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ABSTRACT
In the Wai 262 claim, six Māori claimant groups sought the Waitangi Tribunal's findings that the Crown had breached its Treaty of Waitangi guarantee to allow Māori to exercise tino rangatiratanga (the unqualified exercise of our chieftainship) over our mātauranga Māori (the body of knowledge originating from Māori ancestors, including the Māori worldview and cultural practices) and taonga (tangible and intangible treasures). The Tribunal publicly released its full report on the claim in 2011. Whilst the National Government (2008–2017) engaged internally with the report, it did not respond publicly. It is only since the Labour-led Government (2017–2020) came into power and proposed Te Pae Tawhiti, a work programme to address the Crown's breaches, that the government has engaged with the report publicly. In this article, I argue that, whilst Māori should engage in Te Pae Tawhiti, we must do so cautiously and with a full appreciation of the government's policies on these issues over the past decade. The article provides unprecedented insights into the government's response to the Wai 262 report. The insights will be important in helping Māori and others to hold the government accountable as the Treaty partners work together to address these issues in the Te Pae Tawhiti era.
Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Acknowledgements
I would like to thank Tariqa Satherley for her assistance in preparing this article for publication. I would also like to acknowledge the inspiring mahi (work) I have been involved with as a member of Tapa Tahi, and the valuable kōrero (conversations) I have had with other Māori academics and practitioners in advancing this kaupapa (purpose).
Disclosure statement
In accordance with Taylor & Francis policy and my ethical obligation as a researcher, I am reporting that I am a member of Tapa Tahi, a collective of Māori academics and practitioners who work together collaboratively to monitor developments and comment on policy related to mātauranga Māori and taonga. I have disclosed those interests fully to Taylor & Francis, and I have in place an approved plan for managing any potential conflicts arising from my work with Tapa Tahi. I have no financial interests in my work with Tapa Tahi.
Notes
1 The Treaty of Waitangi was signed between the British Crown and some Māori in 1840. It is considered a founding document of New Zealand. There is an English language version and a Māori language version. The Māori language version is titled Te Tiriti o Waitangi.
2 ‘Wai 262: Te Pae Tawhiti’, Te Puni Kōkiri, 30 August 2019, www.tpk.govt.nz/en/a-matou-kaupapa/wai-262-te-pae-tawhiti; and Te Puni Kōkiri, Wai 262 – Te Pae Tawhiti: The role of the Crown and Māori in making decisions about taonga and mātauranga Māori, August 2019 [Wai 262 – Te Pae Tawhiti].
3 See Waitangi Tribunal, Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity, Te Taumata Tuarua, Wai 262, 2011 [Ko Aotearoa Tēnei]. The Tribunal engages with Māori cultural and intellectual property rights primarily in chapters one and two of the report. The first chapter concerns taonga works (works that reflect the culture and identity of the work's traditional owners) and intellectual property. The second chapter concerns genetic and biological resources of taonga species (species the Wai 262 claimants listed as being of particular significance to them). The other chapters address issues such as: the relationship with the environment; taonga (treasure) and the conservation estate; te reo Māori (the Māori language); when the Crown controls mātauranga Māori (the body of knowledge originating from Māori ancestors); rongoā Māori (traditional Māori healing); and the making of international instruments.
4 Original Statement of Claim, Wai 262, 9 October 1991. The original claim was later amended several times. The most important amendment was lodged on 10 September 1997: First Amended Statement of Claim, Wai 262, 10 September 1997. Later amendments were lodged by each of the four claimant groups: Ngāti Porou; Ngāti Kahungunu; Ngāti Koata; and Te Tai Tokerau (Ngāti Kuri, Te Rarawa and Ngāti Wai).
5 See generally Christopher Finlayson, former Attorney-General, Wai 262: Preparation for the Release of the Waitangi Tribunal Report (final draft memorandum for Cabinet Strategy Committee), Office of the Attorney-General, 18 June 2010 [Preparation for the Release (Final Draft) (Jun 2010)].
