Protecting Aboriginal Cultural Heritage in Australia : Looking for Solutions in the Canadian Experience (LLM Thesis, University of British Columbia)

The Australian aboriginal art market has boomed in recent decades. Many of these paintings incorporate the communal designs of the artist's clan group, which are subject to aboriginal laws administered by traditional custodians. In recent years a series of cases known as the aboriginal copyright cases have sought to prevent unauthorized reproduction of these paintings by tourist trade operators. However, copyright has proven to be an inadequate mechanism to protect the underlying clan designs. Australian academics have proposed various law reforms to address this issue but none have yet been implemented. The thesis is a comparative analysis of Australian and Canadian law seeking potential answers in developments in the protection of aboriginal rights under Canadian constitutional law and in First Nations self government, and in Australia in the Mabo case and various government initiatives. Discussion of the Indigenous use of settler courts is contextualized within wider debates on land rights, cultural appropriation debates and post colonial theories of Indigenous-state relations. Theoretical issues for reform proposals are canvassed, including the issue of freezing cultures, urban aboriginal artists, ownership disputes, recognition of aboriginal laws within settler systems and the western discourse of artistic freedom of expression.This is an unpublished thesis