True Tracks

This is an extract from True Tracks: Respecting Indigenous knowledge and culture by Terri Janke, published July 2021 by UNSW Press.

In the early 2000s, I was invited to present a workshop in Cairns, Queensland, to speak about protecting Indigenous art and knowledge. I was returning to the town I was born, the place I had left as a child of eight. Growing up there, I had felt invisible – a young black kid with few prospects. Now here I was, returning as a lawyer. In the audience were artists, lawyers, gallery owners and people from the local community. I had just started up my law firm in Sydney and was still finding my feet. I didn’t have many clients at the time, and I was unsure if I was on the right track. There were ways law could help protect Indigenous knowledge, but there were still so many gaps.

After the workshop, the local newspaper and TV station interviewed me about protecting Indigenous culture. The next day, I got up early to catch a flight to the Torres Strait. To my surprise, when I opened my hotel door and looked down at the floor, I was on the front cover of the paper, branded a ‘cultural crusader’. I was shocked. What are people going to think? I wondered. ‘She’s a big noter. She thinks she’s smart.’

I was pleased I was leaving so I could escape. I headed to the airport. Sitting back in my seat on the plane, just as I was about to sigh with relief, the flight attendant handed out newspapers to everyone on board. The Torres Strait Islander woman sitting next to me turned her head towards me, smiling. She swung the newspaper in the air between us. ‘Hey! That’s you, isn’t it?’

I saw my picture on the front cover. My stomach dropped. ‘You’re the deadly cultural crusader. Well done, girl, setting up your law firm. You can stop this theft of our knowledge.’

‘No, Aunty, I’m just starting out,’ I told her. ‘I haven’t solved all the problems. There’s still a lot to do.’ My voice was bumpy. I was uneasy with that label. Secretly, I felt like an impostor.

She gave me a big smile. ‘Don’t worry about that. You be strong. You’ve just got to stay on track and, if you listen with your heart, they will be true tracks. People will follow.’

Her words let my skin breathe. I didn’t have to do it alone. I just had to lay the tracks and people would follow.

Finding a path through the law

My desire to seek social justice for Indigenous peoples arises from my own cultural heritage. I have heritage that is both Aboriginal and Torres Strait Islander. My father’s mother, Agnes, was born in 1921 on Mer (Murray Island), in the Peibre clan. She was the daughter of Azzie Leyah, a Meriam woman, and Victor Blanco; Victor’s mother Annie – my great- great-grandmother – was from Old Mapoon in Cape York and married Juan Blanco from the Philippines. My maternal grandmother, Modesta (Maudie) Mayor, was born on Thursday Island, and her Torres Strait Islander heritage can be traced back to Gebar Island. Maudie married Kitchell Anno, of Wuthathi and Malay descent, who was also born on Thursday Island. They moved to Cairns in the 1940s, where both my parents were born. I, too, was born in Cairns. I pay my respects to my ancestors.

My interest in culture started early, as I became conscious of my Aboriginality and the attempted eradication of it by the dominant culture. It was not taught in schools, or spoken about in social circles when I was growing up. The history of dispossession that we were taught ignored the details. I was made to feel ashamed of my culture; it was not valued. But from the 1960s, First Nations people were growing in strength. The 1967 referendum, the Tent Embassy, land rights, human rights, self-determination and rights to education enabled Indigenous people to assert and raise their voices. So I became passionate about social justice.

I was inspired to study law by my sister Toni, who was a strong role model in my life. I didn’t do as well in those early years, and struggled to find my pathway in the law. I first became inspired to focus on Indigenous arts and intellectual property issues when I went to work at the Australia Council for the Arts for its Aboriginal Arts Board. I’d dropped out of law school temporarily. While I had done well in my first year, receiving great marks as a new and eager student, in my second year I’d had too much fun, working as a waitress, going out to nightclubs and missing classes. I managed to pass, but by my third year I was working almost every night at an Italian restaurant in Woollahra and hardly making it to university at all.

There were other factors besides my lifestyle that had led me to drop out. I had not yet found my path in the law. Most Indigenous graduates were expected to work in criminal, land or human rights law. But when I went to the courts I found them too oppressive for Aboriginal people. Criminal laws were punitive. Australia’s first laws had been about controlling and limiting people, not empowering them, and the legal system was a revolving door. I’d also had an experience during a summer clerkship where the judge had mistaken me for the defendant in the courtroom because I was black. That had really crushed me, and I lost interest in my studies. But at the Australia Council I learned about copyright law. Indigenous artists were starting to have international exhibitions, and I saw that these laws and this knowledge could be very important to Indigenous people. The law could be a positive tool for Indigenous people, I realised, not a punitive one. That realisation came just after the Mabo case, and that really opened my eyes too. When the Mabo decision overturned terra nullius in Australia – the idea that the land belonged to no one – it put in my head the possibilities of the law for advancing people’s rights.

