\lolume 37, Supplement, 2008 "" AUSTRALIAN JOURNAL,/ INDIGENOUS EDUCMION

II{DIGEI\IOUS KNOWLEDGE: BEY0NDPROTECTION, TO\YARDS DIALOGUEMICHAEL DAVIS $ Introduction

Jumbunna Indigenous House of Learning, Universityof Technology Sydney, PO Box L2J, Broadutay, NewSouth Wales, 2OO7, Australia

il Abstract

This paper interrogates the emphasis on devisingregimes for protection of Indigenous knowledge,based on narrowly defined concepts of properryespecially intellectual property in legislative andpolicy discussions and debates and programs ofwork on Indigenous knowledge. Commenting on theclassificatory and typological tendencies of legislativeprotection regimes, the paper argues for a shift fromthis emphasis on protection, toward the creation of aspace for engagement between Indigenous, and otherknowledge traditions, wherein concepts of dialogue,negotiation and agreement-making can occur. Thepaper suppofts its argument by reviewing selected legalinstruments such as the 2003 UNESCO Conventionon the Safeguarding of the Intangible Heritage, anddrawing on some of the author's experience workingwith Aboriginal people in the Kimberley.

Debates on Indigenous knowledge are gathering pacein international forums such as the United NationsEnvironment Program's Convention on BiologicalDiversity (CBD), the World Intellectual ProperryOrganisation (WIPO), and others. Increasingly, thisactivity is considering ways to develop legislativeregimes and mechanisms for protection of Indigenousknowledge. Much of this activity focuses on the roleof intellectual property rights (IPRs) in regulating andprotecting Indigenous knowledge (e.g., Brown, 2OO5;Davis, 2006). At the same time, many assessments andcritiques of IPR regimes in terms of their relevancefor protecting Indigenous knowledge look to thedevelopment of alternative or sui generis approaches(Posey & Dutfield, 1996).

In this paper, I interrogate the focus on legislativeapproaches, especially around notions of "protection"of Indigenous knowledge, and suggest a shift awayfromthis focus towards developing a space for dialogue andengagement between Indigenous and other knowledgetraditions. In earlier work, I argued for a reviewof the kind of language and discourse employed inlegislative and policy debates and discussions, in orderto find ways of enhancing comparison and interactionbetween Indigenous and Western knowledge systems(Davis, 2006). I want to extend that argument todevelop further an idea for dialogue and negotiation,in what might be called a "negotiating space" forIndigenous, and other knowledge traditions. I arguethat Indigenous knowledge, by its nature, containsimportant qualities that allow a possibility for suchdialogue and negotiation. This argument drawssupport from a body of writings that interrogate theperceived dichotomy between "Indigenous knowledge"on the one hand, and other forms of knowledge,including "Western science" on the other hand (e.g.,Agrawal, 1995; Ellen & Harris, 2OO2). In critiquingthe emphasis on legislative mechanisms concernedwith protection of property rights in Indigenousknowledge, Gibson (2OO5, p. 11) for example, posits aconsideration of the notion of "community resources"in order to "overcome the presumption of properryand the economic value of information that inheres insuch terms as 'traditional knowledge"'. Pratt's (1992)use of the term "contact zone" is useful as a vehicle forconceptualising the meeting points between culturesand knowledge systems. In her scheme "contactzones" are "social spaces where disparate cultures

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INDIGENOUS KNOWLEDGE Micbael Dauis

meet, clash, and grapple with each other, often inhighly asymmetrical relations of domination andsubordination" (Pratt, 1992, p. 4).

Nakata's (2OO7, p. I99) model for a "culturalinterface" offers considerable theoretical scope forexamining the space between cultural systems andmodalities. This "cultural interface" is

A multi-layered and multi-dimensional space ofdynamic relations constifuted by the intersectionsof time, place, distance, different systems ofthought, competing and contesting discourseswithin and between different knowledgetraditions, and different systems of social,economic and political organisation.

During 2006,l worked with some Aboriginal peoplein the Kimbedey region of far north Western Australia.I was engaged in a project to develop guidelines andprotocols for the protection of Aboriginal knowledgerelated to language. Over the course of several months,I had conversations with elders from different languagegroups, hearing their stories of their country andculture. As I listened, it seemed to me that these peoplewere talking about their country as a way of being in,of, and on that country enacting or (re)-enacting theirconnections w'ith it. Through talking it, they were, ina sense, walking it through speech, words of language,recalling and depicting aspects of the topography, ofthe land, the plants and animals. They also spoke aboutthe times past, describing such aspects as wet and dryseason camps, different types of fire, bush tucker, andthe old ways. These old peoples' knowledge bothinforms their intricate and deep understandings oftheir particular country and is nourished by it. Theknowledge situates them historically and temporally,and reffirms their place in the wodd. It reaches backinto memory and consciousness, but is also in thehere and now.

