Cabinet decides courts aren't qualified to hear appeals on Māori plant decisions

Commerce Minister David Clark is shepherding the Plant Variety Rights Bill through the House. Photo / Mark Mitchell

The Cabinet has decided there will be no right of appeal against decisions by a proposed new Māori Plant Varieties Committee because it believes the courts are not well placed to be making judgments on such things as "kaitiaki relationships" with "taonga species".

Setting up the committee in the Plant Variety Rights Bill is a response by the Government to the largest and longest Waitangi Tribunal claim in its history, known as Wai 262 for indigenous flora and fauna.

The Māori Plant Varieties Committee will decide whether intellectual property rights for breeders of particular plant varieties should be granted, rejected, cancelled or granted with conditions, depending on whether they see any adverse kaitiaki relationships with taonga species, terms not defined in the bill.

The Law Society, Horticulture NZ and the Opposition have some concerns with the intention to make some statutory decisions out of bounds to the courts, but Commerce Minister David Clark is more relaxed and said the select committee could change the bill if necessary.

The establishment of the committee is not particularly controversial – although how it will operate is still a blank canvas. The committee will be given a year to design its procedures after the bill gets the royal assent.

Most breeder applications to develop or vary plant species, perhaps 100 to 120 a year, will be handled by the Commissioner of Plant Variety Rights and will be for non-indigenous species.

But an estimated 7 per cent of applications for taonga species could be made by the Māori Plant Varieties Committee.

The economic development committee begins hearings on the Plant Variety Rights Bill 2021 this week. Photo / Peter Meecham

The Law Society has raised concerns about a claim in a Cabinet paper that the courts won't hear substantive appeals from the committee on the basis that "the courts are not well placed to be making substantive determinations on kaitiaki relationships".

"This statement overlooks the fact that the courts have been interpreting the principles of the Treaty of Waitangi in a substantive way for over three decades," says the Law Society's submission to the select committee, which begins hearing evidence on the Plant Variety Rights Bill on Thursday.

The society cited as an example the lengthy judgment in May of Justice Peter Churchman on a foreshore and seabed claim under the Marine and Coastal Area (Takutai Moana) Act.

The effect of the bill as it stands is that IP decisions by the Commissioner on non-indigenous plants will be subject to a High Court appeal processes, either a judicial review on whether the law has been followed or on the substantive merits of the decision; but an IP decision by the Māori Plant Varieties Committee will be subject only to judicial review, and will not be allowed on the merits of the decision.

Breeders will be able to ask the Maori committee to reconsider their application if there is new evidence – but it will be the same committee reconsidering its decision.

National justice spokesman Simon Bridges was also critical of the principle of fencing off Māori issues from the courts.

"Our courts are very well versed in Treaty and Māori relations matters as aspects of tikanga," he said.

National MP Simon Bridges says the rule of law should prevail. Photo / Mark Mitchell

"Our courts have been educating themselves over a long period of time and are up to the task. To not have that ability, is to put these things off limits from any kind of conversation or debate and that's not right.

"These are not the courts of 1924 or 1873. The modern New Zealand courts of 2021 are very culturally conversant and have the ability to receive expert evidence as well as education to ensure they are moving with the times and evolving conceptions like kaitiakitanga."

He said it was "sloppy thinking" and it could end up being a slippery slope.

"There should, in short, be rule of law here."

The Māori Plant Varieties Committee is one element of a larger bill designed to revamp New Zealand's outdated IP laws for plant breeders and the Ministry of Business Innovation and Employment has consulted extensively on it over several years.

The Waitangi Tribunal report on claim 262 which began in 1991 was delivered in 2011.

As well as being the Government's response to Wai 262, the bill will bring NZ law into compliance with the Comprehensive and Progressive Agreement on Trans-Pacific Partnership (CPTPP) and the 1991 revision of the International Convention for the Protection of New Varieties of Plant (UPOV91).

New Zealand deferred the 1991 update because of the Wai 262 claim (It started in 1991 and the Tribunal eventually reported in 2011).

Last term the bill was in the hands of Kris Faafoi when he was Minister of Commerce and Consumer Affairs but those portfolios and oversight of the bill have now passed to David Clark.

Speaking to the Herald, Clark said there was an acknowledged gap to be filled in how the Māori Plants Variety Committee would operate. He understood that breeders wanted a process that would be predictable.

But it would be given a year to come up with guidelines and the select committee itself could provide more detail if it was warranted.

Asked how he saw the committee working and how it could mitigate an adverse kaitiaki relationship, Clark said Māori were advocates for biodiversity and sustainability.

"You can imagine the kinds of values that are going to brought to that decision are about protecting the future prosperity and wellbeing of New Zealand.

"I'm not a kaitiaki expert so I've got to be thoughtful about being absolute and this is why the select committee process is actually a good place to have that conversation more fully but I can imagine that the kinds of values that Māori are going to bring to the table are ones that most New Zealanders are pretty comfortable with."

Clark said iwi were pretty commercially savvy operators and were interested in building New Zealand's prosperity and wellbeing.

"I'm imagining this being a pretty creative and constructive relationship."

He said he could imagine some partnerships being created between plant breeders and Māori.

Horticulture New Zealand's submission supports the bill to update the 1987 law.

It supported the establishment of the Māori Plant Varieties Committee but said the restrictions on appeal rights "provides an extremely narrow scope for the committee's reconsideration which, combined with the inability to appeal decisions, means applicants may be unfairly prejudiced by the process."