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Background to the Arts Law – FATSILC project | Protocols, Indigenous, Language, Agreement, Aboriginal, Community, Communities, Materials | FATSILC, Fed. Aboriginal Torres Strait Island Languages and
 
Background to the Arts Law – FATSILC project PDF Print E-mail

Our Culture: Our Future is a report researched and written by Terri Janke, an Indigenous lawyer, specialising in Indigenous Cultural and Intellectual Property (ICIP). The report (1998, p11) provides a  holistic definition of Indigenous heritage, including: literary, performing and artistic works, languages, scientific, agricultural, technical and ecological knowledge, spiritual knowledge, all items of movable cultural property, including burial artefacts, Indigenous ancestral remains, Indigenous human genetic material, cultural environment resources. The report recommends:

Indigenous people should assert their rights to their cultural and intellectual property and have such rights recognised under contracts. (Recommendation 26.1.2, p271).

Similarly, the Australian Institute for Aboriginal and Torres Strait Islander Studies (AIATSIS, 2000, p4) Guidelines for Ethical research in Indigenous Studies recommend:

negotiation should result in a formal agreement for the conduct of a research project, based on good faith and free and informed consent. … The aim of the negotiation process is to come to a clear understanding, which results in a formal agreement (preferably written), about research intentions, methods and potential results.

In line with these recommendations, and in response to community requests for support, the Arts Law Centre of Australia, in collaboration with FATSILC, has developed a model agreement. This agreement is available for use by Indigenous communities and individuals and organisations who are working with them to publish materials for language revitalisation. The model agreement is supported by the FATSILC protocols guide. Together, these two documents provide support for ICIP.

The FATSILC protocols guide aims to give a general guide to the types of issues involved in publishing language materials and to give examples of good practice and the valuable contributions which communities, schools, linguists, ICT specialists and others have made, and are currently making, to language revitalisation.

 
Protocols Guide PDF Print E-mail

Protocols are essentially guidelines. These protocols aim to foster positive and mutually-beneficial working relationships between Indigenous and non-Indigenous people. While there are many common issues and sensitivities which are similar across language situations, these can also differ between communities.

Consultants need to find out about details of local protocols from a range of sources, including individuals and local and regional community organisations. Protocols, like languages and cultures, are dynamic. They change and develop over time in response to internal and external factors. It is important for consultants to be sensitive to, and accommodating of, such changes by building long term, ongoing relationships with the Aboriginal and Torres Strait Islander informants and collaborators in any language project.

The FATSIL protocols guide outlines broad principles for working with language communities. It does not necessarily apply to every Aboriginal and Torres Strait Islander community in Australia. Some communities have already developed protocols they wish consultants to follow. In these cases, the local document will be more relevant. For example:

  • Kaurna Warra Pintyandi (2003), a language group in South Australia, has developed a two-page document – Kaurna Information Requests – which clearly asserts the rights of the language owners and includes advice on protocols for naming eg properties and businesses using Kaurna words.

  • The Ganai Yirruk-Tinnor Language Program, provides all consultants to its program with Guidelines for the Teaching of the Ganai/Kurnai Language Program in Preschools and Schools (1995). This is a document introduced from the Ganai Language Reference Group and it helps to ensure that all Language matters are referred back to this group of Elders and community.

  • Members of Victorian Aboriginal communities have developed protocols and advice for teachers involved in implementing an Aboriginal languages program as part of the school curriculum. These protocols have been published in Indigenous Languages of Victoria Revival and Reclamation. Victorian Certificate of Education Study (Victorian Curriculum and Assessment Authority, 2004).

  • The Ara Irititja Project, a digital archive database, developed by the Pitjantjatjara Council for Pitjantjatjara and Yankunytjatjara people (Anangu) in WA, NT and SA, is developing a set of procedures all non-Anungu researchers must follow to access materials. This will include protocols relating to confidentiality, publication rights, copyright and intellectual property rights. Essentially the principle purpose of the project is to make historical and contemporary multimedia materials, including photos, movies, sound recordings, documents and artworks accessible to community members and to protect those materials for posterity. In addition to requiring approval for their research approach and context, non-Anungu researchers will need to demonstrate how their work will be of direct benefit to Anangu.

  • The introduction to the NSW Aboriginal Languages K-10 Syllabus and support documents (Board of Studies NSW 2003, 2004) clearly outline community consultation requirements in establishing and maintaining effective school language programs, as well as the importance of community control of those programs and cultural ownership of any teaching-learning materials which are produced in the course of implementing the programs.

  • The South Australian Department of Education and Children’s Services (SA DECS) has developed a set of principles for departmental staff working with Aboriginal people to develop language materials.

The Indigenous Intellectual & Cultural Property Rights Position Paper (2003) includes advice about protocols, consultation and negotiation, copyright and contracts, student contributions to publications, considerations when publishing in various printed and electronic formats, use of published language materials. The SA DECS has also included one page of text, at the beginning of each of its Aboriginal Languages syllabus framework documents. This text uses the definition of Indigenous Heritage from Our Culture: Our Future (Janke 1998, p11) and it strongly affirms the rights of Indigenous people as the owners of their cultural and intellectual heritage.

 
Formal written agreements PDF Print E-mail

Protocols are reinforced by a formal written agreement. An agreement has important benefits for all parties, as it provides clarity on all aspects of the project. It can also provide communities with the confidence to continue to publish materials since, through an agreement, communities feel they can control the content and use of works published in their languages. Indigenous communities are sometimes hesitant about working with consultants, but communities can also be empowered through a well-negotiated agreement. For consultants, an agreement defines the expectations of the community and makes clear the role of the consultant(s) in the project.

The Arts Law Centre of Australia has developed a model agreement which is easy to use and in plain English. The model agreement is free of charge, is available from the FATSIL office or can be downloaded from the website www.fatsilc.org.

An agreement needs to be signed by a person or organisation that is recognised by the law. For example, companies, Aboriginal corporations, incorporated associations, co-operatives and individuals can sign agreements. An Indigenous community itself, unless it is incorporated, does not have legal status. If your community or organisation is not already incorporated, contact the Office of the Registrar of Aboriginal Corporations for details on how to do this.1

Any formal agreement must be supported by good consultation and the following of protocols, together with trust and good faith in working relationships. Respect, honesty, rapport, and careful listening to what the community has to say are important bases of any formal written agreement.

1
Contact details of the Registrar of Aboriginal Corporations can be found at the end of this booklet.
1 Contact details of the Registrar of Aboriginal Corporations can be found at the end of this booklet.