Researching on Ngarrindjeri Ruwe/Ruwar: methodologies for positive transformation.

Hemming, Steve ; Rigney, Daryle ; Berg, Shaun 等

Abstract: Ngarrindjeri engagement with cultural and natural resource management over the past decade provides a useful case study for examining the relationship between research, colonialism and improved Indigenous wellbeing. The Ngarrindjeri nation is located in south-eastern Australia, a 'white' space framed by Aboriginalist myths of cultural extinction recycled through burgeoning heritage, Native Title, natural resource management 'industries'. Research is a central element of this network of intrusive interests and colonising practices. Government management regimes such as natural resource management draw upon the research and business sectors to form complex alliances to access funds to support their research, monitoring, policy development, management and on-ground works programs. We argue that understanding the political and ethical location of research in this contemporary management landscape is crucial to any assessment of the potential positive contribution of research to 'Bridging the Gap' or improving Indigenous wellbeing. Recognition that research conducted on Ngarrindjeri Ruwe/Ruwar (country/body/ spirit) has impacts on Ngarrindjeri and that Ngarrindjeri have a right and responsibility to care for their lands and waters are important platforms for any just or ethical research. Ngarrindjeri have linked these rights and responsibilities to longterm community development focused on Ngarrindjeri capacity building and shifts in Ngarrindjeri power in programs designed to research and manage Ngarrindjeri Ruwe/Ruwar. Research agreements that protect Ngarrindjeri interests, including cultural knowledge and intellectual property, are crucial elements in these shifts in power.

Introduction

This paper discusses the experiences and strategies of Ngarrindjeri leadership in interactions with cultural and natural resource management while considering issues raised by the review of the AIATSIS (2000) Guidelines for Ethical Research in Indigenous Studies (Figure 1). (1) The authors have contributed to Ngarrindjeri strategic thinking over the past decade as part of a Ngarrindjeri think tank, as the lawyer representing the Ngarrindjeri nation on heritage and Native Title matters, and more recently through the programs of the Ngarrindjeri Regional Authority Incorporated (NRA) (see Berg 2010; Hemming and Rigney, D 2008; Hemming and Trevorrow 2005; Hemming et al. 2002; Ngarrindjeri Nation 2006; Rigney, D et al. 2008). (2) Steve Hemming is a non-Indigenous interdisciplinary academic, Associate Professor Daryle Rigney is a Ngarrindjeri academic and member of the NRA and Shaun Berg is a non-Indigenous lawyer and writer. We share the fundamental proposition that South Australia requires a just settlement between Indigenous people and the State, based on the spirit of the original Letters Patent of 1836, the foundational document of South Australia (see Berg 2010; Trevorrow et al. 2007). (3) We argue that this unfinished business fundamentally affects the ethics of the relationship between researchers and Indigenous nations such as the Ngarrindjeri.

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This paper is in two parts, beginning with a discussion of the politics and ethics of research on Ngarrindjeri Ruwe/Ruwar and finishing with an example of contractual protection of Indigenous Cultural and Intellectual Property (ICIP). Ruwe/ Ruwar is a concept that encapsulates the interconnection of Ngarrindjeri people, their lands, waters and all living things. This includes the spirits of Ngarrindjeri ancestors. As Tom Trevorrow, Chair of the Ngarrindjeri Heritage Committee, argues:

The land and waters is a living body. We the Ngarrindjeri people are a part of its existence. The land and waters must be healthy for the Ngarrindjeri people to be healthy. We are hurting for our Country. The Land is dying, the River is dying, the Kurangk (Coorong) is dying and the Murray Mouth is closing. What does the future hold for us? (Ngarrindjeri Nation 2006:4).

In developing a Ngarrindjeri research agenda and in the response to, and management of, research generated from outside the Ngarrindjeri nation, the struggle to engage with research is related to questions of ICIP rights, rights to lands and waters, a theorisation of contemporary forms of colonialism, and the advancement of goals and strategies established by Indigenous peoples (see AIATSIS 1999:27; Hemming 2006; Ngarrindjeri Nation 2006; Rigney, D 1997; Rigney, D and Worby 2005; Rigney, L-I 1999; Smith, LT 1999). The fundamental issues of control and power are critical to the establishment of ethics and associated principles governing research and Indigenous people. Ngarrindjeri must control their knowledge and, most importantly, possess the resources required for full engagement at the local and regional level for the issue of control to be addressed. This means that universities and the broader research community have 'to grasp the need for social justice and change post [the] Council for Reconciliation' (Worby and Rigney, D 2002:26). Worby and Rigney (2002:26) pose the following questions:

 To what extent non-Indigenous researchers are prepared to forego
 their power as intellectuals as Indigenous communities and
 academics ask questions about the who, what, when, where and how of
 research remains to be seen. Will their response be to cite
 'principles' of academic freedom and the right to such freedom or
 will they concede in order to proceed?

This power imbalance and its material implications requires dynamic theorisation and vigilant negotiation in interactions with government, universities and business. Coupled with this fundamental power imbalance is the lack of effective legislative protection for Indigenous interests. (4) Ngarrindjeri have, as a matter of priority, pursued recognition and protection of their interests through negotiation and specific contractual arrangements rather than reliance on legislative protection (Figure 2) (see Hemming and Trevorrow 2005; Hemming et al. 2007). (5)

Ngarrindjeri experiences of cultural heritage and natural resource management (NRM) research practice in the contemporary 'contact zone' have been framed by Aboriginalist constructions of identity and tradition, reinforcing what Aileen Moreton-Robinson describes as the 'possessive logic of patriarchal white sovereignty' (see Attwood and Arnold 1992; Fergie 1996; Hemming 2007; Moreton-Robinson 2007:112; Smith, L 2004). This experience of research has required a project of 'conscientization' (per Freire 1972) within the Ngarrindjeri community supported by a theorisation of contemporary forms of settler colonisation. A multi-sited strategy has emerged from this process designed to resist recycling and activating the 'colonial archive' in engagements with the State and other non-Indigenous interests (Hemming and Rigney, D 2010; Nakata 2007; Smith, G 2005). Avoiding the trap of negotiating interests through past-oriented, traditionalist constructions of cultural heritage has been a key part of the Ngarrindjeri strategy since Kumarangk (Hindmarsh Island)--the landmark cultural heritage case (see Bell 1998; Fergie 1996; Kartinyeri and Anderson 2008; Simons 2003; Stevens 1995; yon Doussa 2001). As Hemming and Rigney (2008:759) have recently argued, without some externally labelled notion of Indigenous 'authenticity' defined and 'measured by experts such as lawyers, anthropologists, archaeologists, and more recently by natural resource managers, Indigenous people are further distanced from the political, economic and legal rights to country that underpin longterm community well-being'.

