Intellectual Property Rights and

Indigenous Peoples Rights and Obligations

by Maui Solomon
Nairobi, Kenya,
Wellington, Aotearoa / New Zealand

 Introduction
 Maori View of Their Natural World
 Intellectual Property Rights versus
Indigenous Peoples Rights and Obligations
 The Treaty of Waitangi Maui
 Renaissance of the Treaty of Waitangi Solomon.
 Resource Management Act 1991 and Other
New Zealand Legislation
 The Wai262 Claim to Indigenous Flora and Fauna and Cultural
and Intellectual Heritage Rights and Obligations
 The Claim
 “My Own Blood And Bones"
 What are Maori Seeking: A Tikanga Maori Framework of
Protection (TMFP)
 Benefits to Aotearoa/New Zealand
 The CBD Process and Article 8(j)
 Summary and Conclusions

The following paper was presented to the workshop on instruments

for access and benefit sharing from genetic resources and related
traditional knowledge issues at Global Biodiversity Forum 15, UNEP
Headquarters, Gigiri, Nairobi, Kenya, May 12-14 2000
Maui Solomon is a Moriori Maori barrister, an indigenous lawyer from
Aotearoa New Zealand. He represents a number of tribes in Aotearoa
New Zealand, in particular his own Moriori iwi, or tribe, from the
Chatham Islands, a little island 800 kilometers east of New Zealand.
He also represents three tribes: Ngati Kuri, Ngati Wai and Te Rarawa
(other counsel represent the remaining three) in relation to the Wai
262 flora and fauna and cultural and intellectual heritage rights claim
that's currently being heard by the Waitangi Tribunal. Also see: An
Interview with Maui Solomon - The Wai 262 Claim by Six Maori
Tribes: Interview with Maori community leader Sydney Jackson.
Ko Te Rangaapene Te Maunga (Te Rangaapene is my mountain) Ko
Te Awa Inganga Te Awa (Te Awa Inganga is my river) Ko Manukau
Te Whenua Tapu (Manukau is my sacred lands) Ko Te Awapatiki Te
Kopinga (Te Awapatiki is the sacred meeting place) Ko Te Kopinga
Te Marae (Te Kopinga is our meeting house) Ko Rekohu Te Motu
(Chatham Islands is the island) Ko Tame Horomona Rehe Te
Rangatira (Tommy Solomon is my grandfather) Ko Rongomaiwhenua
Te Karapuna (Rongomaiwhenua was the founding ancestor on
Rekohu) Ko Moriori Te Iwi (Moriori is my tribe) Tihei Mauri Ora! (I
sneeze the breath of life) Ko tenei te mihi ki a koutou, te hau kainga,
nga tangata whenua o tenei motu. He mihi hoki ki a koutou katoa e
huihui mai nei Tena koutou katoa (Greetings to you the local Tangata
Whenua (people of this land) and to other peoples present at this
meeting)
Introduction
The title of this paper was originally called Intellectual Property Rights
and Indigenous Peoples Rights. In gathering my thoughts on what I
would say in the paper, I decided to add the word “Obligations” to the
title of the paper.
It seemed to me that my own Moriori tribe from Rekohu and Maori
tribes from Aotearoa are as much concerned about their obligations
to one another and to the natural world at large, as they are
concerned with asserting their cultural rights. And without access to
their rights they cannot exercise their responsibilities. Such is the
relationship of respect and reciprocity. This is mainly true of
indigenous and traditional peoples all over the world.
This paper will discuss the efforts being made by a number of Maori
tribes in Aotearoa to have their cultural rights and values recognised
and protected. There are a number of different ways in which this is
occurring but the most significant case in terms of seeking protection
of traditional knowledge is the claim by six tribes currently before the
Waitangi Tribunal. I will discuss this claim in more detail later. For the
record, the comments I make in this paper are my own and do not
necessarily reflect the opinions of the claimants for whom I act.
The paper will examine from a Maori perspective their notions of
indigenous peoples rights and obligations and how they are
fundamentally at odds with existing intellectual property right
systems. The paper will also explore how some of the Maori
claimants consider their rights should be acknowledged, respected
and protected and the inevitable obstacles that must be confronted
and overcome before this can happen.
Finally, the paper will consider the implications of Article 8(j) of the
Convention on Biological Diversity and related provisions, and how
they impact on the struggle by the Maori to have their rights and
obligations recognised and protected within Aotearoa/New Zealand.
Maori View of Their Natural World
Like most other indigenous traditional peoples, Maori have a unique
relationship with their natural world. They view themselves as part of
and not dominant over their natural flora and fauna. The people, the
land, the sea, the forest and all living creatures, are all members of
the same family.
In the beginning was Te Kore or total darkness. There was no life,
only potential. Papatuanuku, the Earth Mother and Ranginui, the Sky
Father were locked together in an embrace which stifled all growth.
Their children, desperate for light, devised a plan to forcibly separate
their parents. This job fell on the shoulders (literally) of one of the
children, Tane Mahuta, God of the Forests. Binding to his mother
below, he pushed upwards with his legs with all his strength and
pushed his father apart from the earth.
Into the light created between Papatuanuku and Ranginui sprang the
raging winds of Tawhirimatea (God of the Winds), the swirling seas of
Tangaroa (God of the Sea) and all his progeny, the towering forests
of Tane Mahuta and all his progeny and the varieties of cultivated and
uncultivated crops. Tane Mahuta fashioned the first human, Hine ahu
one from the clay of his mother. He slept with her and begat a
daughter, Hinetitama. With Hinetitama, Tane begat other children.
Discovering her father and lover were the same, Hinetitama fled to
the underworld, where she lives still in the name of Hine nui ite po.
The spiritual home of Maori, the home of their gods and of creation is
known as:

Hawaiiki nui
Hawaiiki roa
Hawaiiki pamaomao.

