A 20 year battle for custody

Ngati Kuri kuia Saana Murray (left) and Mereana Robinson at Auckland's Orakei Marae. Murray is the only claimant of the historic Wai 262 claim still alive. Photo / Glenn Jeffrey

You can see why Pakeha may worry, I say to Maui Solomon, that Maori want rights to everything.

Well, the thing is, the Moriori lawyer explains, Pakeha and Maori have different world views and attach different meanings to things, such as the concept of ownership.

For Pakeha, and the legal system, ownership is the mantra, he says.

With Maori though, and particularly those involved in Wai 262, one of the most widespread and potentially far-reaching of the Waitangi Tribunal claims, you have to replace the concept of ownership with whakapapa (genealogy) and kaitiakitanga (guardianship). If those concepts can be understood from the Maori viewpoint, the claim becomes much less threatening, he says.

We are talking about Wai 262 because after 20 years this historic claim about rights to native flora and fauna, Maori knowledge and customs, is finished and the Tribunal's report and recommendations are about to be released.

This claim is huge and, depending on the outcome, the effects could ripple - or explode - through legislation for years to come.

Next Saturday, members of the six tribes who first lodged the claim back in 1991 will gather in the Far North at Roma Marae in Ahipara to receive the report, with both sadness and excitement.

Sadness because five of the original six claimants representing them have died in the two decades the claim has taken to wend its way through the Treaty claim process, but also excitement at what the report might say.

Solomon, who represents some of the tribes, doesn't yet know what's in it.

But the claim covers the guardianship of an all-encompassing range of Maori taonga (treasures) extending beyond the physical and into the realm of rights over traditional knowledge and intellectual property.

Or, as 87-year-old Ngati Kuri kuia Saana Murray from Te Hapua, the last living original claimant, has said in the past, "Maori control of things Maori".

Solomon explains what she means.

Wai 262 is not so much about Maori claiming exclusive rights but about Maori asserting their kaitiakitanga (guardianship) and their responsibilities to act as kaitiaki over their taonga - taonga including native plants and species, traditional knowledge, language, designs and the use of those designs and words in the commercial world.

Maori are the repositories of Maori traditional knowledge, Solomon says, and it is their obligation to ensure that knowledge is used appropriately and in a way which reflects the underlying values of the culture and the Maori identity.

"That it's not debased, such as, you know, the Spice Girls doing the haka or Lego using names like tohunga."

This claim, he says, is about the ethics of intellectual property and about looking at and exploring different ways of recognising and protecting indigenous knowledge systems.

Internationally, there have been thousands of examples of inappropriate uses of indigenous culture - including of things Maori:

* In 2005 Philip Morris was found to be marketing a brand of cigarettes called Maori Mix in Israel.

* In 2001 Lego used the words tohunga and tapu on a range of children's plastic toys.

* In 2002 singer Moana Maniapoto was prevented from using her own name on a CD because a German company had taken out an international trade-mark on the Maori/Polynesian name.

Solomon said the claim began with a journey by elders to bring back kumara cultivars which had been given to a Japanese research institute.

The claimants said they did this because the kumara is more than just food, there is a relationship of whakapapa and customs with the vegetable which sustained life for so long.

Another is the pupuharakeke, or flax snail.

Murray always has near her a fossilised white shell of the snail.

The endangered snail is more than a snail to Ngati Kuri, but a guardian, taking care of the people by emitting a wailing sound when crushed underfoot and warning the tribe of war parties.

Now, access to the pupuharakeke is blocked to them, yet they have a whakapapa relationship to the snail.

Solomon gives an example from his own culture - 10 years ago he went into a shop in Wellington and was stunned to find cushions with Moriori tree carving figures on them.

He told the woman behind the counter he was offended and she asked "why?".

"I said because they're from my tribe and they are my ancestors. I said, to put it in context, if I had a photograph of your great, great grandfather and put it on a cushion and sat my bum on it or laid my head on it, how would that make you feel?"

He wrote to the company producing the cushions and explained this, but also offered alternatives they could use.

"So it's not just criticising or hitting someone over the head, it's about saying 'hey, look, there's a right way and a wrong way'."

There is an identity and a set of values associated with words and symbols, he says, and if designs, words, symbols, dances, songs and so forth are misused, this undermines the values and authenticity of the culture.

The haka is a classic example, he says.

In the early days the All Blacks performed the haka a bit like an Irish jig. "It wasn't until Buck Shelford came on to the scene as the captain and he called the team together and he said 'Look boys, we're either going to do this haka the right way or we're not going to do it at all' and he explained to them the whole ethos and values underlying that haka.

"Now when the boys do that haka it's not just Maori who feel proud, all New Zealanders feel proud, and so it really gives the whole mana to that haka."

The souvenir industry is an area where inappropriate use of images is rife - articles presented as evidence in the claim include plastic salad servers with hei-tiki on them - hei-tiki are associated with the birthing process and to mix that with food is mixing tapu and noa (not tapu).

Solomon says he can imagine some people, even some Maori, saying Maori are being too precious, but the claim is about striking the right balance between being too precious and ensuring the integrity of the culture is maintained.

Four years ago Murray stood outside Auckland's Orakei Marae not knowing whether she would still be alive by the time the historic claim report was finished. Back then the hearings were drawing to a close and she is now nearly 88 and not 100 per cent well, says son Bundy Waitai.

"She's going to accept the final findings of the report, whichever way it goes. It's up to all of us now, not only the whanau but the hapu and the iwi all around Aotearoa who are involved."

Whatever happens, he says his mother retains this view: "Her belief is that intellectual property rights of flora and fauna is everything above [and] everything below, and that's the minerals and all that, and the land on which it sits."

Solomon again explains the difference in world view - saying Murray's belief here is about guardianship, not exclusive ownership.

"Saana is looking at that and she's saying 'Yes, I have a relationship to all of those things - my people have a relationship with everything below, on and above the ground'."

Solomon says this claim, perhaps more than any other, requires innovative solutions to be found to the problems, and hopes an ethical framework can be developed, involving not just Maori but private enterprise and research institutions.

Wai 262

* Known as the flora and fauna claim.

* Seeks rights around indigenous flora and fauna and other taonga.

* Taonga includes traditional knowledge and intellectual property rights over cultural ideas, design, language and much more.

* Legislation is said to breach the Treaty of Waitangi in this respect.

* Claimants also say the Crown has breached the Treaty by failing to protect tino rangatiratanga (sovereignty) and kaitiakitanga (guardianship) over flora, fauna and other taonga.

* Last year the Tribunal released a chapter of its report, finding Te Reo to be nearly at crisis point.