Listening to those people talking about countryreaffirmed for me that there is a vast domain ofIndigenous knowledge that lies outside, or beyondthe scope of classification, description, translation andlegislation in the Western system. W'here initially I wasstruck by what appeared to be repetition in the tellingabout their knowledge of country I soon realised thatthis repetition is crucial to the ways in which theyexpress meanings in the holding of, and sharing of theirknowledge. Their articulation of knowledge of countrywas very much a performance: a movement back andforth, and a folding, or turning in upon itself, andupon the external wodd. The cadences, intonations,and patterns of speech are intrinsic qualities uniqueto every performance. There is a movement back andforth, inside and out, in the presentation of thoseold peoples' knowledge. The expression of theirknowledge often appeared to possess a kind of interiorquality, as if they were in dialogue between themselves

as individuals; in a sense, their interior selves, thecollective culture of their particular group, and thewider space of other listeners and observers.

When reflecting on these performances, on the waysin which people articulated their deep knowledge ofcountry it also confirmed my view that what is termed

"Indigenous knowledge", or "traditional knowledge"is not a single, homogenous, uniform entity. Thereis a spectrum of different types of knowledge thatembraces elements that may be described as "new",or "modern" or modernising knowledge, "old", or

"traditional" knowledge, tacit, implied or existingknowledge, the "ordinary" knowledge of the mundane,of the everyday, and deep, or profound knowledge. Allof these elements are constantly shifting and realigning,and are juxtaposed in complex ways. No knowledgesystem is comprised of just one dimension; it is apfocess, of an activity in which there is a constant,often imperceptible shifting and re-aligning betweenand among different kinds of knowledge.

As knowledge is articulated and transmitted throughthe vehicles of language and speech, then the roles ofsuch critical devices as memory and recall also requireconsideration. Repetition too, is an impoftant aspectof performance in an orally based culture (e.g., Ong,2OOZ). The repetitions, patterns and cadences of theverbal articulation of cultural knowledge providethe keys to Aboriginal peoples' understandingsof, and holding of their knowledge. These texturesimportantly also provide markers for, and enhance,and aid listeners' understandings.

Considering all these qualities, some fundamentalquestions arise: If Indigenous knowledge is describedand delineated in terms of regimes for "protection",what are we seeking to "protect" here, and why? Sfhat,if any, is the role of property and the law? The notionof protection requires a context. Legal protection iscontingent upon the concept of Western ideas aboutproperfy and ownership: the rights and interests ofsome as against the rights and interests of others.Who is to do the protecting, and how? What is it inneed of protection from? A focus on protection in thelegal domain, I am suggesting, creates a discourse inwhich Indigenous knowledge is defined, discussedand debated as a "negative" or "oppositional" entity,rather than as a system of meaning, values, practicesand understandings in and of itsel{ as an intrinsicpart of culture. An emphasis on protection in termsof properry ffansforms a cultural system of meanings,values and expressions, into a discourse of potentialconflict, division and competition.

Can the fragmentation, classification and typologicalapproach to Indigenous heritage so ingrained in legaland poliry developments adequately weld togetherthe intricate and complex connections between things,places, persons, and have regard to the entire range ofemotive, personal configurations so apparent in hearinga spoken account of Indigenous knowledge? The

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r+\ ctlttme 37, Supplement, 2008

..:4+-4r.ffi a: :.ti-.91.-ri.

endeavours to understand and interpret Indigenous

cultural systems in law and policy are challenges of

cultural translation. It is not just a matter of finding a

correspondence between one language and another; it

requires developing ways in which the deep meanings

end contexts of Indigenous cultures can find equal

\pace with other knowledges (e.g., Davis, 2001).

As I was listening to elders talking on country in the

Kimbedey, I noticed their capacity to be particuladypresent in, and engaged with their country in powerful

end compelling ways. Thking all these experiences of

listening to these people into account, I reflected that

rheir knowledge, so deep and profound, and personal,

is not something that can, or indeed should readilybc defined by legal or policy documents, intellectualpropefty, or regimes for protection. How can legislation

.rnd policy capture such organic, human qualities

of nostalgia, loss, melancholy, feelings, intuition,re membrance, emotion, and all the complex and subtlenuances of speech and language that embody, are

crnbedded in, and give expression to these qualities? Is

rt possible for law and policy to encapsulate the deep

.ind profound connections between the knowledge

itself, the bearers of this knowledge, and its source-theplace wherein the knowledge resides, is formed, andu.l'rich gives it meaning? Can legal and poliry documentsindicate something of the intricate relationships betweenpcople, place, and the wodd of spirits and ancestors?