The Maori name for indigenous peoples is Tangata Whenua. This

literally means “peoples of the land”. My own Moriori people of
Rekohu claim to have sprung from the earth (no ro whenua ake).
Legends tell of different waka or canoes arriving on Rekohu and
Aotearoa from Hawaiiki in various migrations from about 900 AD.
They named every landmark, stream, rock, mountain and other
natural feature in the landscape, including the flora and fauna they
found there. Maori regard themselves as one with their natural world.
Maori have a direct whakapapa or genealogical connection to the
land through their ancestress Papatuanuku, the Earth Mother; to the
sea and its marine creatures through their ancestor Tangaroa; to the
forest and all its inhabitants through their ancestor Tane Mahuta and
to the heavens and all of its celestial domain through their ancestral
Sky Father, Ranginui.
During a period of 1,000 years occupation, the ancestors of the Maori
developed complex rituals and protocols for regulating behaviour
between themselves and the environment they found themselves in.
But the Maori world was not a perfect one. Like all cultures, mistakes
were made by Maori in their interaction with their environment. Some
species such as the large flightless Moa bird found by Maori on their
arrival in Aotearoa, was hunted to extinction. Lessons learnt were
incorporated into traditional practices. Thus, as populations grew and
pressures became intense on scarce resources, rahui or prohibitions
on the taking of certain species at certain times of the year, became
common place. Homage was also paid to the spiritual guardians of
the land, the sea and the forests. In order for Maori to survive and
prosper from the land and sea, they had first to acknowledge and
respect the deities and the Gods of those places. Ritual karakia or
blessings were spoken and permission sought before cutting down a
tree for canoe building or taking fish from the sea to feed their
families.
This reciprocity of respect and caring between the people and their
creator gods was central to the relationship. By demonstrating caring
and respect for the kaitiaki or ancient guardians, they in turn would
ensure that the needs of the people were satisfied. There were rights
to access and utilise resources within a tribal territory but only after
observing the ritual obligations of reciprocity and respect.
Intellectual Property Rights versus Indigenous Peoples Rights
and Obligations
Acknowledging the spiritual dimension of their universe and
respecting the mauri or central life force of every living thing was
fundamentally important to the Maori world view. In other words, the
reciprocity of obligations was balanced against the right to use and
exploit. This can be contrasted with the notion intellectual property
rights which focuses on the economic right to exploit for profit and
financial gain. The needs of the individual, and corporate legal
personalities such as multinationals, are preferred to the collective
good.
Under this capitalist model, resources are viewed entirely as a means
of exploitation for economic gain. There is little or no reciprocity or
respect for the integrity of the resources as living and breathing
entities with their own mauri or life force.
Furthermore, this respect for the mauri of the environment is seen as
imposing barriers to the exploitation of resources and economic
advancement. Modern progress has little time for ritual and respect.
Thus, there can be seen a fundamental clash between the ideological
underpinnings of the Intellectual Property Rights system and the
philosophical underpinnings of what I have termed Indigenous
Peoples Rights and Obligations.
For example, a Maori may look at a native totara tree and pay
homage to an ancient member of his whanau or family. A scientist or
geneticist may look at the same tree and think of ways to alter its
genetic programming so that instead of taking 1,000 years to grow to
maturity, the tree can reach maturity in 100 years. They consider
ways to “improve” the tree by the application of modern technology.
This approach is justified under the aegis of progress and
technological advancement in a modern society.
Maori regard the genetic modification of flora and fauna as the
interference or tampering with their whakapapa (genealogy).
Modifying or mixing the genes of the same or different species is
analogous to genetic experiments on one's own family members.
Whilst this may be regarded by some as emotional blackmail or “over
the top” emotionalism, the issue really boils down to one of respect.
Respect for the fact that Maori and indigenous peoples everywhere,
have a special kind of relationship with their natural world. Before
economists and scientists go too far down the track of exploiting or
re-engineering what the gods created, these relationships and values
must be acknowledged and respected.
Maori people are not against development and exploitation. But they
do insist that the Crown (the Government and all of its various
agencies), local authorities and commercial enterprise stop to
consider the issues from their cultural perspective. Unfortunately in
New Zealand society today, there is only lip service paid to
acknowledging Maori cultural values. Whilst there are many words
written in policy documents promulgated by the Crown, Maori still
face an uphill battle to have themselves and their values accepted
and understood.
The problem in Aotearoa, as in every other country where peoples
have been colonised, the colonisers judge the colonised by their own
set of cultural values and standards. Invariably the “conqueror”
wrongly assumes that their own values and way of life are superior to
those they have “conquered”. Only now are they gradually beginning
to see how wrong they were. That in fact, indigenous cultures have a
great deal to offer in the way of environmental management and
stewardship. The problem is that they still want to have ultimate
control over that process.
In Aotearoa, Maori knowledge of their environment was ignored and
their spiritual healers (tohunga), were dismissed as crazy “witch
doctors” who had to be suppressed. In 1909, the Crown passed the
“Tohunga Suppression Act” in an attempt to stamp out these
practices. Sadly, Tohunga became the subject of ridicule even among
their own people who were encouraged to forget about the past and
taught to become “Brown Pakeha”. For example, my own father was
punished for speaking his native language at school because he was
told he had to put all of that “old cultural baggage” behind him.
But Maori tribes are strong and resilient. The traditional healing
practices were forced underground but have continued to the present
day, albeit in a much reduced form. Sadly, a vast amount of this
knowledge has been lost as the older generations have died out, and
the indigenous institutions, capable of passing on this knowledge,
have been suppressed and actively denied legitimacy.
I will never forget the powerful and moving evidence given by one of
the traditional witnesses for Ngati Wai to the Waitangi Tribunal. This
woman was in her late eighties and had practised rongoa Maori
(traditional Maori healing using native plants) for more than 70 years.
This knowledge had been passed down to her by her father. During
the two days she was questioned, she fasted and would only drink
water because of the tapu (sacred) nature of the evidence she was
giving. When talking about the ngahere (native bush or forest), it was
as though she was talking about her own whanau or family. She
knew the plants and the animals and they knew her. She knew the
exact time to go into the bush, the seasons, the days, the type of
plants and what side of the plant to take and in what quantities. She
used her knowledge to help peoples from all walks of life (Maori and
Pakeha) but would never request payment for her services. Her
reason is that she regarded her healing powers and knowledge as
gifts that had been bestowed on her by the creator. To use those gifts
for profit would only dilute the healing power. But as is common in
Maori society, she would accept koha or gifts exchanged to her for
her help. These might include food, reciprocal services or could even
include money. But it was up to the giver to determine the nature of
the koha to be given.
This wonderful woman, although 87 years old, looked and acted thirty
years younger. She had a healthy body, a sharp intellect and a
wonderful sense of humour. She attributed her good physical and
mental health to the fact that she had never in her life taken
conventional medicines. She had only ever used traditional healing
methods and natural remedies. She described how as a nurse in the
1940s and later, her traditional knowledge and practices were
frowned upon in the mainstream system, but from time to time she
would secretly employ her rongoa Maori knowledge to help patients
when conventional medicines would not work. On the final day of her
evidence, she was joined by her 89 year old sister and her 78 year
old brother who had also been brought up with the knowledge of
rongoa Maori. Between them they had a combined total of 254 years
knowledge of traditional healing practices.
The Treaty of Waitangi
The early Maori recognised the many benefits that interaction and
trade with the English settlers would bring for their society. They were
a highly inventive and adaptive people. From Captain Cook's first
arrival in Aotearoa in 1769 through to 1840 when the Treaty of
Waitangi was signed, Maori actively traded with the British settlers
and for the most part provided food, protection and in many instances
land for the newcomers. There was also intermarriage with many
early colonists to cement relationships between Maori and Pakeha.
In 1840, the Maori population numbered about 115,000 people. This
compared with a British migrant population of approximately 2,000
people. The Treaty of Waitangi (see attached appendix) was signed
in both Maori and English. In effect there are two versions of the
Treaty. Most Maori Chiefs signed the Maori version. The terms of the
two Treaties are, in certain respects, conflicting. For example, in
Article 1 of the English version, the Chiefs and Tribes ceded their
“sovereignty” to Queen Victoria. But Article 1 of the Maori version
refers to a grant of kawanatanga (a missionary transliteration of the
world “governor”). Article 2 of the Maori Treaty reserved to the Chiefs
and Tribes their tino rangatiratanga o ratou wenua o ratou kainga me
o ratou taonga katoa. By this the Chiefs understood that their full
chiefly authority to manage their own affairs in relation to their lands,
treasures and people would be retained. The equivalent under the
English version of Article 2 is just as robust:
“Her Majesty the Queen of England confirms and guarantees to the
Chiefs and Tribes of New Zealand and to the respective families and
individuals thereof the full exclusive and undisturbed possession of
their Lands and Estates, Forests, Fisheries and other properties
which they may collectively or individually possess so long as it is
their wish and desire to retain the same in their possession ”
A lawyer could not have drafted a more contractually watertight
provision if he had tried! As one northern Chief who signed noted
afterwards when explaining his understanding of the Treaty:

“Ko te atukau o te whenua i riro ia te kuini, ko te tinana o

te whenua i waiho ki nga Maori.”
“Only the shadow of the land is to the Queen, but the
substance remains to us.”

