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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 19 April 2015
HE KAITIAKI MATAURANGA: BUILDING A PROTECTION REGIME FOR MAORI TRADITIONAL KNOWLEDGE
Tania Waikato*
INTRODUCTION
At the dawn of a new century, Maori are faced with the prospect of a new threat to their cultural heritage. Spurred on by the effects of globalisation, the hunt for fresh, commercially exploitable ideas has led to a disturbing trend involving the misappropriation of traditional knowledge' . Imitation, commercialisation and blatant copying of indigenous art forms, imagery and knowledge is no longer confined to a few isolated incidents overseas, but has become so popular that even industry giants such as Sony2 and Lego3 have become involved in the fracas. Even more disturbing than this, is the apparent failure of current intellectual property law to offer effective and appropriate protection for indigenous peoples from these attacks on their cultural heritage.
In New Zealand, Maori are realising that they are far from immune to this intellectual piracy. New incidents involving the questionable use of Maori words, art, and imagery are arising on an almost daily basis. From the popularity of moko-inspired tattoos amongst celebrities such as Robbie Williams4 , to high profile incidents such as the copyrighting of Maori names by Danish toy company Lego5 , Maori have been
Tania Waikato graduated from the University of Waikato in 2003 and worked at the Auckland office of Russell McVeagh in the Maori Legal and Resource Management teams for two years before moving to Tauranga. Tania is currently practising at Cooney Lees Morgan specialising in litigation and employment.
2005 Building a Protection Regime for Maori Traditional Knowledge 345
forced to take a hard look at our intellectual property rights ("IPR") regimes and to ask why matauranga6 is not being protected.'
The Waitangi Tribunal Claim no. 262 ("Wai 262") is the embodiment of such concerns. The original statement of claim, filed with the Waitangi Tribunal in 1991, focused on the Crown's failure to protect Maori rights in respect of indigenous flora and fauna8 as guaranteed under the Treaty of Waitangi 18409 ("Treaty"). But as Maori realisation of the threat to other areas of Maori traditional knowledge increased, these claims were amended to cover all aspects of Maori traditional knowledge. 10 Maori and government alike await the Tribunal's report, as it is likely to have wide-reaching implications for the law of intellectual property in this country.
One of the common remedies sought by the plaintiffs in the Wai 262 claim is the enactment of legislation to protect matauranga.11 Other solutions aimed at preventing the misappropriation of traditional Maori
9 Treaty of Waitangi 1840.
346 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
knowledge to date include a Maori made trade mark12 , an international declaration13 , and the reform of current IPR legislation.14 The topic of this chapter is the taking of a sui generisI5 approach in the formulation of a legislative regime for the protection of Maori traditional knowledge. It will be argued that such an approach is essential to providing the effective and appropriate protection for matauranga that Maori desire.
There are a number of formidable barriers to devising an original legislative scheme specifically designed to cater for the protection of Maori traditional knowledge. Not least of these is the innate problem of using a foreign legal system to protect the knowledge and concepts of another culture, as well as statutory and international commitments to strengthen intellectual property laws under instruments such as GATT: TRIPS.16 It will be argued that despite these and other barriers, the most effective and practical option for the protection of matauranga is the enactment of legislation based upon traditional Maori ideology.
The approach that will be taken in creating a protection regime for Maori traditional knowledge is novel, but it is necessitated by the unique interface between European intellectual property rights concepts and traditional Maori knowledge. Firstly, a survey of local and international responses to this issue will be conducted to identify potential protection options and the required structural elements for the regime. Secondly, the ideology and concepts relating to Maori traditional knowledge will be explored in order to identify overarching principles and essential substantive elements for the regime. Finally, the results of the two investigations will be interwoven to produce a hybrid model, a Pakeha law based on Maori principles.
Constructing a modern day statute for protecting ancestral Maori knowledge that is both effective and appropriate is an almost impossible task. However, the alternatives of trying to re-mould existing laws or
12 Toi Iho — for further discussion see section 4.3.
14 Trade Marks Act 2002 — for further discussion see section 4.4.
2005 Building a Protection Regime for Maori Traditional Knowledge 347
simply doing nothing hold even less hope of a solution. In the space of a year, the instances of Maori traditional knowledge being used by non-Maori without authorisation in commercial products, branding and other media has increased exponentially. Rather than relegating this problem to the too-hard basket along with so many other problems facing Maori today, this paper proposes to accept the challenge of providing a kaitiaki for matauranga Maori, while there is still something left to protect.
2. MATAURANGA AND INTELLECTUAL PROPERTY RIGHTS
In order to build a protection regime for Maori traditional knowledge, the reasons why such a regime is necessary must first be explained and understood. In essence, the crux of the problem lies in the fact that current intellectual property rights regimes are premised on European concepts of property, ownership, and individualism, while Maori traditional knowledge is based on a wholly different and contrasting ideological framework. The result of this clash of principles is that the interaction between matauranga and IPR regimes produces a legal imbalance, whereby matauranga is denied appropriate protection because it fails to fit within the European-defined parameters of intellectual property. This section explores the ideological clashes and the practical examples of interaction that have been causing concern for Maori. It should be noted that the very nature of intellectual property is such that traditional knowledge was never meant to fit within its confines. However, the fact remains that matauranga is now exposed to exploitation, because laws that did not account for it are now responsible for its protection.
2.1. INTELLECTUAL PROPERTY: A DEFINITION
The term intellectual property has no standard definition, partly because it is made up of a number of separate components. 17 However, an attempt will be made to summarise the main elements of the term and, more importantly, the concepts that underlie its development and usage.18
17 NZLC RI3 Intellectual Property.' The Context for Reform (1990) 1.
348 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
A basic legal dictionary defines intellectual property as "[i]ntangible property that includes patents, trade marks, copyright, and registered and unregistered design rights"I9 . A local text offers a more specific explanation as follows:
Intellectual property is a convenient term, now in common currency in many countries, which is used to describe the laws relating to copyright, patents, designs, trade marks and certain analogous common law and equitable rights such as passing off and trade secrets. To these may now fairly be added (so far as New Zealand is concerned) certain rights and remedies created by the Fair Trading Act 1986 which it has been said are very likely to overtake the passing off cause of action. The common thread in all these apparently disparate areas is the protection of the out put of human intellectual endeavour and the goodwill and reputation which is created in names, marks, get-up and even products.2°
Another expression of the term that describes its conceptual nature, defines intellectual property as:
The bundle of rights which a person ("the creator", "the inventor", "the author", or "the designer" as the case may be) has against all other persons in relation to the product of his or her mind. The rights are to prevent others from doing specified acts which detract from the commercial or intrinsic value of that product.21
Therefore, intellectual property may be loosely defined as a convenient label for a number of regimes that accord certain rights to individuals for the products of their intellectual endeavour. A common feature of these regimes is the need for the product to be either new or novel, solving the problem of duplication and overlapping rights. A useful summary of the thinking behind the development of intellectual property rights reveals the basic purpose of the intellectual property regimes:
19 Martin, A (ed) Oxford Dictionary of Law (4th ed, 1997) 238.
2005 Building a Protection Regime for Maori Traditional Knowledge 349
From this explanation it is obvious that there are numerous European ideological concepts inherent in the development of IPR regimes. The most apparent of these are the concepts of property, ownership, and individualism.
Firstly, the concept of property may be described as the allocation of rights to resources. Property may exist in any legally definable thing, be it tangible or intangible, and is held by an identifiable legal person or persons as the owner of such rights.23 Property is capable of alienation between owners and is a relation between the owner and other people in relation to things.24
Ownership is a related concept that can be summarised as the "exclusive right to use, possess, and dispose of property"25 . A fundamental proposition in both these concepts is the compartmentalisation and distribution of rights to individuals, or to legal persons such as companies. This individualism or apportionment of rights to one person to the exclusion of others is a fundamental concept that pervades all IPR regimes.
24 Cohen, R
Property and Sovereignty (1927) 12.
25 Martin, A (ed) Oxford
Dictionary of Law (4th ed, 1997) 326.
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Jurisprudence Special Issue - Te Purenga Vol 8.2
In summary, the concept of intellectual property is essentially a group of legal rights that may be granted to an individual for the product of their intellectual endeavours. The reasons for granting such rights are essentially economical and moral, in that they allow an individual to exploit the product of their intellectual endeavours exclusively for a specified period. The recompense for allowing this monopoly is that after this specified period, the products go into the public domain where all may access them and (theoretically) this in turn encourages further innovation.
2.2. MATAURANGA: HE TAONGA TUKU IHO
The term matauranga is a noun formed from the root matau, which may be translated as "Know, be acquainted with"26 and also "understand"27 . Thus matauranga can be translated as a general term meaning knowledge, familiarity, or understanding. In this paper matauranga is used interchangeably with the term Maori traditional knowledge, as a convenient label to represent the diverse range of interrelated concepts and expressions that make up Maori traditional knowledge.
The following is a non-definitive list of the categories that are encapsulated by the terms matauranga and Maori traditional knowledge:
The reason for the use of general terms to cover all types of Maori traditional knowledge is that it is recognised as "inappropriate to subdivide the heritage of indigenous peoples"28 because "this would
26 Williams, H. W. Dictionary of the Maori Language 7th ed, 1971,
191.
27 Ibid.
2005 Building a Protection Regime for Maori Traditional Knowledge 351
imply giving different levels of protection to different elements of heritage"29 . This approach is consistent with the holistic Maori worldview.3° The following general observations are consistent for all types of matauranga.
Matauranga is perceived as an inextricably linked part of the complex matrix of concepts, values, and beliefs that make up Te Ao Maori31 Thus any discussion of matauranga must make reference to the concepts upon which it relies for definition.32
The spiritual, intellectual and physical elements of Maori culture were inseparable. Maori adopted a holistic approach to life using their tikanga to establish themselves in the world and to express their sense of who they were. It was essential that where possible the balances of this holistic existence were cared for because any upset might spell disaster for the people."
Matauranga is the means by which all areas of Maori traditional knowledge are connected, as all areas require the teaching, dissemination, and guardianship of knowledge. There are many different types of matauranga, each specific to the particular cultural expression to which it relates. For instance the matauranga relating to whakairo34 encompasses the tikanga35 as well as the practical methods such as carving techniques.
29 Simpson, T Indigenous Heritage and Self-Determination (1997)
55.
30 Infra n 33 and accompanying text.
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The essential nature of all types of matauranga is that they are tapu36 , although some areas such as knowledge relating to karakia and ceremonial protocols are inherently more so. The tapu nature of matauranga can extend to the physical expressions of that matauranga, thus a carved meetinghouse will remain tapu until that tapu is removed. While the origin of that tapu is not the matauranga itself, it may be seen as a means by which tapu can be transmitted. Restrictions were placed on certain types of matauranga because of the strength of the tapu associated with it, and those who were selected to learn that knowledge had to accept the responsibility of protecting that knowledge from harm, because of the negative consequences that could follow in the event of it not being so protected.37
Matauranga is passed down from generation to generation and as such is a taonga tuku iho38 , which imbues reciprocal obligations of protection on its current holders.
