The Waitangi Tribunal and the Maori Claim to their Cultural and Intellectual Heritage Rights Property

Over the past two decades or so, the Western intellectual property rights (IPR) legal system has increasingly found itself on a collision course with the cultural and intellectual heritage rights system of indigenous and traditional peoples the world over. The two systems have inherent philosophical conflicts. The IPR system is concerned with private economic rights whilst those of indigenous peoples are collectively based and consider obligations to and respect for natural resources as important as the right to use these resources.

In Aotearoa/New Zealand, burgeoning industries such as pharmaceuticals and culture heritage tourism have focused western attention on the potential commercial value of the culture, knowledge and resources of the M…ori and Moriori.(1) Concerns have arisen about the assumption of proprietorial rights by the majority culture over plant and genetic resources, the unauthorized reproduction of indigenous artistic works, and the inappropriate use of cultural symbols and designs.

The key initiative in New Zealand for the recognition and protection of cultural heritage rights is a claim by representatives of M…ori tribal groups before a quasi-judicial recommendatory body known as the Waitangi Tribunal. The claim is founded on Article 2 of the Treaty of Waitangi, which guaranteed to M…ori full and exclusive ownership of their lands, forests, fisheries and other treasured possessions (English version). The M…ori version of the Treaty guaranteed tino rangatiratanga (self-determination) over all of M…ori taonga (treasured possessions). The successes achieved and obstacles faced (both procedurally and substantively) by M…ori claimants before the Tribunal provide a framework for developing a system of protection for indigenous intellectual property.

The Claim to M…ori Cultural Intellectual and Heritage Rights

Known colloquially as "Wai 262" (being the 262nd claim to be lodged with the Tribunal) the claim was brought by six tribes: Ngati Kuri, Te Rarawa, Ngati Wai, Ngati Porou, Ngati Kahungunu, and Ngati Koata. At the claim's core is the assertion that M…ori cultural values and beliefs have been actively suppressed by the dominant culture since the signing of the Treaty in 1840. The claimants seek recognition of those values and cultural practices associated with native flora and fauna and the development of mechanisms for their active protection. Most importantly, the claimants seek recognition of their tino rangatiratanga over those taonga.

Traditional evidence presented to the Tribunal (scheduled to be completed in November, 2000), has centered on breaches by the Crown of guarantees of self-determination and control over resources -- and of the knowledge pertaining to those resources in each of the tribal homelands. The protection of native flora and fauna, where traditional knowledge had its basis for art, design, medicine, religion, and language, is of particular importance.

The Waitangi Tribunal

The Waitangi Tribunal takes its name from the Treaty of Waitangi, the "founding document" in New Zealand's unwritten constitution, which was signed in 1840 by Her Majesty Queen Victoria and the chiefs and tribes of Aotearoa. The Tribunal was established under the Treaty of Waitangi Act 1975, which provides for:

the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.

Two jurisdictional factors should be noted. First, the Tribunal makes recommendations and cannot bind the Crown. Recommendations, however, carry significant political and moral weight, and past recommendations have strengthened the position of M…ori claimants in negotiations with the Crown. Second, the Tribunal's jurisdiction extends to Crown actions that are allegedly inconsistent with the principles of the Treaty, as opposed to the terms of the Treaty. After a flurry of judicial activity in the interpretation of the Treaty of Waitangi Act, it is now generally accepted that the principle embodying the spirit of the Treaty is one of partnership between M…ori and the Crown. Partnership implies reciprocity between partners, good faith, and reasonableness, and other principles have developed as a consequence. While the actual texts of the Treaty retain their importance, the emphasis on principles has allowed the Treaty debate to move away from semantics and pedantry about the differences between the M…ori and the English texts and toward a focus on the underlying kaupapa, or purpose, of the constitutional document.