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Ngarrindjeri have needed significant resources, expertise, time, legal advice and co-ordinated programs to transform this colonising relationship. So-called 'remote' Indigenous nations, often characterised as land rich and resource poor, have addressed similar issues in cultural heritage and NRM, but without the burden of being located in a white-space within the Australian nation-state (Morrison 2007; Riggs 2007). In contrast, Ngarrindjeri are land and resource poor; forced to negotiate a space within the Australian nation from a place of constructed cultural extinction. (6)

Research practice in South Australian cultural and natural resource management: re-setting the foundations through legal agreements

Australian universities and governments have created strong alliances in contexts such as NRM and significant resources are being invested in research, policy development, management planning and monitoring programs. In South Australia this cycle of practice has been called adaptive management (see DEH 2009). Ngarrindjeri leadership has identified this cycle as a critical 'site' for transformation through legal intervention, negotiation, agreement making, and the development of new policies, practices and funded programs (see Birckhead et al. 2008; Ngarrindjeri Nation 2006). During 2009 Ngarrindjeri negotiated a whole-of-government Kungun Ngarrindjeri Yunnan (KNY) agreement (Listen to what Ngarrindjeri people have to say) with the South Australian Government and, in particular, the Department of Environment and Heritage (see DEH 2009; KNY 2009). This agreement provides a legal framework for consultations and negotiations between the State and the Ngarrindjeri over issues to do with Ngarrindjeri Ruwe/Ruwar (country/body/spirit). (7)

As part of this KNY agreement, a joint taskforce was established to provide a mechanism for the NRA, as the regional peak body, to negotiate a new way of doing business with the South Australian Government. Government funds were committed for an initial three-year period to support the NRA's capacity to engage with this process. The agreement also includes a recognition of Ngarrindjeri traditional ownership; recognition of the NRA as the Ngarrindjeri regional peak body; and an agreement to negotiate on key, long-held Ngarrindjeri objectives, such as the hand-back of the Coorong National Park. It provides the foundations of an ethical process supporting the NRA's assessment of proposed non-Indigenous, university/government research on Ngarrindjeri Ruwe/Ruwar.

By early 2008 the NRA was aware that the Department of Environment and Heritage was engaged in a long-term planning process known as Murray Futures, which would set the direction for management of Ngarrindjeri lands and waters for the next decade. (8) Significant resources were being sought from the federal government through the Water for Good program. The NRA pursued, as a matter of priority, the development of a formal agreement to set the terms of Ngarrindjeri engagement, and argued from the outset that what was required was the government's support for the development of the NRA's capacity to care for Ngarrindjeri Country, and to effectively respond to government demands on Ngarrindjeri expertise, 'informed consent', and Ngarrindjeri 'participation' in the state's programs designed to respond to the environmental crisis in the Murray River, Coorong and Lower Lakes region. The South Australian Government was also developing various programs under its Murray Futures bid, including the Lower Lakes, Coorong Recovery Program and the Riverine Recovery Program. The KNY Ngarrindjeri task force set up a working party to develop a NRA Murray Futures business plan to act as the basis for negotiating the Ngarrindjeri component to the government's broader business plan. (9) This working party also co-ordinated NRA input into the drafting of the government's overarching public planning document, Securing the Future: Long-term plan for the Coorong Lower Lakes and Murray mouth (see DEH 2009). As a consequence of this intensive phase of research (which took place over 12 months), negotiation and planning the NRA will be resourced to significantly strengthen the Ngarrindjeri Caring for Country program's core capacity. This means the establishment of new specialised positions that will support the ongoing responsibility of Ngarrindjeri people for maintaining the wellbeing of Ruwe/Ruwar and assist with the development of employment, training and economic opportunities associated with caring for country. (10)

Recent NRA negotiations with government in relation to cultural heritage and NRM have sought a critical shift in institutional/disciplinary understanding and practice in relation to research and management practice on Indigenous lands and waters. The usual, and limited, mechanism for addressing Indigenous interests has been through cultural heritage, and to some extent Native Title legislation. Accepting that ecological and environmental research and management has broad and direct impacts on Indigenous well-being is an important shift in government policy (see DEH 2009; MDBC 2006).

Mi'Kmaq scholar Marie Battiste, a member of the Potlo'tek First Nation (in Nova Scotia, Canada), articulates her experience and knowledge of Indigenous ontologies and epistemologies in the following passage:

Indigenous knowledge thus embodies a web of relationships within a specific ecological context; contains linguistic categories, rules, and relationships unique to each knowledge system; has localized content and meaning; has customs with respect to acquiring and sharing knowledge; and implies responsibilities for possessing various kinds of knowledge (Battiste 2008:501).

Indigenous world views and knowledge systems have significant implications for ethics processes in universities, particularly in the environmental sciences. For Ngarrindjeri, standing at the centre of this position is Ruwe/Ruwar. Emerging from, and additional to, this recognition is the importance of Ngarrindjeri access to NRM resources to build capacity to develop a just and sustainable relationship with the burgeoning State NRM bureaucracy (see Hemming et al. 2002). This means that there must be a recognition of the power imbalance between Ngarrindjeri and government, universities and business--particularly in the space of major management/research projects such as Murray Futures. A Ngarrindjeri strategic response has been to argue for a significant role in all aspects of the government's NRM 'adaptive management cycle' as it applies to Ngarrindjeri Ruwe/Ruwar--research, planning, policy development and ongoing monitoring.

As researchers and legal advisers working for the NRA, we pose the following types of questions about research practice within this complex cultural heritage and NRM regime. Where do governments situate research in their decision-making processes ? What kinds of research are privileged? How do governments address research ethics in their multidisciplinary research programs? What flows from research projects and the status that researching institutions gain? What are the best mechanisms for protecting ICIP rights? Where do Indigenous interests sit in these spaces? How can Indigenous nations develop the capacity to equitably engage in these spaces? What changes should universities make to their research practices and their partnership building with governments and business that would assist Indigenous nations operating in these contexts? We think AIATSIS could focus attention in its review of ethical research practices on the importance of universities, governments and business addressing these broader questions of institutional research practice.

