Maori guardianship 'should be protected'

By Yvonne Tahana

Maori have a right to protect their culture from exploitation. Photo / APN
Maori have a right to protect their culture from exploitation. Photo / APN

The Waitangi Tribunal is calling for law changes across the whole of government to deal with tribes' kaitiaki or guardianship obligations.

But it also asserts Maori do not have ownership rights to native flora and fauna.

Its wide-ranging Ko Aotearoa Tenei report is the tribunal's response to the WAI 262 Flora and Fauna claim.

Lodged in 1991, the claim sought rights to native flora and fauna and intellectual property rights over indigenous knowledge.

In practice, the tribunal said, WAI 262 is about the place of Maori culture and identity in the country's laws, government practices and policies.

It recommended reform of laws, policies and practices in health, education, science, intellectual property, indigenous flora and fauna, resource management, conservation, te reo Maori, arts, culture and heritage and the involvement of Maori in developing international agreements, to better recognise kaitiaki responsibilities of natural and intangible taonga.

The report's results are mixed for claimants who came from Ngati Kuri, Te Rarawa, Ngati Koata, Ngati Porou, Ngati Wai and Ngati Kahungunu and who had to wait 20 years for them. In that time, five of the six claimants have died - only Saana Murray from Ngati Kuri remains.

Ko Aotearoa Tenei said iwi and hapu do not have ownership rights in "taonga species" native flora and fauna.

However, their relationships with those species and associated knowledge are entitled to a "reasonable degree of protection".

Recommendations to provide protection include setting up a Maori advisory committee to work with the Commissioners of Patents and of Plant Variety Rights. The commissioners would also have the power to refuse patents that unduly interfere with relationships between "kaitiaki [Maori] and taonga".

Decisions about any bioprospecting activity in DoC areas should be made jointly by the department and tangata whenua.

The Ka Mate haka was singled out as a taonga where current laws weren't designed to recognise guardianship responsibilities.

It had been used in derogatory ways and intellectual property rights had been acquired without seeking consent from iwi or hapu. The 2006 Fiat ad that showed Italian women giving it a mock go was one example.

The report said a commission should be established to allow anyone to object to offensive public uses of artistic or cultural works, or commercial uses of indigenous artistry which don't have consent.

It would also provide information and guidance to artists and designers who might wish to use haka or waiata or other traditional knowledge.

International laws relating to intellectual property do not constrain the Government from providing protection, the report said, and further reform would allow the country to become a global leader in indigenous rights rather than a reluctant follower.

Any new regime wouldn't amount to a veto right.

"The kaitiaki interests must be fairly and transparently balanced alongside other interests, such as those who own IP rights ... and ... the interests of the wider community in the information and artistic and cultural works available in the public domain."

WAITANGI TRIBUNAL RECOMMENDATIONS

* New commission to hear objections to commercial uses of intellectual property such as the haka. Registrar of haka to be established.

* Resource Management decisions between tangata whenua and local authorities to be compulsory, formal and proactive.

* Iwi and hapu would not have ownership rights to indigenous species, but reasonable protection would be given to knowledge of flora and fauna.

* Maori advisory committee to work with Commissioners of Patents and of Plant Variety Rights. Commissioners would have right to refuse patents which interfere with relationships between "kaitiaki [Maori] and taonga".

* Decisions about any prospecting activity in DoC areas would be made jointly by the department and tangata whenua.

* New national and regional partnership structures to give Maori an equal voice with the New Zealand Conservation Authority in setting conservation objectives and priorities.

* Wildlife Act to be amended to give Maori and Crown shared management of protected species.

* Expand the role of Te Taura Whiri i Te Reo Maori (the Maori Language Commission) to deal with the crisis the Maori language is in.

* Maori health is in crisis. Urgent action needed. Expand health system to include rongoa (traditional healing) services.

* Amend Crown strategy for engagement with Maori on international treaties to require engagement over both binding and non-binding instruments.

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