Knowledge was created over time, not by a single author or inventor. It was the repository of culture and identity. The benefits were shared. It could neither be owned nor sold. Not all knowledge was available to everyone; its custodians had responsibilities for its protection and use.39
Maori concepts of 'property' and 'ownership' in relation to all things, including matauranga are based on communality, rather than individual rights. A taonga such as matauranga cannot be 'owned' in the Western sense. The main reason for this is that Maori view themselves as only the current holders of taonga received from their ancestors, with a duty to protect and eventually pass the knowledge on to the next generation. Maori 'ownership' is better described as kaitiakitanga.46
The term 'ownership' is inappropriate in Maori customary contexts, Western 'ownership vesting the several rights of use, benefit, control, transfer, reversion and identification in a single proprietor divorced from community relationships.41
37 Dickson, supra n 33 at 112.
39 Moana Jackson quoted in Kelsey, J Reclaiming the Future (1999) 264.
41 Durie, E T Custom Law (1994) 67.
2005 Building
a Protection Regime for Maori Traditional Knowledge 353
Thus while Maori do not have concepts of property and ownership in the Western sense of the terms, they do have a related concepts which incorporate the ideas of reciprocal obligations and guardianship. A simplified explanation of Maori 'property' concepts in relation to land relates the group right to sovereignty and individual rights to usage, although the concept of individual rights without the group is not possible.42
The Western-Maori distinction would not appear to be between 'individual tenure' and 'communal tenure'. In varying degrees, Western and Maori societies had elements of both. Maori use rights were vested in individuals. The distinctive feature of Maori tenure was that individual tenure was conditioned by community responsibilities.43
Therefore while individuals may possess the right to use a resource such as matauranga, the ultimate control over that resource remains with the group, usually the whanau44 or hapa45 Individual usage also depends on the fulfilment of responsibilities to the group, such as protection of the resource.
In summary, matauranga is an intangible segment of Maori culture that connects the practical expressions of Maori traditional knowledge. It carries sacred and spiritual responsibilities for those who use it, and its ultimate control resides in the collective. Matauranga is a taonga that cannot be bought or sold absolutely, and is held in trust for future generations. The use of matauranga gives rise to reciprocal obligations to ensure that the knowledge is protected from harm. Failure to ensure protection will result in negative consequences for those charged with that duty.
3. INTERACTION: IDEOLOGICAL AND PRACTICAL
It is clear that that there are a number of conflicting ideas underlying the concepts of matauranga and IPR. There is a clear commercial or economic theme underpinning IPR regimes, and a clear cultural preservation theme underpinning matauranga. Essentially the two
42 Ibid, 64.
43 Ibid, 67.
44 Williams, supra n 26 at 487. Translated as
offspring; family group.
45 Williams, supra n 26 at 36. Translated as
clan; sub tribe.
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Issue - Te Purenga Vol 8.2
concepts are like chalk and cheese, with different ideals and different objectives. The following sections will explore the practical implications caused by this ideological conflict.
3.1. TERMINOLOGICAL DIFFICULTIES
Much of the debate in this field fails to make this distinction between intellectual property and traditional knowledge. By simply appropriating the term intellectual property and applying it to traditional knowledge (by calling it for example Maori intellectual property), intellectual property jurisprudence is automatically imported into the concept.46 This is problematic because the term intellectual property itself implies a commercially focused model based on Western property concepts.47 This is not in reality what most indigenous people are talking about and this simple misunderstanding of terms only serves to further confuse what is already a complex debate.
Indigenous people do not view their heritage as property at all — that is something which has an owner and is used for the purpose of extracting economic benefits — but in terms of community and individual responsibility. Possessing a song, story, or medical knowledge carries with it certain responsibilities to show respect to and maintain a reciprocal relationship with the human beings, animals, plants and places to which the song, story or medicine is connected. For indigenous peoples, heritage is a bundle of relationships rather than a bundle of economic rights."
The simple fact is that Maori traditional knowledge and intellectual property are two distinct and disparate concepts, each based on their own distinct cultural ideologies and values. The problems that arise are brought about because of the imposition of one system onto the other through the operation of intellectual property laws, without regard for the essentially contradictory ideals and objectives of each regime.
47 See section 2.1.
2005 Building a Protection Regime for Maori Traditional Knowledge 355
3.2 IDEOLOGICAL CONFLICT: PRACTICAL CONSEQUENCES
One of the most significant problems is that IPR regimes were specifically designed to protect new, novel or original expressions of ideas and not existing knowledge such as Maori traditional knowledge.49 This gives rise to the current legal assumption that if an expression of knowledge is not new, novel or original as defined by IPR regimes, it must fall within the public domain. This assumption is problematic for Maori as matauranga, by its very nature as ancestral knowledge, is not new, novel, or original. This often disqualifies Maori from asserting intellectual property rights over their traditional lcnowledge50 , while at the same time enabling third parties to gain rights over Maori traditional knowledge.
For example, copyright enables third parties to take aspects of existing traditional knowledge, incorporate them into an 'original' work, and thereby obtain copyright over those aspects of traditional knowledge. The traditional knowledge itself often fails to qualify for copyright protection, because it cannot fulfil copyright requirements such as the identification of an author.51
A real life example of this type of problem is the copyrighting of Maori names and words by Danish toy company Lego for its Bionicle range. The game is about a group of warriors known as Toa52 , and includes fire warrior Tahu53 and stone warrior Pohatum . There are different masks called kanohi55 that give the toa special powers such as Kanohi
49 Jones, supra n 46 at 5.
53 Williams, supra n 26 at 360.
Translated as set on fire, light, burn.
54 Williams, supra n 26 at
300. Translated as stone.
55 Williams, supra n 26 at 94. Translated as
face.
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Purenga Vol 8.2
huna56 , the noble mask of concealment. Del Wihongi and others around the country, including counsel for the Wai 262 claimants Maui Solomon, protested the use of these words and others.57 This is a classic example of the current problems facing Maori because of the fact that matauranga is not protected, and IPR regimes are exposing it to exploitation.
It could be argued that individual Maori are free to do the same as companies such as Lego, and incorporate their own traditional knowledge into an original form in order to gain copyright privileges. This argument, however, is too simplistic in that it ignores the fact that Maori do not necessarily want intellectual property rights over their traditional knowledge, entrenched as they are with foreign property concepts. They also do not want to give their implied consent for their traditional knowledge to become an official part of the public domain, once the intellectual property rights have expired. Maori are looking for something that intellectual property rights were never designed to deliver, which is the right to self-determination over their traditional knowledge. In a section describing the wishes of indigenous peoples, Jones58 notes:
It is reasonably clear that something else again from intellectual property rights is intended, something more akin to rangatiratanga over taonga than to proprietorship rights limited in time applied to defined private property.59
A second area where ideological conflict translates into practical problems is the idea / expression dichotomy inherent in IPR regimes.
A fundamental element of intellectual property law is that ideas and knowledge as such do not sustain protection. Knowledge is the common heritage of humankind, and ideas are not to be confined.6°
58 Jones, supra n
46.
59 Jones, supra n 46 at 6.
60 Jones, supra n 46 at 10.
2005 Building a Protection Regime for Maori Traditional Knowledge 357
From an intellectual property viewpoint, matauranga is the idea behind the expression, which does not attract intellectual property protection. However, as discussed in the previous section, artificial divisions between ideas and expressions are fundamentally at odds with the holistic Maori worldview.61 In the Maori world, relationships are everything,62 and the compartmentalisation of concepts into separate boxes goes against the very fabric of Maori society. Thus when the Playstation 2 game "The Mark of Kri" was released earlier this year63 purporting to use only the ideas from a number of cultures including Maori, the distinction was one that was predictably lost on Maori.
The central character Rau64 contains not only identifiable Maori elements such as a taiaha65 (although in the game he actually uses a broadsword), a chin moko66 and a top knot, but also contains elements from Chinese and Native American cultures.67 An interview with one of the game's designers typifies the ignorant attitude taken by some towards traditional knowledge.
In keeping with the ambiguity of the world the game is set in, we tried to not use any traditional markings or designs so people couldn't say, "Hey! They must be Tahitian because I've seen tattoos like that in Tahiti! Or "He must be a Maori girl because that's a moko on his chin!" There are many variations of Polynesian, Celtic, Greek, etc, designs and patterns throughout the game, but we tried to not replicate anything specific. It was hard because everyone liked the Polynesian flavour the game was taking on so we tried to make things with a more contemporary or Polynesian twist where we could. Like Rau's chin tattoo. In NZ women are the ones who traditionally wear a tattoo on their chin. But Rau isn't Maori and he's not from NZ, so we kind of keep our ass covered that way. We apologize for any coincidences.68
61 Mutu, T The Legal Protection of Matauranga (2000) 14.
64 For a picture of Rau see Appendix 2.
66 Williams, supra n 26 at 207. Translated as
tattooing on the face or body.
67 Robson, supra n 63.
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Naturally Maori were again angered by this blatant misappropriation of Maori traditional knowledge, even though it involved the use of the ideas behind the expressions, rather than particular expressions (in identifiable IPR terms) themselves. This distinction made by IPR regimes is not shared by Maori, and is a formidable conceptual barrier for the implementation of a protection regime for Maori traditional knowledge, as any regime for matauranga would undoubtedly have to cater for the protection of both the ideas and the expressions. This would contradict the fundamental intellectual property concept of ideas as common property, and no doubt cause criticism that Maori are receiving preferential treatment. This basic conflict also provides further evidence that IPR forums are inappropriate for protecting Maori traditional knowledge.
Another aspect of the deeply rooted incompatibility of the two concepts involves the contextually reliant nature of matauranga versus the compartmentalisation characterising IPR. As described above69 matauranga in general is tapu. This means that there are certain protocols or tikanga that must be followed when dealing with the knowledge itself and with the cultural expressions flowing from it. Ignorance of these protocols may result in negative consequences for those who have been entrusted as guardians of that knowledge, as well as for those who break the tapu. When a foreign person or company takes a slice of Maori traditional knowledge and proceeds to use it without any reference to the concepts (such as tapu) that make up its contextual base, they are already in danger of causing offence to and triggering other repercussions for its traditional guardians. In essence the problem is the ignorance of the relationship-laden nature of Te Ao Maori, and the assumption that you can just take one part of Maori culture, without acknowledging the rest.