For the NRA these questions have meant a focus on the development of priorities, policies and capacity, and an insistence on formal research and program agreements (see Hemming et al. 2007; Ngarrindjeri Nation 2006). Indigenous organisations and researchers nationally and internationally have been asking similar questions and developing related strategies when confronting colonising research and management practices (see Barker 2005; Battiste 2008; Denzin et al. 2008; Dhimurru 2006; Morgan et al. 2006; NAILSMA 2007; Stewart-Harawira 2005; Worby and Rigney, D 2002). As part of a search for new ideas, Ngarrindjeri have prioritised national and international Indigenous partnerships and have become parties to international Indigenous treaties and alliances (see MLDRIN 2007; ULIN 2007).

An assessment of the potential for improved Ngarrindjeri wellbeing is a baseline question that the Ngarrindjeri leadership is beginning to ask of research programs or government projects in our region (Figure 3). (11) At the very least, Ngarrindjeri leaders argue, research should not drain scarce Ngarrindjeri resources and support the continuing exclusion of Ngarrindjeri voices and expertise from the researching, policy-making and management spaces. This principle was formally identified in the 2002 Ngarrindjeri report addressing the potential closure of the mouth of the River Murray (see Hemming et al. 2002). More recently, as part of the whole-of-government KNY agreement, the NRA, through its newly established Research, Planning and Policy Unit, developed a project assessment and engagement strategy, which includes the identification of resource implications for the NRA; a proposed legal agreement framing the project; an assessment of the opportunities inherent in the proposed project; and recommendations relating to research ethics and practice (see Hemming and Rigney, D 2009). The recognition of Ngarrindjeri as traditional owners, the recognition of Ngarrindjeri ownership of cultural and intellectual property, and the recognition of Ngarrindjeri obligations and responsibilities to care for country are considered essential requirements of any research or project agreement (Figure 4).

To significantly change the political/ethical landscape of research that impacts on Indigenous people, universities and state and federal government bureaucracies need to understand and support the expectations and plans of Indigenous nations such as the Ngarrindjeri. Long-term commitments to Indigenous regional bodies such as the NRA, built on negotiation, legal agreements, ethical research practices and a focus on increasing Indigenous institutional capacity, are critical to positive transformation and addressing the federal Indigenous Bridging the Gap 'policy' agenda. In the discourse of research ethics, the researcher is often positioned as 'objective' and charged with the power and knowledge to determine what should be researched and who should be 'consulted' in Indigenous research projects. This is a problematic positioning, focusing on the rights of the individual rather than the collective. It has the potential to undermine Indigenous governance structures and transformative programs. Overarching research agreements, such as Ngarrindjeri KNY agreements, need to be in place between universities and Indigenous nations to protect against the colonising and unethical tendencies of this research ethics culture.

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We argue that Indigenous higher education centres need to be repositioned within this research landscape. Awareness of the crises and commitment to intervene inevitably lead us to consider an ethics of care in the collective struggle for what Indigenous people name as a fight for freedom and justice (Ngarrindjeri Nation 2006; Trevorrow 2003). One of the most difficult exercises for those engaged in the 'emotional labor' or 'obligatory community labor' of the Indigenous struggle is to determine a strategic course that maximises use of resources to make a difference, close the gap and not wander in a fog of distraction (see Williams and Thorpe 2003:49, 51).

Taiaiake Alfred (1999:xii) makes the point that 'we cannot preserve our nations unless we take action to restore our pride in traditions, achieve economic self-sufficiency, develop independence of mind, and display courage in defense of our lands and rights'. Following Alfred we argue that it is a key responsibility of Indigenous higher education centres to take up the work of guiding Indigenous nations to recovery, of speaking with and in advocacy for the powerless in our communities, and of challenging the misuse of power and redirecting it to new ethical relations within and beyond the nation based on mutual respect and trust. This provides a location for Indigenous engagement with research and consultancy that supports and encourages younger Indigenous academics/ scholars to be part of a future that values and includes Indigenous nations, identities and knowledges. For us, this engagement starts locally.

Indigenous Cultural and Intellectual Property: protection and management through contract

The authors of this paper have provided advice to the Ngarrindjeri leadership in relation to native title, cultural heritage, NRM, and cultural knowledge and intellectual property issues. As already stated, we believe that protection for Indigenous rights and interests is limited and problematic in South Australia. The spirit of the Letters Patent 1836 and the intentions of the early British authorities to respect and protect Indigenous interests in South Australia form the basis for our approach, and the approach of Ngarrindjeri leaders, to negotiating with non-Indigenous interests. Lawyer Shaun Berg has largely developed the technical, legal strategy proposed in this section and used by the NRA.

The need for protection mechanisms for what we are terming here Indigenous Cultural and Intellectual Property (ICIP) has been widely discussed, particularly with reference to Intellectual Property (IP) systems (see for example Anderson 2005, 2009; Davis 1997; Janke 1998; Janke and Quiggin 2005). While the sentiments expressed by such commentators are to be applauded, there is a real need to work to develop these ideas into practical methodologies for dealing with these complicated issues. In this section we provide a brief survey of the current landscape regarding 1CIP and touch on some of the practical difficulties faced. An outline for a model dealing with ICIP in a contractual context is then provided. The creation of contractual rights between Indigenous groups and third parties provides certainty in relation to ownership and enforcement of ICIP rights not already explicit in the Australian law. The creation of consistent contractual rights by the use of standard ICIP clauses will assist Indigenous groups manage and control their ICIP rights. It also provides the possibility for recapturing ICIP rights, which have been appropriated by prior use and expropriation. While the model is by no means definitive, we hope to advance discussion within the wider community about how to develop workable and practical solutions to this issue.

The South Australian Government (2006) released its Intellectual Property Policy in November 2005. In relation to Indigenous cultural knowledge, the policy states that 'agencies should respect and acknowledge the cultural knowledge and interests of Australian Indigenous communities. The South Australian Government is cognisant of, and sensitive to, the protection, management and commercialisation of indigenous IP or Traditional Knowledge' (South Australian Government 2006:6). The policy further notes that 'Indigenous cultural knowledge encompasses the cultural, spiritual and other aspects of community heritage and includes traditional use of native flora and fauna, objects, sites of significance and knowledge transmitted from generation to generation of Indigenous Australians' (South Australian Government 2006:6). Other states have either implemented similar IP policy frameworks or are in the process of doing so (Australian National Audit Office 2004).

