November 29, 2023

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The Court’s decision also distinguishes the ADGM and DIFC’s approaches to English law.

A unique feature of the ADGM—certainly within the region—is that the English common law, as it stands from time to time, not only applies and has legal force in the jurisdiction, but also forms part of the ADGM’s laws. This is enshrined in Article 1(1) of the Application of English Law Regulations 2015 (“Regulations”).

On 17 November 2023, the ADGM Court of Appeal published an important decision in AC Network Holding Ltd. v. Polymath Ekar SPV1, confirming, among other things, that whilst ADGM judges “are not sitting as English law judges”, “they are bound to apply the rule laid down by the [Regulations]”. Lord Hope contrasted this with the position in the Dubai International Financial Center (“DIFC”): “The position in the Dubai International Financial Centre is different. Common law rules in various areas have been codified, and it is only if those rules or the laws of other relevant legal systems do not provide an answer that the laws of England and Wales are applied.”

This decision provides clarity to parties contracted to resolve disputes before the ADGM courts, and emphasises the unique position of English law in the ADGM, which the Court of Appeal observed “lies at the heart of the system of law that was created for the ADGM”.

Context and Factual Background

With the adoption of the Regulations in 2015, the ADGM opted to fully transplant English law as its applicable private law.[1] The result is that the entire, constantly updated, corpus of English common law applies in the ADGM. However, as the AC case demonstrates, there remained some doubts as to the full effect of this legal transplant.

AC concerned the sale of shares in a car-sharing company operating in Dubai, Abu Dhabi and Saudi Arabia. In 2020, the company’s minority shareholders were compelled, pursuant to a “Drag Along Notice” (“Notice”) issued by the majority shareholders, to sell their shareholding to a third party.

The minority shareholders challenged the validity of the Notice on the ground that the third party purchaser was not a ‘bona fide purchaser’ as required by the Shareholders’ Agreement (“Agreement”). Rather, they claimed that the purchaser was actually the majority shareholder himself, merely acting through a corporate veil. The minority shareholders sued the majority for the economic torts of intentionally procuring a breach of the Agreement as well as of conspiracy to use unlawful means to breach the Agreement. The Agreement was governed by English Law and any disputes arising under the Agreement were subject to the exclusive jurisdiction of the ADGM courts.

Court of First Instance

The ADGM Court of First Instance agreed with the minority shareholders that the Notice was invalid, insofar as the majority shareholder, by standing on “both sides of the fence,” had effectively expropriated the company’s shares in bad faith. However, the Court did not find that this breach was intentional, with the majority shareholder having received assurance from its legal counsel that the transfer was lawful.[2] In considering the unlawful means conspiracy claim, the Court was faced with a question of English law: did this claim also require knowledge of the unlawfulness of the conduct?

In answering this question, the minority shareholders pointed to a 2021 decision of the English Court of Appeal in Racing Partnership, where a majority of judges held that such knowledge was not required.[3] However, the ADGM Court of First Instance declined to follow this decision, holding that while Article 1(1) of the Regulations made English court decisions and precedent “highly relevant,” it did not bind ADGM courts.[4] Instead, it was the ADGM Court of First Instance’s duty to ascertain the “correct position” in English law, which may not be reflected in the latest case law.[5]

In this analysis, the ADGM Court of First Instance found that Racing Partnership confused rather than settled English law, with the correct position being that knowledge was, in fact, a requirement to establish the tort of conspiracy by unlawful means. Having already found that the majority shareholder lacked knowledge that his conduct was unlawful, the minority shareholders’ claims were dismissed.[6]

Court of Appeal

On appeal, the minority shareholders claimed that the Court of First Instance had erred in its application of English law, and consequently, the Regulations. They argued that Article 1(1) of the Regulations required that the ADGM courts apply English law including respecting the doctrine of precedent, the principle that within a single legal system, lower courts are bound by the prior decisions of higher courts.