A controversial example illustrating aspects of this debate is the current popularity amongst celebrities of tattoos based on traditional moko designs. Music stars Robbie Williams" and Ben Harper71 both have
69 Supra at n 36.
2005 Building a Protection Regime for Maori Traditional Knowledge 359
moko-inspired tattoos, as does former world heavyweight boxing champion Mike Tyson72
The origins of moko are the subject of debate, but there is general agreement that the starting point is Raaumoko, the unborn son of Ranginui and Papataanuku,73 whose name has been translated as "the trembling current that scars the earth"74 . The art itself is said to have been learnt by Mataora on his journey to Rarohenga to win back his beloved wife, Niwareka. He received his moko from his father-in-law Uetonga, and also learnt how to apply it.75 These origins highlight the sacred nature of the moko, linked, as are all Maori, by whakapapa to the gods.
A recent television debate (in Te Reo Maori) on the topic "Maori tattoo artists should refrain from tattooing non-Maori and leave moko as a taonga for Maori only" raised some interesting issues in this area.76 Arguments in the affirmative included:
(a) The tapu nature of the moko;
(a) The spiritual significance of te haehae kiri;77
(a) The commodification and commercialisation of a taonga; and
75 Ibid.
360 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
(d) The inability of non-Maori to understand Te Reo and consequently the kaupapa behind the moko and its designs.78
Arguments in the negative asserted:
(d) That only facial moko were regarded as tapu;
Some Maori who take the moko cannot speak Maori either; and
(g) That the moko has been abused by Maori themselves such as
gang members.79
It appears from this debate that there are arguments on both sides of this issue. Some Maori commentators, such as Dr Pita Sharples, are unhappy with a convicted rapist such as Mike Tyson wearing a moko,8° while others, such as tattoo artist Gordon Toi Hatfield, are happy to extend their art to some non-Maori.81 Some of this apparent divergence of opinion may be explained by the distinction between compartmentalisation and holistic acceptance.
Concerns about Mike Tyson's understanding of the issue appear to be well founded, as he mistakenly described his stylised koru facial design as "Mayan from New Zealand."82 However, other stars such as black musician Ben Harper, who "shared songs and thinking" with his Maori tattoo artist before taking the moko, may be more acceptable to Maori because of the willingness exhibited to embrace not just the physical element (expression) but also the inseparable spiritual and intellectual (idea) elements of the moko.
79 Ihumanea, supra n 76. Arguments by the
pupils from Te Aute College.
80 NZPA, supra n 70.
2005 Building a Protection Regime for Maori Traditional Knowledge 361
He was under the assumption that I was interested in, as he put it, 'something of the silver dollar variety'. In other words something small, fast and insignificant. When I explained to him a vision of my entire back, he lit up...He did not physically draw lines until the next morning; [but] the unification of our worlds was as much a part of the moko as the pattern itself"
While Ben Harper may illustrate that culturally acceptable uses of Maori traditional knowledge are possible, the point is that the reverse is also possible, and the only deciding factor at the present time is the disposition of the third party using the knowledge. Harper's willingness to accept the contextual background that came with his moko is the key difference between himself and Mike Tyson, who did not even bother to find out the correct name of the culture he was stealing from.
Keeping Tyson company at the ignorant end of the spectrum is a Dutch café named Moko. The café caused Maori outrage in response to advertisements containing images of European people with stylised moko, and using the slogan "Face Food".84 The café owner said he had "consulted" a self-proclaimed Maori chief (whom he had met on the streets of Amsterdam) and that this chief gave him the go ahead for the café one night over dinner.85 The café itself is in a converted church, and serves New Zealand and Australian inspired food.86
This café and its use of the word moko and its associated imagery are offensive to Maori on multiple levels. The association of something as tapu as a moko with food (which is noa)87 is reprehensible from a Maori viewpoint. The fact that the café is located in a converted church, an obviously tapu place, only adds insult to injury. The simple problem here is that the café owner did not have any idea that removing a single piece of matauranga without understanding the interconnected ideologies that are inextricably bound to it, will always lead to trouble.
83 Ben Harper quoted in "Dedicated by Blood" Mana, April-May 2003, 61.
85 Ibid.
86 Ibid.
362 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
Nor did he bother to find out. For Maori, the difficulty is that legally there is nothing they can do to stop individuals like this from making a mockery of their sacred knowledge.
A final example of the issues raised by the interaction between IPR and matauranga is that great expression of national pride, the haka Ka Mate. From Te Rauparaha88 to the All Blacks, the haka has become a symbol of New Zealand's national identity. In 1997 the now defunct British pop group The Spice Girls famously attempted their own rendition of this national icon, led on by a pair of enthusiastic New Zealanders.89 The uproar from Maori leaders at their display was predictably disparaging, as yet another example of ignorant mockery of Maori culture was displayed to the world.
The Spice Girls are on dangerous territory by rubbishing our culture, and worse still, mocking our haka. It's a bloody disgrace. We're sick of people bastardising our culture, and we have a way of dealing with them."
Against this background it was interesting that when Ngati Toa attempted to trade mark the haka apparently written by their infamous ancestor, there was a national outcry at what many New Zealander's perceived as greedy Maori trying to make money out of a national treasure.91 Yet when third parties use IPR to make money out of Maori treasures, the reaction from mainstream New Zealand is predictably less dramatic. So when British television station BBC One incorporated the haka into an advertising campaign,92 most New Zealander's didn't bat an eyelid. For Maori, the irony is blatant.
90 Ibid.
2005 Building a Protection Regime for Maori Traditional Knowledge 363
It is arguable that the New Zealand concern arose from the exclusivity a trade mark would grant Ngati Toa, and the fact that others, such as the New Zealand Rugby Football Union, would have to pay for the privilege of using what was viewed as 'public' property. There was an automatic assumption that because Maori knowledge already exists, it must be part of the public domain. This argument seems to suggest that non-Maori can use Maori traditional knowledge as a free commercial branding tool for their products, while Maori are denied the opportunity to assert their rights to their collectively held knowledge. If the haka was a Beatles song, there is no doubt that there would a string of lawyers lining up to negotiate a deal for the rights to use it. But because the haka was created and passed down as part of the common heritage of a tribe, it is fair game in the IP world. There is an obvious injustice in this thinking.
A final mention must be made of the "haka party" incident in Auckland on 1 May 1979.93 The incident involved a group of engineering students who had made a capping tradition out of performing a `haka', which involved ludicrous acts such as simulated masturbation and caricatures of penises and testicles painted on their bodies with lipstick.94 The continual protests by Maori students to this cultural mockery were ignored for nearly 20 years until a group of young Maori calling itself He Taua95 attempted to force the engineering students to stop the performance. The confrontation turned ugly and several of the engineering students were assaulted.96 What followed was a media frenzy, which accused He Taua of assaulting innocent students who were just having a bit of fun.97 The obvious frustration of the group at the inability to stop the engineering students by peaceful means was evident in a flyer encouraging supporters to picket at their subsequent Court appearances. The flyer talked about the group's involvement in
93 Walker, R He Taua and the Haka Party (1993).
95 Williams, supra n 26 at 397. Translated as hostile expedition, war party.
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peaceful protests at Raglan, Bastion Point, and on Anzac Day, and also the violent responses and lack of successful results they achieved.98
For years we have been non-violently fighting for justice. Struggling to retain our lands and our heritage. We have achieved nothing but defeat after defeat after defeat...How much longer must we be humiliated? We have tried to follow in the footsteps of Te Whiti — but will we only suffer the same fate that he did? Is force the only language this society understands? In 20 seconds we were able to resolve an issue that has been boiling for 20 years.99
At first blush, this incident may seem unrelated to the current debate, when in fact it is a perfect illustration of the depth of Maori feeling when it comes to the protection of their traditional knowledge, and the stark ideological differences that still exist between Pakeha and Maori. The European saying "Sticks and stones may break my bones but words will never hurt me" is contrasted with the Maori whakatauki:
He tao huata e taea to karo, he tao kr e kore e taea.
The thrust of a spear can be parried, but not the thrust of words)°°
For Maori, a spoken insult is far worse than a physical assault, and the opposite is true for European society. Thus, while the `haka party' was seen as light-hearted fun by many Pakeha, it was felt by Maori as a stinging attack on their mana that warranted a severe response. The existence of an enforceable protection regime for matauranga would have given He Taua a better option than resorting to violence.
Some will argue that every culture and sector is subject to the threat of cultural offence by another, and that the law does not provide remedies to them (other than human rights based ones) either. But this argument fails to take into account that Maori were guaranteed the right to tino rangatiratangalm over all their taonga, including their
99 He Taua flyer in Walker, R He Taua and the Haka Party
(1993).
100 Mead, H and Grove, N Ngel Pepeha a nga Tipuna (2001)
122.
101 Infra n 113 and accompanying text.
2005 Building a Protection
Regime for Maori Traditional Knowledge 365
matauranga, under Te Tiriti o Waitangi1°2 and that the Government, as the Crown's representative, is under a moral and constitutional obligation to honour that guarantee.1°3
3.3. CONCLUSIONS
Some will argue that Maori have the same rights as all other New Zealanders when it comes to protecting their individual intellectual property, but that is obviously not what Maori are concerned about. Maori are concerned about their collective rights to existing taonga being subjugated, simply because their worldview is not shared by those who created IPR regimes. Maori are concerned that the current regimes are ethnocentric and ignorant of their rights to their taonga, just because they hold them collectively. They are concerned that the current regimes allow others to steal, misappropriate, and ridicule their collective knowledge. They are concerned that the current regimes deny them the expression of their tino rangatiratanga over the matauranga that has been handed down to them.
Despite these concerns, the criticisms expressed are not aimed at the regimes per se; the regimes are perfectly satisfactory for the purpose and the subject matter for which they were designed. The problem is that they were not designed for matauranga or for Maori, and therefore can never hope to adequately provide for Maori concerns. In order to address the issues raised here a fresh approach is needed, one that finally recognises the need for Maori to have control of what is, will be, and has always been theirs.
4. PROTECTION OPTIONS
The above analysis has revealed serious concerns for Maori regarding the impact that IPR regimes are having on matauranga. As well as enabling others to gain rights over Maori traditional knowledge, the current regimes are seriously lacking when it comes to the protection of matauranga from exploitation, misappropriation, and outright abuse.
102 Ko to Tuarua, Te Tiriti 0 Waitangi 1840.
103 For further discussion of
the Crown's Treaty obligations see section 4.1.
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Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
These concerns are not new. Although the debate has only recently gained public currency in this country, indigenous peoples around the world and concerned Maori leaders in this country have been exploring ways of addressing these issues for some time. While a comprehensive examination of the many and varied international approaches to this problem is not possible here, a study of local responses and a general survey of international directions may provide guidance in the development of a model protection regime for matauranga.
The following sections look at local and international initiatives that have been adopted to deal with the issue, and attempt to identify from them the necessary structural elements that will make up the proposed regime. Consideration of Maori requirements as well as the components the system will require in order to function as a comprehensive protection regime will be taken into account. Where the regimes fail to provide adequate protection, other positive aspects they may offer in the construction of the regime will be noted.