Prior to the 2010 federal election there were three Commonwealth agencies that developed and implemented IP policy: the Attorney-General's Department, the Department of Communications, Information Technology and the Arts (DCITA) and IP Australia. The Intellectual Property Branch in DCITA had a 'responsibility to ensure that the interests of Australian Aboriginal and Torres Strait Islander people are considered within the broader legislative and operative frameworks for intellectual property' (DCITA 2006). The Commonwealth Government does not have a whole-of-government approach to IP policy that is analogous to that in South Australia. Instead, each individual agency is responsible for developing its own mechanisms for managing IP.

In 2005 the Attorney-General's Department released an issues paper stating that it was working with DCITA, IP Australia and the Department of Finance and Administration to develop a whole-of-government approach to the management of IP by government agencies. However, it is not anticipated that a new government policy will result; instead, assistance will be provided to agencies to 'interpret and apply existing government policies as they relate to IP' (Attorney-General's Department 2005:3). It therefore appears likely that the Commonwealth Government approach to the protection of ICIP will remain ad hoc.

Typically, the major difficulty in this area is attempting to define ICIP and reconcile it with traditional IP systems (see Davis 1997; Janke 1998; Janke and Quiggin 2005). The definition of ICIP extends far beyond the scope envisaged by current IP structures. Indigenous IP and cultural property are 'entwined'; they are not separate as in Western law (Janke and Quiggin 2005:7). The existing categories of IP are directed towards protecting ideas within existing categories being generated for particular, usually commercial, purposes. These categories incorporate ideas and the manifestation of those ideas. There is no category that assists in the protection of ICIP, although the transmission of cultural knowledge and materials occurs, which may lead to protection for a legally recognised author of the now transmitted IP. The issue of transmission typically leads m greater concerns about ownership rather than leading to clarity and protection for Indigenous people (see Anderson 2005:348).

As there is no clear or accepted category at law to protect ICIP, the appropriate form of protection is by the creation of rights and obligations between the user of ICIP and the Indigenous owners through the drafting of legally binding contracts. The premise for the construction of a contract dealing with ICIP is based upon this category being unique and separate from other categories, the ownership of ICIP being by Indigenous people, and the functions of use of such property being capable of being categorised as collection, use, handling and disclosure.

A difference between the category being created by the use of contractual terms (as there is no satisfactory existing law) and the usual categories of IP is that in the former category we have incorporated ideas and objects. This is based upon the assumption that all things are connected and that it is not possible to disjunct the idea from the object. It is considered that such an approach is more attuned to Indigenous cultural manifestations. By way of analogy, this statement is not entirely without difference from the notion of a tablet being the physical manifestation of the intellectual effort and intellectual property from years of research in the laboratory. It is culturally appropriate for the protection of a new, non-obvious and industrially useful idea in Western industrialised countries to separate the function of the idea and its physical manifestation to ensure greater protection of ideas. It is culturally appropriate in devising a new sui generis category of ICIP not to do the same thing as the protection and policy outcome would be demeaned by doing so.

Indigenous people also face numerous practical difficulties in attempting to protect their ICIP. As already emphasised, there is a power imbalance between the negotiating parties, and Indigenous communities are seldom equipped to deal with these complex issues. This is compounded by the lack of funding to support Indigenous communities which prevents them from seeking legal and other expert advice. By formulating standard clauses and approaches for interactions between researchers and Ngarrindjeri leaders and organisations, a model has been developed to assist with the development of a 'standard' for interactions--a standard based upon respect and transparent communications.

A model contract to protect ICIP

Despite recognition by the South Australian Government and some federal government departments of the need to protect ICIP, Indigenous communities are given little guidance about how best to do this. The following suggestions provide examples of changes that can be made to a standard IP agreement to incorporate cultural knowledge (suggested insertions appear in italics). The following definitions apply: 'Indigenous Group' refers to the Indigenous party to the contract; 'The Other Party' refers to the other party to the contract. This approach has been used and accepted in a number of agreements by Ngarrindjeri and several other South Australian Indigenous groups since 2007. For example, the Ngarrindjeri Water-For-A-Healthy-Country Flagship Project Research Funding Agreement between the Ngarrindjeri nation, CSIRO, Flinders University and Charles Sturt University (see Birckhead et al. 2010) and the Ngarrindjeri Regional Authority Yarluwar-Ruwe, Research, Education and Training Project Contract Agreement between the South Australian Murray Darling Basin Natural Resource Management Board and Flinders University (see Hemming and Rigney, D 2010).

First, an exclusion of cultural knowledge from the definitions of IP and confidential information is required to acknowledge its unique status. To do this, the following clauses are inserted:

 Intellectual Property or IP means any rights
 in any copyright work (including any work or
 item created in the future), patentable invention,
 design, circuit layout, new plant variety,
 trademark, know-how or trade secret but
 excludes Cultural Knowledge.

 Confidential Information means confidential
 information (in any form) that either party
 discloses to the other but excludes Cultural
 Knowledge. Information is not confidential
 if it is: (i) publicly available, (ii) rightfully
 known by the receiving party before disclosure
 or (iii) independently created by the
 receiving party without access to the other's
 confidential information.

The distinction between cultural knowledge and IP and confidential information is further clarified by the incorporation of an Interpretation clause. For example:

 The definition of confidential information
 and intellectual property excludes Cultural
 Knowledge. It is acknowledged that the use
 of the terms confidential reformation or
 intellectual property in normal every day use
 could include cultural knowledge but that
 that usage does not apply in determining the
 rights and obligations of the Parties tinder
 this Agreement.

Second, a definition of cultural knowledge is inserted; for example:

Cultural Knowledge means all and any cultural knowledge, whether such knowledge has been disclosed or remains undisclosed of the Indigenous group, including but not limited to:

(a) traditions, observances, customs or beliefs;

(b) songs, music, dances, stories, ceremonies, symbols, narratives and designs;

(c) languages;

(d) spiritual knowledge;

(e) traditional economies and resources management;

(f) scientific, spatial, agricultural, technical, biological and ecological knowledge;

and includes documentation or other forms of media arising there from including but not limited to archives, films, photographs, videotape or audiotape.