The ADGM Court of Appeal agreed. In its reading, Article 1(1) of the Regulations required ADGM courts to apply English law principles, which would necessarily include the bedrock doctrine of precedent.[7] With some exceptions, a lower court would thus be required to apply decisions of higher courts even if they felt that the decision was faultily reasoned or had an unjust result.[8] In this context, the ADGM Court of Appeal found that the English Court of Appeal’s decision Racing Partnership was binding authority in the ADGM.[9] With knowledge of the illegality of its conduct no longer required, the ADGM Court of Appeal found the majority shareholder was liable for conspiracy to use unlawful means to breach the Agreement.[10]

Implications

The ADGM Court of Appeal’s decision in AC has profound implications in the ADGM. As the decision recognises, respect for the doctrine of precedent injects predictability into the ADGM’s application of English law, which was the primary reason for the Regulations in the first place. No longer will ADGM judges be encouraged (or permitted) to depart from latest English case law to undertake novel (and potentially complex) analyses of the ‘correct’ position under English law. Instead, the practice before the ADGM courts will be greatly synthesised with that before English courts, providing relief to clients and lawyers already familiar with these courts and their rulings.

AC also has the notable effect of further entrenching the ADGM’s wholesale adoption of English common law, which stands in contrast to other special economic zones and financial zones in the region (including in the UAE). For example, the DIFC explicitly codified various common law rules as DIFC law with adjustments, with English common law only applied to fill gaps in these existing DIFC codes.[11] The merit of the ADGM model—evidenced by the ADGM’s growing attractiveness to foreign investors worldwide—is its immediate familiarity to clients and lawyers well-versed with English law. The AC decision is another welcome step in the right direction.

__________

[1] Application of English Law Regulations 2015, art. 1(1) (“The common law of England (including the principles and rules of equity), as it stands from time to time, shall apply and have legal force in, and form part of the law of the Abu Dhabi Global Market”.)

[2] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 16.

[3] Racing Partnership v. Done Bros Ltd. [2021] Ch 233

[4] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 18.

[5] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 19.

[6] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 19.

[7] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 25.

[8] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶¶ 32-33.

[9] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 45.

[10] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 46.

[11] AC Network Holding Ltd. v. Polymath Ekar SPV1 [2023] ADGMCA 0002, ¶ 2.

The following Gibson Dunn attorneys assisted in preparing this update: Nooree Moola and Praharsh Johorey.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s global Litigation, International Arbitration, or Mergers and Acquisitions practice groups:

Renad Younes – Abu Dhabi (+971 2 234 2602, [email protected])
Marwan Elaraby – Dubai/Abu Dhabi (+971 4 318 4611, [email protected])
Nooree Moola – Dubai (+971 4 318 4643, [email protected])
Praharsh Johorey – Dubai (+1 212.351.3911, [email protected])
Cyrus Benson – London (+44 20 7071 4239, [email protected])
Penny Madden KC – London (+44 20 7071 4226, [email protected])

© 2023 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials.  The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel.  Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.

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A major exhibition of the late Anmatyerr desert painter is welcome, but the influence of the rapacious art market on Aboriginal art is inescapable

On October 14, while Australia was busy making the wrong kind of history by resoundingly voting against an Indigenous Voice to Parliament, another event was unfolding at the heart of the old empire: the Frieze Art Fair, which spills annually over London’s Regent’s Park, and is billed in the art world as the most influential fair of its kind.

At face value, the two events would appear both a literal and figurative world apart, but this year there was a link, however tenuous. D’Lan Contemporary, a Melbourne gallery that has recently positioned itself at the forefront of a resurgent international market for Australian Aboriginal art, had secured a sought-after spot in Frieze Masters, a high-value section of the fair where some of the world’s best galleries present some of the most collectable works the art market has to offer. Rightly or not, Aboriginal art has long been celebrated as Australia’s only truly original contribution to world art, so if D’Lan Contemporary’s inclusion was at one level unsurprising, so too was the gallery’s presentation of the late Anmatyerr artist Emily Kam Kngwarray, a desert painter whose works are often spoken of as the pinnacle of the movement.