Eddie Mabo’s fight for justice blazed a new trail for Indigenous people. Great people have a way of inspiring us beyond our own perceived limitations. The case gave me hope, and a belief that the Australian legal system could shift to accommodate Indigenous rights and needs. It was as much about culture and knowledge as it was about land. It wrote Indigenous stories into the legal textbooks. It overturned the lie of terra nullius. It was saying, ‘You don’t have to be invisible anymore.’

There were links emerging within me, too: links between culture, country, knowledge and destiny; links between the past and the future. These were growing stronger in my mind. I began to see a place for myself in keeping and strengthening these connections for ancestors. It was no longer just about me. I also began to understand that the only person who could turn things in my life from negatives into positives was me.

So, when the Mabo case was beamed around the world in the news, I saw how the law could be used by Indigenous people. The case called me back to law school. Returning to university, I had a newfound focus and drive that came from a deeper place. I made sure that the subjects I chose supported my vision. I looked back on the so-called bad incidents in my life and turned them into fuel for my motivation, and that really helped get me through law school. I then received the Law Council of Australia’s first John Koowarta Reconciliation Law Scholarship during my final year of study.

When I completed my studies in the mid-1990s, I began working at the National Indigenous Arts Advocacy Association (NIAAA) while a groundbreaking Aboriginal art copyright case was unfolding. The ‘carpets case’ concerned a group of eight Aboriginal Australian artists whose artworks had been reproduced on carpets without their permission. They took copyright action against the company that made the carpets and were successful.5

I assisted the legal advisers who were working on the case, and was inspired by barrister Colin Golvan, now a Queen’s Counsel, to consider the application of copyright law to protect Aboriginal and Torres Strait Islander cultures. The case broke new ground because it showed how the law can be flexible, to a certain extent, to protect Indigenous cultural expressions. Colin was able to apply his knowledge of copyright to Aboriginal art and influence the courts, which set precedent in the carpets case and in the Bulun Bulun v R & T Textiles case that followed in 1998. Colin encouraged me to focus on IP and Aboriginal art, and has continued to support me throughout my career.

Understanding and protecting Indigenous cultures

For non-Indigenous people, the word ‘culture’ has a narrow meaning that pertains to the arts of the social elite, such as the opera or theatre. Culture for Indigenous people has a much wider meaning. For Indigenous people, culture equals life. Culture means Indigenous ways of seeing and being connected to the world, to the plants, animals and all things on the land, in the sky and in the sea. It is about people, their relationships to each other, and the way they interact with their world – to sustain themselves through food, to find shelter, to enlighten themselves. Culture is the story of survival and interconnection since time immemorial.

For generations, cultural practices and knowledge have been passed down by each generation to the next. The elder ones taught the younger ones. They spent time in ceremony. They drew and painted information. They sang, danced and told stories about the past, about the future, and about how to live and survive in the world. All of this still happens today. But in 1788, the colonisation of Australia was like a tidal wave crashing into Indigenous peoples’ ways of life. The taking over of Indigenous land for settlement, agriculture and extraction took people away from their land. The forced removal of Indigenous people to missions and reserves branded Indigenous people as outcasts. Their languages and cultural practices were banned. The assimilation policies and the removal of children disrupted the transmission of Indigenous cultures.

Today, Indigenous people are asserting their rights to their cultural inheritances, and are reclaiming their cultures. They have continued to practise culture, and the fact that they have had their land stolen makes it even more of a treasure – a gift, a legacy, a heritage that is precious and passed on to the next generations.

Indigenous cultures in Australia are diverse. There is no single ‘Indigenous culture’ that exists in Australia but many different cultures, each with different cultural practices, knowledges and identities. The many different clans or language groups each have their own culture, languages, stories and experiences. Indigenous people may have heritage from one part of the country and live in another. People identify as Indigenous – not partly, but wholly – even if they have other heritage. Using the terms ‘part-Indigenous’ or ‘half-Indigenous’ is offensive because it demeans that cultural connection and inheritance.

The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) has produced a colourful map that attempts to represent the languages and nations of Aboriginal and Torres Strait Islander Australia. The many different territories are marked in green, blue, pink, orange and yellow and do not adhere to the usual Australian state and territory borders. Some areas are bigger than others: those of the desert nations cover great stretches of arid country, and smaller nation areas are found in the north-east, where there are rainforests, wide rivers and rain. When I look at that map, I think of 65,000 years of continuous cultures being nurtured as people cared for country. The 200+ years since colonisation are but a flash in time, yet they have had considerable impact on culture and country. Indigenous landscapes continue to be destroyed. Indigenous cultures are exploited in offensive and harmful ways for economic gain that is not shared with the custodians. This not only distorts and debases culture but ignores Indigenous ownership over culture and the right to control its use.

This is an extract from the introduction to True Tracks: Respecting Indigenous knowledge and culture by Terri Janke, published July 2021 by UNSW Press.