It seemed to me, listening to the old peoples' talking,.rnd watching them as they spoke, that they were not

nrerely talking about "their country"; they were living

rr. experiencing it through language and speech. And

.rr the same time, they were also engaging with, and

.haring it with me, an outsider, a stranger. Aboriginalpcoples' cultural knowledge and heritage creates airamework within which they deal with others-notonlv of their own group-but also from the wider

community. I want to develop this idea that Indigenous

knowledge concerns ways of engaging with the world.ls the basis for my argument that the recognition.rnd understanding of this knowledge might be betterlclvanced not only in terms of legal protection and

rhe formulation of definitions, but also by creating

rl're conditions that encourage dialogue, negotiation

.rnd partnerships between the knowledge holders and

their communities, and the wider community.To further pursue my idea about understanding

lndigenous knowledge in terms of dialogue andncgotiation, I want to take a step back, and explore someof the ways in which the tems and concepts - what I callthe discourses - of law and poliql and of administration,:eek to interpret, translate, perhaps give effect to, the

complexiry that is Indigenous knowledge. I am broadly

arguing that existing and emerging legislative and

;loliry discourses - at all levels, international, regional,

narional and local - tend to fragment and dismemberthe totality of Indigenous knowledge, and constrain

it within the technical-legal-administrative domains of

i," AUSTRALIANJOURNAL./ INDIGENOUS EDUCATIONffi]*9

"property", and through the production of taxonomiesand inventories. The tendenry is to situate Indigenousknowledge in Western legal and poliry discourses as adisembodied entity, separated from its living, dynamiccontexts, out of place and time. Indigenous knowledgein these developments is not recognised as a way ofengagement with the world and with others, as forms ofparticipation, as ways of incorporating difference into asubtle and complex system of meaning and values.

I am arguing for greater recognition of the intrinsicallyemotive and affective qualities of Indigenous knowledgeas distinct, and inherently unique from many W'esterndiscourses. However, at the same time I also want tostress the equity of these diffierent knowledge systems.Indigenous knowledge holders are also intellectuals,philosophers, and scientists, and their knowledgesystems are equally systems of law, and science. Bygiving greater attention to the expressive and emotivequalities of Indigenous knowledge, I am not in any waydiminishing the validity of this knowledge tradition inopposition to, or contrast to Western epistemologies(e.g., Davis, 2OO6i). Rather, I am arguing that thequalities of Indigenous knowledge that give it textureand dynamism, and that situate it in place andlor time,are not adequately represented in current discussionsaround protection of such knowledge. Indigenousknowledge systems, like all such systems, are juxtaposed

within wider realms of meaning, and are not remnants,or fixed entities that are immutable, and separated fromhistory place, and people. As Dei (2000) has noted,

"Indigenous knowledges do not 'sit in pristine fashion'outside of the effects of other knowledges" (p. 111).

A consequence of focussing discussions aboutIndigenous knowledge on legal and administrative-bureaucratic mechanisms for protection, as forms ofproperty, is that such knowledge is fragmented intodiscrete entities that are amenable to classifuing andinscribing into familiar regimes of W'estern law andpolicy (Davis, 2006).In advocating a shift from thesefragmenting and classiffing approaches, I consider thepossibility of approaching Indigenous knowledge notas a form of "property", or as something that is definednegatively as an entity in need of protection, but rather,as a system of practices, performances, and ways ofenacting the wodd and engaging with others throughrelationship, dialogue, negotiation and expression.To support my argument I present a bief survey andcritique of some of the discourses of law and policy

that focus on "protection", and which deploy termssuch as "cultural property", or "intellectual property"and which seek to define these primarily through theformulation of inyentories and typologies.

Many discussions and debates about Indigenousknowledge focus on the idea that Indigenousknowledge is primarily something that is in need ofprotection. This is an oppositional strategy in whichIndigenous knowledge is not understood as a distinctrealm of values, meanings, behaviours and rules in and

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INDIGENOUS KNOWLEDGE Micbael Dauis

of itself, but is, rather, an entity that is defined in termsof being under threat from development, or fromthe encroachment and influences of the dominantwodd. In order to devise measures for protection,much attention is given to formulating definitionsof Indigenous knowledge. These definitions arefrequently based on, or require for their formulation,the production of taxonomies, of lists and inventories ofwhat Indigenous knowledge is thought to comprise.

