Safeguarding Cultur al Heritage - The Case of the Sacred Wandjina

• Author: Delwyn Everard
• Position: Senior Solicitor at the Arts Law Centre of Australia
• Pages: 8-10

DECEMBER 2011

8

SAFEGUARDING

CULTURAL HERITAGE –

The Case of the Sacred Wandjina

“Depicting Wandjina is a significant way in which

Wandjina-Wunggurr people enact their identity

as a distinct Aboriginal society and convey this

identity to other Aboriginal societies as well as the

non-Aboriginal world…

The execution and public display of the Katoomba

sculpture has not been authorized by Wandjina-

Wunggurr people. Such an unauthorized portrayal of

the Wandjina undermines the very foundation of their

society in that it constitutes an attack on the speci-

city and integrity of their identity and the legitimacy

of their cultural and religious beliefs. As an unautho-

rized depiction of Wandjina, it destabilizes the natu-

ral balance of their life-world which is only ensured

when their laws and cultural protocols are followed

1

.”

The legal issues are complex. The copyright law

protecting contemporary individual creative

expressions is unhelpful. It treats artwork by an

artist who died more than 70 years ago as resid-

ing in the public domain and freely available for

reproduction. The unknown artists responsible

for the ancient and extraordinary rock art of the

Kimberleys are long gone. The images on the

Katoomba sculpture are not infringing copies of

particular artworks by known artists. Rather they are

instantly recognizable depictions (albeit distorted

and lacking the elegance and power of genuine

Wandjina) of the sacred spiritual imagery of a com-

munity within which the artist, and those who

commissioned him, have no authority. This is an

unauthorized misappropriation of an indigenous

community’s traditional culture and knowledge

or indigenous cultural intellectual property (ICIP).

Article 31 of the Declaration on the Rights of

Indigenous Peoples2 (DRIP), adopted by the

General Assembly of the United Nations in 2007,

reads as follows :

“1. Indigenous peoples have the right to maintain,

control, protect and develop their cultural heri-

tage, traditional knowledge and traditional cultu-

ral 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 traditio-

About two meters tall and covered with crudely

drawn representations of Aboriginal spirit gures,

it sits on the verge of a property in Katoomba in

Australia’s World Heritage-listed Blue Mountains

area. Local Aboriginal residents are disturbed by its

presence. Over 4,000 kilometers away in Western

Australia, the Worrora, Wunumbal and Ngarinyin

Aboriginal nations are distressed and angry at its

ongoing public display. Katoomba’s nonindig-

enous community is divided over whether it is art

or sacrilege.

The source of this controversy is a work of art cre-

ated by a nonindigenous artist, on commission

for a nonindigenous gallery and business, which

has been outspoken in its criticism of Australia’s

Aboriginal people. The spirit gures depicted on

the sculpture are Wandjina, a fact conrmed by the

work’s title “Wandjina Watchers in the Whispering

Stone”.

The Worrora, Wunumbal and Ngarinyin Aboriginal

people of the remote Kimberley region have been

painting Wandjina images for many thousands of

years, at sacred rock sites and in caves, on dance

totems and bark, and now on canvas and paper.

The Wandjina is their supreme creator, the maker

of the earth and all upon it. They are recognized as

the only Aboriginal nations entitled to depict the

Wandjina, a right respected by all other Aboriginal

groups. That explains the discomfort of the Blue

Mountains Darug people, who respect the cultural

totems and laws of the Kimberley nations and are

themselves shamed by this blatant disregard of

indigenous culture occurring on their traditional

lands. Anthropologist and Emeritus Professor Valda

Blundell observes:

Delwyn Everard, Senior Solicitor at the Arts Law Centre of Australia discusses the challenges aboriginal

communities face in protecting their cultural heritage.

Kimberley elder Donny

Woolagoodja and

local Darug man Chris

Tobin in front of the

Katoomba sculpture by

a nonindigenous artist

which is at the heart of

the controversy

Photo: Reiner Van de Ruit

1 Submission of Valda

Blundell to the Land

and Environment

Court, April 27, 2011

(Blundell submission)

2 www.un.org/esa/

socdev/unpfii/en/drip.

html