6 Note that the New Zealand Government is not required by law to respond to the Tribunal's report. See Treaty of Waitangi Act 1975, s 5; and Waitangi Tribunal, Waitangi Tribunal Practice Note: Guide to the Practice and Procedure of the Waitangi Tribunal, May 2012, para. 2.8. The Wai 262 Senior Officials Group confirmed upon the report's release that ‘the Government … can decide to accept, reject or ignore recommendations’. Wai 262 Senior Officials Group, Wai 262 Indigenous Flora and Fauna and Cultural Intellectual Property Claim – Summary of Report and Next Steps (draft brief to Wai 262 Ministerial Group), Te Puni Kōkiri, 27 July 2011, para. 16. Te Puni Kōkiri (TPK), the Ministry of Māori Development, has also acknowledged that ‘[a] single comprehensive response … does [not] appear practical or necessary in terms of the breadth of issues covered by this report’. Te Puni Kōkiri, Wai 262 – Update and Next Steps (briefing paper), 31 July 2017 [Update and Next Steps (Jul 2017)], para. 11.
7 Te Puni Kōkiri, Release of the Waitangi Tribunal Report in March/April 2010 (draft brief for Minister of Māori Affairs), 23 March 2010, [Release (Draft) (Mar 2010)], paras. 43–4 (emphasis added).
8 Ibid., para. 44.
9 Cabinet Domestic Policy Committee Minute of Decision, ‘Wai 262: Preparation for the Release of the Waitangi Tribunal Report’ (30 June 2010) DOM (10) 42, para. 14.
10 In 2010, TPK released its initial timeframes. See Te Puni Kōkiri, Release (Draft) (Mar 2010), paras. 7–29, and para. 30 ‘Table 1: Key WAI 262 Response Milestones’. In June 2010, the Office of the Attorney-General amended these timeframes. See Finlayson, Preparation for the Release (Final Draft) (Jun 2010), para. 29.
11 Te Puni Kōkiri, Release (Draft) (Mar 2010), para. 30 ‘Table 1: Key WAI 262 Response Milestones’. In June 2010, the Office of the Attorney-General amended these timeframes. See Finlayson, Preparation for the Release (Final Draft) (Jun 2010), paras. 29 and 45, r 13(iii). It should be noted that the Government did scale back the timeframes in which it intended to respond. By June 2010, the Government noted that the timing of its implementation of these response options would be ‘as appropriate’. Cabinet Domestic Policy Committee Minute of Decision, ‘Wai 262: Preparation’, para. 14. See also Wai 262 Senior Officials Group Summary of Report and Next Steps, para. 51. It is unclear what timing would be considered ‘appropriate’ to develop and implement the whole-of-government policy and response options. See also Wai 262 Senior Officials Group, Wai 262 – Paper 1: The Waitangi Tribunal's Report and How It Aligns with Current Policy Settings (brief to Wai 262 Ministerial Group), Te Puni Kōkiri, 8 September 2011 [Briefing on ‘Paper 1’ (Sep 2011)], para. 8; and “Wai 262 – Paper 1: The Waitangi Tribunal's Report and How It Aligns With Current Policy Settings” in Wai 262 Senior Officials Group, Wai 262 – Paper 1: The Waitangi Tribunal's Report and How It Aligns with Current Policy Settings (brief to Wai 262 Ministerial Group), Te Puni Kōkiri, 8 September 2011, 4 [‘Paper 1' (Sep 2011)], para. 39.
12 Wai 262 Senior Officials Group, ‘Paper 1' (Sep 2011), para. 119. TPK noted that ‘[o]fficials [would] provide an outline of this paper for the Ministerial Group to consider at the meeting on 13 September 2011’. The Cabinet paper was scheduled to be with the Cabinet Domestic Policy Committee ‘by the end of September 2011’.
13 Ibid., para. 115. See also Wai 262 Senior Officials Group, Briefing on ‘Paper 1’ (Sep 2011), para. 12.
14 Wai 262 Senior Officials Group, ‘Paper 1' (Sep 2011), para. 39.
15 Ibid., para. 39.
16 Ibid., para. 39.
17 Ibid., para. 39.
18 Wai 262 Senior Officials Group, ‘Paper 1' (Sep 2011), para. 114.
19 See, for example, Fleur Adcock, ‘Diluted control: a critical analysis of the Wai 262 report on Māori traditional knowledge and culture’ in Intellectual Property: A Handbook of Contemporary Research, ed. Matthew Rimmer (Edward Elgar, Cheltenham & Northampton, 2015).
