Protecting the Spiritual Beliefs of Indigenous Peoples-Australian Case Studies

I. Introduction: The Aboriginal and Torres Strait Islander Peoples of AustraliaCarbon-dated human remains provide evidence of at least 60,000 years of the occupation of Australia by Aboriginal and Torres Strait Islander Peoples.1 When the first white settlers arrived in 1788, an estimated 300,000 to more than one million Aboriginal and Torres Strait Islander Peoples inhabited the Australian continent.2 Aboriginal society comprised hundreds of language groups of varying sizes.3 Each language group shared a common language, territory and cultural attributes.4 Until the formation of the Australian Federation in 1901, the current States and Territories of Australia were separate British Colonies, each pursuing their own policies concerning the recognition or repression of indigenous culture and traditional life.5 Similar to other colonized countries6 with indigenous communities, there were cyclical periods of tolerance, protection, or even qualified approval interspersed with periods of rejection when attempts were made to eradicate traditional ways and to assimilate Aboriginal and Torres Strait Islander Peoples, by seeking to absorb them and deny them any separate identity.7 Probably the most notorious example of the latter was the policy of forcible removal of Aboriginal children from their parents to be brought up by fostering institutions as members of the white community. This policy commenced in colonial times until as recently as the 1970s.8At the time when the instructions were being prepared by the British Colonial Office for Arthur Phillip, the first Governor of the first Australian Colony, the legal theory which underpinned those instructions was that of William Blackstone,9 that the Australian continent was terra nullius10 with the consequence that all applicable English laws were immediately in force in the colony. No account was taken of the laws or belief systems of Aboriginal and Torres Strait Islander Peoples, as they would have been if Australia had been regarded as a conquered colony in the Blackstonian sense. In 1788, when the First Fleet of white settlers arrived in Australia, no overarching Aboriginal political system existed to link the many Aboriginal and Torres Strait Islander Peoples to resist colonization.12 The historical record of Aboriginal Resistance to white settlement, and indeed whether Australia should have been regarded as a conquered or settled colony in the Blackstonian sense, is the subject of a vigorous contemporary debate.13 However, as far as Australian jurisprudence is concerned, the High Court of Australia in its celebrated 1992 decision Mabo v. Queensland (No. 2)14 held that:[W]hatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted ... It is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non- existent was justified by a policy which has no place in the contemporary law of this country.This article examines whether this more enlightened attitude, formulated in the context of land law, extends to protecting the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples. As will be seen below, the High Court of Australia took the position in Western Australia v Ward16 that these spiritual beliefs are adequately protected by intellectual property (IP) law. This article will show that Australian IP law falls short in this regard, although some faith has been placed in the possibility of the reworking of the international IP environment through the promulgation by the World Intellectual Property Organization (WIPO) of international conventions dealing with the protection of traditional cultural expressions and traditional knowledge. …