But it was not long before Maori realised that the new colonisers did
not intend to honour the terms of the Treaty -- either the English or
Maori version. By the 1860s the immigrant population had exploded
and there were increasing pressures for land. Maori were subject to
dubious land purchase deals and began resisting continual
encroachment by settlers and the Crown. This lead to invasion by
Crown military forces to expel Maori from their lands and naturally, as
a warrior people, Maori responded by defending their lands.
Although mostly outnumbered and facing the best that the British
Empire had to throw at them, the Maori responded brilliantly. Their
military tactics and defence works were inventive and greatly
underestimated by the Crown forces. They adapted their traditional
fighting Pa (barricaded forts), to counter the British canon barrages
which would sometimes go on for days. They survived these assaults
by constructing elaborate underground defence works and tunnel
systems. These new fighting Pa were built deep in the dense New
Zealand bush (forests) where they would lead the unwitting soldiers.
Colonial troops were often baffled when they mounted a ground
assault only to find that the enemy numbers had hardly been affected
by the bombardment.
Maori were the first to develop this system of defensive earthworks
which were used (but not with the same effect), during the First World
War. In many cases, Maori tribes prevailed over the superior Crown
forces. The true extent of their military genius is only now being
appreciated by NZ historians. However, by sheer weight of numbers
and military firepower, the colonisers eventually prevailed. Invasion
and military defeat were followed by massive confiscations of land in
the 1860s. In the Taranaki region alone (East Coast of the North
Island) 1.5 million acres were confiscated by the Crown. In the
Waikato, about 3 million acres was taken. This often included land of
tribes who had not been involved in the fighting or had even, in some
cases, fought on the side of the Crown. This confiscated land was
used for settlers and military resettlement.
The system of Parliamentary representation imposed on Maori after
1840 was based on the monocultural dominance of British
constitutionalism. From 1856-1868, Maori representation was at the
pleasure of the Governor. In 1868, Maori were represented through
four seats in the Parliament (increased to five seats only in the 1999
election), and powerless to prevent the framing of legislation and
policies which continued the confiscations of land and ignored the
aspirations of Maori.
By 1877, in the infamous case of Wi Parata v The Bishop of
Wellington, Prendergrast CJ declared the Treaty to be a “simple
nullity”. He could not accept that Maori had “any kind of civil
government” or “any settled system of law”, and certainly were not
capable of entering into an international Treaty. In 1901, the Privy
Council in Nireaha Tamaki v Baker rejected the argument that “there
is no customary law of the Maori of which the Courts can take
cognizance”. But any cognizance that was taken was in the context of
the all encompassing assumptions of the British common law, where
Maori customary law is treated as analogous to “local custom” in
England. The custom is easily supplanted by statute, and is usually
only given recognition where the relevant statute specifically requires
it to do so. Being politically powerless to influence the law making
process, Maori customary law and practices were marginalised.
At the beginning of the 20th Century, Maori were regarded as a
doomed race. Population numbers had plummeted, most were living
in severe poverty and health was very poor. In effect, Maori had
become third class citizens in their own country. But Maori never
gave up on the hope that one day the Treaty would be honoured and
they continued to discuss and debate it among themselves on marae
(traditional meeting places) around the country. But for Pakeha New
Zealanders, the Treaty had become a distant relic of the past. They
had got what they wanted and that was that. New Zealand was
portrayed internationally as a model of how race relations should be
-- with Maori and Pakeha living and working in harmony as one
people. But, just beneath the surface there lurked a deeper reality. A
reality understood by Maori but completely ignored by most Pakeha.
For the past 100 years, successive policies of assimilation and
integration have failed to substantially improve the socio-economic
circumstances of Maori. They continue to top the statistics tables for
unemployment, poor health, smoking, low education and crime.
Statistics mirrored in every other country where indigenous and
traditional peoples have been colonised. But despite their ravaging
effects on Maori, these policies have failed to completely homogenise
Maori culture and destroy our identity as a people.
Today, Maori now comprise 15% of New Zealand's population of 3.5
million people. Despite the ravages that Maori have had to endure,
there has always been the beacon of hope and strength kept alive on
the various tribal marae around Aotearoa. Today, the younger and
more educated Maori generation have begun to fight back guided by
the wisdom of their elders. This time using the tools of the coloniser
to champion their cause.
Renaissance of the Treaty of Waitangi
In the 1970s, protest groups such as Nga Tama Toa (Young Maori
Warriors) began to stage organised protests over the broken Treaty
promises. Maori lands were still being confiscated for public works
and other community needs and Maori began staging land
occupations and other forms of non-violent protests. This eventually
lead to a land march being staged from the tip of the North Island (or
the tail of Te Ika a Maui -- the Fish of Maui) down to the seat of
Government in Wellington (some 1,200 kilometres distant). This
march was lead by an elderly Kuia, the late Dame Whina Cooper,
who was in her mid-70s when she led the march. The marchers
stopped at every marae along the way until they had reached
Wellington. This took place in 1974 and eventually led to the passage
of the Treaty of Waitangi Act in 1975. That Act established the
Waitangi Tribunal as a body comprising an equal number of Maori
and Pakeha members who could receive and enquire into claims
from Maori that the Crown had breached principles of the Treaty of
Waitangi. As noted by Chief Judge Eddie Durie:

“The Waitangi Tribunal is unique in the world insofar as it

is comprised of an equal number of both the indigenous
people and of those who came from Europe and other
countries. Elsewhere most of these issues tend to be
determined by Courts in which the aboriginal or
indigenous people are not represented. The Tribunal
operates in an entirely different way. It has both Maori
protocols and English law protocols. It has an equal
number of Maori to Pakeha. It includes people of standing
within the community, of historical and anthropological
backgrounds, so it does not rely purely on lawyers. It is
inter-disciplinary and bicultural, which is seen as an
interesting precedent.”