4.1. WAITANGI TRIBUNAL CLAIM NO. 262
One of the earliest local responses to the question of protecting Maori traditional knowledge was the filing of the Wai 262 claim in 1991. A group of Maori concerned over the increasing loss of native plants and animals (flora and fauna), formulated a claim based on Article 2 of the Treaty of Waitangi.1°4 The claim has since been amended a number of times by the six claimant iwi, and now covers a diverse range of Maori traditional knowledge, including but not limited to:
104 Solomon M Intellectual Property Rights and Indigenous Peoples Rights and Obligations paper presented to Global Biodiversity Forum 15, UNEP Headquarters, Gigiri, Nairobi, Kenya, May 12 — 14 (2000) 10.
2005 Building a Protection Regime for Maori Traditional Knowledge 367
The reference to indigenous, cultural and customary heritage rights is further defined as including "all rights (including intellectual and property rights) past, present, and future in relation to the taonga of the Maori people.106
To non-Maori, this may seem like an unrealistically broad and all encompassing claim, but it is simply characteristic of the holistic Maori worldview and the clear reciprocal bonds that Maori recognise between themselves and the world around them.
The basis of the claim is the Treaty guarantee by the Crown to Maori of the:
Full, exclusive and undisturbed possession of their lands, estates, forests, fisheries and other properties which they may collectively or individually possessl" [English version]
Tino rangatiratanga o "6 ratou wenua, o ratou kainga me ö ratou taonga katoa1°8 [Maori version]
Unqualified exercise of their chieftainship over their lands, villages and all their treasures1°9 [literal translation of the Maori version by Sir Hugh Kawharu]
Leaving aside the intricacies of Treaty jurisprudence,110 the doctrine of contra proferentumm , gives Maori a legal basis for their reliance on the Maori version of the Treaty. The acceptance of the translation of the Maori version by the Court of Appeal, and the parties (the Crown and The New Zealand Maori Council) in the historic lands case NZ Maori Council v Attorney-Genera1112 , also lends weight to the
106 Ibid.
107 Article Two, Treaty of Waitangi 1840.
108 Ko Te Tuarua,
Te Tiriti o Waitangi 1840.
109 Te Puni Icolciri He Tirohanga o Kawa ki to
Tiriti o Waitangi (2002) 12.
110 A comprehensive discussion of the debate over the legal and constitutional significance of the Treaty is beyond the scope of this paper.
111 Against the party which proposes or adduces a contract or condition of
a contract - The New Shorter Oxford English Dictionary (1993) 497.112 NZ
Maori Council v Attorney-General [1987] 1 NZLR 641. This translation was
accepted by the Court of Appeal, and the parties (the Crown and The New Zealand
Maori Council)
in this historic lands case.
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argument. Whatever the interpretation, it is clear that the Wai 262 claim is about the assertion of tino rangatiratanga over taonga.
Tino rangatiratanga is a much maligned and debated concept, but in the context of the Wai 262 claim it entails:
0 A right to environmental well-being dependent upon the nurturing and wise use of indigenous flora and fauna;
The claimants assert that the Crown (and subsequently the Government as the Crown's representative) breached the guarantee of tino rangatiratanga over taonga by adopting the ordinances, Acts, regulations, orders, proclamations, notices, policies, practices, acts, omissions, and international instruments listed in the statements of claim.lm Some of
113 Solomon, supra n 104 at 11.
2005 Building a Protection Regime for Maori Traditional Knowledge 369
these instruments are now the main barriers to the implementation of a sui generis legislative regime to provide full legal protection and recognition for taonga Maori.
The Wai 262 claim has encountered numerous difficulties because of the consistent shortage of resources at the Waitangi Tribunal, and the lack of funding support for the claimants.115 However, once the hearings resume116, the claim should be nearing completion after more than a decade. Although the Tribunal only has the power to make non-binding recommendations to the Government in this instance117, the Tribunal's report will no doubt have a great influence on the future direction of the New Zealand Government's response to the question of protecting Maori traditional knowledge. The Government's cognisance of this fact has been indicated by the "snail's pace"118 of the reform of intellectual property laws in accordance with the GATT: TRIPS Agreement, and their acceptance that "no amendment of them [intellectual property laws] should be pursued until the Maori claim [Wai 262] has been resolved"119 . Assuming a successful outcome for the claimants, there is still a need to translate the Tribunal's recommendations into legally enforceable rights, and the creation of a legislative protection regime for Maori is one way of achieving this.
4.2. THE MATAATUA DECLARATION 1993
A second response by Maori (and other indigenous peoples) in relation to the protection of their traditional knowledge was the Mataatua Declaration 1993120. The nine tribes of Mataatua convened the First
115 Solomon, supra n 104 at 11.
116 The hearings have been stalled because of the illness of the Presiding Officer. The passing of the omnibus Maori Purpose (No. 2) Bill 2002 205-2 will preserve the legitimacy of a Tribunal during an inquiry if there is no longer a quorum constituted for that inquiry because the presiding officer or a member of the Tribunal is unable to continue holding office. This will enable the continuation of the hearings,.
117 Waitangi Tribunal Website Frequently Asked Questions <http://www.waitangi -tribunal.govt.nz/faq/> .
118 Hawkins M Intellectual Property Under CER (2003) 1
<http:// www.bswip.com.au/articles/ip-under-cer.html>
.
119
Ibid.
120 Mataatua Declaration 1993.
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International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples.121 Over 150 delegates from 14 countries attended, including representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Suriname, the United States and Aotearoa [New Zealand].122 The conference led to the development of an international declaration on the cultural and intellectual property rights of indigenous people — the Mataatua Declaration — that sets out collective recommendations to indigenous peoples and states, national and international agencies. The core recommendations are:
WE
Declare that indigenous peoples of the world have the right to self determination; and in exercising that right must be recognised as the exclusive owners of their cultural and intellectual property;
Acknowledge that Indigenous Peoples have a commonality of experiences relating to the exploitation of their cultural and intellectual property;
Affirm that the knowledge of the Indigenous Peoples of the world is of benefit to all humanity;
Recognise that indigenous peoples are capable of managing their traditional knowledge themselves, but are willing to offer it to all humanity provided their fundamental rights to define and control this knowledge are protected by the international community;
Insist that the first beneficiaries of indigenous knowledge (cultural and intellectual property rights) must be the direct descendants of such knowledge;
Declare that all forms of discrimination and exploitation of indigenous peoples, indigenous knowledge and indigenous cultural and intellectual property rights must cease.123
Of particular note for the purposes of this paper is clause 2.5 of the declaration, in the section on "Recommendations to States, National and International Agencies", which states that in the development of policies and practices these agencies must:
121 Jones, supra n 22 at 4.
122 Pihama L and Smith C (ed) Cultural and Intellectual Property Rights:
Economics, Politics & Colonisation Volume Two (1997) 5.
123
Ibid.
2005 Building a Protection Regime for Maori Traditional
Knowledge 371
Develop in full co-operation with Indigenous Peoples an additional cultural and intellectual property rights regime incorporating the following:
The declaration provides a useful point of reference in the development of regimes, and also as an expression of the requirements of indigenous peoples in relation to this debate. However, as noted by the Wai 262 claimants, the New Zealand government has not adopted the declaration and, like the Treaty, it does not provide any legally enforceable rights for indigenous peoples without statutory incorporation. Thus the practical utility of the declaration as a protection mechanism for matauranga is limited.
4.3. A MAORI TRADE MARK - TOI IHO
A recent initiative by Te Waka Toi (the Maori Arts Board of Creative New Zealand) is the creation of a Maori made mark called `Toi Iho', and two companion marks, the mainly Maori mark and the Maori coproduction mark.125 These three registered trade marks are used to promote and sell authentic, quality Maori arts and crafts, and also to authenticate exhibitions and performances of Maori arts by Maori artists.126 The mark itself was designed by a team of senior Maori artists led by master carver Dr Pakaariki Harrison.127
124 Pihama, supra n 122.
125 See Appendix 7.
126
<http://www.toiho.com/about/about.htm>
.
127
Ibid.
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The central portion of the mark is the iho. The iho is the essence of creation and the origin of Maori knowledge and tradition. It represents the core of Maori arts. Emanating from the core are the whakapapa or genealogy lines of past, present and future generations. The coloured multiple spirals represent the creativity, innovation and the dynamism of Maori artists. The aesthetics of the mark symbol reflect the quality embodied in the works of highly skilled Maori artists.128
The aim of Toi Iho is to provide a mark of distinction to guarantee quality products made by persons of Maori descent. The creation of the mark is a direct response to the burgeoning tourism trade incorporating cheap and often culturally offensive products 'imitating' Maori art, such as plastic tiki and other unsavoury objects. However, in terms of protecting matauranga, the trade mark suffers the same problems as all IPR regimes, namely that it was not designed for the purpose of protection and is based on conflicting ideology. Thus, while Toi Iho is a suitable initiative for the promotion of authentic Maori arts and crafts, it does not offer any protection for Maori traditional knowledge.
4.4. PRIVATE CONTRACTS — TE PIRIRAKAU
On the local front there has been a success story. Pirirakau is a hapii of Ngati Ranginui, based in the Te Puna area in Tauranga. In 1998 Pirirakau signed a royalty agreement ("Pirirakau agreement") with swimwear company Moontide, through a hapii-based company Kia Ora Promotions.129 The agreement gave the swimwear manufacturer the right to use a kowhaiwhai pattern previously trade marked by Kia Ora Promotions on its swimwear designs for two years. The agreement gave the hapu a percentage of the profits, and allowed the hap5 to continue using the kowhaiwhai itself, the only restriction being the commercial manufacture of swimwear containing the design. The company's managing director commented that:
Not many have gone about it the right way...I have checked out every possibility to make sure we don't offend anybody. 13°
128
<http://www.to iiho.com/faq/faqs.htm# What>
.
129 Schaer, C "Fashion with a Blessing" Sunday Star-Times, 17
May 1998, A3.
130 Ibid. Comments were made by Tony Hart, managing director of Moontide
swimwear.
2005 Building a Protection Regime for Maori Traditional
Knowledge 373
Again while this instance proves that mutually beneficial arrangements between Maori and third parties are possible under present regimes, it depends entirely on the goodwill exhibited by the third party. Moontide could easily have procured a kowhaiwhai pattern and used it without permission, and there would have been no legal remedy for the aggrieved Maori group unless they had some prior existing IPR, such as the trademark used by Kia Ora Promotions. Unfortunately, not all Maori traditional knowledge is as easily trade marked as a kowhaiwhai pattern, nor do all Maori wish to trade mark their matauranga. Thus while the Pirirakau agreement provides a practical example of how third party agreements can work, the extent of protection provided is limited.