There is no doubt an alarming increase in thedisappearance or erosion of Indigenous knowledge,the disappea.rattce of the elders and other knowledgeholders and custodians, and diminishing oppoffunitiesfor Indigenous people to practice and transmit theirknowledge. There is an urgent need to reduce threatsto Indigenous peoples' lands, environments andcommunities as these diminish their capacity to retainand to enact their intricate understandings of theirwodds. The relevance and meaning of Indigenouspeoples' special knowledge sysrems is limited by theexpansion of modernising influences, and destabilisedwith the corroding influences of alcohol, substanceabuse, and the attendant social problems. Thereis unquestionably a growing need for the globalcommunity to act more decisively in preserving theworld's biodiversity and variety of ecosystems, andto support and expand programs and policies forIndigenous language and cultural maintenance, andfor community capaciry development to enhanceopportunities for Indigenous people to retain theintegrity of their knowledge systems.

At the same time, there is a burgeoning of legaland standard setting developments and institutionsconcerned with developing measures for theprotection of Indigenous knowledge, and for what istermed "Indigenous intellectual properry". Many ofthese developments are occurring at the internationallevel-predominantly through the Secretariat of theUnited Nations Convention on Biodiversiry (the CBD),and the Wodd Intellectual Property Organisation(\qPO) -and also through such agencies as the UnitedNations Permanent Forum on Indigenous Issues,and the UN Conference on Trade and Development(UNCTAD). rVithin this growing body of work there isa maior theme: the formulation of mechanisms andmeasures for protection of Indigenous knowledge, andwithin this, a search for definitions of this knowledge,and with definitions often based on a re-iteration ofinventories and catalogues of what is thought to bethe "content" of Indigenous knowledge.

I Discourses 0n protection and preservation

I support the development of legislative measuresfor protection, and of standards for recognition ofIndigenous knowledge. However, at the same timeI also want to argue that the notion of protectioncarries with it certain assumptions, and that these

assumptions emphasise content at the expense ofform, meaning and context for Indigenous knowledge.This focus on what might be termed a typological orclassificatory approach to Indigenous knowledge, ^s aframework for developing a protection-based regimeneeds to be re-examined.

il The 2003 UNESC0lntangible Heritage Convention

To illustrate my questioning of the notion of protectionand its implications for a classificatory approach toheritage, I will consider one international instrumentthat has come into force in recent years, which providesfor protection of intangible heritage - and therefore isparticulady relevant to Indigenous knowledge. TheUNESCO Convention on the Safeguarding of theIntangible Cultural Heritage was ratified bythe UNESCOGeneral Assembly on 17 October 2003. This Conventionacknowledges in its Preamble the relationships betweenphysical and tangible heritage, as it considers "the deep-seated interdependence between the intangible culturalheritage and the tangible cultural and natural heritage"(UNESCO 2OO3). This is a useful provision, since it isconsistent with earlier standard setting developmentsin Indigenous heritage, such as the United Nationsstudies by Special Rapporteur Erica-Irene Daes. Ina 1,993 repoft Daes had proposed that "all elementsof [Indigenous] heritage should be managed andprotected as a single, interrelated and integrated whole"rather than as separate elements designated by termssuch as "cultural properry" and "intellectual properry"(Daes, L993, p. 7, para 3L).

Despite the comprehensive reports such as thoseof Daes advocating maintenance of the integrityand totality of Indigenous heritage, the tendency inlegislative and poliry developments has nonethelessstill been to fragment and compartmentalise Indigenousknowledge, and to devise lists and inventories in orderto develop measures for protection.

The Convention on Safeguarding IntangibleHeritage is a case in point. This Convention is notspecific to Indigenous heritage, but it does illustratethe kind of problem I am discussing in heritage lawand policy more generally. Despite its rhetoric ofintegrating different elements of heritage, and havingproposed that the interrelatedness of intangible andtangible heritage be maintained, the Conventionthen moyes on to definitions, where "safeguarding"is defined as:

Measures aimed at ensuring the viability ofthe intangible cultural heritage, includingthe identif ication, documentation, research,p rese rva t i on , p ro tec t i on , p romo t i on ,enhancement, transmission, particulady throughformal and non-formal education, as well asthe revitaltzation of the various aspects of suchheritage (Art 2(3)).

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The Convent ion then proceeds, l ike manyinstruments of this type, to advocate the inventoryingof intangible heritage as a means of "ensuring

the safeguarding" of this heritage, proposing thatStates shall:

IdentiS' and define the various elements of theintangible cultural heritage present in its territorywith the participation of communities, groups andrelevant non-governmental organizations (Art 1 1).

And that:

To ensure identif ication with a view tosafeguarding, each State Party shall draw up, in amanner geared to its own situation, one or moreinventories of the intangible cultural heritagepresent in its territory. These inventories shall beregularly updated (Art 12).

This cataloguing, says the Convention, will beformalised into a "List of the Intangible CulturalHeritage of Humanity", to "ensure better visibility ofthe intangible cultural heritage and awareness of itssignificance, and to encourage dialogue which respectscultural diversiry" (Art 16). This typological andclassificatory approach to defining intangible culturalheritage as away of protecting and preserving it is alsocommon to many non-binding ("softJaw") instruments,including the Declaration on the Rights of IndigenousPeoples, the Mataatua Declaration, and others.