The Waitangi Tribunal has an inquisitorial function, and is deemed to have the powers of a Commission of Inquiry. Any person of M…ori descent can bring a claim alleging that a Crown act or omission was, or will be, inconsistent with the principles of the Treaty. Third parties likely to be affected by the claim are also entitled to be heard. In New Zealand, where M…ori number only 15 percent of the general population and are susceptible to an element of backlash during the emergence of Treaty awareness, the likelihood of a durable and realistic solution is increased when members of the interested public are heard.

M…ori claimants are frequently represented by legal counsel, who present evidence and make opening and closing submissions. The Crown (representing the government of New Zealand as the other partner to the Treaty) is also represented by counsel, who receive their advice from policy officials in a variety of government departments. Witnesses are questioned by claimant and Crown counsel, and by Tribunal members.

The Tribunal Process

As the Tribunal process evolved from the first hearings in the mid-1980's, two trends emerged. The first was the increase in the incorporation of M…ori tikanga (custom). The second was the judicialization of the process. And in the last year, two claims before the Tribunal -- relating to the radio spectrum and petroleum -- have produced a disturbing new trend: the Crown publicly rejects Tribunal findings of fact that do not accord with Crown policy.

The Incorporation of M…ori Tikanga

The incorporation of M…ori tikanga into Tribunal procedure has been actively promoted by Justice Eddie Taihakuei Durie, the inaugural Chairperson of the Waitangi Tribunal, who held the position until his elevation to the High Court in 1999. In his article with Tribunal member Gordon Orr, Justice Durie concludes:

the moves to accommodate M…ori circumstances, procedures and values predicate the growth of a distinctive bi-cultural legal regime, and one in which the Treaty will increasingly be seen as a source of law.(2)

Such a forum, which both procedurally and substantively reflects the modes of operation of both the state and indigenous peoples, is recognized in the Draft Declaration on the Rights of Indigenous Peoples, Article 28:

[Indigenous populations have] the individual and collective right to access and prompt decision by mutually acceptable and fair procedures for resolving conflicts or disputes and any infringement, public or private, between states and indigenous peoples…

In the case of Wai 262, as with most other claims, the hearing of traditional evidence has occurred on the marae (the communal meeting place of M…ori), where the witnesses feel most comfortable in the imparting and sharing of their knowledge. Witnesses are surrounded by the whanau -- their extended family and relatives from the descent group to whom the knowledge belongs. The speaker's ancestors, represented by the dramatic pou (carvings) around the meeting house, lend further support to the delivery of the evidence. Elders are not usually subject to cross-examination; instead they are asked questions of clarification by Crown counsel and Tribunal members. Out of respect for already existing customary sanctions on the marae to ensure that the truth is told, oaths are not taken. The M…ori language (the official language of New Zealand, and one which is in a critical state of revival) is used in evidence and occasionally in submissions. Interpreters are usually from the same tribe as the witness and are given license to discuss and clarify with the witness the subtleties of the language. Supporting whanau may sometimes come to the witness' aid in recalling details, and they often break into waiata (song) to emphasize a particular point or to reflect the sacredness of a topic.

An innovation for Tribunal hearings has been the use of site visits to elaborate on traditional evidence. One site visit coincided with the evidence presented by elders of the Ngati Kuri people in the far north of Aotearoa. The Tribunal was taken to see the silicon sands of Parengarenga Harbor, which support an extensive mining program. The sands act as a magnetic guide for the kuaka (migrating sea birds) as they fly from Siberia to New Zealand. The birds (and the sands) have immense environmental and spiritual significance for the Ngati Kuri people, and the tour's commentary (given by elders) formed part of the evidence. These site visits have provided some of the most persuasive moments of the Tribunal's inquiry.

Judicialization of Claims Process

Despite these positive signs, the Tribunal process increasingly reflects the dominant legal system. Justice Durie's aspirations for a truly bicultural methodology have faltered to a point where the incorporation of M…ori tikanga is merely tokenistic, and may be performing an ideological role in the continuation of the Western hegemony.