20 United Nations Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under article 9 of the Convention: Twenty-first and twenty-second periodic reports of States parties due in 2015 – New Zealand, CERD/C/NZL/21-22, 2016 [New Zealand Report to CERD]. See also New Zealand's twenty-first to twenty-second periodic reports under the International Convention on the Elimination of All Forms of Racial Discrimination (draft report to the United Nations Committee on the Elimination of Racial Discrimination), CERD/C/NZL/21-22, 2015 [New Zealand Draft Report to CERD].
21 New Zealand Draft Report to CERD, para. 14.
22 New Zealand Report to CERD, para. 13. See also New Zealand Draft Report to CERD, para. 14.
23 It should be noted that there are curious differences between the draft and final reports. In its draft report, the National Government commented that its initiatives ‘demonstrate how Māori systems of knowledge and worldviews are increasingly reflected in New Zealand law and policy’: New Zealand Draft Report to CERD, para. 14. Also, the National Government suggested that it ‘[was] cognisant of international instruments and emerging models of best practice’: New Zealand Draft Report to CERD, para. 15. The National Government omitted both statements from the final report.
24 United Nations Committee on the Elimination of Racial Discrimination, Concluding observations on the combined twenty-first and twenty-second periodic reports of New Zealand, CERD/C/NZL/CO/21-22, 2017, para. 16.
25 Ibid., para. 17.
26 Ibid., para. 17.
27 Te Puni Kōkiri, Release (Draft) (Mar 2010), para. 29 (hyphen added).
28 ‘Waitangi Tribunal Wai 262 Report: Summary of Content and Recommendations’ in Wai 262 Senior Officials Group, Wai 262 – Paper 1: The Waitangi Tribunal's Report and How It Aligns with Current Policy Settings (brief to Wai 262 Ministerial Group), Te Puni Kōkiri, 8 September 2011, appendix 2. See also Wai 262 Senior Officials Group, ‘Paper 1’ (Sep 2011), paras. 27–107.
29 See generally Ministry of Economic Development, ‘Chapter 1: MED Analysis of Intellectual Property Recommendations’ (MED1238495) in Wai 262 Senior Officials Group, Wai 262 – Paper 1: The Waitangi Tribunal's Report and How It Aligns with Current Policy Settings (brief to Wai 262 Ministerial Group), Te Puni Kōkiri, 8 September 2011, appendix 3a; and Ministry of Economic Development, ‘Chapter 2: MED Analysis of Intellectual Property Recommendations’ (MED1238495) in Wai 262 Senior Officials Group, Wai 262 – Paper 1: The Waitangi Tribunal's Report and How It Aligns with Current Policy Settings (brief to Wai 262 Ministerial Group), Te Puni Kōkiri, 8 September 2011, appendix 3b.
30 Te Puni Kōkiri, ‘Review of the Crown's Activities in Relation to Ko Aotearoa Tēnei (WAI 262)’ (briefing paper), 20 November 2015 [‘Review' (Nov 2015)], para. 5.
31 Ibid., para. 5.
32 ‘Update on Current Government's Work in Relation to the Waitangi Tribunal's Ko Aotearoa Tēnei Report (Wai 262)’ (CE's Crown-Māori Relationship Meeting), Te Puni Kōkiri, 13 October 2015 [‘Update on Current Government’s Work’ (Oct 2015)], para. 2. The Attorney-General requested that the statement ‘[reflect] the range of contemporary policy activity and redress that [had] been provided in historical claims settlements as a starting point’: Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 6.
33 ‘Update on Current Government's Work’ (Oct 2015), para. 3. See also Peter Brunt, Policy Director, The Waitangi Tribunal's Wai 262 report and the Crown's response to date (memo to the Minister of Conservation), Department of Conservation, 26 February 2018, para. 9.
34 Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 7.
35 Ibid., para. 8.
36 See Te Puni Kōkiri, Release (Draft) (Mar 2010), para. 19, ‘Figure 1: Proposed Crown Response Coordination and Preparation Structure’. See also Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 8.
37 ‘Update on Current Government's Work’ (Oct 2015), para. 1. ‘[T]he stocktake was expedited to assist the agencies involved in the Tribunal hearing [in relation to the TPP] to update themselves on relevant work being undertaken in relation to WAI 262’. Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 10. ‘Te Puni Kōkiri hosted officials from contributing departments at a preliminary meeting on 25 September 2015 to formally kick-start the development of the WAI 262 stocktake process.’ TPK received initial stocktake responses from departments around 9 October 2015. As at 13 October 2015, the secretariat was ‘analysing and collating this information’. ‘Update on Current Government's Work’ (Oct 2015), para. 11.