The taxonomic and inventorying provisions inthe Convention on the Safeguarding of IntangibleHeritage appear to perpetuate, of even to encouragea classificatory approach to intangible heritage. Thisis despite a view resulting from a 1999 evaltationof this Convention's predecessor instrument - the1989 UNESCO Recommendation on the Safeguardingof Traditional Culture and Folklore - that theRecommendation "places too much emphasis ondocumentation and archiving and on the productsrather than the producers of traditional culture"

lAikawa, 2OO4, p. 1,4O).In all this classi-fring, documenting and inventorylng,

s'hat of the role of the people themselves, theknowledge holders and owners? As Aikawa reminds us,

"recognition and respect for the active participation ofgrassroots practitionefs in the production, transmissionand preservation of their cultural expressions areessential to ensure the safeguarding of intangiblecultural heritage" (Aikawa, 2OO4, p.I4O).

Protection and preservation discourse ininternational standard setting

-\nother key international instrument relevantfor Indigenous knowledge is the United NationsConvention on Biological Diversity (the CBD). This

A* AUSTRALIAN JOURNAL .I INDIGENOUS EDUCATION

Convention, at Article 8O encourages State Parties,"subject to national legislation", to:

Respect, preserve and maintain knowledge,innovations and practices of indigenous and localcommunities embodying traditional lifestylesrelevant for the conservation and sustainable useof biological diversity and promote their widerapplication with the approval and involvement ofthe holders of such knowledge, innovations andpractices and encourage the equitable sharing ofthe benefits arising from the utilisation of suchknowledge, innovations and practices (CBD1993, Att 8(t)).

The absence ofreferences to place, historical contexts,and the dynamism of change in these CBD provisionson traditional knowledge are notable. The CBD alsouses the language of preservation, and has insuffrcientemphasis on recognising and strengthening the rightsof the producers and creators of the knowledge. Onceagain, Indigenous knowledge is linguistically andsemantically trapped in a museological discourse thatdisembodies it and alienates it from its context inliving cultures and societies.

The UN World Intellectual Properry Organisation

flJ(IPO) also employs the language of protection,although it is aware of some of the problems withprotection. In a 2OO6 Information Note, WIPOstates that "sometimes activit ies by museums andcultural specialists do not take adequate accountof [Indigenous peoples'] rights and interests, andthat documenting and displaying, say, a traditionalsong or a tribal symbol, make them r,'ulnerable tomisappropriation" CVIPO, 2OO6, p. 2). The workof $7IPO, while commendable in many ways, alsoil lustrates the way in which heritage protectionhas become synonymous with the development oflegislative regimes, particularly those of intellectualproperty. One commentator, anthropologist MichaelF. Brown argues that "the goal of rectifying civilwrongs thrusts heritage protection into the provincesof intellectual property and tort law" (2005, p. 44).Brown worries that the Intangible Heritage Convention

"portrays intangible heritage as an objectified resourceamenable to modern management techniques"(2OO5, p. 48).He protests, "in such a legalistic vision,heritage cannot be protected until it is thoroughlydocumented", and consequently, "one struggles toimagine how it will protect cultures as living, dynamicsystems" (2OO5, p. 48).

In much of the debate and discussion, Indigenousknowledge is transformed into Westem legal concepts ofintellectual properry There has been a lot written aboutthe incompatibilities between Indigenous knowledgeand intellectual properry laws. Essentially the mismatchhighlights dre fact that these are fundamentally radicallydifferent systems and woddviews; the one (Indigenous

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INDIGENOUS KNOWLEDGE Micbael Dauis

knowledge) having to do with relationships berweenhumans, their environments, and their cosmologies; theother being a system devised to foster and encouragecommercial tmnsactions and to protect individual rights.

Some historical examples of the typology approachto Indigenous heritage

The use of classification and inventorying as a means ofdefining Indigenous knowledge and heritage has beenperpetuated for many years, both internationally andin Australia. On a more optimistic note, there have alsobeen some attempts at devising approaches to protectionand recognition in a more integrated or holistic way InL969 in Australia for example, there was an attempt tolegislate for protection of an integrated entity to include

"work of art", "ritual, ceremony, dance or drama", "recordin any form of such ritual, ceremony, dance or drama",

"design", and"area of land". This so-called "TraditiondAboriginal Property" legislation was proposed byH. C. Coombs. It was a far reaching proposal for thetime, seemingly designed to encapsulate the intricaterelationships in Aboriginal society between art, land,and sacred sites, and to recognise these as elementsof an integral cultural system. The recognition withinthe politicaVadministrative context of these connectionsbetween the different domains of Aboriginal culturewas influenced at least in part by the work and writingsof some anthropologists during the 1950s and 1960s,such as Ronald Berndt, A. P Elkin and many others.Coombs and others, such as anthropologist Stanner, hadunderstood the connections between art, land, and thesacred in Aboriginal society and had sought to link thesein the proposed legislation. Although the "TraditionalAboriginal Property" proposal was still orientedtowards the notion of Aboriginal cultural heritage as

"properfy", and adopted a classificatory approach, itwas nonetheless progressive in its recognition of thelinks between different elements, especially befweenthe sacred and physical domains. Unfortunately theproposal languished and did not amount to anything(Davis, 2OO7, p. 282-84).

