Fake art exploits indigenous culture

The sale of art and craft products is often the only externally generated source of income for Western Australia’s remote indigenous communities, which are among the most disadvantaged in the state.

It would, therefore, be reasonable to assume WA’s indigenous people have some legal protection from the commercial exploitation of their traditional cultural heritage.

Instead, about 80 per cent of the indigenous-style art and merchandise being sold to tourists is made by either non-indigenous Australians, or is imported.

While these products look and feel authentic, they have no connection to indigenous artists or communities.

One million overseas tourists visited WA each year before COVID-19 closed our borders.

Many of these travellers were interested in having an indigenous encounter, even if only to buy a souvenir.

It benefits WA’s international image and the broader economy to ensure they obtain an authentic experience.

The trade in imitation indigenous art and crafts is not a new issue across Australia; government committees have generated numerous reports regarding indigenous culture and intellectual property rip-offs.

The most recent of these was the December 2018 House of Representatives ‘Report on the impact of inauthentic art and craft in the style of First Nations peoples’.

It was no surprise when the committee conducting the inquiry concluded: “This unacceptable misappropriation of First Nations cultures cannot be allowed to continue unchecked. These imitation products exist solely to make money. They demean the rich and ancient history of Australia’s indigenous peoples.”

There is no federal law prohibiting an individual from producing inauthentic indigenous art and crafts for commercial gain.

All that is required is that items such as boomerangs, key rings and clothing are packaged and labelled so they do not give the impression they are authentic (or made in Australia, if imported).

The indigenous arts industry has called for the Commonwealth’s consumer laws to be strengthened to prohibit the sale of inauthentic art and merchandise.

This seems unlikely to occur, however, given the bureaucratic barriers to achieving that outcome.

In its submission to the 2018 House of Representatives inquiry, the Australian Competition and Consumer Commission did not consider changes to Australian Consumer Law (ACL) the appropriate mechanism to prohibit the supply of inauthentic indigenous-style art and craft products.

Separately, the federal Treasury submitted that the ACL already provided significant scope to address harm arising to consumers and indigenous artists from inauthentic products.

The House of Representatives inquiry steered clear of recommending a change to consumer laws.

It did, however, recommend that the federal government begin a consultation process to develop standalone legislation protecting indigenous cultural intellectual property and cultural expressions.

That equates to a few more years of reports to add to the mountain of evidence that we are the generation allowing the commercial exploitation of indigenous heritage.

In 1967, Australians voted for constitutional change to provide the Commonwealth power to implement policies for the benefit of indigenous people. How much longer should Western Australians wait for the Commonwealth to use that power to protect WA’s indigenous artists and communities?

The Commonwealth has had valid reason and sufficient time to fix this issue, and its failure to act is an embarrassment to our nation.

Only the Commonwealth has the constitutional authority to ensure indigenous culture is not exploited for commercial gain.

Nevertheless, WA may have one mechanism that could be tested to reduce the trade in fakes.

The WA Aboriginal Heritage Act 1972 is legislation that ensures all indigenous cultural heritage within the state is properly protected and preserved. The Act is in the process of being updated to broaden its scope.

The McGowan government was aiming to have an amended Act passed by parliament by the end of 2020, but the pandemic may have put that on hold.

It is anticipated that the new Act will include sections about the empowerment of WA’s indigenous peoples to benefit economically from their cultural heritage. This empowerment must include rights over intangible indigenous heritage such as dance, stories, arts and crafts, medicines, and designs.

The new Act also requires enforcement provisions that eventually lead to WA’s shops only offering art or merchandise that include indigenous cultural expression, supplied by or in accordance with a transparent arrangement with, an indigenous artist or relevant indigenous community.

The proposal to modernise the WA Aboriginal Heritage Act is a possible avenue to stop the theft of indigenous culture in our state.

David Kobelke spent 15 years managing CCIWA’s Australian industry participation unit.