A small symbolic win against the backdrop of the Voice’s ultimate defeat, one might think, but let’s not get ahead of ourselves. Money trumps politics when it comes to the market for work such as Kngwarray’s. After his gallery’s Instagram account had on the day of the referendum posted a veiled statement in support of the Voice, on Sunday – the day after its crushing defeat – D’Lan Davidson took to his own “behind the scenes” account to post some news: “Two more works sold today”. A couple of days later, with the art fair over, there was more: “What a moment for Emily. Amongst all the darkness going on in the world right now, we are pleased to confirm 8 out of 9 works by Emily Kam have sold.”

The fact that art and commerce are rarely easy bedfellows (let alone art, commerce and politics) is only compounded in the instance of Australian Aboriginal art. The dire statistics that so mar the lives of First Nations Australians, and separate them from the life outcomes enjoyed by the vast majority of their settler counterparts, also represent the pronounced divide across which their art is bought and sold. Yes, there are plenty of high-profile Aboriginal artists who make overtly political work, but for figures such as Kngwarray – currently the subject of an eponymous retrospective co-curated by Kelli Cole and Hetti Perkins at the National Gallery of Australia (until April 28) – it is far more often the comparatively quiet themes of Country and ancestral culture that take precedence. When most people think of Aboriginal art, it will be art like hers that comes to mind. And although there is undoubtedly a political edge to asserting an Indigenous visual identity in the largely white domain of the art world, this arguably lies latent for all but the most sensitive of viewers. At surface level, such paintings – no matter how good – are largely frictionless to settler-Australian eyes: attractive whorls and eddies of bright colour, vibrant fields of dots, loose grids of linework.

It’s not entirely cynical to suggest that this accounts for much of these artworks’ popularity: they are eminently palatable, entirely non-threatening. And even if collectors aren’t interested in claiming the softly progressive bona fides such works project, no one can argue that they don’t look fabulous above the sofa. So it is that a country that can overwhelmingly vote “No” to the modest proposal of the Voice can simultaneously pride itself on nurturing a government-subsidised Aboriginal art “industry” – one that extends from tourist trinkets to high-end art such as Kngwarray’s – worth an estimated $250 million a year. And so it is that many artists responsible for such works continue to live in what by any reasonable measure is abject poverty.

Such inequities lie at the very heart of Kngwarray’s work. Her ancestral Country, Alhalker, lies within the borders of the Central Desert Sandover region (most often referred to in relation to Kngwarray’s work as Utopia – the name of a pastoral lease contained therein). Her reputation, which had to bridge the significant distance between her Country and the global art world, was forged in the late 1980s and early ’90s. The market was still in its infancy, but, with Kngwarray’s arrival on the scene, this changed.

Indeed, an argument can be made that it was the precipitous uptake of interest in Kngwarray’s work, along with that of other desert artists such as Clifford Possum Tjapaltjarri, that first proved just how profitable Aboriginal art could truly be. Her defining subject was apparently modest: the filigree-like network of underground roots and tubers of the native anwelarr, or pencil yam – a traditional food for her people, and the source of her middle name, Kam, which refers to the plant’s underground seedpod. She is far from alone among Aboriginal artists in taking bush food as her subject, but her singular approach combined with fortuitous timing to ensure she became an icon. In 1997 – a year after her death – her work was included alongside that of Waanyi artist Judy Watson and Ngarrindjeri artist Yvonne Koolmatrie as Australia’s presentation at the 47th Venice Biennale. She has also already been the subject of two retrospectives: the first opened in 1998 at the Queensland Art Gallery and toured nationally, while the other was held at the National Museum of Australia in 2008 before travelling to museums in Osaka and Tokyo.