4.5. INTELLECTUAL PROPERTY REFORM • THE TRADE MARKS
ACT 2002
Although, as indicated earlier,131 the Government has held back on reforms to the intellectual property laws in New Zealand in anticipation of the outcome of the Wai 262 claim, it has recently given in to pressure to update the law of trade marks with the passing of the Trade Marks Act 2002132 on the 22nd of November 2002. The new Act contains some interesting provisions for Maori, which may be seen as a policy response by the Government to the Wai 262 claim.
The key provisions of the Act in relation to Maori are:
131 Hawkins, supra n 118 at
26.
132 Trade Marks Act 2002.
133 Section 17 (1)(b)(ii) Trade Marks Act
2002.
134 Section 178 Trade Marks Act 2002.
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At first these provisions may seem encouraging, as offering some protection for matauranga, but on closer inspection it seems that they amount to only marginally more than clever political window-dressing.
In relation to the new grounds for refusal of registration, top intellectual property lawyers are of the opinion that the new provision changes little as Maori were free to bring cultural objections under the former "scandalous and contrary to morality test."136
The ground of objection based on offensiveness is a carry-over from the old act. It has always been open to groups — including ethnic groups —who would be offended by registration of a mark... there is really nothing new in these aspects of the [proposed] law.137
In relation to the Maori Advisory Committee, parallels with the Waitangi Tribunal are not unrealistic. While the committee will have members knowledgeable in tikanga and Te Ao Maori138 , they only have the power to advise the Commissioner, who retains the final decision—making power. The Committee may play an important educational role in highlighting Maori issues that may not be apparent to the Commissioner, but in terms of practical protection for matauranga the committee is not an answer to the problems outlined in this paper.
Finally, provision for invalidation of a trade mark based on the application of a person who is "culturally aggrieved" is also of little consequence. Some ill-informed commentators have raised the possibility of the retrospective invalidation of well-known trade marks such as the Air New Zealand koru.139 But this sensationalist argument fails to account
135 Section 73 Trade Marks Act 2002.
136 Section 16 Trade Marks Act 1953
(Repealed).
137 Intellectual property lawyer John Glengarry of Buddle Findlay quoted in
De Boni D "Lawyers pour cold water on logo frenzy" New Zealand Herald, 10
August 2001, 2.
138 Section 179 Trade Marks Act 2002.
139 De Boni, supra n
137. The comments were those of Act MP Steven Franks.
2005 Building a
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for the fact that the Commissioner or the Court still retains the ultimate decision-making power in this section,I4° and the likelihood of either invalidating established trade marks is minimal.
A final mention must be made of the fact that businesses may simply opt out of the registration process altogether, effectively circumventing what little protection the new provisions may provide.
It does not provide Maori with an indefensible weapon to
prevent
[businesses] using Maori words or emblems, no matter how
offensive.141
The inadequacies of the reformed Act in relation to protecting matauranga mirror those of intellectual property in general (as traversed in section 2). Though the Government may have made a sincere attempt to take into account Maori concerns, the result only reinforces the conclusion that current IPR regimes are inherently unsuitable for protecting traditional knowledge.
4.6. INTERNATIONAL DIRECTIONS
The international traditional knowledge discourse has been active for decades. An in depth study of the numerous international reports involved in the debate is well beyond the scope of this paper. Nonetheless the recent work of the World Intellectual Property Organisation ("WIPO") Intergovernmental Committee on Intellectual Property and Genetic Resources, traditional knowledge and Folklore ("IGC") provides a useful summary of overseas initiatives dealing with the protection of traditional knowledge.
The IGC conducted a survey of the WIPO member states on the use of existing IPR regimes to protect traditional knowledge, and also whether any sui generis laws providing protection for traditional knowledge have been implemented.142 Forty eight responses were
140 Section 73 (1) Trade Marks Act 2002.
141 De Boni, supra n 137. The comment is from KPMG (now Kensington Swan) Senior Associate Sheana Wheeldon.
142 World Intellectual Property Organisation Survey on existing forms of
Intellectual Property Protection for traditional knowledge document WIPO/GR
TKF/IC/ 2/5 (2001).
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received in total, and the IGC then compiled the responses into a Review of Existing Intellectual Property Protection of traditional knowledge143
4.7. EXISTING INTELLECTUAL PROPERTY PROTECTION
Of the forty responses, thirteen members indicated that existing mechanisms of intellectual property are generally available for the protection of traditional knowledge.144 Of these members, five indicated that eligibility for protection depends almost exclusively on meeting previously established legal conditions.I45 One of the problems with IPR regimes in general, identified previously,146 is that many types of traditional knowledge simply cannot meet such conditions and are thereby disqualified from protection under existing regimes.
Of the mechanisms mentioned, particular reference was made to the use of copyright, certification marks, collective trademarks, geographical indications, trade secret law, patents, and moral rights under copyright law.I47 It is interesting to note that, despite these references, only eight respondents provided actual examples of how existing IP mechanisms have already been used to protect traditional knowledge. Copyright emerged as one of the most widely used mechanisms, notably in Australia148 and Canada, where it has been used by indigenous artists to protect against infringement of their art. While copyright may offer protection for these artists with their individual creations, the collective knowledge they draw their inspiration from remains exposed. I 49
144 Ibid , 3.
145 Ibid, 4.
146 See section 3.2.
147
WIPO, supra n 144 at 4.
149 See Bulun Bulun & Milpurrurru v R & T Textiles
Pty Ltd [1998] FCA 1082; (1988) 41 IPR 513 for an interesting obiter discussion about the
parallel claim of Mr Bulun's tribe the Ganlbingu people to equitable ownership
of
the copyright based on an implied trust between Mr Bulun and the tribe.
Although the Court said no trust existed, they found that
the indigenous artist
had a fiduciary duty to his tribe, which may from the basis of a claim if the
copyright holder had failed to
act, or if the copyright holder could not be
identified or found.
2005 Building a Protection Regime for Maori
Traditional Knowledge 377
The general lack of specific examples of protection under existing regimes and, in particular, the lack of examples pertaining to the protection of collective traditional knowledge, reinforce the conclusion stated earlier that existing IPR regimes are unsuited for the protection of traditional knowledge. Even those regimes that do offer some protection for individual expressions such as copyright are still fundamentally inadequate because of the underlying ideological conflict identified earlier. Thus protection of traditional knowledge under existing IPR regimes internationally is also limited.
4.8. SUI GENERIS PROTECTION
The second question in the survey asked members to provide information on any specific sui generis regimes that they have adopted, that are aimed at the protection of traditional knowledge.15° Eight members responded about present systems's' , and ten more152 (including New Zealand) indicated plans to adopt a sui generis system in the future.153 The following is a summary of the seven legitimate responses relating to existing sui generis measures.
a) Brazil
Brazil has a comprehensive system for protecting traditional knowledge associated with biodiversity. Protection is achieved bi-laterally, firstly through contracts of access ensuring sharing of benefits arising from the use of genetic resources and associated traditional knowledge, and secondly through a proprietary regime of traditional knowledge rights recognising the right of indigenous and local communities to prevent unauthorised third parties from using traditional knowledge. The law also covers benefit sharing including compensation, access to
150 WIPO, supra n 142 at 1.
151 Brazil, Costa Rica, Guatemala, Panama, The Philippines, Samoa, Sweden and Venezuela. Sweden referred to the Reindeer Husbandry Act 1971 that deals with the constitutional right of the Sami to reindeer husbandry. However the Act only covers economic aspects, and is not related to traditional knowledge.
152 Ecuador, New Zealand, Papua New Guinea, Peru, The Philippines, Solomon
Islands, Tanzania, Tonga, Trinidad and Tobago and Vietnam.
153 WIPO, supra n
143 at 6.
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and transfer of technology, licensing and capacity building. There is no pre-determined term of protection for traditional knowledge. The grant of existing IPR's also depends on compliance with the regime, which means applicants must provide information on the origin of genetic resources and associated traditional knowledge whenever applicable. The law also provides for sanctions in the form of fines, seizure of unlawful material, prohibition on distribution, and invalidation of patents or registrations.154
Costa Rica has the Law on Biodiversity. The law establishes general criteria concerning community rights in traditional knowledge, and calls for local and indigenous communities to establish the mechanism for the protection and registration of biodiversity associated traditional knowledge, through a participatory process.155
In Guatemala, the Cultural Heritage Protection National Law provides traditional knowledge protection using a national cultural heritage approach. Expressions of national culture, including many categories of traditional knowledge, are included in a Cultural Goods Registry. The expressions are under State protection and cannot be disposed of by contractual arrangements. They cannot be sold and there is no right for remuneration. The system is managed by the Ministry of Cultural Affairs, and appears to be based on a public good approach, in that traditional knowledge is to be identified, recorded and preserved by the State for the benefit of the entire society.156
Panama has established a special intellectual property regime on "collective rights of indigenous peoples for the protection and defence of their cultural identity as their traditional Icnowledge."157 The regime covers indigenous peoples' creations, such as inventions, designs and innovations, cultural historical elements, music, art and traditional artistic
154 WIPO, supra n 142 at 13.
155 WIPO, supra n 142 at 22.
156 WIPO,
supra n 142 at 66.
157 WIPO, supra n 142 at 92.
2005 Building a
Protection Regime for Maori Traditional Knowledge 379
expressions. Traditional knowledge is protected to the extent that it provides for the identification of indigenous peoples and is susceptible to commercial use. There is a Congress of Traditional Indigenous Authorities that attributes collective exclusive rights to registered elements of traditional knowledge. Where knowledge is co-owned by various communities the benefits are jointly shared. The regime has its own enforcement measures, and provisions are available to enforce IPR's as a subsidiary mechanism. The collective indigenous rights may also be used as a basis for opposing unauthorised third parties' claims of IPR's. The regime also covers biodiversity-associated traditional knowledge, and therefore constitutes the first comprehensive system of protection of traditional knowledge adopted in the world.158
The Philippines has the Indigenous Peoples' Rights Act ]997, which protects indigenous communities' rights in general, and also some traditional knowledge rights. In relation to traditional knowledge it includes; rights to limit the access of researchers into ancestral domains, lands, or territories; to be designated information sources in any writings or publications resulting from research; and to receive royalties from any research and resulting publications. The enforcement of these rights will follow procedures established by customary laws of the indigenous peoples.159
Samoa has a Village Fono Act 1990, which effectively protects Samoa's traditional form of governance (through Village Council).160
Venezuela indicated that the Constitution of the Bolivarian Republic protects the intellectual property of indigenous peoples in their knowledge, technology and innovations.161
158 WIPO, supra n 142 at 92.
159 WIPO, supra n 142 at 100.
160 WIPO,
supra n 142 at 110.