In 1985, the Waitangi Tribunal was given retrospective powers to

hear claims dating back to 6 February 1840, the date upon which the
Treaty was signed. There are now over 800 claims registered with the
Waitangi Tribunal ranging from lands, fisheries, forests, geothermal,
language, radio spectrum and of course the claim commonly referred
to as the indigenous flora and fauna claim, Wai262.
Many of these claims have focused on the protection of fishing reefs,
harbours, rivers and lands from the adverse environmental
consequences of development. Sadly, the news media in New
Zealand are fixated with highlighting Maori claims as a continued
grab for resources rather than portraying a balanced and fair view of
the claims process. Consequently, vast numbers of New Zealanders
have a negative view of the Treaty of Waitangi process and a woeful
knowledge of Maori culture. Most have little or no knowledge of the
real issues other than what they read in the newspapers which most
often presents a biased view. As one of the most important social
issues facing our country today, I find this attitude staggeringly
irresponsible. I believe that the Crown and the news media have a
responsibility to ensure that its citizens are better informed and
educated about the history of their own country. Whilst this is slowly
happening in schools, the efforts are often grudging and tokenistic.
The Waitangi Tribunal only has powers of recommendation to the
Crown. They are not binding on the Crown. While early Tribunal
recommendations carried a lot of weight and persuasiveness,
increasingly the Crown simply ignores the Tribunal's
recommendations and continues down its own path. Although the
Tribunal was given certain binding powers in relation to Crown owned
forests and State owned assets (in many cases being sold off to
foreign owned companies), subject to claims, the Tribunal has never
exercised those powers. A previous Minister of Justice threatened to
repeal those powers if they were ever exercised!
But the influence of the Waitangi Tribunal and its many reports, have
had considerable influence on both the judicial and political
landscape of Aotearoa. Maori have been able to use the Tribunal
process and findings as leverage in negotiations with the Crown
and/or as a springboard for further litigation in the ordinary Courts.
But progress is often grindingly slow and every inch gained is
achieved at considerable cost to Maori.
Whilst the Tribunal only has the status of a Commission of Inquiry (as
opposed to an ordinary Court), its process of hearing evidence from
tribal claimants and the Crown and the making of legal submissions is
rigorous and robust. The process is also unique as the Tribunal can
invoke tikanga Maori (Maori customary protocols) when hearing
traditional evidence on marae and evidence can be given in Maori.
The norm is for the Tribunal to sit on marae when they are hearing
historical claimant evidence. The usual course is for claimant counsel
to make opening submissions outlining the nature of the case and the
evidence to be brought. This is followed by elders and other tribal
experts giving their evidence (which can be traditional and
contemporary). The Crown lawyers then have an opportunity to
question the witnesses as do the members of the Tribunal. There are
usually between three and five members on the Tribunal who have a
mixture of tikanga Maori, legal, historical and anthropological skills.
Traditional witnesses are followed by professional, academic expert
testimony that is subject to more rigorous cross-examination from
Crown lawyers. The Crown then presents its evidence and calls
witnesses who are also subject to cross-examination by claimant
counsel. There may be more than one claimant group in any one
hearing and each counsel have the right to cross-examine. The
Tribunal may also call its own evidence at the hearing. In the case of
Wai262, the Tribunal has commissioned five major research reports
on different aspects of the claim. For example, all Crown policy
concerning management of the environment and Treaty related
issues from 1840 up to the present day. At the last count the draft
report was 700 pages long! Finally, the claimants and the Crown
make their closing submissions and the Tribunal adjourns to write its
report and issue its findings and recommendations.
Sadly, due to a gross lack of funding for the Waitangi Tribunal and its
work, claims can often take years to be heard and more years to be
reported on. My own Moriori tribe's claim in relation to the Chatham
Islands was filed in 1988, began hearing in 1994, was completed
hearing at the end of 1995 and we are still awaiting the report.
As regards the Wai262 claim, it was filed in 1991, began hearing in
1997 and is still ongoing. Five of the six claimant tribes have
presented their traditional evidence and the last tribe will present its
case in June 2000. The three tribes I represent (Ngati Kuri, Te
Rarawa and Ngati Wai), propose calling expert Maori evidence on all
aspects of the claim. This evidence will demonstrate how Maori
values, traditional matauranga (traditional Maori knowledge) has
been misused, exploited and suppressed within New Zealand society.
It will also focus on the need for a Tikanga Maori Framework (a
system based on Maori values) of legal and non-legal mechanisms to
recognise and protect that traditional knowledge. But more about that
later.
Resource Management Act 1991 and Other New Zealand
Legislation
The Treaty of Waitangi and Maori cultural values are also given
recognition in the Resource Management Act 1991 (RMA) which
deals in a comprehensive way with the management of our
environment. The main purpose of the Act is sustainable
management. There was considerable consultation with Maoridom in
the development of the legislation and therefore much hope that
Maori would have a greater role in environmental decision-making
processes. Sadly, after nine years experience under the RMA, this is
not the case. In 1993 the Waitangi Tribunal ruled that the Resource
Management Act was “fatally flawed”, because the Treaty protections
contained within the RMA were too weak. The Crown, once again,
ignored these findings.
Local authorities, whom have delegated authority from the Crown to
manage the natural resources and issue resource consents to
developers, largely pay lip service to their obligations to Maori under
the RMA. Much touted provisions to enable local authorities to
delegate responsibilities to local tribal authorities for managing
natural resources (which the tribes have a traditional association
with), have not been exercised by any of the local authorities. Indeed,
there is still a reluctance to involve Maori in meaningful consultation,
let alone grant control over, issues which affect their environment.
Whilst there are heavy expectations on Maori to fulfil their obligations
as kaitiaki (guardians) of the environment, they neither have the
funding nor the resources available to fulfil their customary
obligations. Yet they are required to deal with and respond to the
Crown and its agencies, which for Maori is like dealing with a multi-
headed taniwha (mythical monster!).
The other major piece of legislation relevant to the environment is the
Conservation Act 1987. The Department of Conservation (DOC), is
the single largest owner and manager of lands in New Zealand.
Historically, DOC has displayed a patronising attitude towards Maori
and their traditional knowledge of the environment. This attitude is
gradually beginning to change as a consequence of Maori
assertiveness and a growing acceptance from DOC that they have no
option but to work in partnership with Maori tribes -- just as the Treaty
had foreseen. The recent appointment of a Maori Minister of
Conservation is widely regarded as a major step forward although the
requirement of collective cabinet responsibility is a political reality for
any Maori politician under the current system.
Although the Conservation Act 1987 contains a strong Treaty
protection provision, the Courts have applied a minimalist
interpretation of this section - and in doing so have demonstrated a
failure to comprehend Maori customary rights to their resources.
Claims to the Tribunal (such as the Wai262 claim) often focus on the
relationship between Maori and DOC, and this has had a major
influence on DOC's responsiveness to Maori concerns. But this is a
double-edged sword for Maori. Whilst Maori are forced to go through
the long and expensive process of having their claim heard (with the
prospect of a report not available for another few years), the Crown is
proceeding to develop and implement policies and legislation that
pre-empt the concerns of the claimants. The difficulty is that such
changes are made at the Crown's pace and within the context of the
Crown's agenda. Consequently, such mechanisms are inherently
flawed because of their pre-emptiveness. They fall far short of
providing Maori with the guarantees and protections that were
promised in 1840.
Historically, New Zealand's legislative response to “fixing the Maori
problem” has been marked with ad hoc, ill-considered, quick-fix
solutions designed more to appease the non-Maori majority who vote
governments in and out of power, than to genuinely address the real
issues facing Maoridom and the country as a whole.
I have mentioned previously that in New Zealand society today there
is a gaping chasm of ignorance and misinformation about Maori
culture and the value of traditional knowledge. The simple reason is
that for 150 years it has simply not been a part of mainstream New
Zealand society and its diverse institutions. There are fears that Maori
are getting something for nothing at the taxpayer's expense. There
are fears that Maori want a form of apartheid where there are
separate rules and laws for Maori and those for Pakeha. There are
fears that Maori want to claim all of the indigenous plants and animals
in Aotearoa and prevent Pakeha from using these resources. These
fears are often played on by some influential politicians and the news
media alike. A chance is rarely missed by these scaremongers to
massage the fears and prejudices of their majority audience and
readership.
Common refrains often heard from Pakeha New Zealanders is that
“we can't go back to 1840; why should we be blamed for what our
ancestors did?” Or, “when is it all going to end?” There is a hankering
to return to the days when the assimilationist policies were at their
height and New Zealanders “were all one people”. Others maintain
that Maori culture has got no relevance for them or their children in
modern day New Zealand. I am sure for many of you here today,
these sentiments are not unfamiliar.
In my personal experience, the average Kiwi (New Zealander) who
holds these fears has not bothered to do any research themselves on
the Treaty of Waitangi and its subsequent history. I believe that if
people were better informed and educated, many of these fears
would disappear. I have often asked my Pakeha friends when we
debate this issue to describe how Treaty claims have affected their
quality of life. Most find this question difficult to answer. The fact is
that a proper understanding of Maori identity and culture has benefits
for all New Zealanders.
For example, Maori culture makes New Zealand unique from the rest
of the world. Whenever there are international leaders visiting such
as the recent APEC Conference, Maori are called upon to undertake
the welcoming ceremonies and cultural performances. Some of you
may have seen a picture of a leading Maori elder from the Ngati
Whatua tribe giving a traditional hongi (pressing of noses) greeting to
U.S. President Bill Clinton when he arrived in Aotearoa.
Maori images, icons and symbols are regularly used to promote New
Zealand internationally by tourist companies and major corporates
including Air New Zealand and Telecom New Zealand. However, that
is often as far as it goes. The recognition is usually superficial and
undertaken without consultation or the consent of the people
concerned. Unfortunately, New Zealanders will often avail themselves
of Maori culture and identity when it suits their purpose but when it
comes to sharing the benefits of that exploitation, it is another matter.
But there are also an increasing number of Pakeha New Zealanders
who are strongly supportive of the Treaty of Waitangi and Kaupapa
Maori (Maori cultural objectives). They have no fear of acknowledging
Maori culture because they can see that it can only strengthen New
Zealand's identity as a nation both at home and internationally.
Maori demand that in terms of their culture, matauranga and
intellectual heritage rights, they should be in control of their own
destiny. They want recognition and effect given to their tino
rangatiratanga or full chiefly authority. Some say that this is going
back to the past. But Maori are a forward thinking and moving people.
For Maori, it is about applying traditional values within a modern day
context. This has benefits for Maori and Pakeha.
The Wai262 Claim to Indigenous Flora and Fauna and Cultural
and Intellectual Heritage Rights and Obligations
Concerned over the increasing loss of native plants and animals, the
destruction of ecosystems and the continuing erosion of matauranga
Maori (traditional Maori knowledge), a group of Maori elders got
together in 1988 to formulate a claim to the Waitangi Tribunal. The
claimants represent Ngati Kuri (Mrs. Saana Murray), Te Rarawa (Mrs.
Hema Nui a Tawhaki Witana or Del Wihongi), Ngati Wai (Mr. Witi
McMath), Ngati Porou (Mr. Tama Poata) and Ngati Kahungunu (Ms.
Kataraina Rimene). I represent the three tribes of Ngati Kuri, Te
Rarawa and Ngati Wai.
The claim is founded upon the rights guaranteed in Article 2 of the
Treaty of Waitangi which guaranteed to Maori the “ full, exclusive and
undisturbed possession of their lands and estates, forests, fisheries
and other properties which they may collectively or individually
possess ” (English version). In the Maori version of the Treaty, the
guarantee was in relation to their tino rangatiratanga over all of their
taonga or treasured things.
The Statement of Claim which was filed in 1991 with the Waitangi
Tribunal and amended in 1997 states as follows:

2 The Claim

2.1 The claim relates to te tino rangatiratanga o te Iwi

Maori in respect of indigenous flora and fauna me o ratou
taonga katoa (and all their treasures) including but not
limited to matauranga, whakairo, waahi tapu, biodiversity,
genetics, Maori symbols and designs and their use and
development and associated indigenous, cultural and
customary heritage rights in relation to such taonga.
Taongaí in this claim refers to all elements of a tribal
groupsí estate, both material and non-material, tangible
and intangible.

2.2 Reference to indigenous, cultural and customary

heritage rights' in this claim is deemed to include all rights
(including intellectual and property rights) past, present
and future in relation to taonga o te Iwi Maori.

2.3 Te tino rangatiratanga o te Iwi Maori is the authority

residing within and exercised by te Iwi Maori o Aotearoa
me te Waipounamu/Rekohu prior to the arrival of the
colonial government which includes but is not limited to
the full and exclusive rights and responsibilities of
manaakitanga, kaitiakitanga and tapu and the
development of these rights.

2.4 Te tino rangatiratanga o te Iwi Maori incorporates a

right of development which permits the Iwi to conserve,
control, utilise and exercise rights over indigenous flora
and fauna me o ratou taonga katoa.

2.5 Te tino rangatiratanga o te Iwi Maori incorporated and

incorporates:
(a) Decision-making authority over the conservation,
control of, and proprietorial interests in natural resources
including indigenous flora and fauna me o ratou taonga
katoa;

(b) The right to determine indigenous cultural and

customary heritage rights in the knowledge and use of
indigenous flora and fauna me o ratou taonga katoa;

(c) The right to participate in, benefit from, and make

decisions about the application of existing and future
technological advances as they relate to the breeding,
genetic manipulation and other processes relevant to the
use of indigenous flora and fauna;

(d) The right to control and make decisions about the

propagation, development, transport, study or sale of
indigenous flora and fauna;

(e) The right to protect, enhance and transmit the cultural,

medicinal and spiritual knowledge and concepts found in
the life cycles of indigenous flora and fauna;

(f) A right to environmental well-being dependent upon

the nurturing and wise use of indigenous flora and fauna;

(g) The right to participate in, benefit from and make

decisions about the application, development, uses and
sale of me o ratou taonga katoa;

(h) The right to protect, enhance and transmit the cultural

and spiritual knowledge and concepts found in me o ratou
taonga katoa.

2.6 The exercise of te tino rangatiratanga o te Iwi Maori

as it relates to indigenous flora and fauna me o ratou
taonga katoa was and is a recognition of an Iwi interest in
the continued existence of flora and fauna and cultural
taonga as particular species and as interconnected
threads of te ao turoa.
 2.7 That such recognition vested in Whanau, Hapu and
Iwi all rights and responsibilities relating to the protection,
control, conservation, management, treatment,
propagation, sale, dispersal, utilisation and restrictions
upon the use of indigenous flora and fauna and the
genetic resources contained therein.

2.8 Indigenous flora and fauna includes the genetic

resources contained therein and the environment in which
they reside.

2.9 Me o ratou taonga katoa includes but is not limited to

whakairo, rongoa Maori, waahi tapu, pa sites and Maori
cultural images, designs and symbols and associated
indigenous, cultural and customary heritage rights in
relation to such taonga.

2.10 The claimants say that they are or are likely to be

prejudicially affected by ordinances, Acts, regulations,
Orders in Council, proclamations, notices and other
statutory instruments, and the policies, practices, acts or
omissions adopted by or proposed to be adopted by or on
behalf of the Crown and further as set out in this
statement of claim.

2.11 The claimants further claim that all of the ordinances,

Acts, regulations, orders, proclamations, notices and
other statutory instruments, and the policies, practices,
acts or omissions adopted by or on behalf of the Crown
referred to are and remain inconsistent with the principles
of Te Tiriti o Waitangi/Treaty of Waitangi.”