Kngwarray also painted other subjects, but it is her networks of yam roots that are now instantly recognisable as hers. Her mural-scale white-on-black work Anwerlarr Anganenty (Big Yam Dreaming, 1995) – arguably the most iconic of her works – will for many viewers provide one of the current retrospective’s highlights. Just over eight metres long, it quietly dominates the final gallery, providing a kind of base note for everything that has come before it. As with other works on the same theme, it doesn’t so much depict her rhizomic subject as grant it a painted analogy: unsteady lines reach organically across the black ground, tangling together here and there in clumps, before unthreading only to tangle again elsewhere. The result is bracingly direct: there is no overworking, no false starts or second thoughts. Stand back and it carries a pronounced graphic charge, but move in close and it is revealed in the simplest of terms as acrylic paint bluntly applied to rough-primed ground.

This matter-of-fact painterly touch is evident everywhere in the NGA’s show. In late works such as Untitled (1996), in which a loose scatter of brusque white lines on a brown ground are overlaid with an equally provisional network of purple, it comes to a kind of crescendo. Is it simply a mess, or a particularly expressive evocation of Country? There are arguments to be made both ways, but one thing at least is clear: against the first wave of desert Aboriginal painting – characterised by precise dotting, roundels, and linear, map-like compositions – Kngwarray’s looseness stands out. Even her earlier paintings, which are comparatively far more detailed, display the almost cavalier approach that made her famous: what might otherwise be seen as mistakes are simply worked into her wider compositions. One example among many lies in a small cluster of black dots towards the bottom left-hand side of the otherwise white-dotted Ankerr (emu, 1989), a perfect touch of dissonance amid an otherwise harmonious ground. It’s moments like these, rather than her increasingly expressive touch, that for me set her work apart. They operate like a signature. “Emily”, as many in the art world like to refer to her – as if knowledge of her paintings somehow equates to familiarity with the artist herself – may now be one of the most imitated artists of the entire movement, but her work has nonetheless maintained its insistent individuality.

The Emily Kam Kngwarray exhibition shows that this was clear from the outset, but it didn’t necessarily make the reception of her paintings easy. As Indigenous academic Stephen Gilchrist outlines in his essay included in the accompanying catalogue, the initial reading of Kngwarray’s work by the Western art world was plagued by cultural relativism. Which is to say, by the commissioning culture’s tendency to see its own traditions in her work, even as it opened a window onto the radically different traditions of Kngwarray’s people. This is the conundrum of much Aboriginal art like hers, and cuts to the heart of the broader movement. For those brought up under the aegis of modernism – under the principles of form, colour and abstraction (an art, to paraphrase modernism’s most famous American critic Clement Greenberg, that first and foremost called attention to art itself) – her paintings were at one level familiar, even if mistakenly so.

This goes a good way towards explaining the frictionless quality touched on above. The rise of the post-minimal and conceptual avant-garde in the latter decades of the 20th century, not to mention the ascendence of Pop Art, with its lashings of ready irony, served to push modernism aside. But here were paintings that could be enjoyed by non-Indigenous eyes on exactly the terms that unreconstructed modernism demanded: as untrammelled expressions of colour and form. Even better, any suggestion that her paintings were simply rehashed modernism, which would likely have been the charge levelled at a good number of them had they been made by a non-Indigenous artist, could be instantly refuted by the fact they were anything but: Kngwarray – desert born and raised – had no direct knowledge of the kinds of works hers accidentally evoked.

As Gilchrist emphasises, her paintings were instead an expression of her cultural inheritance, deceptively simple depictions of a very specific place in which tiny details – her beloved yam roots, or perhaps a scatter of desert grass – could somehow stand in for just about anything and everything that mattered in her lifeworld. But focusing solely upon this aspect also has its pitfalls for non-Indigenous viewers and commentators: myth readily creeps in. The fact that this lifeworld was barely understood, if at all, by most newfound enthusiasts, added a layer of mystique onto which various fantasies could be projected – the untrained “genius” and the desert seer among them. Her own perfectly gnomic statements about her work only made this easier. “That’s what I paint: whole lot,” she was purported to have said when asked about the subject of her work early in her career. And although the linguist Jennifer Green deftly unpicks this much-circulated statement in an essay included alongside Gilchrist’s in the catalogue, the art world ran with it, as if an entire artistic philosophy could be dressed in those few words.

