The document is the Tribunal's first whole-of-government report, addressing some 20 NZ government departments, autonomous agencies and Crown entities. Importantly, it is also the first Tribunal report to consider what the Waitangi Treaty relationship might become after settlement of historic grievances and how that relationship might be shaped by demographic changes in coming years.
The report concerns the Wai 262 claim, commonly known as the 'indigenous flora & fauna and cultural & intellectual property claim'. The report comments that the claim -
is really a claim about mātauranga Māori – that is, the unique Māori way of viewing the world, encompassing both traditional knowledge and culture. The claimants, in other words, are seeking to preserve their culture and identity, and the relationships that culture and identity derive from.The report comprises two components: a 268pp summary [PDF] subtitled Te Taumata Tuatahi, for a general readership and a detailed two volume component subtitled Te Taumata Tuarua [440pp vol 1 PDF and 402pp vol 2 PDF].
Chapter 1 of Te Taumata Tuarua considers the Māori interest in works created by writers, artists, weavers, musicians, carvers, and others in the context of New Zealand intellectual property law. It has a particular focus on trade marks and copyright. The second chapter examines the -
genetic and biological resources of the flora and fauna with which Māori have developed intimate and long-standing relationships, and which are now of intense interest to scientists and researchers involved in bioprospecting, genetic modification, and intellectual property law, particularly patents and plant variety rights.That is followed by discussion of broader Māori interests in the environment, including control under the Resource Management Act and the conservation estate managed by the Department of Conservation. Chapter 5 deals with state protection of te reo Māori (ie the Māori language and its dialects). Chapter 6 considers those agencies where the state owns, funds, or oversees mātauranga Māori (Māori knowledge and ways of knowing) and "is thus effectively in the seat of kaitiaki (cultural guardian)", including museums, libraries, archives, arts funding, broadcasting, education and science. The seventh chapter examines state support for rongoā Māori (traditional Māori healing). The final chapter discusses policies on including Māori in the development of New Zealand's position concerning international instruments such as the Convention on Biological Diversity and the Declaration on the Rights of Indigenous Peoples. An appendix provides a brief procedural history of the inquiry, outlining the origins and development of the claim, the claimants, the scope of the claim issues and the two rounds of hearings.
In relation to Rongoā the Tribunal comments that -
Māori are facing a health crisis. Rongoā has significant potential to help address that crisis, because of its spiritual and biomedical qualities, and because of its potential to bring sick people into contact with the health system.A sceptic might have some concerns regarding the "sophisticated system of public health in pre-Treaty times" and the appropriateness of reviving or endorsing a therapy of rituals and incantations.
The Crown has suppressed rongoā in the past and currently fails to support it with the energy or urgency required by both the Treaty and the Māori health crisis.
Rongoā is traditional Māori healing. It encompasses a way of understanding health that is based not only on the body but also on taha wairua (the spiritual dimension). It operates within a wider philosophical context in which people, places and events are seen as either tapu or noa. Breaches of tapu invite mental and physical consequences, such as disease. Tapu and noa provided the basis for a sophisticated system of public health in pre-Treaty times.
In rongoā, then, tohunga or healers address both the physical symptoms and the metaphysical causes of any diminution of health or well-being. Rongoā thus encompasses karakia and ritenga (rituals and incantations), as well as physical forms of treatment such as mirimiri (massage) and traditional medicines based on plants such as mānuka (which has antibacterial properties), koromiko (used to treat diarrhoea and dysentery), and harakeke (which has antiseptic properties and soothes skin ailments).
The practice of rongoā and the knowledge and concepts that underpin it are vital aspects of Māori culture itself.
The report recommends that the state makes "urgent changes", including -
• recognising that rongoā has significant potential as a weapon in the fight to improve Māori health;In discussing patents and plant variety rights the report comments that -
• identifying and implementing ways to encourage the health system to expand rongoā services (for example by requiring primary healthcare organisations servicing a significant Māori population to offer rongoā clinics);
• adequately supporting the national rongoā organisation Te Paepae Matua to play a quality-control role in relation to rongoā;
• gathering data about the extent of current Māori use of rongoā services and likely ongoing demand.
• the Ministry of Health and the Department of Conservation coordinate rongoā policy, to ensure that rongoā plants survive and that tohunga can access them.
New Zealand’s laws and policies affecting bioprospecting raise important issues that are still to be confronted. The regime is inconsistent. There are some areas, particularly within DOC’s jurisdiction, where room potentially is, or could at least be made, for the Māori interest in bioprospecting. elsewhere, law and policy is silent on the issue. Sitting above all this are developments in international forums. New Zealand will need to confront the challenges of those developments sooner rather than later. ....In response, the report suggests tweaking the regime.
The issues the claimants raised in respect of their rights in the genetic and biological resources of taonga species are wide ranging. At one end of the spectrum, they said they should have some rights to control all mātauranga Māori relating to those resources, even if that mātauranga is effectively in the public domain. At the other end of the spectrum, there was acceptance that, in some instances at least, consultation and involvement in decision-making might achieve protection of their interests. As with bioprospecting and GM, the common element in these arguments was the desire to maintain the relationship of kaitiaki with the mātauranga Māori and the relevant species or biological resource.
Both the Crown and the interested parties who gave evidence before us emphasised that any recognition of Māori rights should not have a chilling effect on research and consequently on IP rights. Although the Crown research institutes, in particular, seem to have good working relationships with Māori and have demonstrated best practices for including Māori as advisers in the research process, this on its own does not meet claimant concerns.
The New Zealand Institute of Patent Attorneys argued that any additional legal protections of mātauranga Māori should not undermine the basic tenets of existing IP law. The Crown, too, stressed that New Zealand must comply with its international obligations, particularly the TRIPS Agreement.
But the heart of the problem is this. The primary purpose of the patent and PVR systems is to enable exploitation; it was never intended to accommodate mātauranga Māori or indeed to respond to the interests of kaitiaki. For example, within the examination process, patents and PVRs are granted to the party who first expresses knowledge in Western scientific terms. IP examiners are often trained in Western science but not in tikanga Māori.
If they consult scientific databases to research publicly available information that might be relevant to an applicant’s claims of novelty, they are unlikely to find any reference to mātauranga Māori, because it is barely documented in such databases. Further, the legal framework is inadequate in many ways for protecting the kaitiaki interest. For example, after the expiry of a patent, the patented invention becomes available for others to use – a concept that may run counter to the responsibilities of kaitiakitanga.
In sum, everyone appears to accept that many aspects of the IP system as it affects the genetic and biological resources of taonga species fail to meet the needs of the claimants, because it was never designed to do so.
