Government will finally consider to resolve Māori intellectual property rights

The Waitangi Tribunal has dealt with more than a thousand claims, most of them to do with land. But on Saturday in Kaikohe the Government will consider one about intellectual property rights. 

The claim was first lodged in the 1990s but has yet to be resolved by the Government. It's known as Wai 262 or the Fauna, Flora and Intellectual Property Rights claim - and put simply it's about law reform across the ministries to protect Māori culture and its taonga.

"It was one of the first whole of government claims so for the Government to respond to such a significant claim, it takes a lot of work and a lot of collaboration across a number of ministries," indigenous intellectual property rights lawyer Lynell Tuffery Huria said.

Māori advocates are calling on the Government to take urgent action before all is lost.

Meipara Poata sees herself as a kaitiaki - or guardian - doing whatever she can to protect what’s left of her culture.

"We are intrinsically related to whenua and taonga and we are part of the natural environment. And we have an obligation to protect those things for our ancestors, ourselves and for our future generations," Poata said.

She's the daughter of Tama Poata, who was one of the six original claimants who lodged the Wai 262 claim in 1991.

It challenged the Crown more than 30 years ago over the policies and laws that have taken away Māori control and protection of taonga. 

"Wai 262 is about changing the way in which Maori are recognised within the fabric of our nation," second-generation Wai 262 claimant Poata said.

"Wai262 is about changing the way in which Maori are recognised within the fabric of our Nation."
"Wai262 is about changing the way in which Maori are recognised within the fabric of our Nation." Photo credit: Newshub.

We've witnessed global intellectual property rights being tested in New Zealand courts.

For decades various international laws have protected companies and creators for a whole range of intellectual property rights. Eminem won in court when the National Party used music too similar to one of his songs.

Companies can use a trademark to protect the iconic features of their products. And geographical indications can also be used for products with distinct locations of origin such as 'Champagne'. 

But when it comes to protecting Māori culture and taonga, there's a lot of work to do.

"We still continue to see misused, misappropriation of our reo, our language, our images, our culture," Tuffery Huria said.

Huria said there were some protections for Māori in the Patents Act, the Trademarks Act and the new Plant Variety Rights Act, but they don't go far enough.

The 'Ka Mate' haka used by the All Blacks is partly protected through attribution rights but when it comes to copyright it's a different story. 

Copyright in some works including haka have already been claimed by people overseas. That's because New Zealand doesn't have a registration process like when you have to register a trademark or a patent.

Tā moko - or traditional Māori tattooing - is also not protected. Air New Zealand even tried to trademark the Te Reo Māori greeting 'Kia ora' but that enraged Māori so much, the airline backed off. They are just some examples of Māori artistic and cultural works open to appropriation by non-Māori. They can be commercialised without the need of consent or acknowledgment

"There is an obligation from us to protect our culture because that's not just a benefit to Māori but to all of us," Tuffery Huria said.

It's also the same for taonga such as indigenous plants or species as well as cultural practices and traditional knowledge such as rongoā Māori medicines and healing.

This is all despite Māori culture being at the heart of Aotearoa New Zealand's national identity and economy. 

"The development in our biodiversity framework has been delayed for many years. Development in our intellectual property laws has been delayed so it has been problematic the delays that have risen and the lack of cohesive response from the Government," Tuffery Huria said.

Even the Government's own Ministry of Business, Innovation and Employment unit, the Intellectual Property Office of NZ (IPONZ) failed to view, support and protect mānuka exclusively as a Māori word and a taonga species from Aotearoa New Zealand.

Last month IPONZ gave Australian beekeepers the right to use the Māori word.

"For us, it is really an exemplar of making sure that we are protecting our own and that laws, and kawanatanga laws are prohibiting us as Māori to protect and enhance those types of taonga, because they have been adulterated, stolen by others offshore," Mānuka Charitable Trust chair Pita Tipene said.

Tipene said Māori are sick and tired of having to remind the Government of their obligations and what was guaranteed under our country's constitutional documents such as Te Tiriti o Waitangi and He Whakaputanga - The Declaration of Independence.

"Above all things, it's not only the tree or the plant and the derivatives from the mānuka, but it's our reo. We are indivisible between our environment and ourselves as people so we are protecting the environment and in essence, protecting ourselves," Tipene said.

And while the Government has formed an indigenous collaboration with Australia and Canada, as well as indigenous chapters within our current EU and UK agreements, Tipene said it's not enough. 

"International trends are going towards that, trending towards protecting indigenous rights and our own Government is being left behind, so our Government needs to sharpen up," Tipene said.

The Prime Minister is sharp enough to include Te Matatini Kapa Haka champs Te Whānau a Apanui as part of his delegation to help promote NZ tourism in China. But back here, there's still more work for Foreign Minister Nanaia Mahuta who has been tasked with the whole-of-government approach to address Wai 262.

"We can do what we know we can do for this time. And I think the claimant community are very aware that the path that we are taking to partner the aspirations of iwi Māori and engage iwi Māori and identify some key priorities where we can work together on and one of those areas is in mātauranga Māori, better utilisation of it and protection of it and protect our taonga species."

The claimants said they want to protect what makes Aotearoa unique from the rest of the world hopefully for generations to come.

On Saturday, a hui in Kaikohe will begin the massive task of unravelling Wai 262 and all the implications it will have for Kiwis. It will be the first Government and iwi engagement to discuss part of the Wai 262 claim to sort a legislative framework around mātauranga Māori.

More information about the claimant group can be found here:

The Waitangi Tribunal recommendations in 2011 can be found in each chapter of Ko Aotearoa Tēnei. 

They include:

  • The establishment of new partnership bodies in education, conservation, and culture and heritage;
  • A new commission to protect Māori cultural works against derogatory or offensive uses and unauthorised commercial uses; 
  • A new funding agent for mātauranga Māori in science; and expanded roles for some existing bodies including Te Taura Whiri (the Māori Language Commission), 
  • The newly established national rongoā body Te Paepae Matua mō te Rongoā, and Māori advisory bodies relating to patents and environmental protection.
  • Improved support for rongoā Māori (Māori traditional healing), te reo Māori, and other aspects of Māori culture and Māori traditional knowledge.
  • Amendments to laws covering Māori language, resource management, wildlife, conservation, cultural artifacts, environmental protection, patents and plant varieties, and more.
Government will finally consider to resolve Māori intellectual property rights