For anyone interested in a more detailed picture of Kngwarray’s lifeworld, Green’s essay is essential. It places Kngwarray within a regional history in which ancestral and ceremonial currents remained strong, even as they were buffeted by the establishment of the vast pastoral leases in the 1920s and ’30s that pattern the area to this day. It was there that Kngwarray and her people provided indentured labour under the kind of varying conditions that betray the complex and brutal nature of Australia’s colonial frontier. As Green notes, some station owners “had reputations for cruelty and abuse”, while others “were regarded with affection, and their properties were seen as relative havens”. When Green moved to the community of Utopia in 1977, the so-called station era was unthreading into the era of self-determination. She set up the literacy programs by which Kngwarray first learnt to write her name, and then, in 1978, helped establish what became the Utopia Women’s Batik Group, initially coordinated by another key early figure, Julia Murray. Among a group of her fellow countrywomen, Kngwarray practised the medium for 11 years before she took up painting on canvas – examples included in the retrospective show how central it was to her later approach.

Green was part of an informal cadre of intermediaries through which Kngwarray’s work was brought to its audience. In addition to her and Murray, there was the curator of the Holmes à Court art collection, Anne Marie Brody, who was among the very first to burnish Kngwarray’s early work – both in batik and on canvas – with a respected art world imprimatur. Others, however, were far closer to the big money, and thus hold a more complex place in her story. From 1989 until her death, for instance, Kngwarray regularly painted at Delmore Downs, a station that bordered the Utopia pastoral lease that had been held by Anmatyerr and Alyawarr traditional owners since 1980. It was at Delmore that she would paint some of her most celebrated commissions, including Anwerlarr Anganenty (Big Yam Dreaming) and the related large-scale work from the same year, Yam awely, which shares the retrospective’s final gallery.

Although his intersection with the art world might appear random, the third-generation owner of Delmore Downs, Donald Holt, was by all reports far from naive. Like his grandfather before him, he had once collected Aboriginal artefacts, before turning to Hermannsburg watercolours and early paintings from Papunya, the Western Desert community where the Aboriginal Art movement so famously gathered momentum in the early 1970s. After meeting his Melbourne-raised (now former) wife, Janet, in Mparntwe/Alice Springs in the early 1980s, the two teamed up as representatives not only for Kngwarray but also for a group of her fellow Utopia artists, among them now well-known figures including Gloria and Kathleen Petyarre. The venture proved so successful that Holt’s LinkedIn page now lists him as a “pastoralist, art collector, consultant and dealer”, an unintendedly blunt reminder that colonial history lies just under the surface of paintings such as Kngwarray’s: where she had once provided labour for the pastoral industry, she later came to labour – albeit in different fashion – for its art world equivalent. One way of extracting economic value from Country had, through artists, been transmuted into another.

Alongside the Holts, the most prominent among Kngwarray’s intermediaries was a flamboyant and energetic figure called Rodney Gooch, the kind of brilliantly eccentric art coordinator of the first wave that has now largely been professionalised out of existence. He arrived in Mparntwe in the early 1980s – a sometime drag queen looking for adventure in the desert centre, which he initially found by undertaking a months-long camel trek back to Byron Bay on the east coast. Later, he too carved out a key role for himself with the artists of Utopia. This began as shop manager for the Central Australian Aboriginal Media Association (CAAMA), where alongside recordings of local Aboriginal bands and other wares he was responsible for selling the results of early craft projects in Utopia, including batik. In this, he was part of a small but significant intercultural milieu; for a time, he and his long-term de facto partner, the little-known Warumungu painter Robert Ambrose Cole, shared a rambling house with Philip Batty and Freda Glynn. (Glynn, a respected Kaytete Elder and the mother of acclaimed filmmaker Warwick Thornton, co-founded CAAMA with Batty and John Macumba.)