161 WIPO, supra n 142 at 126.
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h) Peru
Of the ten countries that responded that they planned to implement sui generis systems in the future, only Peru supplied details. The proposed system aims at protecting traditional knowledge relating to biodiversity. Holders of this knowledge have the right to give consent to access and use this knowledge, and where the intended use is commercial or industrial, a license agreement must be entered into. The license must provide for an equitable share of the benefits. The proposed law also provides various enforcement sanctions including injunctions, seizures, criminal sanctions, and fines. Applicants for utility patents or plant variety breeder's certificates related to traditional knowledge products or processes must provide a copy of the relevant licensing agreement or the application will be denied. Unlike the registration system under Panama law, the Peruvian system will remain informal, with a voluntary registry.162
4.9. CONCLUSIONS
The current local responses to the protection of traditional knowledge all fail to provide the extent of protection necessary to prevent the types of incidents of abuse outlined in section two. Nonetheless the Wai 262 claim and the Mataatua Declaration provide important guidance on the wishes of Maori and other indigenous peoples, while the Maori made mark makes use of existing regimes to provide a point of difference for contemporary Maori artists and their work. The Pirirakau agreement proves that working agreements with third parties for the use of Maori traditional knowledge are possible. Contrastingly, the reformed Trade Marks Act 2002 provides a timely reminder that despite the hype, traditional matauranga Maori still has scant protection.
International responses to this issue reveal an array of different regimes, ranging from compulsory State protection to specific protection for particular aspects of traditional knowledge. Each of these regimes places a different emphasis on the subject matter for protection, which is no doubt reflective of the areas where prior exploitation has occurred.
162 WIPO, supra n 142 at 97.
2005 Building a Protection Regime for
Maori Traditional Knowledge 381
Taking guidance from these efforts and also the parameters set by the Wai 262 claims and the Mataatua declaration, it appears that there are five essential elements for a sui generis Maori protection regime:
The appropriate form for these elements will depend on the guiding principles of tikanga, to be identified in the next section. Traditional Maori principles relating to the use, management, and control of matauranga will be discussed, as well as their relevance in relation to the proposed regime. Each of these structural elements will then be considered in relation to these core principles, and an appropriate form for each element will be fashioned for the proposed regime.
5. NGA POU TOHUTOHU — THE GUIDING PRINCIPLES
As identified earlier, the central issue for Maori remains the assertion of tino rangatiratanga over taonga, which essentially entails complete control over the resource. Solomon observes:
The claimants are still in the process of giving careful consideration to what such a system may look like, how it will be structured, and how it will operate. But one thing is absolutely certain. That such a system must be owned and controlled by Maori and not simply another Crown agency set up by statute with members appointed by the Crown.I63
Along with this central concept there are a complex myriad of principles underlying the use, learning and dissemination of matauranga, each having particular applications depending on the context. The following
163 Solomon, supra n 104 at 13.
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sections will explore the concepts that can be seen to influence the practical and spiritual practices associated with Maori traditional knowledge. These concepts will form the basis of the proposed regime, and will be used as guiding principles in the final formation of the structural elements.
5.1. TIKANGA
Tikanga Maori is a collective term for the body of rules, values and practices that regulate Maori society. Tikanga is derived from the root word tika, which can be translated as just, fair, right or correct.164
Tikanga indicates the obligation to do things in the "right" way: doing the right thing for no other reason than because it is the right thing to do. Tikanga draws from many seeds: it has many shades and many applications.165
Mead provides a comprehensive description of the nature of tikanga:
Tikanga embodies a set of beliefs and practices associated with procedures to be followed in conducting the affairs of a group or an individual. These procedures are established by precedents through time, are held to be ritually correct, are validated by usually more than one generation... Tikanga are tools of thought and understanding. They are packages of ideas which help to organise and provide some predictability in how certain activities are carried out. They provide templates and frameworks to guide our actions and help steer us through some huge gatherings of people and some tense moments in our ceremonial life. They help us to differentiate between right and wrong and in this sense have built in ethical rules that must be observed. Sometimes tikanga help us survive.' 66
Thus tikanga may be described as a wide spectrum of protocols that provide guidance for Maori in all aspects of life, based on wisdom
164 Williams, supra n 26 at 416.
165 Bishop Manuhuia Bennet in NZLC SP9 Maori Custom and Values in New Zealand Law (2001) 16.
166 Mead, H The Nature of Tikanga paper presented at Mai i to Ata
Hapara Conference, Te Wananga o Raukawa, Otaki, 11-13 August 2000, 3-4 in NZLC
SP9 Maori Custom and Values in New Zealand Law (2001)
16.
2005 Building a Protection Regime for Maori Traditional
Knowledge 383
gained from past intergenerational experiences. In relation to the proposed regime, tikanga Maori must be the guiding principle in terms of procedure and protocol.
Mutu notes that one of the numerous practical difficulties in developing a regime based on tikanga Maori is accommodating tribal diversity.167 Regional variations mean that what is tika for one tribe may not he tika for another. This issue will need to be addressed in the structure.
This leads to a related issue concerning the codification of tikanga through inclusion in statute. Maori have expressed concern at the inclusion of Maori concepts (such as kaitiakitanga)168 into legislation because of the potential for re-definition in legal forums divorced from their cultural context. This presents a tricky problem in the construction of a protection regime, because the system will have to be based on concepts that may have to remain undefined in the statute itself. This also means that the regime will have to provide a mechanism for the resolution of disputes over interpretation of tikanga and other Maori concepts in order to prevent the interference of the Courts, and to retain control over these essential principles.
5.2. TAPU AND NOA
Tapu has many interpretations. One definition describes tapu as "the essence of sanctity, cultural protection, sacredness, set apartness."1 69 Tapu acts as a control mechanism in Maori society, delineating the sacred from the ordinary or noa, and providing sanctions to ensure that this balance is observed. While opinions differ on the origins of tapu, most agree that tapu provides a framework for acceptable conduct within Maori society.
Explanations of tapu as primarily religious in nature appeal to those who seek spiritual answers for societal conduct. The more temporal view holds sway where survival and health maintenance are seen as the main challenges
167 Mutu, supra n 61 at 32.
168 See section 7 (a) Resource Management Act
1991.
169 Hohepa P and Williams DV The Taking into Account ofTe Ao Maori in
Relation to the Reform of the Law ofSuccession (1996) 18.
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for tribal societies. But common to both views is the acceptance of tapu... as [a code] for social conduct and adaptation to the environment)"
An issue raised in previous sections is the essentially tapu nature of matauranga, which means that many Maori who have been chosen as repositories of this sacred knowledge are reluctant to have it recorded for fear that this may in some way diminish that sacred aspect. Thus the proposed regime must provide for a method of delineating the subject matter for protection without the need for formal registration, where this issue arises. Further, some particularly tapu aspects of Maori traditional knowledge such as whakapapa and karakia will simply be unsuitable for inclusion in dissemination provisions to third parties. The proposed regime must ensure that the issues surrounding matauranga that is considered tapu are provided for.
5.3. MANA AND RANGATIRATANGA
Mana is one of the conceptual elements behind rangatiratanga and is defined as authority, control, influence, prestige, power, and psychic force.'7'
170 Durie M The Application of Tapu and Noa
to Risk, Safety, and Health presentation to Challenges, Choices and
Strategies, Mental Health Conference 2000, Wellington, (16 November 2000) 4 in
NZLC SP9 Maori Custom and Values in New Zealand Law (2001) 37-38.
171
Williams, supra n 26 at 172.
172 Durie, supra n 41 at 5.
2005 Building
a Protection Regime for Maori Traditional Knowledge 385
Mana is a fluid concept that can be increased or decreased, and can be sourced from divine, ancestral, or personal origins,173 or a combination of all three. Mana defines the ability of a rangatira to lead, and the extent to which his or her authority is respected. The need for leadership that carries a great deal of mana within the management structure will be crucial to achieving a properly functioning regime.
Solomon identifies mandate as a crucial element to the success of a tikanga-based regime, given that Maori are fiercely proud of their individual tribal histories, and this can often cause huge problems in achieving national unity.174 The issue of mandate is intricately linked with the concept of mana, and recent Maori disharmony and lack of ability to gain mandate over issues such as the fisheries allocation may be symptomatic of a Maori leadership lacking in mana. To this extent, the proposed regime will have to provide for proper consultation with all Maori on the form of the regime, in order to gain the mandate crucial to the establishment and survival of the regime. The regime will also have to provide a mechanism that recognises and respects the mana of each tribe and hapu to control their own matauranga.
Mana may also potentially cause conflicts, especially in relation to who has mana over certain areas of matauranga. Consequently, some form of conflict resolution between Maori groups that is cognisant of these mana-related issues will be required.
5.4. U T U
Utu or tau utuutu can be described as the principle of reciprocity.175 Often incorrectly equated with revenge, the concept entails the returning of whatever is received, whether bad or good.
Utu pervaded both the positive and negative aspects of Maori life, governing relationships within Maori society. It was a reciprocation of
173 Ibid.
174 Solomon, supra n 104 at 13.
175 Williams J He Aha Te Tikanga Maori (1998) 13 in NZLC SP9 Maori
Custom and Values in New Zealand Law (2001) 38.
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both positive and negative deeds from one person to another. Utu was a means of seeking, maintaining, and restoring harmony and balance in Maori society and relationships.176
Utu is relevant in keeping the balance of reciprocal obligations of protection in return for the use of matauranga, and also in allowing others to use matauranga. The concept is pertinent to the dissemination element of the regime, where dissemination is to third parties for the purpose of commercial use. The Pirirakau agreement provides an example of a practical expression of utu that is consistent with tikanga and the individual rangatiratanga of a hapa to develop and utilise their matauranga. The proposed regime must provide a similar method for the dissemination of matauranga that allows Maori to exercise their right to choose whether to share their matauranga with third parties, and on what terms.
The concept of utu is also relevant to any benefit sharing arrangements between tribes or hap for matauranga that has shared origins, and in any internal management relationships established under the regime.
5.5 WHANAUNGATANGA
While there is some debate as to whether the word whanaungatanga derives from the root whanau meaning to be bornin, or from the root whanaunga translated as relative or blood relation178 the term itself has a popularly agreed meaning.179 Whanaungatanga encompasses all the relationships formed on the basis of descent from a common ancestor, and is described by Dame Joan Metge as "the web of kinship:5180 Whanaungatanga has been aptly described as the most pervasive of all the values of tikanga MaoriI81 , and can stretch from
174 Solomon, supra n 104 at 13.
175 Williams J He Aha Te Tikanga Maori (1998) 13 in NZLC SP9 Maori Custom and Values in New Zealand Law (2001) 38.
176 Ministry of Justice He Hinatore ki to Ao Maori- A Glimpse into the
Maori World (2001) 12.
177 Williams, supra n 26 at 487.
178
Ibid.
179 NZLC SP9 Maori Custom and Values in New Zealand Law (2001)
30.
