Originally Published on The Spinoff
It has been 25 years since the commencement of the Wai 262 claim, and seven years since the Waitangi Tribunal’s Ko Aotearoa Tēnei report. So why are we still waiting for the New Zealand government to respond?
One of the promises of the new government was a better relationship with Māori. A large Māori caucus within the Labour party and the inclusion of the Greens in governing arrangements have created expectations within te ao Māori that some longstanding unresolved issues might finally be dealt with. Near the top of that list is a formal response to the report of the Waitangi Tribunal into the Wai 262 claim on Māori intellectual and cultural property rights. It has been seven years since Ko Aotearoa Tēnei was released, the Waitangi Tribunal report on the Wai 262 claim (also known as the intellectual property, or flora and fauna claim) recommending wide-ranging reforms to laws and policies affecting Māori culture and identity. To date, there has been no formal government response. The desire to see progress saw over 200 people descend on Nelson early last week to attend Taonga Tuku Iho – a conference to mark 25 years since the commencement of the claim and to discuss how Māori want to engage with this government to seek a resolution to these important issues.
At the same time the government is pursuing a new approach to trade policy. Following on from the breakdown in consensus between National and Labour over international trade policy during the TPP negotiations, this government has released an ambitious consultation exercise under a Trade for All agenda. Trade for All is a recognition that New Zealanders want a greater say in our trade policy settings. That both conversations are taking place at the same time is important, because recognising and protecting Māori intellectual property rights is as important in international markets as it is in New Zealand. Numerous recent examples highlight how the lack of respect and controls for indigenous languages and intellectual property have damaging impacts on those communities. From the recent trend of UK-based craft breweries utilising Māori names and images to sell alcohol to the recent controversies in the United States over attempts to trademark the words ‘Aloha’ and ‘Bula’; the lack of protection is causing controversy around the world.
The struggle for the protection of Māori intellectual property rights goes back decades. It was 25 years ago when the first claim was lodged with the Waitangi Tribunal, what would become Wai 262, a claim that has challenged Māori and the government for a generation. The hearings alone took 14 years; it was a further four years before the report was released. That was 2011. We are still awaiting a formal response from the government. Ko Aotearoa Tēnei was groundbreaking. It was the first whole-of-government report and it provided a forward looking framework for the recognition and protection of Māori intellectual property rights. Speaking in 2011, but relevant today in light of last week’s announcement of the new Māori-Crown Relations Agency, the Tribunal commented that “over the next decade or so, the Crown-Māori relationship, still currently fixed on Māori grievances, must shift to a less negative and more future focused relationship at all levels.” There is perhaps no better place for Minister Davis to start his work as minister responsible for Māori-Crown Relations than with the first future-focused issue that the Waitangi Tribunal considered as a general kaupapa claim.
The Waitangi Tribunal, in its communique at the time of the release of the report, summarised the impact that the lack of protection has on Māori. “Current laws, for example, allow others to commercialise Māori artistic and cultural works such as haka and tā moko without iwi or hapū acknowledgement or consent. They allow scientific research and commercialisation of indigenous plant species that are vital to iwi or hapū identity without input from those iwi or hapū. They allow others to use traditional Māori knowledge without consent or acknowledgement. They provide little or no protection against offensive or derogatory uses of Māori artistic and cultural values.” These policy settings further sideline and marginalise Māori. Our taonga species, or language, our knowledge, and our rongoā all contribute to the health and wellbeing of Māori. Our inability to control and manage these taonga holds back our development, while at the same time provides room for others to benefit from them.
There are a few established examples that provide working models for a more widespread adoption of the recognition and protection of Māori intellectual property rights. The Ngāi Tahu Claims Settlement Act lists a large number of taonga species – both wildlife and plant species – in which the Crown has acknowledged the cultural, spiritual, historic, and traditional association of Ngāi Tahu with those taonga species. The Haka Ka Mate Attribution Act 2014 provides a right of attribution to Ngāti Toa Rangatira in respect of the Ka Mate Haka. The Plant Variety Rights regime allows for the registration and protection of varieties of plants but not the original taonga species. The Māori Advisory Committee as part of IPONZ – The Intellectual Property Office of New Zealand – has developed strong processes for considering applications that might infringe on Māori sensibilities but this still falls short of the ownership and control of our taonga that Māori have long been demanding be restored. Acknowledgments and attributions are a step in the right direction but a true partnership under Te Tiriti o Waitangi requires that ownership and management of our taonga, of Māori intellectual property rights, be returned to Māori.
On the international stage, the lack of formal policy settings in the domestic arena hamper our ability to protect mātauranga Māori and Māori intellectual property rights from misuse. That is why a Trade for All agenda that does not include protection of Māori intellectual property rights in the international environment is not Trade for All. It is Trade for All Pākehā. The upcoming free trade negotiations with the European Union provide the ideal opportunity to undertake a new approach to protecting Māori intellectual property rights in the international environment. The European Union have over 2,000 geographical indicators that they will request New Zealand protect as part of the deal – including numerous varieties of wine and cheese products. A Trade for All agenda means that negotiations should include discussions around the protection of Te Reo and Māori intellectual property rights as part of any agreement with the European Union. Stopping cultural appropriation in foreign countries will be a lot easier when the onus on policing breaches is placed on the foreign country as part of a free trade agreement. For the Trade for All agenda to include Māori, it means more than incorporating Māori values into trade agreements. It means actively protecting our rights. To do this we need proper recognition of these rights in New Zealand.
It is time for the government to take action and live up to their promise.