It was as manager of the CAAMA shop that Gooch galvanised an early Utopia batik project, which was sold in its entirety to the Holmes à Court collection. When he recognised soon after that the price of batiks would always be constrained by the medium’s status as “craft”, he encouraged the Utopia artists to paint on canvas, providing the material means to elevate their work to the more rarefied status of “high art”. (In an inspired curatorial touch, these first canvases have been brought together again and hung at the entrance of the retrospective, where they ground Kngwarray’s subsequent practice among her community of fellow artists.) A final link in the chain between Utopia and the high-end art world came via James Mollison, the NGA’s famously mercurial founding director. He visited the CAAMA shop in 1988 and was immediately drawn to Kngwarray’s work. According to Batty, who has written a number of essays about Kngwarray and the art world, Gooch welcomed Mollison’s interest as “manna from heaven”; more fell the following year when Mollison purchased her painting Ntang Dreaming (1989) for the national collection. The stage was set for Kngwarray’s meteoric ascendance.

This is the point where the market itself became a determining factor both in Kngwarray’s story and the very nature of her work. Interest in Aboriginal art had been building for some years, but in her wake everything was white water: with serious money involved, the straightforward ethics that had clearly guided the initial art and craft projects in the region were quickly muddied. This resulted in what Kelli Cole and Hetti Perkins cast in their co-authored catalogue essay as an “opaque system of accountability that took advantage of the inexperience of the artists and the poor socio-economic status of their communities”. Kngwarray was by then around 80, and from the outset it was clear that her painting career would be a short one. What followed was the art world equivalent of the mining boom, with various prospectors of greater or lesser ethical distinction rubbing shoulders in a scrum for what was always set to be a finite resource.

Collectors from interstate and even abroad began to arrive at Delmore Downs by chartered plane. Gooch left his role at CAAMA and cut out on his own; along with the artist-turned-art-dealer Christopher Hodges, who with fellow artist Helen Eager opened the commercial gallery Utopia Art in Sydney in 1988, he remained one of Kngwarray’s key representatives. But she famously painted for others, too, producing work in great volume and of subsequently varied quality. Stories of her accepting not only cash for her creative labours but also informal desert currencies, such as used vehicles or even second-hand clothes, are rife; so too are rumours of forgeries, fakes and unacknowledged collaborations. Make of them what you will, but just how smoothly the market moved in concert with Kngwarray’s practice can in part be gleaned through photographs of her found online. She is often shown midway through a painting, seated cross-legged with the canvas unfurled before her. Many of these images walk a fine line between familiar hagiographic photos of famous artists at work in their studios, albeit relocated to desert surrounds, and the kind of “proof of authorship” photographs that are often used in the desert art industry in an attempt to shore up provenance. In some, a catalogue number for the partially completed painting is already propped up in the picture. When an artist’s work is as hot a commodity as Kngwarray’s was from the get-go, there can be no such thing as an outtake: everything is in the oeuvre.

By the time the Sandover region secured funding for its first community art centre, in 1999, Kngwarray had died, and the 3000 to 4000 paintings she is estimated to have made over her short career were already in play, either held by the independent art dealers who had commissioned them, or by collectors or galleries. Gooch remained a somewhat puckish presence in the desert art industry until his tragic early death from AIDS in 2002. Along with Delmore Downs, the market still sees a Gooch provenance as the most ethical, and by all accounts he certainly had deeply felt and mutually respectful relationships with the artists he worked with. Kelli Cole, who is of Warumungu/Luritja heritage, grew up between Mparntwe and Darwin and is the niece of Gooch’s partner, Robert Ambrose Cole. She is among those who attest that Gooch’s allegiances ran to the artists he worked with. When we spoke over the phone in mid October, she was in Mparntwe, where she had been based with Hetti Perkins (the daughter of the late Arrernte/Kalkadoon activist, Charlie Perkins) for the final stages of their curatorial research. Cole fondly recalled visits she would make to Gooch and Robert’s house as a teenager, and seeing the old Utopia ladies there, happily painting in the shade over cups of tea.