180 Ibid, 31.
181 Ibid, 30.
2005 Building a Protection Regime
for Maori Traditional Knowledge 387
nuclear family relationships, all the way back to Ranginui and Papatuanuku through whakapapa182 . Relationships between people, plants, animals, physical and natural resources are all based on shared whakapapa links to the gods and the Maori creation histories. These links are the essential drivers behind Maori holistic and collective philosophies, and are critical to the success of the proposed regime. A huge amount of co-operation and unity will be necessary for the regime to function effectively and the concept of whanaungatanga, along with mana and rangatiratanga, will be essential components in achieving this.
5.6. KAITIAKITANGA
Finally there is the concept of kaitiakitanga: As explained earlier, Maori ownership of matauranga is more accurately described as kaitiakitanga r because rather than absolute owners, Maori view themselves as the current holders of the knowledge, with reciprocal obligations to protect such knowledge for future generations.
The term `tiaki' whilst its basic meaning is 'to guard' has other closely related meanings depending on the context. Tiaki may therefore also mean to keep, to preserve, to conserve, to foster, to protect, to shelter, to keep watch over. The prefix `kai' denotes the agent of the act. A `kaitiaki' is a guardian, keeper, preserver, conservator, foster-parent, protector. The suffix tanga' added to the noun means guardianship, preservation, conservation, fostering, protecting. 183
Kaitiakitanga is imbued with relationships to mana and tapu, as mana provides the authority for the exercise of kaitiakitanga, and tapu often provides the justification and mechanism for the exercise of it) 84
The essence of the proposed regime is to provide a legal avenue that enables Maori to exercise their traditional role as kaitiaki over their matauranga, in accordance with the rangatiratanga guaranteed under the Treaty. This is one of the overall purposes that must be provided for in all facets of the regime.
182 Williams, supra n 26 at 259. Translations include genealogical table.
183 Marsden M and Henare TA Kaitiakitanga: A definitive Introduction to
the Holistic World View of the Maori (1992) 18.
184 NZLC, supra n 179 at
40.
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5.7. CONCLUSION
Tikanga Maori encompasses numerous interrelated values and protocols. This section has identified those values most pertinent to the proposed regime, for inclusion as guiding principles. The structural implications of including these principles in the regime have also been noted. The following section will amalgamate these principles with the required structural elements of the regime, to construct the final form of the regime.
6. TE HONONGA — HE KAITIAKI MATAURANGA
The purpose of the proposed regime is to provide a legal channel for Maori to exercise their kaitiakitanga over their traditional knowledge, in a manner that is consistent with the guarantee of tino rangatiratanga over all their taonga, as contained in the Treaty. The regime must be built on tikanga Maori, as investigation has shown that Pakeha laws based on Western ideology cannot cope with the complex mesh of relationships that define Maori culture. The regime must be flexible enough to cater for the differing needs of individuals, hapu, and iwi, and strong enough to command the unity of all Maori on issues of collective importance. The regime must not stifle development, and must allow groups to exercise their own rangatiratanga over their traditional knowledge. At the same time, the regime must ensure that adequate protection is provided for those taonga that do not come with a price tag.
Essentially, the Kaitiaki Matauranga regime must find a balance between many matters: tikanga and law, protection and commercialism, tradition and development, individual rangatiratanga and unity, to name but a few. The following sections outline the proposed framework for the regime. Whether or not this balance has been achieved, it must be remembered that the utu for such a regime is the compromise of putting Maori values into the Pakeha legal system, and for the regime to work many more compromises on many levels will have to be made.
2005 Building a Protection Regime for Maori Traditional Knowledge 389
6.1. STRUCTURE
The Katiaki Matauranga regime will be established through a statute that outlines provisions for the protection, use, and development of Maori traditional knowledge. A statutory base is necessary to provide the enforceable legal rights and sanctions that will form part of the regime. The statute will provide for the establishment of national, iwi, and hapu based authorities. These authorities will be responsible for the administration of the licensing provisions of the regimes, and will also be the legal custodians of any collective rights attributed to the particular groups under the regime. Individuals will also have the right to apply for rights in their individual works created using traditional knowledge. The statute will establish a Complaints Tribunal, to be appointed by the national authority. The Tribunal will have jurisdiction to hear complaints relating to the provisions of the Act, and to impose any enforcement sanctions in relation to those complaints. The Tribunal will also have exclusive jurisdiction to decide matters of interpretation of Maori words and concepts in the Act.
The statute itself will be structured in a hierarchical manner, with the guiding principles and purpose of the Act influencing the interpretation of all other provisions in the Act.185 Each of the other parts of the Act are based on and subordinate to the purpose and guiding principles. Each facet of the regime is explained below.
6.2. NGA POU TOHUTOHU 0 TE KAITIAKI MATAURANGA
The main section of the statute will set out the purpose and principles of the statute and the regime. A draft of this section follows:1 86
1. Purpose and Principles
The purpose of the statute is to provide for the legal exercise of tino rangatiratanga by Maori over Maori traditional knowledge in all its forms. In pursuit of this purpose the principles of tikanga Maori, including but
185 The structure envisioned is similar to that of the Resource Management Act 1991, which has an overall purpose (s5) and correlating considerations of varying importance (ss 6, 7 and 8).
186 This draft is intended as a guide only, in order to convey the essence of the section. Much thought and consultation will have to be undertaken on actual wording.
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not limited to kaitiakitanga, mana, tapu, utu, and whanaungatanga shall be recognised and provided for. Where any conflict arises, the purpose as contained in this section shall override any other provisions in this Act.
As noted above, exclusive jurisdiction to decide the meanings of all Maori words and principles in this section will be conferred on the Complaints Tribunal, appointed by the national authority. The rest of the Act's provisions will be subordinate to this overriding purpose.
6.3. PROTECTION MECHANISMS
The second part of the regime will provide the requisite protection mechanisms. This entails identifying what parts of matauranga will qualify for protection. A common theme arising from the international regimes was the concentration on protecting biodiversity related traditional knowledge. Only Panama appeared to have a sui traditional knowledge. Given the holistic nature of Maori society, this is the approach that must be favoured in the construction of the proposed regime.
An exhaustive definition of what will be protected by the model regime will not be attempted in the statute, as the terms will be left open for interpretation by the relevant authorities.'" This approach is taken because it is recognised that "the highly diverse and dynamic nature of traditional knowledge [means] it may not be possible to develop a singular and exclusive definition of the term.5,188
The following non-exhaustive categories listed earlier will provide the parameters of subject matter for protection under the proposed regime:
a) Environmental (including medicinal, scientific, and ecological knowledge, indigenous flora and fauna and associated traditional knowledge and practices);
187 The role of defining matauranga will be left up to the authorities that are proposed to be established under the model regime. For further discussion see the next section on management.
188 World Intellectual Property Organisation Intergovernmental Committee on Intellectual Property and Genetic Resources, traditional knowledge and Folklore Matters Concerning Intellectual Property and Genetic Resources, traditional knowledge and Folklore —An Overview (2001) 20.
2005 Building a Protection Regime for Maori Traditional Knowledge 391
The next step is the determination of the scope of this subject matter that is actually to be granted legal protection. The approach of Panama is favoured here, namely that the subject matter is protected to the extent that it provides for the identification of Maori and is susceptible to commercial use. This allows for broad protection, without unreasonably restricting the flow of knowledge that has no identifiable commercial value. In addition, there will specific provision for the protection of matauranga that is very tapu, and also blanket protection against the debasement of all matauranga.
The next matter is deciding what form the protection should take. In the overseas examples the mechanisms range from comprehensive State-run compulsory regimes, as in Guatemala, to specific statutory protection for single aspects of traditional knowledge, as in Samoa. A bilateral protection system based on both defensive protection, preventing third parties from making unauthorised use of traditional knowledge, and positive protection, through apportioning legal rights, is the most attractive from a Maori point of view. This approach accords with the calls for protection against debasement and collective ownership contained in the Mataatua Declaration, and also the relief sought by the Wai 262 claimants.
Protection under the proposed regime will entail the statutory prohibition against using matauranga in a commercial manner unless specifically allowed, as provided for in the dissemination methods. The use of matauranga in a culturally offensive or inappropriate manner will be totally prohibited. Contravention of these provisions will result in liability under the enforcement provisions.
The second tier of protection will be the ability of Maori groups and individuals to register specific aspects of traditional knowledge, and to
189 See section 2.2.
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have legal rights to those aspects vested in them. The relevant authorities will decide on a case-by-case basis whether the subject in question should qualify for protection as matauranga. These rights would include the use of the enforcement provisions against third parties, and the right to exercise the dissemination methods. However, registration will not be necessary for use of the enforcement provisions, and the unauthorised use of any protected Maori traditional knowledge will trigger the enforcement provisions also. Where the question of unauthorised third party use of non-registered matauranga arises, the Complaints Tribunal will have jurisdiction to decide whether the subject in question qualifies for protection as matauranga.
In addition, the statute will have a special provision for the protection of matauranga that is considered so tapu that it will never be available to third parties for dissemination. Under this provision Maori may apply to the relevant hapii or iwi authority for a protection covenant over the knowledge in question. The application will have to describe the nature of the knowledge to be protected, but only in so far as is necessary to identify the general nature and extent of the knowledge.'"
Finally, there is the question of the term of protection. The Mataatua Declaration advocates a multigenerational span of protection. The concept of kaitiakitanga and Maori being merely the current holders of knowledge on trust for future generations would indicate that a perpetual term of protection is most appropriate. This does not mean that third parties will be unable to access Maori traditional knowledge, and this issue will be addressed in the dissemination provisions.
6.4 MANAGEMENT STRUCTURE
The issues of mandate and tribal differences, referred to earlier, make the matter of formulating a management structure an exercise in balancing numerous competing interests. The structure recommended here is based on the central concept of tino rangatiratanga, and the traditional societal groupings prevalent in Maori society. The
190 For example the description may be "The whakapapa of Nga Maihi of Te Teko".
2005 Building a Protection Regime for Maori Traditional Knowledge 393
establishment of a national authority, iwi authorities, and hapu-based authorities charged with the administration of the regime is advocated. In addition, a Complaints Tribunal will be established to deal with the enforcement and interpretation of the statute.
The collective rights apportioned under the protection mechanism will be vested in the relevant hapu and iwi authorities, or a combination thereof, while non-distinct, general Maori traditional knowledge with no specifically identifiable tribal roots will come under the control of the national authority. The majority of rights will therefore be vested in the individual hapu and iwi authorities, leaving the national authority to play a largely advisory and conflict resolution role. Day to day administration of those rights and ultimate accountability for their management will lie with the individual organisations. The appointment of representatives to the hap authority will be through traditional methods, as decided by each area during a consultation process. One representative from each hapu will then be appointed to the respective iwi authorities, and one iwi representative from each iwi authority will be appointed to the national authority. Appointments to the Complaints Tribunal will be by a process decided on during consultation, but a nomination and election system by- the national authority is recommended.
The relationships between the hapu, iwi, and national authorities will be an inversion of the traditional "top down" management structure, with autonomy exercised at the hapu and iwi levels, and the national body exercising reserved authority when called upon, or in matters of collective Maori interest. All the authorities would be allocated legal personality, to enable them to exercise the protection mechanisms and enforcement options available.
