The Rhetoric of Benevolence as an Impediment to the Protection of Indigenous Cultural Rights: A Study of Australian Literature and Law
Wright, Nancy E., Collins-Gearing, Brooke, Journal of Australian Studies
From the late nineteenth until the mid-twentieth century, non-Indigenous anthropologists and 'authors' transcribed and often published Indigenous sacred and historical narratives. Non-Indigenous authors deployed what Clare Bradford describes as a 'language of expert knowledge, of care and concern', (1) or what we would call a 'rhetoric of benevolence', in order to describe their activities as a benevolent intervention on behalf of a 'dying race' whose culture would otherwise be lost. This rhetoric, we argue, did not simply perpetuate paternalism, a colonising strategy that subordinates Indigenous culture to non-Indigenous 'protectors', but just as importantly deflected debate from the harm caused by the distortion of Indigenous knowledge and appropriation of cultural rights. By briefly analysing the limitations of current intellectual property legislation in relation to selected examples of unauthorised publication of Indigenous Dreamtime narratives in children's literature, we will examine how the rhetoric of benevolence problematises concepts essential to property relationships acknowledged by the Australian common law tradition, and thereby sunders attributes of ownership and personhood from Indigenous communities.
The Rhetoric of Benevolence in Australian Children's Literature
The rhetoric of benevolence invoked by non-Indigenous authors who published Indigenous oral narratives during the nineteenth and early twentieth centuries, we suggest, has detrimental effects similar to those of current intellectual property legislation. Both sunder from Indigenous communities important attributes of personhood, particularly the ability to assert ownership and to determine access to their culture. In fact, the rhetoric of benevolence serves to disguise the fact that it is unauthorised publication by non-Indigenous authors that in law dissociates cultural rights from Indigenous communities. If an Indigenous oral narrative was recorded in manuscript or published in print by a non-Indigenous person prior to the implementation of the Copyright Amendment (Moral Rights) Act (Cth) in 2000, it remains the non-Indigenous person's intellectual property, and invests in her or him legally enforceable moral rights and rights of ownership. An Indigenous community now cannot at law deny attributes of volition, particularly volition to remedy the alteration or derogatory use of a narrative effected by the publication. (2) Consider how the following examples of the rhetoric of benevolence deny attributes of personhood--particularly volition--to members of Indigenous communities and subordinate their claims to ownership and moral rights to that of non-Indigenous 'authors'.
In 1891 Mary A Fitzgerald published the book King Bungaree's Pyalla and Stories Illustrative of Manners and Customs that Prevailed Among Australian Aborigines. She acknowledged that its source was an Indigenous informant whom she identifies only as a 'Black King'. In many ways Fitzgerald, who wrote in the late nineteenth century, observes what are now advocated as 'protocols' for the use of Indigenous cultural rights: that is, she acknowledges her Indigenous informant, and strives for accuracy by including a glossary of Aboriginal words with English translations. She explains her purpose in publishing fantasy stories informed by knowledge of Indigenous narratives and culture as her desire to preserve information concerning a 'dying race'. She states in her preface that she addresses the book to non-Indigenous readers:
with some diffidence, lest, in my endeavour to render intelligible the legends told in imperfect English by the Black King, I may have weakened much of their original force and beauty ... The legends I have chosen, from the Pyalla, are only a few of the many I heard in childhood, but they may perhaps serve to give some idea of the style of stories existing among a people, who, with their legends and romances, will soon have passed away for ever. …