38 TPK acknowledged that this stocktake gathered a wider range of contemporary policy activity than previous attempts. Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 9.
39 ‘Stocktake of Existing WAI 262 Compliant Initiatives Implemented Since the Release of Ko Aotearoa Tēnei’ (November 2015) [‘Stocktake’ (Nov 2015)]. The stocktake provides no page or paragraph numbers. I have supposed page numbers according to the page breaks of the document and pinpointed to these supposed page numbers.
40 Te Puni Kōkiri, ‘Appendix 1 – Proposed Statement on WAI 262’ in Review of the Crown's Activities in Relation to Ko Aotearoa Tēnei (WAI 262) (briefing paper), Te Puni Kōkiri, 20 November 2015, 7.
41 Te Puni Kōkiri, ‘Review’ (Nov 2015), paras. 1–2. In July 2017, TPK framed this slightly differently, arguing that the stocktake ‘resulted in a high level understanding of where within the government certain parts of the response to WAI 262 should be addressed as part of government activity’. Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 15.
42 See Te Puni Kōkiri, ‘Review’ (Nov 2015), paras. 22, 26, 27(f) and 27(h).
43 Ibid., para. 8.
44 The review states that ‘the full range of agencies have not contributed or were not able to contribute given the time constraints so it is not a full account of what may be occurring across Government’. Ibid, para. 11. A reason why the stocktake was condensed was ‘to ensure that the work progresses within a timely manner alongside the TPP timeframes’. Ibid., para. 10. As noted previously, the stocktake coincided with agencies’ preparations for the Tribunal’s hearing in relation to the TPP. See above note 37.
45 Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 2(c).
46 Te Puni Kōkiri, ‘Attachment 1: High-Level Stocktake of Crown responses to WAI 262’ in Wai 262 – Update and Next Steps, Te Puni Kōkiri, 31 July 2017 [‘High-Level Stocktake’ (Jul 2017)].
47 The National Government's acknowledgement in internal communications of its slow progress was also generally not publicised. I believe that Māori-Crown relations would have been more positive throughout this period if the National Government had been more forthcoming about its activities in relation to mātauranga Māori and taonga, and progress in responding to the Tribunal's report.
48 Nanaia Mahuta, The Section 8I Report, Te Puni Kōkiri, December 2018. The Minister for Māori Development is required to report to the House each year on progress in implementing the Tribunal's recommendations. Treaty of Waitangi Act 1975, s 8I.
49 The Minister for Māori Development, the Hon Nanaia Mahuta, deliberately used that year's report to progress the government's Wai 262 response. See Te Puni Kōkiri, Update on Wai 262 Progress and the Section 8I Report (briefing paper to the Minister for Māori Development), 14 September 2018, paras. 10–13. Almost half of that year's report focused on Wai 262.
50 The Section 8I Report is the most detailed publicly available record of government progress. But it is heavily abridged and does not capture much of the detail in the government's internal stocktakes. Minister Mahuta signalled at the Ngā Taonga Tuku Iho Conference in September 2018 that she had directed her officials to update the stocktake. Nanaia Mahuta, Minister for Māori Development, ‘Wahanga Tuatahi o te Rā’ (Ngā Taonga Tuku Iho Conference), Whakatū, 17 September 2018. As the National Government suggested when arranging its stocktakes, the Minister reasoned that an updated stocktake would help the government to ‘have an accurate sense of what needs to happen to start to prioritise key actions’. The use of the word ‘start’ hints at the officials’ long stasis. The Minister also noted that she was seeking the support from the attendees at the Conference for that work. It is unclear if The Section 8I Report is that update, particularly as The Section 8I Report omits much of the detail in the National Government's stocktakes.
51 The information was obtained by request under the Official Information Act 1982 to TPK. It should be noted that no single stocktake is likely to be comprehensive. Indeed, TPK acknowledged that ‘[t]here may be progress that has been made in other areas that we are unaware of’. Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 55.
