‘Intangible’ assets can be added to Aboriginal heritage register, and businesses that exploit Indigenous culture without consent face $1.5m fines

This article is more than 4 years old

This article is more than 4 years old

Businesses that exploit Indigenous knowledge or culture for commercial purposes without the consent of the traditional owners will be fined up to $1.5m under new Aboriginal heritage laws that come into force in Victoria on 1 August.

The penalty is attached to a new Australian first protection of intangible heritage, which can include stories, songs and dance, in Victoria’s amended Aboriginal Heritage Act.

Under the new provisions in the act a group of traditional owners or native title holders can apply to have a piece of intangible heritage, defined as “any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage” included on the Aboriginal heritage register.

Lisa Bellear captures decades of Indigenous Australian protests – in pictures Read more

It can include any cultural knowledge that is not widely known to the public, including oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts and environmental and ecological knowledge.

The legislation then makes it an offence to knowingly use any registered Aboriginal intangible heritage for commercial purposes without consent from the ownership group, with penalties of up to $280,000 for an individual or $1.5m for a corporation.

Victoria’s Aboriginal affairs minister, Natalie Hutchins, said the new laws protected heritage that was not adequately protected under existing intellectual property, copyright or patent laws, and gave Victoria’s first peoples more control over their cultural heritage.

“The influence of Aboriginal culture on Victorian society has not been properly acknowledged in our past, and it is important we recognise its value in the future,” she said. “Aboriginal people in Victoria will now be able to shape the nature of cultural heritage and control how their cultural knowledge is used by others.”

Mick Harding, a Taungurung man and chairman of the Victorian Aboriginal Heritage Council, said the new law would encourage the preservation and propagation of cultural knowledge as well as addressing gaps in intellectual property law.

“The things that have always been able to be protected had this sense that they were there: you could see them, you could touch them, and I suppose that they had an archeological element to them,” Harding told Guardian Australia.

“This intangible stuff is the space between what is tangible. It is the stories that mothers share with their children, that elders share with groups, the special skills, the cultural stories, the dreamings.”

Harding said the law would ensure that ownership of cultural knowledge could be both protected and shared through generations and families.

“It’s something that comes from a line of 2,000 generations of people and something that also exists for the children of the future,” he said.

Indigenous songlines: a beautiful way to think about the confluence of story and time | Paul Daley Read more

Victoria is the second jurisdiction in a Commonwealth nation to legislate to protect indigenous intangible heritage, following Quebec in Canada.

Australia and Canada were among a group of settler countries that did not sign the Unesco convention for the safeguarding of the intangible cultural heritage (2003).

The convention is not restricted to Indigenous cultural heritage, but Bill Logan, emeritus professor in world heritage with Deakin University, said there had been a suggestion by signatory nations that some countries chose not to sign to avoid granting special status to Indigenous heritage.

“The countries that haven’t signed it are the settler societies of the United States, New Zealand, South Africa, Australia, and there could be related reasons why those governments didn’t want to distinguish indigenous intangible heritage from the heritage of other people,” Logan said.

“The tangible and intangible heritage in indigenous societies is much more integrated.”

Logan said protecting intangible heritage usually involved encouraging new generations to take up a dying cultural practice, such as efforts to preserve the central social role of gong music in the central highlands in Vietnam.

“The tangible part of it is the gong, which you can put in a museum, but if you are trying to protect the intangible part of it you have to find young people to pass on and keep alive the music,” he said.