The contract should include an operative clause such as:

1.1 Notwithstanding any other clause in the Agreement, it is acknowledged that:

(a) [The Indigenous Group] owns all and any Cultural Knowledge; and

(b) [The Other Party] undertakes not to collect, use, disclose or handle Cultural Knowledge without the prior written consent of/the Indigenous Group]; and

(c) any report or publication resulting from the Project shall be designated as either a 'Category A Report' or a 'Category B Report' and the following shall apply:

(i) the publication of a Category A Report shall be unrestricted and the ownership of such publication shall vest in [all Parties] as tenants in common in equal shares (except such parts of the report which constitute Cultural Knowledge included with the consent of/the Indigenous Group]; and

(ii) the publication of a Category B Report shall be restricted to [the Other Party] and the ownership of such publication shall vest in [the Indigenous Group];

(d) [The Other Party] (and each of their Personnel and Students) who records Cultural Knowledge in material form does so as a mere amanuensis. (12)

Finally, a dispute resolution clause should be inserted to state:

 If the dispute relates to whether particular
 knowledge is Cultural Knowledge, [the
 Indigenous Group] has the sole and absolute
 discretion, to the exclusion of all other Parties
 to this Agreement, to determine whether such
 particular knowledge is Cultural Knowledge,
 and such determination shall be binding on
 each of the Parties.

The above model provisions provide one starting point, put into practice in South Australia, for ongoing discussion about how Indigenous communities can best achieve protection of their ICIP. Importantly, the definitions of cultural knowledge provided here are included in the whole-of-government KNY agreement between the Ngarrindjeri and the South Australian Government (KNY 2009).

Conclusion

Maori scholar Graham Hingangaroa Smith (1997:36-7) warns Indigenous people that efforts should be directed at achieving 'urgent and meaningful transformation' and 'moving beyond the language of possibility'. We argue that universities, in particular, have a responsibility to invest resources in long-term, strategic research programs and partnerships with Indigenous nations to provide support for this 'urgent and meaningful transformation'. Changes to university research policy, culture and ethics processes need to reflect the power imbalances between Indigenous nations and non-Indigenous institutions. Universities occupy a privileged position in the knowledge production industry, and are therefore relied upon in the NRM sector to support government policy development and management planning. This gives universities a unique capacity to transform the political and ethical landscape of complex, government-driven research programs and alliances that make such a significant impact on Indigenous people, their lands and waters. Much of the work of the authors of this paper has been directed at understanding the political/ethical/legal landscape of complex research and the interconnections between the university, government and business sectors. This knowledge is critical for Indigenous nations such as the Ngarrindjeri if they are to exert any power over fundamental decisions impacting their children and grandchildren's futures and the future of their lands and waters.

Ngarrindjeri experiences of the colonising tendencies of cultural and natural resource management have informed a particular strategy for survival, resistance and positive transformation. It combines the Ngarrindjeri philosophy of Ruwe/Ruwar, Ngarrindjeri experiences of surviving in a 'white' space, a theoretical critique of new formations of colonialism, and a legal approach to negotiation that seeks to protect Indigenous interests through innovative and locally relevant legal agreements and project contracts rather than inadequate existing legislation. In an era of rapidly increasing environmental degradation and a burgeoning NRM culture, we argue that the colonising tendencies of cultural and natural resource management bring complex challenges for ethical and just research on Indigenous lands and waters. The Handbook of Critical and Indigenous Methodology (Denzin et al. 2008:2) draws attention to important characteristics of Indigenous research:

 It must be ethical, performative, healing,
 transformative, decolonizing, and participatory.
 It must be committed to dialogue,
 community, self-determination, and cultural
 autonomy. It must meet people's perceived
 needs. It must resist efforts to confine inquiry
 to a single paradigm or interpretive strategy.
 It must be unruly, disruptive, critical, and
 dedicated to the goals of justice and equity.

We argue that these characteristics should broadly inform research projects and practices that affect Indigenous people, their lands and waters. We also recognise the common and valuable thread in this approach to 'decolonising' and 'transformative' research methodologies being pursued by Indigenous researchers across Pacific Rim settler nation-states (see Alfred 1999; Pihama 2005).

ACKNOWLEDGMENTS

We want to thank members of the Ngarrindjeri Regional Authority Board for their support and recognise their energy, commitment and leadership in the development of visions and strategies for the Ngarrindjeri nation. In particular we would like to thank friends and colleagues such as Ngarrindjeri leaders Tom Trevorrow, Matt Rigney and George Trevorrow, and Diane Bell, Grant Rigney, Chris Wilson, Gus Worby, Daniella Trimboli, Glynn Ricketts and Kelly Wiltshire, who have been directly part of this process or provided moral, intellectual and community-based support in other ways. We also acknowledge support from the federal Department of Environment and Heritage, National Indigenous Heritage Program and the South Australian Murray Darling Basin Natural Resource Management Board for funding aspects of the research. Importantly, we would like to thank our partners and families for generously supporting us, given the time we commit to community projects and academic work. Finally we would like to thank our referees and Sarah Holcombe and Cressida Fforde for their comments and advice.

REFERENCES

AIATSIS (Australian Institute of Aboriginal and Tortes Strait Islander Studies) 1999 Research of Interest to Aboriginal and Torres Strait Islander Peoples, National Board of Employment, Education and Training, Australian Research Council, Canberra.

-- 2000 Guidelines for Ethical Research in Indigenous Studies, AIATSIS, Canberra.

Alfred, Taiaiake 1999 Peace, Power, Righteousness: An Indigenous manifesto, Oxford University Press, London.

Anderson, Jane 2005 'The making of Indigenous knowledge in intellectual property law in Australia', International Journal of Cultural Property 12(3): 347-73.

-- 2009 Law, Knowledge, Culture: The production of Indigenous knowledge in intellectual property law, Edward Elgar Publishing, Cheltenham.

Attorney-General's Department 2005 A Whole of Government Approach to IP Management, issues paper, Attorney-General's Department, Canberra.

Attwood, Bain and John Arnold (eds) 1992 Power, Knowledge and Aborigines, La Trobe University Press, Melbourne.

Australian National Audit Office 2004 Intellectual Property Policies and Practices in Commonwealth Agencies,Australian National Audit Office, Canberra, <www.anao.gov.au/WebSite.nsf/Publications/ D73A444246EFD214CA256E2F006F12Dl> accessed 20 March 2006 (Audit Report No. 25 (2003/2004)).