The claim also includes reference to native species of flora and fauna
and to the Crownís obligations to Maori in relation to international
treaties and Conventions. In that context, the claimants argue that the
New Zealand Government should not make commitments under
international treaties and protocols without the prior consultation and
agreement of Maori where these treaties impact on Maori rights
under the Treaty of Waitangi.
The claim has had a small measure of influence on government
policy. For example, in 1994 the claimants narrowly failed to obtain a
Treaty of Waitangi protection mechanism in the legislation giving
effect to the GATT: TRIPS Agreement. The vote was lost 40:42 in
Parliament on the GATT: TRIPS (Uruguay) Round Bill. Almost 50% of
the Ministers of Parliament agreed that some form of prejudice to
Maori rights would arise. And they were right.
The claimants were also successful in lobbying the Minister of
Commerce in 1995 to defer the Intellectual Property Law Reform Bill
that was then on the Governmentís legislative agenda.
Sadly for the claimants, the claim is taking far too long to be
completed. The Tribunal suffers from a shortage of funds for the
prompt hearing of evidence, and for adequate research. The
adversarial manner in which the claims are increasingly handled also
means that solutions are more difficult to find because of the closed
minded attitude claimants are often confronted with. Compounding
the delays is the appalling lack of funding support for the claimants. In
many cases, the claimants and their immediate families are left to
carry the emotional and financial burden themselves. Since the claim
was filed in 1991, two of the named claimants have died and another
two have been seriously ill. Only in April this year, the Tribunal
announced that it had only sufficient funding to hear two weeks of
evidence in the whole of the 2000/2001 financial year. There is at
least another 10-12 weeks of hearing time required before the claim
is completed so that this announcement came as a shock to the
claimants. They are in the process of considering their response
including the possibility of seeking urgent interim remedies to protect
their position until the claim can be completed.
In terms of the nature of evidence being given, it is truly humbling for
me as legal counsel, to work with elders who are so dedicated to the
cause. They are people who care deeply about their environment and
the degradation that is occurring. And yet, they are often labelled as
radicals and separatists. Ignorance can sometimes be a wonderful
tool for the oppressor.
The following is a poem written by one of the claimants, Mrs Saana
Murray of Ngati Kuri, in the 1960s, describing the pain, love and
suffering for her land and people and her feeling of cultural
oppression:
“MY OWN BLOOD AND BONES

Dreams though unreal

Always appearing like ghosts to steal
My tormented spirit away
Haunting, till break of day
I watch spellbound
As slowly a coffin arises out of the ground
It opened before my unbelieving eyes
O mother! mother! I cried
Give me time! Give me time!
Iíve tried and tried, but all in vain
Our lands to reclaim
How much longer must I bear these pains
So on and on I dream
of the Maori lying at deathís door
Dying landless like our Ancestors before
Under the countryís merciless laws
I hear scratching on bare wood
And trembling where I stood
Hands appeared from under the coffin lid
Mother, dear mother, please remain
Where you are, in Godís domain
I couldnít bear
to see you dying again
In this world Iíll fight for you
And your wishes to pursue
Then, like a devil possessed,
I crushed my enemies with my bare hands
Why should I profess
that the White Man is better than I am?
Tossing and turning I awake in cold sweat
Vowing never to forget
All treaties are binding beyond death
Even our mixed blood and race
But truly no man owns the land
Its only ours to command
So let the Maori go free
And ratify the Treaty of Waitangi
Please release me from this oath
 The Maori or Pakeha, I cannot disown
I love them both
They are my own blood and bones.”

This poem also reflects the reality for many Maori that they also have
shared Pakeha ancestry. It is not surprising that those who are a
mixture of Maori and Pakeha (European) descent, almost invariably
identify more strongly with their Maori side. Perhaps it is the sense of
belonging to the land and the spiritual connectedness that explains
this deep sense of feeling for being Maori. Qualities that are inherent
in all indigenous and traditional cultures but sadly lacking in our
modern western society. This is not to say that Pakeha cannot and do
not feel a spiritual connection with the land, but that Pakeha can
never state that his or her connection and cultural relationship with
the environment has been actively suppressed.
Without the rights of tino rangatiratanga (including rights of
ownership, control and decision-making), Maori are unable to
exercise their obligations of kaitiakitanga (guardianship and
protection) and manaakitanga (sharing and providing for others). How
can Maori care for the land and its resources if they are denied
ownership or control over it?
For example, of the 66 million acres of land in New Zealand, some 64
million acres have passed from Maori into Pakeha ownership. This is
a result of confiscations, dubious purchases, the operations of the
Native Land Courts (designed to “Europeanise” customary Maori land
title) and compulsory acquisition under the Public Works legislation.
Without their land the Maori are nothing. Without their land they are
cut off from their links to the past, the rich tapestry of who they are
and where they came from.
Today, gradual steps are being taken to return land to Maori tribes
through the Governmentís Treaty settlement process. As one tribe
has stipulated “as land was taken, so must land be returned”. But
these settlements are achieved at a huge cost to the tribes
concerned, not so much for what they are receiving but for what they
are being asked to give up. As one tribal negotiator lamented
“settlements are not about fairness and justice but about what is
politically acceptable to the non-Maori majority who elect
Governments”.
Most of the settlements to date have returned to Maori the financial
equivalent of between 1-3% of the total loss based on present day
values. The Crown, in seeking its “pound of flesh”, insists that such
settlements are “full and final”. But even then, such settlements are
invariably slammed in the media as “HANDOUTS”. The public come
to perceive Maori as a privileged class of people rather than an
immensely disadvantaged group receiving small compensation for
the loss and suffering endured over a 200-year period.
What are Maori Seeking: A Tikanga Maori Framework of
Protection (TMFP)
It is critically important to the claimants that any remedies are built on
a foundation of tikanga Maori or Maori customary values. Just
“tweaking the edges” of the existing legislative regime and IPR
system will not be acceptable to the claimants. It is true that aspects
of the IPR system can be accommodated within a Tikanga Maori
Framework. However, because of the ideological differences between
IPR and “Indigenous Peoples Rights and Obligations” discussed
above, we need to start from first principles. That means viewing any
system of protection from a Maori cultural viewpoint; not something
imposed from the outside.
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. These Crown imposed structures and processes have in the
past, (with a few rare exceptions) been dismal failures for Maori. Past
attempts to Europeanise, patronise and assimilate Maori and to
otherwise control and direct their lives have all failed miserably.
A Tikanga Maori Framework of Protection would have some or all of
the following features: the system be developed by Maori; the system
be based in tikanga Maori, reflecting Maori cultural values and ethos;
inherent in this system will be the acknowledgement, protection and
promotion of rights and obligations to manage, utilise and protect
resources in accordance with Maori cultural values and preferences;
flexibility will be very important. Whatever structure or structures are
chosen will need to be flexible enough to take account of issues that
affect Maori in a national sense as well as at the regional and local
marae level. The structure must also accommodate the rights of
individuals such as Maori artists, carvers, musicians and designers).
How such a framework is mandated by Maori will be a vital and
challenging ingredient. In New Zealand today there are many national
bodies that represent Maori, including Maori Congress (an Iwi or tribal
based organisation), New Zealand Maori Council (a statutory body),
Maori Womensí Welfare League, The Confederation of United Tribes
(based on the 1835 Declaration of Independence), and others. There
are also various Iwi organisations and bodies, Land Trusts, Maori
Incorporations and Marae trustees, to name a few. Indeed, one of the
most challenging issues confronting Maoridom is the issue of
mandate. Who speaks for the people? In a political sense, in terms of
achieving unity within Maoridom, tribalism is a double-edged sword.
On the one hand, tribes are fiercely protective of their individual
cultures and identities. On the other hand, the same tenacity of
character can be a barrier to achieving unity at a national level. This
lack of unity has often played into the hands of successive
governments, who have been adept at employing the tried and true
strategy of “divide and rule”. A situation not unfamiliar to most of the
participants at this Conference!
In terms of the resourcing of the framework, the claimants would seek
an allocation of funds from the Crown (as part of their remedies
package), to undertake nationwide consultation with tribes and urban
Maori to discuss the formation of a structure. Funding would also be
needed to implement and administer the new body on an ongoing
basis.
Finally, there are considerations of enforceability. In order to enforce
compliance with this new regime, some form of legal recognition and
protection will be necessary within the current New Zealand legal
system. But there may also be non-legal codes of ethics, and
protocols containing rights and obligations, designed to educate and
persuade voluntary compliance with the TMFP.
The TMFP might be responsible for: acting as a referral body to Iwi
(tribes), hapu (sub-tribes) or whanau (families) or individuals, once it
is determined at which level of Maori decision-making the relevant
issue is most appropriately advanced. Where it was obvious that
certain issues affected particular tribes, the issue would be
immediately referred to that tribe to deal with. So, for example, if
someone wanted to research the Pupu Harakeke (flax snail) they
would have to deal with the Ngati Kuri people of the Far North. If it
was a matter which affected Maori at a national level, then a national
body could deal with and undertake research at that level; acting as a
support agency for Maori tribes and organisations in the undertaking
of their own research; liasing with mainstream government
departments; consultative body with Maoridom. This would be a key
component of the TMFP. Hui and consultation with Maori would need
to take place on a regular basis; assisting Maori in the formulation of
policies to assist them in their role as kaitiaki of their various taonga
(treasured things). Policies might deal with issues of respect for
cultural values, access, use and where appropriate (and sanctioned
by the tribe), commercial exploitation. Such policies themselves
would have to be flexible to take account of the different tikanga and
relationship that each tribe or hapu has with the taonga within their
own rohe (tribal territories); acting as a principal point of contact for
those wishing to access and exploit traditional Maori knowledge of
native flora and fauna for commercial gain; education about Maori
cultural values and their application within a modern day context. This
might include the general public, government agencies and the
corporate sector.
Benefits to Aotearoa/New Zealand
Many more businesses in New Zealand are beginning to appreciate
the “added value” and marketing opportunities that a distinctive Maori
identity, Maori place names and traditions give to New Zealand
businesses operating in the international market. As one New
Zealand marketing strategist has observed:

“In worldwide research on New Zealand, “sheep” and

“green” are the only two icons that stand out we can
actually add value using our indigenous products. It will
come from our Maori people, our artists, our playwrights
and designers Maori custom and culture is absolutely
wonderful. There is potential for developing Maori icons to
our culture. I would love to see New Zealand borrow from
Maori elements and used them in a modern context,
because they help to position us worldwide. By drawing
on Maori culture and referencing, we could produce the
most stunning textiles and fabric. Nobody yet has
exploited Maori graphics and upholstery and curtaining
fabrics etc.”

Maori culture and imagery is a powerful branding tool for New

Zealand. But Maori want to have control over how and to what extent
this should happen. They do not want their culture or values
denigrated or portrayed in an offensive manner.
Accurate and culturally appropriate portrayal of Maori values or
traditions will not only protect those values but also enhance the
commercial value of any product it may be associated with. But it is
for Maori to finally determine what is and what is not appropriate for
commercial exploitation and how the benefits of that are to be shared.
Maori self-determination of their own destiny, in dialogue and co-
operation with their Treaty partner (but on an equal basis), would be
beneficial for Maori but also enable Maori to make a greater collective
contribution to New Zealand society as a whole. This is perhaps what
Chief Judge Eddie Durie intended when he said:

“My vision for Maori is of a very strong people with their

own economic base, not dependent upon government,
with the ability to manage their own resources in their own
communities in their own way, and yet totally tied into the
national structure. Not standing apart from it, but making
a contribution to the nation as Maori. We can make a far
stronger contribution to the nation as Maori than as
individuals. I believe we have a whole new dimension to
offer the country.”

The CBD Process and Article 8(j)

The maintenance of cultural diversity is now regarded by the world at
large as necessary to the maintenance of biological diversity.
However, one has the impression that this acknowledgement is often
grudgingly given and is more often than not perceived as an
impediment to progress in a modern society. Even though Article 8(j)
talks about respecting, preserving and maintaining traditional
knowledge as it relates to sustainable use of biological diversity and
that this must be done with the “approval and involvement of the
holders of such knowledge”, these worthy sentiments are overridden
by the caveat that such protections are “subject to national
legislation”. In other words, each Contracting Party (national
government) is only obliged to respect and maintain such knowledge
“as far as possible and as appropriate” to their own countryís
circumstances.
The voice of indigenous peoples are invariably marginalised because
they do not get to vote in the decision-making processes of the CBD.
One could argue that if indigenous, traditional and local communities
are responsible for the preservation of 90% of the Earthís biological
diversity, that those people should be given greater standing in the
decision-making process. Perhaps there is the same fear at this level
as permeates New Zealand society.
We think we understand the value of your culture to us, but we want
to control how it is used.” Whilst this may not be true of all Parties, it
is certainly true of most. Until indigenous peoples are given a greater
role in the decision-making processes, the longer it will take to
achieve what are the most important objectives of the CBD; namely
the conservation of biological diversity and the sustainable use of its
components (Article 1).
Having said that, there are some positives that have emerged from
the CBD process in recent years. The most obvious is the
establishment of the Ad Hoc Open-Ended Inter-Sessional Working
Group on Article 8(j) and Related Provisions ,(“the Article 8(j) Working
Group”). But, although the work of that group is to be commended,
there is still a feeling that ultimately the destiny of traditional
knowledge holders is in the hands of those who are “Parties” as
opposed to those (such as indigenous and traditional peoples), who
are just “Observers” at the COP.
Article 15.1 of the CBD, is a sobering reminder that sovereign rights
over natural resources rests with the Parties, not indigenous peoples.
What needs to be confronted by the Parties and the Secretariat of
COP (but will not be for obvious political reasons), is that indigenous
rights and obligations are inseparable from ownership of genetic
resources.
In this regard, it is pleasing to note from the Report of the Panel of
Experts on Access and Benefit Sharing (UNEP\CBD\COP\5\8, 2
November 1999, paragraph 131(c)) that they identify: “(c) a need to
ensure that granting intellectual property rights does not preclude
customary use of genetic resources and related knowledge;” and
further at paragraph 133(b): “(b) making provision to ensure the
continued use of genetic resources and related knowledge.” in
relation to IPR and Access and Benefit Sharing Agreements.
Similar sentiments are expressed by the World Intellectual Property
Organisation (WIPO) in their statement to the Article 8(j) Working
Group at Seville, Spain, March 27-31, 2000:

