What is Indigenous Cultural and Intellectual Property (ICIP)? What are our obligations and how can built environment practitioners help protect ICIP through processes and protocols?

Danièle Hromek and Susie Ashworth offer a collection of resources and insight based on work by Djinjama and the excellent Deadly Djurumin Yarn, Law, lore & law.

Danièle Hromek & Sionea Breust on architects’ ICIP responsibilities.

Indigenous Cultural and Intellectual Property (ICIP) rights refer to the right of Indigenous peoples to protect their culture and heritage.

Those who have worked with Djinjama know the challenges we face in protecting these rights – and how hard we work to do so. It is not only our own rights as First Nations built environment practitioners, but the rights of our communities that need to be protected through agreements and sub-licences.

This is not just Djinjama’s load to carry. Built environment practitioners and projects have obligations to ensure culture and heritage are protected, including in the built form, but also the contractual agreements made during the course of projects.

What are you doing in your practice to protect ICIP?

The following resources will help you understand and meet your obligations. See below for information on definitions and government legislation, acts and protocols that protect First Nations’ rights to their culture and heritage, including the 2021 National Standards of Competency for Architects. Don’t forget to watch Deadly Djurumin Yarn 18, Law, lore and law.

What is ICIP?

Lawyer Terri Janke describes ICIP as “Indigenous peoples’ rights to their cultural heritage based on the fundamental right to self-determination. Cultural heritage includes all aspects of cultural practices, traditional knowledge, resources and knowledge systems developed by Indigenous people as part of their Indigenous identity.” She explains that this includes:

  • Artistic, literary and performance works (copyright)
  • Indigenous Languages
  • Different types of knowledge (e.g. plant and spiritual knowledge)
  • Tangible and intangible cultural property
  • Indigenous ancestral remains and genetic materials
  • Cultural and environmental resources
  • Sites of Indigenous significance
  • Documentation of Indigenous heritage and histories.

Terri Janke has developed True Tracks®, a 10 principle framework for protecting ICIP when working with Indigenous peoples. This professional development workshop provides the basis for creating ICIP protocols for organisations, businesses and projects involving Indigenous peoples and ICIP.

Frameworks and protocols

ICIP rights are protected under a range of policies, acts and protocols. The following documents outline these protections internationally, in Australia and under state systems.

United Nations Declaration on the Rights of Indigenous Peoples (2006)

The UNDRIP is described as the most comprehensive account of the rights of Indigenous peoples, outlined in 46 articles. Article 31 concerns ICIP rights, as follows:

  1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
  2. In conjunction with Indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights.

National Standards of Competency for Architects (2021)

The NSCA underpin the education and registration of architects in Australia. These require competency in relation to cultural knowledge and intellectual property at both the point of registration and post registration.

A candidate for registration / registered architect will:

  • Comply with legal and ethical obligations relating to legislated requirements in relation to copyright, moral rights, authorship of cultural knowledge and intellectual property requirements across architectural services.

Our Knowledge Our Way Guidelines in Caring for Country (2000)

These guidelines from the CSIRO outline the importance of protecting Indigenous traditional knowledge. Section 1.5.3 states:

“Currently, international ICIP law does not provide adequate protection for Indigenous knowledge. ICIP law focuses on protecting ‘new’ information that has been ‘discovered’. Indigenous knowledge that is transgenerational and communally shared is considered to be in the public domain and unprotectable. We want to protect our Indigenous knowledge and reclaim ownership of Indigenous and local knowledge (ILK) materials released publicly through unauthorised access. The well-established protection of intellectual property (IP) in inventions, literary and artistic works, designs, symbols and images through patents, and copyright can help.”

AIATSIS Code of Ethics for Aboriginal and Torres Strait Islander Research (2020)

ICIP in Australia is primarily regulated though agreements and protocols. As a result, you may need to enter into a legally binding agreement to transfer rights that you may hold or acquire under Australian law as the result of your research to Indigenous partners and collaborators to protect their ICIP.

The AIATSIS Code of Ethics is structured through four principles: Indigenous self determination, Indigenous Leadership, Impact and Value, and Sustainability and Accountability. Each is outlined in detail. The Guide to Applying the AIATSIS Code of Ethics provides detailed insight into understanding ICIP and developing agreements and protocols.

NSW Environmental Planning & Assessment Amendment Act (2017)

In New South Wales, ICIP is included in the amendment of the NSW EP&A Act to include a new design object, which elevates the role of design in the planning scheme.

f. to promote good design and amenity in the built environment

g. to promote the sustainable management of built and cultural heritage
(including Aboriginal cultural heritage)

Indigenous Cultural & Intellectual Property Protocol (2023)

In New South Wales, the protection of cultural and intellectual property is guided by protocols from the NSW Department of Planning & Environment. Section 7.3.4 states:      

“It’s important to be aware that when interviewing, filming and recording Aboriginal people for department projects or program delivery, staff will generate copyright in the written notes, films, photographs and sound records. Ensure that the Aboriginal people who are recorded in writing or audio-visual recordings retain control of culture through copyright ownership in their contributions. Additionally, moral rights will apply including the right of attribution. Consult with Aboriginal people and communities about whether and how they would like to be credited in the photograph or film. This may be done via a contract or agreement, stating that these rights are retained by the relevant Aboriginal people and community, but permission or sub-licence is given for the department to use the material in specific ways.”

Law, lore & law

In August 2023, Danièle Hromek, Sionea Breust, Liza Power and Justine Clark discussed ICIP at Deadly Djurumin Yarn 20: Law, lore and law. The yarn covers bids and contracts and how we can all help protect ICIP within our processes and protocols. Access the video recording to learn more.

Danièle Hromek is a Director of Djinjama and founder of Deadly Djurumin. With Sarah Lynn Rees she convenes the Deadly Djurumin Yarns.

This article was developed by Susie Ashworth based on a set of instagram posts by Djinjama and Danièle.