Barker, Joanne (ed.) 2005 Sovereignty Matters: Locations of contestation and possibility in Indigenous struggles for self-determination, University of Nebraska Press, Lincoln, NE.

Battiste, Marie 2008 'Research ethics for protecting Indigenous knowledge and heritage: Institutional and researcher responsibilities' in NK Denzin, YS Lincoln and LT Smith (eds), Handbook of Critical and Indigenous Methodologies, Sage, London, pp.497-509.

Bell, Diane 1998 Ngarrindjeri Wurruwarrin: A world that is, was and will be, Spinifex, North Melbourne.

-- (ed.) 2008 Kungun Ngarrindjeri Miminar Yunnan: Listen to Ngarrindjeri women speaking, Spinifex, North Melbourne.

Berg, Shaun (ed.) 2010 Coming to Terms: Aboriginal title in South Australia, Wakefield Press, Kent Town, SA.

Birckhead, Jim, Romy Greiner, Steve Hemming, Daryle Rigney, Matt Rigney, George Trevorrow and Tom Trevorrow 2008 Economic and Cultural Values of Water to the Ngarrindjeri People of the Lower Lakes, Coorong and Murray Mouth. Unpublished, CSIRO Water-For-A-Healthy-Country Flagship Report, CSIRO, Canberra.

Davis, Michael 1997 Indigenous Peoples and Intellectual Property Rights, Australian Parliament House, Canberra, <www.aph.gov.au/library/pubs/ rp/1996-97/97rp20.htm> accessed 22 December 2004 (Research Paper 20).

DCITA (Department of Communications, Information Technology and the Arts) 2006 Indigenous Cultural and Intellectual Property, <www.dcita.gov.au/ ip/indigenous_ip/indigenous_cultural and intellectual_property/indigenous copyright> accessed 20 March 2006.

DEH (Department of Environment and Heritage) 2009 Securing the Future: Long-term Plan for the Lower Lakes, Coorong and Murray Mouth, DEH, Adelaide.

Denzin, Norman K, Yvonna S Lincoln and Linda T Smith (eds) 2008 Handbook of Critical and Indigenous Methodologies, Sage, Los Angeles, CA.

Dhimurru 2006 Yolnguwu Monuk Gapu Wanga Sea Country Plan: A Yohlgu vision and plan for sea country management in north-east Arnhem Land, Northern Territory, Dhimurru Land Management Aboriginal Corporation, Nhulunbuy, NT.

Fergie, Deane 1996 'Secret envelopes and influential tautologies', Journal of Australian Studies 48:13-24.

Freire, Paulo 1972 Pedagogy of the Oppressed, Penguin, Harmondsworth.

Hemming, Steve 2006 'The problem with Aboriginal heritage' in G Worby and L-I Rigney (eds), Sharing Spaces: Indigenous and non-Indigenous responses to story, country and rights, API Network, Perth, pp.305-28.

-- 2007 'Managing cultures into the past' in DW Riggs (ed.), Taking up the Challenge: Critical race and whiteness studies in a postcolonising nation, Crawford House, Adelaide, pp.150-67.

-- and Daryle Rigney 2008 'Unsettling sustainability:

Ngarrindjeri political literacies, strategies of engagement and transformation', Continuum: Journal of Media and Cultural Studies 22(6):757-75.

-- and Daryle Rigney 2009 Coorong South Lagoon Flows Restoration Feasibility Investigations: Ngarrindjeri Regional Authority Inc and Murrapeena Heritage Committee position paper for the Coorong South Lagoon Flow Restoration Project feasibility investigations, prepared for the Ngarrindjeri Regional Authority Inc, the Murrapeena Heritage Committee and the South Australian Murray Darling Basin Natural Resource Management Board, 33pp.

-- and Daryle Rigney 2010 'Decentring the new protectors: transforming Aboriginal heritage in South Australia', International Journal of Heritage Studies 16(1):90-106.

--, Daryle Rigney, Lynley Wallis, Tom Trevorrow, Matt Rigney and George Trevorrow 2007 'Caring for Ngarrindjeri country: collaborative research, community development and social justice', Indigenous Law Bulletin 6(27):6-8.

-- and Tom Trevorrow 2005 'Kungun Ngarrindjeri Yunnan: Archaeology, colonialism and reclaiming the future' in C Smith and HM Wobst (eds), Indigenous Archaeologies: Decolonizing theory and practice, Routledge, London, pp.243-61.

--, Tom Trevorrow and Matt Rigney 2002 'Ngarrindjeri culture' in M Goodwin and S Bennett (eds), The Murray Mouth: Exploring the implications of closure or restricted flow, Department of Water, Land and Biodiversity Conservation, Adelaide, pp.13-19.

Janke, Terri 1998 Our Culture: Our future--Report on Australian Indigenous cultural and intellectual property rights, Michael Frankel & Company, Surrey Hills, NSW.

-- and Robynne Quiggin 2005 Background Paper on Indigenous Cultural and Intellectual Property and Customary Law, Law Reform Commission of Western Australia, Perth (Background Paper No. 12).

Kartinyeri, Doreen and Sue Anderson 2008 Doreen Kartinyeri: My Ngarrindjeri calling, Aboriginal Studies Press, Canberra.

KNY (Kungun Ngarrindjeri Yunnan Agreement) 2009 Ngarrindjeri Tendi Incorporated, Ngarrindjeri Heritage Committee Incorporated and Ngarrindjeri Native Title Management Committee for and on behalf of the Ngarrindjeri people and The Crown in right of the State of South Australia represented by the Minister for Environment and Conservation, the Minister for Aboriginal Affairs and Reconciliation, the Minister for the River Murray, and the Minister for Agriculture, Fond and Fisheries (5 June 2009).

MDBC (Murray-Darling Basin Commission) 2006 The Lower Lakes, Coorong and Murray Mouth Icon Site Environmental Management Plan 2006-2007, MDBC, Canberra.

MLDRIN (Murray Lower Darling Rivers Indigenous Nations) 2007 A Cooperation Agreement Between Murray Lower Darling Rivers Indigenous Nations and Environmental Non-government Organisations, <www.mldrin.org.au/about/governance.htm> accessed May 2010.

Moreton-Robinson, Aileen 2007 'The possessive logic of patriarchal white sovereignty: The High Court and the Yorta Yorta decision' in DW Riggs (ed.), Taking Up the Challenge: Critical whiteness studies in a postcolonising nation, Crawford House, Belair, SA, pp.109-24.

