that, of course, is what she sought to do, drawing on Aboriginal pigments and patterns to cast this country’s beauty in a new light.

But far from celebrating Preston’s achievement, and that of the artists who followed in her footsteps, the Productivity Commission’s just released Draft Report on Aboriginal and Torres Strait Visual Arts and Crafts slams the use by non-Indigenous artists of Indigenous “styles, methods, techniques or ideas”.

“Those forms of use,” it claims, “often disrespect, misrepresent and even demean Aboriginal and Torres Strait Islander cultures and can cause offence.” Left unchecked, the “misappropriation” could cause “the erosion of the world’s oldest continuous living cultures”.

Preventing that outcome requires “dedicated cultural rights legislation”, which would give every Indigenous “mob or clan, language group, outstation or town” the right to pursue in the courts any use by visual artists of its iconography, even if that use complied fully with the copyright laws. By creating that special right, says the report, parliament would take an important step towards “recognition of Aboriginal and Torres Strait Islander sovereignty and reparation for the harms caused by colonial law, policy and practice”.

To reach those conclusions, the PC ignores the terms of reference it received from the former treasurer, which direct it to consider not just the benefits of any new arrangements but also the “costs, risks and implementation challenges of any policy responses”. Instead, the report’s summary table includes a column for alleged benefits but no column for costs and risks, which the report’s 360 pages barely discuss.

Ignored too is the requirement for the inquiry to assess its proposals’ “impacts on the wider community”, rather than focusing solely on particular groups. That would have meant paying attention to the well-established economic framework for analysing intellectual property rights, which the report completely disregards.

Little wonder then that the report is a mix of untested assumptions, questionable inferences and often extreme recommendations, which are advanced without any evidence that they are addressing a serious problem.

At the heart of its argument for cultural rights legislation is the assertion that Indigenous communities collectively “own” their cultures – an ownership claim the report analogises to native title over land.

Taken at face value, the belief that “culture” – a term capable of innumerable definitions – can be “owned” in the same way as land involves a fallacy of misplaced concreteness: it confuses words and things, ensuring that attempts to enshrine it in legislation would lead to chaos.

But even putting that aside, the report simply assumes that Indigenous artists agree that their communities have an ownership stake in the cultural elements on which they rely and in the works they produce.

In reality, the only case that carefully examined the contention that collective ownership of cultural assets is an accepted part of customary law – the landmark case of Bulun Bulun and Anor v R&T Textiles (1998) – decisively rejected it.

The report cites the case, but it conveniently ignores the Federal Court’s finding of fact that “There is no usual or customary practice whereby artworks are held in trust for the Ganalbingu people”.

Nor is that finding surprising. It is, after all, well-known that, just like their non-Indigenous counterparts, some of the greatest Indigenous artists would not countenance communal restrictions on their independence.

Geoffrey Bardon, the art teacher who commissioned the revolutionary Papunya paintings of 1971-72, put it well in saying about Kaapa Tjampitjinpa, the most influential of the innovators, that “along with sacredness and secrecy, Kaapa threw his traditions to the wind”.

Papunya’s pioneers did not see themselves as agents of a collective entity that could veto their work; rather, they were acting “as Australian citizens with the same rights as other Australians to be artists”. No doubt some elders found their paintings sacrilegious, but as even Long Jack Phillipus Tjakamarra – who was relatively conservative – said of his fellow artists’ decisions, “they got a right”.

Yet those innovations, and the artistic renaissance they helped trigger, could readily have been crushed under the PC’s proposed regime, which – the report tells us – is not intended to encourage “things that are ‘new’ ” but to preserve “things that are ‘old’ ”.

It is not just tomorrow’s innovators who would be at risk. Thus, the report cites Panama’s indigenous cultural rights legislation, which has acted as a model for similar legislation elsewhere in Latin America.

What it doesn’t say, however, is that the heavily patriarchal leaderships of the region’s indigenous communities have used cultural rights legislation to restrict opportunities for women, increasing the tribal elders’ dominance over their community’s most vulnerable members. And adding to the harm, the legislation has almost everywhere exacerbated conflicts between indigenous communities, as each community claims ownership rights over vaguely defined visual styles, methods and techniques that – far from being clearly unique to a particular community – are in widespread use.

The threats the PC’s proposed regime poses to Australia’s non-Indigenous artists are no less substantial than the risks it creates for their Indigenous counterparts.

Like other forms of creative expression, the visual arts reflect the lived experience of their creators; and in today’s Australia, Indigenous cultures, along with their modes of expression, are an intrinsic part of the lived experience of all artists, regardless of race or ethnicity.

It is therefore nonsense to claim, as the report does, that when non-Indigenous artists use those cultural elements, they are “appropriating” someone else’s culture. They are, on the contrary, authentically representing their own – and advancing, in the process, the common understanding that is the foundation of reconciliation.

Constraining their ability to do so could only impoverish this country’s cultural life while creating new gulfs between Indigenous and non-Indigenous Australians.

Ultimately, this flawed report is symptomatic of a broader trend that holds proposals involving Indigenous policies to a lower, more accommodating, standard of analysis than would be acceptable in other domains.

It is as if repeated failure, instead of instilling an appreciation of the need for caution, had induced the belief that any proposal, no matter how ill-conceived, has to be waved through as a sign of goodwill to Indigenous Australians, who cannot be expected to handle the harsh glare of serious scrutiny.

It is impossible to think of a more patronising attitude – nor of one surer to perpetuate the failures and hardships it pretends to correct. With the Productivity Commission, which was once the guardian of rigour and impartiality, now joining the pack, the future for Indigenous policy could scarcely be bleaker.