Hearings have become more adversarial; the Crown vigorously defends every allegation and procedural technicalities are on the increase. This trend is partly due to the move from historical land claims involving confiscation to contemporary claims such as access to radio spectrum, hydro-electric dams, and intellectual property. The issues now at stake focus on the potential for partnership in control over resources between M…ori and the Crown a possibility viewed by the Crown as an attack on its sovereignty.

During the Wai 262 hearings, one of the procedural challenges faced by claimants and their counsel before the presentation of traditional evidence was the protection of the witness' knowledge as given in testimony. In the M…ori worldview, all knowledge is imbued with tapu (sacred restrictions). Tapu does not necessarily mean confidentiality in the legal sense. Knowledge is traditionally handed down orally from one generation to the next through specifically appointed persons. The receiver of that knowledge has heavy obligations; sanctions on abuse of knowledge are harsh. At the heart of the Wai 262 claim is the importance of knowledge and appropriate mechanisms for its protection.

The claimants had originally obtained a direction from the Tribunal's Presiding Officer that the evidence be restricted to the context of the Wai 262 inquiry and available only to those persons obtaining written permission from the witness. Objections from the Crown, however, were numerous. If the testimony included references to previously published material, protection was deemed inapplicable or unnecessary. Yet for claimants, the obligations associated with that knowledge did not cease upon publication. Indeed, publication itself often came about as a result of a lack of respect for those obligations (see the article by Bannister and Barrett in this issue). It was then suggested that protection be applied for, to be decided by the Tribunal after hearing submissions. The claimants countered that it was not for the Crown to object, nor for the Tribunal to overrule a witness' decision that her evidence warranted protection. That decision was for the witness, as a manifestation of her tino ransatiratanga. Objections then centered on the apparent contradiction as to whom the restrictions applied. The collective nature of M…ori knowledge means that restrictions on its use do not necessarily extend to the members of the witnesses whanau (extended family). Similarly, witnesses retain the right to disclose the knowledge to whomever they think fit, because the Tribunal's protections are additional to, and do not replace, the customary sanctions of tapu.

A Tool that Works?

As the Tribunal develops its process and these two trends wax and wane, Wai 262 has helped focus and galvanize other initiatives in the realm of traditional knowledge. In 1993 the tribes of Mataatua hosted the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples. The Conference considered a range of significant issues including the value of indigenous knowledge, biodiversity and biotechnology, customary and environmental management, arts, music, language, and other physical and spiritual cultural forms.(3) The tribes of Mataatua again hosted an international conference in the form of the 6th Congress of the International Society of Ethnobiologists in November -- the first time that indigenous peoples have hosted ISE's bi-annual congress. One of the important issues before the congress was the finalization and ratification of the Code of Ethics and Research Protocols for scientists researching indigenous and traditional knowledge of plants and medicines.(4)

In a substantive sense, it is too early to insist that the Tribunal process has been a "tool that works" for the protection of traditional knowledge. Yet the public interest factor surrounding the Wai 262 claim has ensured that the claim has a high profile domestically and internationally.

The claimants were successful in 1994 in stopping the passage of the Intellectual Property Law Reform Bill; they received an assurance from the Minister of Commerce that the Bill would not be passed pending the hearing of the Wai 262 claim. The long-standing call from Wai 262 claimants for a moratorium on gene modification until proper consultation with M...ori and until the risks of such manipulation are better known has also seen success. The recently elected government announced a moratorium on the genetic modification of foods until a parliamentary commission of inquiry has reported on the matter.(5)

Unfortunately, Crown restrictions on funding for the Tribunal process have meant that the Wai 262 claim is in danger of stalling; the claimants intend to seek interim recommendations from the Tribunal so as to preserve their position until the hearing can be completed.