Financially the benefits will follow the rights, and collective monies will be held in trust for the benefit of all hapu or iwi members. Application of these funds will be at the discretion of the relevant authority in accordance with a process decided on during mandate consultations. The use of a levy system based on tau utuutu may be necessary to fund the administration of the national authority, which may also include a fund to cover legal action undertaken by the national authority to enforce generic national claims.
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The national body will be responsible for conflict resolution between authorities over shared rights and, if agreement cannot be reached, it will have authority to decide on the apportioning of rights.
The national body will also be responsible for appointing the Complaints Tribunal. The main role of the Complaints Tribunal will be to hear complaints under the Act, and to impose sanctions under the enforcement provisions. The Tribunal will have sole jurisdiction to decide issues concerning the interpretation of Maori words and concepts in the empowering Act. The Complaints Tribunal will also have jurisdiction to decide whether any unregistered matauranga qualifies for protection under the Act.
6.5. DISSEMINATION METHODS
To avoid confusion, the dissemination of Maori traditional knowledge to Maori for traditional and educational purposes will be expressly allowed under the regime. There will also be provisions allowing the relevant rights holders identified under the protection mechanisms to enter into licence agreements with third parties to use matauranga for commercial purposes. Such agreements shall have minimum requirements, including specification of what the knowledge will be used for, how benefits will be shared, and how the matauranga may be used by the licensors during the period of the agreement. Where there is no registered right holder, a third party may apply to the national authority who will identify the appropriate iwi or hapu authorities the knowledge is likely to originate from or, in the case of generic knowledge, administer the license itself Where the knowledge in question emanates from more than one group, the parties may elect one authority to deal with the licence, or elect the national authority to administer the licence on their behalf
There will be a prohibition on the absolute alienation of rights (except in the case of individual works), and licences will be limited to a maximum period of twenty years, after which time they may be reapplied for or abandoned. This will reflect the transient nature of the property right from a Maori point of view, and ensure that previous generations do not bind the options of the next generation unreasonably.
2005 Building a Protection Regime for Maori Traditional Knowledge 395
Finally there will be provisions for each authority to develop a code of ethics for third parties who wish to negotiate for the use of such rights. These codes will be hapa and iwi specific, and will provide an educational baseline of what will and what will not be acceptable to the relevant authority in terms of dealing with their matauranga. These codes will have dual roles in setting out the parameters for the development of licensing agreements, and providing education for third parties.
6.6 SANCTIONS AND ENFORCEMENT
The sanctions provided for enforcing the rights under the regime must be capable of deterring those who would contravene the regime, and ensure that protection is achievable. The sanctions recommended are injunctions, fines, seizure of illegal goods, and the revocation or rejection of IPR containing unauthorised Maori traditional knowledge. Primary jurisdiction for the imposition of these sanctions will be conferred on the Complaints Tribunal.
Liability under the enforcement provisions may be triggered by contravention of the protection mechanisms or other parts of the Act, such as the dissemination provisions. Any of the right holding authorities, individuals, or the national authority (in the case of unregistered knowledge) may apply to the Complaints Tribunal for enforcement. Primary obligation for bringing enforcement proceedings will fall on the relevant right holders, with default obligation for enforcement falling on the national authority where the initial right cannot be exercised. The Complaints Tribunal will also have jurisdiction to hear complaints about licence agreements, and to implement the enforcement sanctions in respect of those cases also.
6.7. INTERACTION WITH EXISTING IPR REGIMES
The Brazilian approach of requiring third parties to provide proof of authorisation when applying for intellectual property rights relating to traditional knowledge is advocated for implementation into the proposed regime. Provision should also be made for the use of existing IPR regimes by individuals as a subsidiary mechanism where appropriate.
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Where there is conflict in the application of the proposed regime and other IPR regimes, provision should be made for the proposed statute to assume priority.
The Wai 262 claimants have identified a plethora of statutes, policies, and international instruments adopted by the Government (as the Crown's representative), which they assert have impinged on their ability to exercise tino rangatiratanga over their taonga (including matauranga) as guaranteed under the Treaty of Waitangi. These include the GATT: TRIPs agreement, and various local statutes that would make the operation of the proposed regime impossible. In keeping with the relief sought by the Wai 262 claimants, the regime would have to provide for the repeal or amendment of conflicting statutes, and the rescinding of any international instruments adopted by the Government that would impede the operation of the system. This is likely to be the most formidable barrier in the construction of the regime, especially in light of the free trade in exchange for intellectual property reform deal made under TRIPs. Nonetheless, the Government should be reminded that its obligations under the Treaty easily pre-date any of these obligations, and as such any excuse based on the premise of honouring international obligations is redundant.
6.8. CONCLUSION
The system proposed is not a comprehensive cure-all for the issues raised in this paper. It represents a balancing of numerous competing considerations, and an attempt to give back control to Maori over their cultural knowledge. Compromise is the main ingredient that will allow the regime to work. It must be remembered that this is a model, built within artificial confines. In a real regime the need for consultation with Maori on the form of the regime would be crucial to its success, and this model may provide a framework for such consultation.
7. CONCLUSIONS
The investigations in this paper have revealed a number of conclusions. Firstly, current intellectual property rights regimes are unsuitable and inadequate to provide protection for Maori traditional knowledge. The inherent ideological conflict between Western property concepts and
2005 Building a Protection Regime for Maori Traditional Knowledge 397
the holistic Maori worldview mean that simply tweaking the edges of current intellectual property statutes is not going to provide Maori with the tino rangatiratanga over this taonga that they are seeking. The current subjugation of Maori traditional knowledge simply because it is not recognised by intellectual property regimes is unjust, and in violation of the Treaty of Waitangi.
Local responses aimed at addressing the issue of matauranga in the modern world have had little success. The Wai 262 claim is the best hope of forcing the Government to adopt a sui generis regime for the protection of matauranga, but this outcome is far from assured. Internationally the birth of new laws around the world signifies the beginning of a new renaissance of indigenous peoples against the theft of their cultural history. In the face of globalisation, this struggle to hold on to identity is becoming even more critical.
The numerous contradictions and problems involved in the creation of a model regime for the protection of matauranga make the task seem unattainable. But the realisation that compromises must be made in order to achieve the main goal is the key to the framework proposed. Obligatory consultation with Maori on the final structure of the regime means that the proposed system can only ever serve as a model for future development.
This paper has identified the many difficult issues facing Maori in their struggle to protect their traditional knowledge. Many would favour a non-statutory approach in addressing this problem, but the reality of the situation reveals that a statute based regime along the lines of the proposed model is the only option for providing the necessary protection, and tino rangatiratanga that Maori are entitled to.
Ma te ture ano te ture e aki
Only the law can be pitched against the law
(Te Kooti Arikirangi Te Turuki)
398 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
BIBLIOGRAPHY
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Copyright Act 1994.
Resource Management Act 1991.
Trade Marks Act 1953 (Repealed).
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Bulun Bulun & Milpurrurru v R & T Textiles Pty Ltd [1998] FCA 1082; (1988) 41 IPR 513.
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2005 Building a Protection Regime for Maori Traditional Knowledge 399
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400 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
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2005 Building a Protection Regime for Maori Traditional Knowledge 401
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Griggs, K "Maori take on hi-tech Lego toys" (26 October 2001) BBC News <http://news.bbc.co.uk/hi/english/world/asia-pacific/ newsidl 619000/16]9406.stm> .
Hawkins, M Intellectual Property Under CER (2003) 1 <http:// www.bswip.com.au/articles/ip-under-cer.html> .
Intellectual Property Office of New Zealand Website <http:// www.iponz.govt.nz> .
Kopua, M More About Moko <http://www.tamoko.org.nz/artists/ururoa/ intro.html> .
402 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
Mead, A Understanding Maori Intellectual Property Rights (10 October 2002) The Inaugural Maori Legal Forum <http://www.conferenz.co.nz/ library/m/mead_aroha.html> .
Mike Tyson Interview (audio) <http://www.knbr68.com/bleepers.html> .
NZPA "Concern Over Ignorant Use of Maori Moko" (27 February
2003) NZ Herald <http://www.nzherald.co.nz/
storyprint.cfin?storyID-3198136>.
Playstation 2: Ignition Interview with Jeff Meghaert (23 March 2003) <http://ps2.ign.com/articles/365/365290p2.html> .
Reuters "Spice Girls in Hot Water Over Maori War Dance" (28 April 1997) <http://www.flatearthjihad.com/horsetrading/spice/articles/ spicemaori.html> .
Te Karere "Maori Warrior in New Sony Game" Arotahi Newsletter (7 April 2003) April 2003 Edition 4 (Electronic Newsletter).
Toi Iho - Information Page <http://www.toiho.com/about/about.htm> .
Toi Iho - Frequently Asked Questions Page <http://www.toiiho.com/ faq/faqs.htm#What> .
Waitangi Tribunal Website - Frequently Asked Questions Page <http:/ /www.waitangi-tribunal.govt.nz/faq/>.
MAGAZINE AND NEWSPAPER ARTICLES
Calder, P "War Dance Over Haka", New Zealand Herald, (Auckland: 28 January 2001).
De Boni D "Lawyers pour cold water on logo frenzy" New Zealand Herald, (Auckland: 10 August 2001).
Herald Sun "Maoris object to Tyson Tattoo" Herald Sun, (Sydney: 27 February 2003).
Mana Magazine "Dedicated by Blood" Mana, (Wellington: Mana Publishing, April-May 2003).
Manson B and Quirke M "This is the BBC: ka mate ka mate!" The Dominion, (Wellington: 16 April 2002).
2005 Building a Protection Regime for Maori Traditional Knowledge 403
Milne, J "Maori Outrage at Dutch Café's 'abuse' of moko" The Dominion, (Wellington: 20 March 2002).
New Zealand Herald "Haka party only `light-hearted' stunt — Registrar" New Zealand Herald, (Auckland: 6 July 1979).
NZPA "Concern over ignorant use of Maori moko" New Zealand Herald, (Auckland: 27 February 2003).
Schaer, C "Fashion with a Blessing" Sunday Star-Times, (Auckland: 17 May 1998).
MISCELLANEOUS
Auckland District Maori Council Submission to the Human Rights Commission on He Taua, "The Engineers' Mistake" and Social Response to the "Haka Party" Incident (1 May 1979).
Television 3, Ihumanea, (Maori Language Quiz Show), broadcast Sunday 18 May
2003.
2005 Building a Protection Regime for Maori Traditional Knowledge 406
APPENDIX 2
2005 Building a Protection Regime for Maori Traditional Knowledge 408
APPENDIX 4
APPENDIX 5
2005 Building a Protection Regime for Maori Traditional Knowledge 470
APPENDIX 7
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