In a recent episode of The Lawyers Weekly Show, Ms Valenti said there is substantial interaction between Indigenous cultural and intellectual property and the Western legal system. However, she submitted that the Western legal system does not adequately protect Indigenous cultural heritage and expression of traditional knowledge.

“The Western lens is a colonial perspective, to be honest, and it’s limiting because of that,” she mused.

“It doesn’t effectively consider the cultural diversity of this country and the 65,000-plus years of connection to cultural practice of our Australia’s First Nations people. We’ve got to think beyond just the Western legal perspective. So, we’ve come up with strategies for protection and ensuring Indigenous people’s rights in relation to their heritage,” Ms Valenti said.

To fill the gaps in the Western legal system, Ms Valenti said she and her firm use intellectual property laws, privacy laws, and biodiversity laws to the extent possible to protect traditional knowledge.

Looking beyond the Western lens

Furthermore, Ms Valenti looks beyond the Western legal system and adopts best principles in international instruments, like the United Nations Declaration on the Rights of Indigenous Peoples, which was adopted by the UN General Assembly in 2007.

The declaration – which was designed with the involvement of Indigenous peoples, including Aboriginal and Torres Strait Islander peoples – establishes a universal framework of minimum standards for the survival, dignity, and wellbeing of the Indigenous peoples of the world.

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It also elaborates on existing human rights standards and fundamental freedoms as they apply to Indigenous peoples.

While it is not legally binding in Australia, the protocols mentioned in the declaration can go beyond the letter of the law and stipulate what is ethical and moral, how a community or business wishes to operate, and how people have to work with them, Ms Valenti explained.

“Rather than just providing the legal answer, which is one aspect, we go beyond that and [ask] how we can create best practice,” she said.

“What is better than what we currently have in place? We also rely a lot on contracting to make best practice, to make protocols legally binding, [and] stick them into a contract. Then the courts recognise that as a business arrangement between two parties.”

Doing this provides parties with avenues for redress if someone breaches their contractual agreement, Ms Valenti said.

Such an approach is broadly applicable, Ms Valenti stressed, noting it can and should be considered in servicing other minority demographics across the country, such as the Chinese-Australian community or Italian-Australian community.

“[It] is a way of practising whereby we are relying as much on the knowledge and input of the client and their community as they are on the knowledge and advice we’re giving them. It’s two-way sharing,” she explained.

“While I specifically engage with Aboriginal and Torres Strait Islander peoples, the frameworks that we use for best practice – as opposed to just good practice – are international, and they work at an international level for all cultures.”

Think outside the box of law

When podcast host Jerome Doraisamy asked if this holistic approach is being adopted by the broader legal profession, Ms Valenti said that while she has witnessed it in some practices, it is not widespread.

While lawyers are naturally curious and eager to expand their knowledge while being respectful of their clients’ cultural practices, she said that they tend to become preoccupied with the black letter law.

“We can forget about the wider perspective because we want to make sure we’re doing it correctly. We’re all perfectionists,” Ms Valenti said.

“I remember how I started out. I was just so focused on making sure that I understood and applied the law as correctly and appropriately as I could. I couldn’t see beyond the law and legal solutions as the only solutions.”

However, with experience and the passage of time, Ms Valenti said she became increasingly comfortable with the law, began “taking the blinkers off a little bit”, and sought broader solutions for her clients.

“Once it clicked in my head that I can follow the law, but I can also think broader than that, that has given me great satisfaction,” Ms Valenti said.

She said that being a lawyer is ultimately about building relationships and trust with clients.

“We provide a service that others can’t, and we have to be the best that we possibly can be at it,” she said.

“But I don’t think that we should hide behind the letter of the law and fail to try to do more or do better for our clients.”

"At the end of the day, it’s all about human relationships – and we want to build really strong ones.”

To listen to the entire podcast featuring Anika Valenti, click here.