Morgan, Monica, Jessica Weir and Lisa Strelein 2004 Indigenous Rights to Water in the Murray Darling Basin: In support of the Indigenous final report to the Living Murray initiative, AIATSIS, Canberra (Research Discussion Paper No. 14).

--, Lisa Strelein and Jessica Weir 2006 'Authority, knowledge and values: Indigenous nations engagement in the management of natural resources in the Murray-Darling Basin' in M Langton, O Mazel, L Palmer, K Shain and M Tehan (eds), Settling with indigenous Peoples, The Federation Press, Sydney, pp.135-57.

Morrison, Joe 2007 'Caring for country' in J Altman and M Hinkson (eds), Coercive Reconciliation: Stabilise, normalise, exit Aboriginal Australia, Arena Publications Association, North Carlton, pp.249-61.

NAILSMA (Northern Australia Indigenous Land and Sea Management Association) 2007 Guidelines and Protocols for the Conduct of Research, NAILSMA, Darwin.

Nakata, Martin 2007 Disciplining the Savages, Savaging the Disciplines, Aboriginal Studies Press, Canberra.

Nason, David 2010 'Pain eases with apology over Ngarrindjeri secret women's business', The Australian, 7 July, <www.theaustralian.com.au/news/nation/pain-eases-with-apology-over- ngarrindjerisecret-womens-business/story-e6frg6nf-1225888703016> accessed 28 September 2010.

Ngarrindjeri Nation 2006 Ngarrindjeri Nation Yarluwar-Ruwe Plan: Caring for Ngarrindjeri sea country and culture, prepared by the Ngarrindjeri Tendi, Ngarrindjeri Heritage Committee and Ngarrindjeri Native Title Management Committee, Ngarrindjeri Land and Progress Association, Camp Coorong, Meningie, SA, <www.environment.gov. au/indigenous/publications/pubs/ngarrindjeriscp-2006-1.pdf> accessed 5 February 2010.

Pihama, Leonie 2005 'Asserting Indigenous theories of change' in J Barker (ed.), Sovereignty Matters: Locations of contestation and possibility in Indigenous struggles for self-determination, University of Nebraska Press, Lincoln, NE, pp.191-209.

Riggs, Damien W (ed.) 2007 Taking Up the Challenge: Critical race and whiteness studies in a postcolonising nation, Crawford House, Adelaide.

Rigney, Daryle 1997 The construction and maintenance of racism in sport: Nunga perspectives on Australian Rules Football, Master of Education Thesis, University of South Australia.

--, Steve Hemming and Shaun Berg 2008 'Letters Patent, Native Title and the Crown in South Australia' in M Hinton, D Rigney and E Johnston (eds), Indigenous Australians and the Law (2nd edn), Routledge-Cavendish, Sydney, pp.161-78.

-- and Gus Worby 2005 'Towards an Indigenous research charter' in C Smith and HM Wobst (eds), Indigenous Archaeologies: Decolonizing theory and practice, Routledge, London, pp.369-94.

Rigney, Lester-Irabinna 1999 'Internationalisation of an Indigenous anti-colonial cultural critique of research methodologies. A guide to indigenist research methodology and its principles', WICAZO SA Review 14(2):109-22.

Simons, Margaret 2003 The Meeting of the Waters, Hodder Headline, Sydney.

Smith, Graham Hingangaroa 1997 The development of Kaupapa Maori: theory and praxis, doctoral thesis, The University of Auckland, New Zealand.

-- 2005 Indigenous resistance in the academy: beyond the conscientisation and transformation theses, abstract submitted for the Australian Association for Research in Education, <www. aare.edu.au/05pap/abs05.htm#S> accessed 27 November 2005.

-- 2004 Archaeological Theory and the Politics of Cultural Heritage, Routledge, London.

Smith, Linda T 1999 Decolonizing Methodologies: Research and Indigenous peoples, Zed Books, London.

South Australian Government 2006 Intellectual Property Policy, South Australian Government.

Stevens, Iris 1995 Report of the Hindmarsh Island Bridge Royal Commission, State Print, Adelaide.

Stewart-Harawira, Makere 2005 The New Imperial Order: Indigenous responses to globalisation, Zed Books, London.

Strelein, Lisa 2006 Compromised Jurisprudence: Native Title cases since Mabo, Aboriginal Studies Press, Canberra.

Trevorrow, Tom 2003 'A shocking insult', Overland 171:62-3.

Trevorrow, Tom, Christine Finnimore, Steve Hemming, George Trevorrow, Matt Rigney, Veronica Brodie and Ellen Trevorrow 2007 They Took Our Land and Then Our Children: Ngarrindjeri struggle for truth and justice, Ngarrindjeri Lands and Progress Association, Meningie, SA.

ULIN (United League of Indigenous Nations) 2007 United League of Indigenous Nations Treaty, <www.indigenousnationstreaty.org> accessed 2 April 2008.

von Doussa, John 2001 Chapmans v Luminis and Ors, Federal Court of Australia, Summary of Judgement, 21 August.

Weir, Jessica 2009 Murray River Country: An ecological dialogue with traditional owners, Aboriginal Studies Press, Canberra.

Williams, Claire and Bill Thorpe 2003 Aboriginal Workers and Managers: History, emotional and community labour and occupational health and safety in South Australia, Seaview Press, Henley Beach, SA.

Wiltshire, Kelly D and Lynley A Wallis 2008 'A history of Aboriginal heritage protection legislation, South Australia', Journal of Environment Planning Law 25(2):98-114.

Worby, Gus and Daryle Rigney 2002 'Approaching ethical issues: institutional management of Indigenous research', Australian Universities Review 45(1):24-33.

Steve Hemming

English, Creative Writing and Australian Studies, Flinders University

Daryle Rigney

Yunggorendi First Nations Centre for Research and Education, Flinders University

Shaun Berg

Berg Lawyers, Adelaide

NOTES

(1.) The Ngarrindjeri nation is located in the River Murray, Coorong and Encounter Bay region in South Australia. We use Indigenous nation or First Nation in preference to terms such as group, community or tribe. Ngarrindjeri nation is the preferred term of the Ngarrindjeri Regional Authority Incorporated (NRA). For an extended discussion of the relationship between the Ngarrindjeri nation and cultural and natural resource management over the past decade, see Hemming and Rigney 2008.