The impetus for this development was in part providedby a growing realisation during the 1950s among policymakers and anthropologists of the impoftance of thesacred in Aboriginal society and of the role of sacredsites. In pafi. at least, this emerging consciousness wastriggered by growing interests from the mining sector,notably in batrxite deposits in the Northern Territoryand an increasing politicisation by Aboriginal people(predominandyYolngu people) of their rights in regard totheir lands and sites where the proposed mining wouldoccur. Anthropologist Ronald Berndt was engaged bythe authorities to conduct surveys of sacred sites in therelevant areas ofArnhem Land, and his repofts fumishedlists of such sites. These lists subsequendy formed thebases upon which heritage legislation was introducedat both Commonwealth (the Aborigirml Land Rigbts

Act 1975 (Northern Territory)) and Territory (the SacredSitesAct 1989 (NT)) levels (Davis,2OOV.

Some years later, in the eady 1980s there wasanother attempt to formulate law and policy to protectIndigenous heritage in a more integrated way. Thatdevelopment had resulted partly through debates overthe previous decade about the problems in protectingthe rights of Aboriginal artists, and the misuse oftheir designs. While aware of the problematic natureof using the term "folklore" a committee formed toexamine this issue explained that:

Use of the term "folklore" recognises thattraditions, customs and beliefs underlie formsof artistic expression, since Aboriginal arts aretightly integrated within the totality of Aboriginalculture. In this sense folklore is the expressionin a variety of forms of a body of custom andtradition built up by a communify or ethnicgroup and evolving continuously (Report of theWorking Party on the recognition of AboriginalFolklore, cited in Davis, 2OO7, p.295).

The report went on to say that "the word 'folklore' hasbeen adopted as a compromise meeting the conceptualand international legal requirements for such a term"(Report of the Working Party on the recognition ofAboriginal Folklore, cited in Davis, 2OO7, p. 295).Although the proposed "Folklore Act" retained thetypological approach to defining Indigenous heritage,that legislative development was relatively progressive inseeking to encompass, in an inclusive way, a number ofdifferent elements, including the tangible and intangiblein Indigenous heritage. It was also ahead of its time inthat it sought to establish a mechanism, or process bywhich rights and interests in'lArboriginal folklore" wereto be asceftained and determined through a tribunalsystem. Aboriginal people, in this system, would becompensated for use of their "folklore" by provision ofbenefits. This was a more potentially appropriate wayof protecting Aboriginal peoples' rights and intereststhan the more "top-down" or prescriptive approachescommon to legislation today.

fr The problem with categories

I am arguing against dividing Indigenous heritageinto categories for the questionable purposes oftransforming them into disembodied legal entities. Iam also concerned that this transformation requires,or depends on the classification, inventorying anddocumenting of Indigenous heritage, so that the latterceases to exist as little more than an encyclopaediclegal category disembodied from its cultural, historicaland human contexts. There is some usefulness incategorising Indigenous heritage in limited ways for thepurposes of analysis, and in order to gain some groundin reforms to enable prevention of misuse. There is, for

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example, a growing interest by Indigenous peoples, andothers, in exploring the role of community databases,registers and other mechanisms for documenting andrecording Indigenous knowledge and cultural heritageas a means of defending it against misuse through badpatents or other forms of exploitation. Databases andregistries are being developed, or considered at variouslevels, international, regional, national and local. Thearguments for and against these measures are complex,and cannot be adequately discussed in this paper

{e.g., Brahy, 2006; Hansen & VanFleet, 2OO3; UNU-IAS,2003). These "defensive protection" measures andmechanisms are worth examining in more detail inanother place. However, an over-determined approachrhat defines and regulates Indigenous heritage only asdiscrete elements does not serve the interests of thepeople whose heritage it is.

It is not only the compartmentalising andftagmenting of Indigenous heritage that is a concern.-l-he

unexamined adoption of terms and expressionss'ithin international standard setting activities ands'ork programs risks further alienating Indigenousknowledge from its place - based contexts groundedin the panicularities and contingencies of community,locality and time. The growing program of internationallaws seeking to develop standards for recognition andprotection of Indigenous peoples' rights in cultureend heritage is crucial, and welcome. But at the samerime, there is a risk that this internationalisation willalso tend to promote a universalising or essentialisingof Indigenous culture and heritage at the expense ofacknowledging its place-based and localised nature.