But ethics are of course relative, and, in terms of the Aboriginal art market, famously hard to ascertain with any clarity. Gooch seemed to revel in this grey zone, especially when fellow whites appeared to be struggling with it. He can be seen in a 1998 documentary sitting on his large, enclosed verandah, a small fluffy dog on his lap as he holds forth with evident pleasure about the baffling economic inconsistencies of cross-cultural art making. “[The money] doesn’t end up in one person’s pocket,” he says. “It’s a really hard concept, and I don’t expect any white person to ever get a grip on it.” Later, when an unnamed Aboriginal woman visits unexpectedly with a new painting to sell, Gooch refuses her initial price of $200, and suggests on camera that the documentary crew buy it for $125. “You should be able to double your money very easily,” he says as he cinches the deal. Whether this betrays his own business model or not, his point is achingly clear. During the first decade or so of the market’s largely unregulated initial boom, the rule for making money out of Aboriginal art was as straightforward as it is for any commodity: buy low, sell high.

All this makes for a challenging picture, and it’s no surprise that Emily Kam Kngwarray leaves much of it outside its purview. Afterall, a successful retrospective is one that provides a clear view, and Cole and Perkins certainly succeed in lifting Kngwarray’s practice well above the market-driven fray.

It is, of course, a conscious decision. “The money story was an ugly story – this old lady certainly wasn’t a wealthy old lady,” Cole recently told me in person, when I previewed the exhibition in Canberra a month after our first phone call. “But we wanted to make a show that connected her back to her spirituality and to Country.”

In this, it’s entirely possible to visit the exhibition and simply enjoy the art. At times, it sings. Individual paintings appear beautifully striking on the white walls. Yes, cultural relativism is one of the pitfalls that has traced the reception of works like these, but enjoy it, if only for a moment. The capacity for Kngwarray’s canvases to evoke canonical greats of Western abstraction is real, and accounts for much of their initial appeal. But it’s what lingers that matters. Indeed, the way in which much contemporary Indigenous art evokes one world before illuminating another entirely is part of what makes it so compelling.

To my eye, it is the earliest canvases that truly hold up to scrutiny. Although markedly unassuming when compared to much of the later work, they are easily among the best things in the exhibition, and it seems no coincidence that they were made before her market grew so intense. Paintings such as Alhalker – Old Man Emu with Babies, Untitled (Alhalker) and Awely, all from 1989, quietly justify her status: enlivened by underpainted networks that are obscured to varying degree, their dotted surfaces deftly evoke the undulating shimmer of desert ground in the same breath as illuminating what lies beneath. But although compelling works recur, many unavoidably raise questions that all seem to point back towards Kngwarray’s fraught relationship to the white-run market: why, as her short practice as a painter unfolded, did she seemingly preference techniques that made each work ever faster to execute? What sequence of decisions led her to begin working in multiples, such as the 14 tall, slender canvases that make up Untitled (1994–95)? Should we read Kngwarray’s specific intent in how multi-part works like that, not to mention the 22 individual canvases of The Alhalker suite (1993), are brought together as one, or were such decisions made after the fact? Surely another form of cultural relativism is to assume that the agency one might expect a non-Indigenous artist to exert over a work translates fluidly into cross-cultural settings. When we look at Kngwarray’s work, it’s not overreach to suggest we also see across her brief career the increasing influence of her market-aligned intermediaries: her touch might be instantly recognisable, but the influence of others – whether through scale, colour, even choice of brushes – is there too. How do we align this with the oft-made claims to her genius?