“WIPO's exploratory work in 1999 has shown that

traditional knowledge is a rich source of creativity and
innovation.” (Statement, page 4)
Whilst the observations by the Panel of Experts and the work of
WIPO in particular, are welcome advances, there are nevertheless
some fundamental issues of conflict that remain to be addressed. The
first is that it is not just customary use but also ownership; and control
that is important to indigenous and traditional peoples and local
communities.
The next major point of conflict is that the rights and obligations of
indigenous peoples are philosophically at odds with the western
concept of resource exploitation and intellectual property rights. For
example, within the tribal territory of Ngati Kuri in Parengarenga
Harbour in Northland, Aotearoa, silica sands are being mined and
commercially exploited for the making of glass. The magnetism of the
silica sands attract and guide the kuaka migrating from Siberia to
Aotearoa. Practically all her life, Mrs Saana Murray has been fighting
to protect those sands from over-exploitation and the importance
those sands have for the surrounding ecosystems. The sands also
have importance because of Ngati Kuriís customary relationship with
the kuaka. These are all treasured taonga to Mrs Murray and her
people. The Government and its agencies grant the licenses for the
exploitation of these resources (in the exercise of their self-
proclaimed “sovereign rights over the natural resources”), and the
indigenous and local communities can do little about it.
Even the Resource Management laws in Aotearoa (which are by
world standards quite advanced), are wholly inadequate to protect
traditional and customary rights of Maori.
It seems that indigenous and traditional communities are expected to
preserve and maintain the Earthís biological diversity (as they have
done for thousands of years), but only to the extent that governments
and multi-nationals will allow them to do so. Until this reality is
grasped by the Parties, efforts to effectively protect traditional
knowledge will remain largely ineffective and at best, tokenistic.
However, if the COP agenda is to exploit rather than protect
traditional knowledge, then there would seem to be little incentive for
the Parties to “grasp the nettle”.
I have read the WIPO statement and find it very helpful in
summarising what are quite complex issues. I also acknowledge that
it makes good sense to involve international organisations such as
WIPO in the implementation of the CBD and Article 8(j) in particular.
But how does WIPO and COP (and more importantly Indigenous
Peoples) propose to deal with what may be seen as an inherent
conflict in WIPO (and WTO) driving this process. For example, as
noted in the Introduction to the WIPO statement to the Seville
meeting of the Working Group on Article 8(j):

“WIPO's mandate is the promotion of the protection of

intellectual property (IP) throughout the world through co-
operation among States and, where appropriate, in
collaboration with any other international organisation”

It goes on to note that the definition of “intellectual property” is

defined in the Convention Establishing the World Intellectual Property
Organisation, 1967 and includes rights relating to: literary, artistic and
scientific work; performances of performing artists, sound recordings
and broadcasts; inventions in all fields of human endeavour; scientific
discoveries; industrial designs; trademarks, service marks and
commercial names and designations; protection against unfair
competition; and all other rights resulting from intellectual activity in
the industrial, scientific, literary or artistic fields.
There exists an interesting juxtaposition between the role of WIPO on
the one hand to promote and protect the existing IPR systems whilst
at the same time taking a lead role in the development of sui generis
systems for the recognition and protection of traditional knowledge.
Although it is arguable that the definition of “intellectual property”
could be extended to include aspects of traditional knowledge and
indigenous value systems, I think this is to put a much strained
interpretation on that definition. The definition under the Convention
could be amended to specifically include “traditional knowledge
systems and cultural values”. However, this does not address my
central argument that the two systems of IPR and IPRO would
appear to be fundamentally and philosophically at odds with each
other.
This is not to argue that aspects of the IPR system are not useful for
the protection of traditional knowledge and values. My point is that it
must be indigenous peoples who are driving this process and
deciding for themselves what is and is not necessary for the
protection of their knowledge and the granting of access to it. To have
it any other way, would be to have the “tail wag the dog”.
Indigenous and traditional peoples are also limited in the
effectiveness of their input to the process through lack of funding.
Whilst they are able to participate in the Working Group on Article
8(j), limited funding is a barrier to effective participation. For such
participation to occur, indigenous and traditional peoples should be
allocated sufficient resources and funds through either the CBD
and/or the United Nations process to ensure that they have more
ownership and control over the direction in which the process is
moving. Although, in the current climate, this may seem an unrealistic
expectation, it is certainly not an unreasonable one.
Summary and Conclusions
Maori support the call for a new approach for the recognition and
protection of their rights and obligations. For this reason, they are
likely to support the recommendations of the Article 8(j) Working
Group, in relation to the development of sui generis and other
appropriate systems for the protection of traditional knowledge.
However, they will insist in being directly involved in any decision-
making processes to develop and implement such systems for
protection of matauranga Maori in Aotearoa/New Zealand. This
accords with the requirement under Article 8(j) that the application of
traditional knowledge be undertaken with the “Ö approval and
involvement of the holders of such knowledge.” It is not acceptable
for the Crown to implement its own policy agenda in this area whilst
at the same time the Wai262 claimants face the prospect of yet
further delays in completing their already long running claim.
On a global level, the issues are larger and even more complex.
However, the Wai262 claim can be seen as a microcosm of the
global struggle confronting indigenous and traditional peoples
seeking protection, not just of their traditional knowledge, but of their
whole cultural values system. Just as the Wai262 claimants are
confronted with delays, there will, at the current rate of progress,
continue to be considerable delays in implementing protection
mechanisms for traditional knowledge under the CBD process.
The longer the delays, the more damage that is being done and the
greater the prejudice to indigenous peoples. For this reason, the
Maori claimants have been calling for interim protection measures
until the claim can be properly heard. Such measures can include
provisions in legislation protecting the Treaty interests, embarking on
direct negotiations with the government, the call for moratoriums,
educative programmes, and voluntary codes of ethics (e.g. the
International Society of Ethno biologists Code of Ethics and Conduct,
as finalised and ratified at the 5th Congress of the ISE held in
Whakatane, Aotearoa in 1998).
Similarly, if the process of developing and implementing sui generis
mechanisms under Article 8(j) and related provisions is going to move
with glacial speed, then there may be good reason to argue for a
recommendation from COPV for interim measures to be adopted by
national governments until such systems are fully developed and in
place.
Yesterday, I had the pleasure of listening to the presentation of Mr
Brendan Tobin at the GBF on traditional knowledge. I totally endorse
his call for the COP and the Secretariat to move beyond “shuffling
paper” (my words, not his), and get down to the real business of
making concrete recommendations that will expedite the
development of mechanisms that “respect, preserve and maintain
knowledge, innovations and practices ”, of indigenous peoples. From
a Maori perspective, once that is achieved, only then should we start
to talk about “equitable sharing of the benefits”, arising from the
utilisation of such knowledge and practices.

Maui Solomon, 12 May 2000

-Margaret Mulgan, Kaupapa New Zealand: Vision Aotearoa, 1994.

-Nopera Panakareao, Claudia Orange, The Treaty of Waitangi, Allen

& Unwin, 1987.

-Eddie Durie, Kaupapa New Zealand: Vision Aotearoa, 1994, page

26.

-Geothermal Report 1993

-Conservation Act 1987, s.4: “Persons exercising powers and

functions under this Act shall give effect to the principles of the Treaty
of Waitangi.”

-McRitchie v Taranaki Fish and Game Council, NZLR CA 1998

-Saana Murray, Te Karanga A Te Kotuku, 1971. (Reproduced with

the permission of the author).

-Richards, Brian “Using the Chisel of the Mind”, Kaupapa New

Zealand: Vision Aotearoa, 1994, page 209.
-Eddie Durie, Kaupapa New Zealand: Vision Aotearoa, Not Standing
Apart, page 24