The problem with emphasising protection is thatit privileges the relationship between heritage andproperry - and often equates the two. The result of thisis that, as a property right, the problem of protectionbecomes an overwhelmingly legal one. The currenttensions and anxieties in international levels bears'itness to this, wherein Indigenous knowledge iscliscussed primarily within two separate United Nationsagencies: the Convention on Biological Diversity (CBD),and the World Intellectual Property Organisationt\\1PO). !flhile the CBD has made some importantadvances in standard setting that can potentially realise,and advance recognition of the multiple, pluralistic andcomplex human dimensions of traditional knowledge,the work of WIPO is conducted within the moreconstrained framework of intellectual properry rights.

In recent years the CBD has, through the excellents-ork of its W'orking parties on Access and Benefit-Sharing, and on Traditional Knowledge respectively,developed standards for access to genetic resourcesand fair and equitable sharing of the benefits arisingout of their utilisation (the Bonn Declaration), and forcultural, environmental and social impact assessment(the Akwe Kon Guidelines). Although these are bothl-oluntary guidelines, they are nonetheless of criticalimportance in that they shift the debate beyond the

limitations of deterministic intellectual property andlegal regimes, towards greater incorporation of humanand cultural dimensions. They also encourage nation-states to consider the important roles of Indigenousand local peoples' customs and traditions, andauthority and decision-making structures.

I am arguing then for a balance befween theuniversal and the particular. Universals can enable orfacilitate dialogue, cross-cultural comparisons, and acorrespondence or integration of otherwise inherentlydisparate knowledge and cultural systems. Howeveqthese universals must be grounded in the contingenciesand complexities of distinctiveness: the specificrelationships between peoples, place, locality, and thetrajectories of history. In problematising the receivedterms and categories of law and policy discourses, I amarguing for the creation of a space in which there can begreater focus on what is in common, while at the sametime allowing for recognition of the distinct expressivequalities of Indigenous knowledge. I am suggestingthe development of a new language of understanding,interpretation and translation, that can facilitate abetter integration between Indigenous knowledge,and Western scientific knowledges. I am interestedin how such engagement between Indigenous, andother forms of knowledge, can contribute to naturalresource management and environment and heritageconservation, planning and management. If thereceived categories such as "protection" are adoptedwithout interrogating them to asceftain more precisionas to what they actually mean, and imply in practice,this is an impediment to progress in working differentknowledge traditions together. An uncritical acceptanceof notions such as "protection" often results in workon Indigenous knowledge being confined to merelyrecitations or inventories of "current developments"listing international, regional, and national laws andpolicies without analysis or interpretation.

il Protection and property

The development of legal discourses for protectingIndigenous knowledge generally requires, or dependsupon a transformation of Indigenous knowledge intoproperty, a commodity for economic transactions. Asignificant focus in standard setting developmentsand the emergence of regimes for protection is onintellectual properry. This implies an equation betweenIndigenous knowledge and commodity, and thereforecreates a discourse of transaction, of market drivenimperatives, and commercial interests.

Legal developments, policy-makers, and bureaucratsgrapple with choice of terms, arguing over the relativemerits of encapsulating Indigenous cultural traditionswithin such rubrics as "intellectual properry", "culturalproperfy", or "cultural heritage" (e.g., Blake, 2OO2;Frigo, 2OO4). Frigo, for example, argues for "culturalheritage" as the preferred term, stating:

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INDIGENOUS KNOWLEDGE Micbael Dauis

It is evident that the concept of cultural heritage,if compared to that of cultural property, is broaderin scope, as it expresses a "form of inheritance tobe kept in safekeeping and handed down to futuregenerations". Conversely, the concept of culturalproperty is "inadequate and inappropriate for therange of matters covered by ... cultural elements(like dance, folklore, etc.) more recently deemedentitled to legal protection at the internationallevel (Frigo, 2OO4, p.369).

It is worrying that international developments andprograms of work continue to agonise over the useof terms, and perpetuate the distinctions betweenthem. Both UNESCO and ITIPO il lustrate theseterminological anxieties.

Beyond the confines ofprotection: Indigenousknowledge, place, dialogue, and engagement

The philosopher Edward S. Casey (1993) has arguedfor a return to the importance of place in the Westernimagination. He makes an eloquent case for thesignificance of place, tracing its genealogy back toancient times, and refiguring place in Western thought.The concept of place, of situatedness, is critical for notonly understanding the dynamic and intrinsic qualitiesof Indigenous knowledge, but also for developing amore engaged dialogue regarding the rapprochementbetween Indigenous, and other knowledge systemsin the context of land, heritage, and natural resourcemanagement and conservation.