Indigenous Peoples Rights and Obligations versus Intellectual Property Rights

M...ori, like other indigenous peoples, have a unique relationship with their natural world: the people, the land, the sea, the forest and all living creations are all members of the same family. M...ori view themselves as part of the natural world and therefore understand the importance of protecting these taonga. Complex rituals and protocols regulate the behavior between M...ori and their natural world. Ritual obligations of reciprocity and respect are observed before assessing and utilizing any resource. Karakia (blessings) for instance, are spoken before cutting down a tree to build a waka (canoe). Acknowledging the spiritual dimension of their universe and respecting the mauri (central life force) of every living thing is fundamental to M...ori. Reciprocity of obligations are balanced against the right to use and exploit.

In contrast, intellectual property rights focus 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 only considered a means of exploitation for economic gain. Reciprocity or respect for the integrity of those resources as living and breathing entities with their own mauri is practically nonexistent. Respect for the mauri of the environment is deemed to inhibit the exploitation of resources and economic advancement. Modern progress has little time for ritual and respect. Thus, there is a fundamental clash between the ideological underpinnings of the intellectual property rights system and the philosophical underpinnings of what is referred to here as "indigenous peoples' rights and obligations."

The challenge confronting M...ori is to devise a framework or mechanism(s) that will protect their cultural heritage rights. Any such model or system must recognize the diversity of tikanga (cultural and protocols) of the country's various tribal groupings, but common threads such as whakapapa and spiritual beliefs will help bind tribes together. The Wai 262 claim provides a basis for understanding and developing general principles to foster these links at a national level and for devising a policy framework within which tribes can develop their own systems of protection.

Any framework for protection of M...ori customary and intellectual heritage rights should:

-- be developed primarily by M...ori;

-- recognize the tino rangatiratanga of hapu and iwi in relation to their own cultural heritage rights and taonga;

-- be flexible so that differences and shared interests between tribes can be reflected and accommodated;

-- contain protocols for dealing with internal issues between individuals and the collective which are based on appropriate tikanga of the group;

-- include protocols for dealing with persons outside the collective wishing to gain access to knowledge and taonga;

-- include sanctions and penalties for infringement;

-- include procedures for prior informed consent;

-- include compensation/financial protocols where relevant;

-- include enforcement procedures; and

-- provide for special legislation giving effect to protection of mechanisms and protocols.

Interim measures are needed to protect the knowledge and resources of M...ori until such legislation is in place; Wai 262 claimants intend to seek interim recommendations from the Tribunal at the conclusion of the presentation of their evidence. The substantive outcome is, as yet, uncertain. In the case of intellectual property, where fundamental differences are discernible between the Western and customary legal systems, the Tribunal process has the potential to evolve a practical and durable solution. Yet despite the Tribunal's capacity to provide for a truly bi-cultural juris-prudence, relentless pressure to succumb to the dominant cultural paradigm makes it difficult for indigenous peoples to maintain steadfast belief in the worth of customary legal systems and customary practices.

(1). The indigenous peoples or tangata whenua (people of the land) of Aotearoa/New Zealand are known collectively as "M...ori" but consist of distinctive, albeit interrelated, tribal nations. The Moriori were the first inhabitants of Rekohu (Chatham Islands).

(2). "The Role of the Waitangi Tribunal and the Development of a Bicultural Jurisprudence" New Zealand Universities Law Review Vol.14, 1990, pages 62-81.

(3). The Mataatua Declaration is available on the internet atwww.ecounciL.ac.cr/indig/conv/ MATAATUA.HTM.

(4). That code is now available athttp://llguallart.dac. uga.edu/ISE.

(5). But this has not stopped a statutory authority known as the Environmental Risk Management Authority ("ERMA") granting an application to field trial the impregnation of cattle with a human gene in the hope that there will be medical benefit occurring from such research. M...ori are opposed to such genetic tampering on cultural and spiritual grounds. The decision of ERMA is now the subject of appeal by M...ori to the High Court.

Article copyright Cultural Survival, Inc.

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