(2.) The Ngarrindjeri & Others Native Title claim (SC98/4) extends over a significant part of the lands and waters of the Ngarrindjeri nation. The Ngarrindjeri Native Title Management Committee (NNTMC) has pursued a consent determination and negotiation strategy. The NNTMC is a founding member of the Ngarrindjeri peak body--the NRA. The NRA was established in 2007 and is signatory to the 2008 Ngarrindjeri regional partnership agreement with the state and federal governments.

(3.) The Province of South Australia was established and its boundaries defined by Letters Patent issued by King William IV on 19 February 1836. These foundational documents of South Australia provide that nothing shall affect the rights of Aboriginal people to actual occupation or enjoyment of their lands. The instruction to the South Australian Resident Commissioner in relation to creating any grants was that prior to doing so he needed to ensure that the cession of land was perfectly voluntary and that 'bargains or treaties' were entered into. These directions were not complied with and Aboriginal rights to land were affected. These failures continue to have implications and consequences today not only in relation to the moral, social and cultural effects but also in relation to their legal consequences. The original proposition of a just settlement in South Australia failed and the issue needs to be re-visited (see State Records of South Australia (SRSA) GRG 2/64).

(4.) For a discussion of the limitations of Native Title legislation and policy and cultural heritage, see Strelein 2006. For a similar discussion of South Australian Aboriginal heritage legislation and policy, see Wiltshire and Wallis 2008, and Hemming and Rigney, D 2010.

(5.) This strategy began in September 2002 and resulted in the first Kungun Ngarrindjeri Yunnan (KNY) agreement (Listen to what Ngarrindjeri people have to say) between the existing peak representative organisations, the Ngarrindjeri Tendi (traditional governance body), the Ngarrindjeri Heritage Committee, the NNTMC (representing Ngarrindjeri as the traditional owners) and a non-Indigenous organisation. This first KNY agreement was with the Alexandrina Council and contained an apology directed towards the Hindmarsh Island (Kumarangk) Bridge issue (see Hemming and Trevorrow 2005). Subsequently, KNY agreements have been signed at the whole-of-government level in South Australia (taking in local natural resource management (NRM) boards), with several local councils, government departments and non-government organisations.

(6.) In July 2010 at Jekejere Park, Goolwa, South Australian Water Minister the Honorable Paul Caica made a public announcement on behalf of the State Government supporting the findings of Justice John yon Doussa on Ngarrindjeri tradition and recognising the Ngarrindjeri women's traditions associated with Kumarangk (see Nason 2010). It took 15 years of court cases and other negotiations to achieve recognition of the Ngarrindjeri cultural 'site', The Meeting of the Waters (see Kartinyeri and Anderson 2008; Bell 2008).

(7.) This is a legal, binding agreement entered into between Ngarrindjeri and various Ministers of the Crown in South Australia to articulate the rights and obligations flowing between them in relation to the subject matter of the agreement. Recital D & E (KNY 2009) provide an indication of the intentions of the agreement:

 D. The Ministers have expressed a desire
 for a new relationship between the State of
 South Australia and Ngarrindjeri based upon
 mutual respect and trust acknowledging that
 Ngarrindjeri consider protection and maintenance
 of culture and cultural sites upon its land
 and water central in every respect to Ngarrindjeri
 community well being and existence.

 E. By this Agreement the Ministers wish
 to provide support and resources to the
 Ngarrindjeri Regional Authority Inc and enter
 into negotiations and consultations with the
 Ngarrindjeri about the maintenance and protection
 of Ngarrindjeri culture and cultural sites
 and the natural resources of the Land [lands
 and waters].

(8.) The Department of Environment and Heritage is now part of the Department of Environment and Natural Resources.

(9.) Steve Hemming set up and co-ordinated this working party. It included Daryle Rigney, Grant Rigney, Shaun Berg and Alex Thompson. The NRA negotiated the secondment of Glynn Ricketts from government to work for the working party and provide NRM business planning experience.

(10.) The South Australian Murray Darling Basin Natural Resource Management Board (SAMDBNRMB) is encompassed by the whole-of-government KNY agreement (2009). It has also funded a project aimed at developing the research capacity of the NRA--Developing Ngarrindjeri Research Capacity: Ngarrindjeri Yarluwar-Ruwe Institute for Research, Education and Training (2009-10). This project was jointly conducted by Flinders University, the SAMDBNRMB and the NRA. Steve Hemming and Daryle Rigney carried out the research as part of the NRA's Research, Policy and Planning Unit. The project agreement incorporated the Cultural Knowledge clauses contained in this paper.

(11.) An initial assessment of the link between well-being and NRM was undertaken in the Australian Commonwealth Scientific and Industrial Research Organisation (CSIRO) Water-For-A-Healthy-Country Flagship Project (see Birckhead et al. 2008). This project involved a formal research partnership between the CSIRO, the Ngarrindjeri nation, Charles Sturt University and Flinders University. It emerged from research conducted by the Murray Lower Darling Rivers Indigenous Nations coalition in association with the Murray Darling Basin Commission and negotiations with the CSIRO (see Morgan et al. 2004; Weir 2009). The research agreement was the first to include the Cultural Knowledge protection clauses included in this paper.

(12.) An amanuensis is merely a scribe and is not considered to have created an original work. The cultural knowledge embodied in the material form is not subject to copyright ownership of the party recording it: ownership remains with the Indigenous community.

Steve Hemming is a Senior Lecturer in Australian Studies at Flinders University in South Australia. Since the early 1980s he has worked closely with the Ngarrindjeri nation in the Lower Murray region of South Australia. More recently he has worked with Ngarrindjeri leaders on research projects that address the relationship between natural resource management, Indigenous heritage management and Indigenous governance.

<steve.hemming @flinders.edu.au>

Daryle Rigney is Ngarrindjeri and an Associate Professor in Indigenous studies/education at the Yunggorendi First Nations Centre at Flinders University in South Australia. Recently he has worked with Ngarrindjeri leaders to develop relationships between Indigenous nations internationally on matters of mutual interest, including cultural and scholarly exchange. He is a co-chair of the United League of Indigenous Nations.

<daryle.rigney@flinders.edu.au>

Shaun Berg practises law in South Australia in the areas of Aboriginal Rights and Intellectual Property. He is committed to the process of reconciliation with the First People of Australia.

<sbetg@berglawyers.com.au>