If Indigenous knowledge is returned to its contextin place, and time, and understood as systems ofrelationship and dialogue, what, if any scope mightthere be in recognising and supporting these qualitieswithin the dominant discourses of

'Western policy and

programs? Greater oppornrnities for engagement withIndigenous knowledge as forms of relationship anddialogue can be found through the mechanisms ofagreement-making, treaty-making and the developmentof negotiated partnerships. There is scope forformalising and supporting these types of approaches indeveloping creative approaches consistentwith, and thatdomestically implement the Convention on BiologicalDiversitll and potentially through the native title process.W'e can look to some activities occuring at intemationallevels in agreement-making and equitable benefit-sharing over bio-resources, collective and communalrights, and Indigenous knowledge and practices. Thereis a great deal more that needs to be done in Australiato develop these kinds of approaches.

There needs to be recognition of, and support forIndigenous customary laws and practices, especially inregard to modes of governance, community authorityand decision-making processes and structures,permission gling, prior informed consent mechanisms,and communal structures for holding and managing

knowledge, resources, and heritage. Dialogue andengagement through agreement-making allowsthe possibility of working two different knowledgetraditions together - Indigenous knowledge andWestern knowledge - for the wider benefit of sustainabledevelopment and livelihoods, natural and culturalresource management, and land, environment andheritage conservation, management and planning.

How can we understand Indigenous knowledgeas sets of relationships, and as ways of being in placeand in history? In addition, what, if any, practicalimplications might such an understanding presentfor natural resource management, cultural heritage,land and environment planning, management andconservation? I would advocate a need to look moreseriously at devising new approaches - what have beencalled sui generis approaches - that lie outside, orbeyond the constraints and limitations of conventionalintellectual property laws. There is an establishedand growing body of work, and emerging standardsfor such sui generis approaches, and much scope fordevising a good model for the Australian context. Theground breaking work of Posey and Dutfield (L996)in developing integrated approaches to Indigenousknowledge recognition that combines creative uses ofhuman rights instruments, soft law, and contract andagreement making, and international and regionalexamples, provides just one model for examining thebenefits of trialling such szl generis approaches in theAustralian context. There is also a growing body of workat the intemational level that is exploring the possibilityof such approaches. Sui generis approaches may includeamong their key elements: recognition of Aboriginalcustomary laws; provisions for free prior informedconsent; recognition of human (especially cultural,social and economic) and moral rights; environmentalprotection and biodiversity conservation. Examples ofsome regional regimes are the African Union ModelLaw on Rights of Local Communities, Farmers, Breedersand Access (2000), the Andean Decision 391, CommonRegime on Access to Genetic Resources (1996), and theCosta Rica Biodiversity Law (1998) (e.g., United NationsEnvironment Program (JNEB 2OO5), for more details).

As part of developing a sui generis approach, thereis potential for supporting partnership and negotiatedagreement-making arrangements integrating Indigenous,and non-Indigenous knowledge systems, throughlegislation such as the Commonwealth's EnvironmentProtection and Biodiuersity Conseraation Act 1999.Although this legislation regulates access to geneticresources primarily to suppoft trade and commerce, itshould be reviewed (especially the relevant Regulations)in order to assess its potential to provide avenues forequitable benefit-sharing partnerships with Indigenouspeoples, that uphold Indigenous peoples' rightsand interests in their bio-resources, and associatedknowledge and practices, and that are based inrecognition of their customary laws.

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volume 37, Suppleruent, 2008 /," AUSTRALIAN IOURNAL .I INDIGENOUS EDUCATION-{>.

Moving beyond the confines of intellectual properryand classificatory and typological approaches canallow a space for exploring the notion of Indigenousknowledge as sets of re lat ionships, obl igat ions,end contingencies. The dimensions of Indigenousknowledge that are often absent in the internationaland national legal regimes include those such asnostalgia, memory authority, responsibil i ty, andhistory. A shift away from property and protectionregimes can enable a focusing on these qualit ies,and on the possibility of acknowledging these in law.rnd policy.

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I About the author

Michael Davis is currently a researcher with JumbunnaIndigenous House of Learning at University ofTechnology Sydney. He is developing a researchagenda on Indigenous knowledge, biodiversity andnatural resource management, and writing policydiscussion papers in this area. His research interestsare in Indigenous knowledge and other knowledgetraditions, critiques of law and policy, Indigenous/European histories, and policy in Indigenous collectiveheritage and environmental rights. Davis has wide-ranging experience in this field, having worked inthe public secto! as an independent consultant, andwith Indigenous community organisations. He has anumber of published works in this area.

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