So it is that we return to the market-as-lens-for-interpretation. Kngwarray’s work has only become more sought after in recent years; many commentators, for instance, are caught up on the fact that the American comedian, actor and art collector Steve Martin has recently become a fan. High-level institutional valorisation will unavoidably buoy her market reputation further – the potential returns for those with her paintings in their collections or stockrooms will continue to flow. An exhibition such as Emily Kam Kngwarray can achieve a great deal in terms of addressing the resulting power imbalance, but, as Cole readily admitted to me in Canberra, it’s a difficult task.

It’s clear, for instance, that some of Kngwarray’s enduring representatives want to honour her, albeit while continuing to profit from her art. But others not so much. Google “Emily Kngwarray + paintings for sale” as I did recently, and the results are many, including a sponsored ad by a Sydney gallery offering a modestly scaled painting for more than $90,000, including shipping. The desk-bound collector, one imagines, could have the work within the week. And what to make of the now shuttered Emily Museum, a short-run private enterprise opened in 2013 by the controversial Aboriginal art dealer Hank Ebes in a converted factory in the otherwise undistinguished Melbourne suburb of Cheltenham? Ebes, who sold Clifford Possum Tjapaltjarri’s major 1977 painting Warlugulong to the NGA in 2007 for a record setting $2.4 million, has claimed that he commissioned as many as 600 of Kngwarray’s works over his career. An exaggeration? Maybe, but look at the few photographs of his museum that survive online, and the number is easy enough to believe: her works are massed cheek to jowl on floating walls (in one image, an antique fighter plane – apparently another of Ebes’s collecting passions – can be glimpsed to one side). With all this in mind, higher end commercial exhibitions of her paintings – which, alongside D’Lan Contemporary’s recent presentation at Frieze Masters, include a 2022 exhibition at the Parisian outpost of New York mega-gallery Gagosian – risk appearing as exercises in wilful blindness, or even as calculated obfuscations of the full story. The fraught nature of her market is papered over, while any real consideration of the political and social reality of Australian Aboriginal people is invariably absent. In its place, one encounters often unwieldy essays – strange portmanteaus of art speak and cultural anthropology – designed to shore up Kngwarray for a market that tacitly demands a particular kind of authenticity, even as they make claims for her paintings as a groundbreaking form of contemporary art.

So, what’s the answer? D’Lan Contemporary, which reported sales of more than $2.7 million at Frieze Masters, has arguably put one forward in the form of the grandly titled National Endowment for Indigenous Visual Arts (NEIVA). The arm’s length organisation was founded by the gallery in 2020 to encourage the market sector to reinvest in Aboriginal art centres and aligned organisations registered for tax purposes as deductible gift recipients. According to the gallery’s website, it allocates 30 per cent of its own annual net profits. Some readers may well be satisfied with this as a solution: it supports the source of the art, while allowing the profit-makers a healthy tax break – the kind of arrangement upon which much arts philanthropy is built. But I, for one, am far more circumspect. Sure, a financial kickback of the kind enabled by NEIVA may appear a step towards some kind of parity, but it is only that: a step. With the lion’s share of proceeds continuing to flow elsewhere, I can’t help but return to the question of who continues to benefit, in real terms, from the intersection of Indigenous culture and settler capitalism that has generated Australia’s Aboriginal art movement.

Emily Kam Kngwarray treats its subject with the deference a major retrospective should, but to zoom out is to take in the market’s complex of competing interests. If one ignores the colonial overlay, the argument can be made that it’s the same for all art that achieves commercial success. But it’s not. Remember that in the 21st century, Australia remains alone among colonial countries in omitting its First Nations people from its Constitution. Indeed, if the results of the referendum proved anything, it is how far we are from anything like reconciliation. In its wake, I fear it’s only become harder to see the commercial circulation of Aboriginal art as anything but another act of possession.