52 While this article focuses on the government's response to chapters one and two of the Tribunal's report, it should be noted that the stocktake also covered two other chapters of the report. The stocktake shows that the government has progressed many initiatives with regards to the relationship to the environment (chapter three). See Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 12–20. By contrast, the government has made little progress with regards to Crown ownership of mātauranga Māori (chapter six): ‘the majority of recommendations contained in this chapter remain outstanding’. Te Puni Kōkiri, ‘Appendix 2 – Chapter Summaries’ in Review of the Crown's Activities in Relation to Ko Aotearoa Tēnei (WAI 262) (briefing paper), Te Puni Kōkiri, 20 November 2015 [‘Chapter Summaries’ (Nov 2015)], 15. The government also accounted for progress in relation to chapter eight (international instruments). In its report to CERD, the government noted that ‘[t]he Crown is addressing the recommendations relating to international instruments to varying degrees. For example, Free Trade Agreements are negotiated in such a way as to preserve the flexibility for the Crown to meet its obligations to Māori, including under the Treaty of Waitangi’. New Zealand Report to CERD, para. 13. Notably, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership [CPTPP] states at art 29.6 that ‘nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to … [fulfil] its obligations under the Treaty of Waitangi’.
53 Waitangi Tribunal, Ko Aotearoa Tēnei, 99–100.
54 ‘A taonga work is a work, whether or not it has been fixed, that is in its entirety an expression of mātauranga Māori; it will relate to or invoke ancestral connections, and contain or reflect traditional narratives or stories.’ Ibid., 96.
55 ‘A taonga-derived work is a work that derives its inspiration from mātauranga Māori or a taonga work, but does not relate to or invoke ancestral connections, nor contain or reflect traditional narratives or stories, in any direct way.’ Ibid., 96.
56 ‘[T]he unique Māori way of viewing the world, incorporating both Māori culture and Māori traditional knowledge.’ Ibid., 1.
57 Ibid., 99. A kaitiaki is generally understood to be a guardian or steward, but is more accurately a person ‘whose special relationship with a taonga gives rise to an obligation and corresponding right to protect, control, use, preserve, or transmit the taonga itself and also the relationship of kaitiaki to the taonga’. Ibid., 7. The kaitiaki is a warrior role. It is the responsibility of the kaitiaki to fight for mātauranga Māori and taonga.
58 Ibid., 99–100.
59 Ibid., 99.
60 Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 9 (emphasis added).
61 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 1–2.
62 Ibid., 1–2. In any case, it would appear that the Crown is cognisant of the recommendations, and the stocktake marks the Crown's response as ‘ongoing’.
63 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 3. See also Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 21(b).
64 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 3.
65 Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 9.
66 Trade Marks Act 2002, s 17(1)(c).
67 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 3; and Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 21(c).
68 Geographical Indications (Wine and Spirits) Registration Act 2006, s 13A. The stocktake flagged this as an initiative that was underway. See Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 3. See also Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 9; and Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 21(d).
69 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 1. See also Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 9; Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 21(a); and Te Puni Kōkiri, ‘High-Level Stocktake’ (Jul 2017), 1. Haka Ka Mate Attribution Act 2014, ss 9 and 10. The Act was due to be reviewed in 2019. Section 12. But at the time of writing this has yet to occur.
70 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 1. See also Te Puni Kōkiri, ‘High-Level Stocktake’ (Jul 2017), 1. See further Ruruku Whakatupua: Te Mana O Te Iwi O Whanganui (Deed of Settlement between Whanganui Iwi and the Crown), 5 August 2014, para. 8.1.
71 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 60. Te Pou Tupua is intended to be ‘the human face of Te Awa Tupua’. Section 18. Te Pou Tupua comprises two persons – one person nominated by the iwi with interests in the Whanganui River and one person nominated on behalf of the Crown. Section 20.
72 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 2. The contributing agencies were Te Puni Kōkiri and the Ministry of Foreign Affairs and Trade (MFAT).
73 Ibid., 3. He Pakiaka was carved by Māori master carvers and MFAT is currently its custodian.
74 Ibid., 2–3.
75 Ibid., 4. TPK notes that the Ministry of Education works with 10 iwi each year to develop resources, and notes some of the education projects that Māori are involved in. TPK also notes that Ministry of Education contractual arrangements can be ‘adapted to provide … more flexible intellectual property clauses so that iwi ownership of intellectual property [is] recognised, where appropriate’.
76 Ibid., 4.
77 Ibid., 4.
78 Ibid., 4.
79 Ibid., 4.
80 Ibid., 2.
81 Ibid., 3. The Ministry has also been involved in: the return of the Te Hau-ki-Tūranga wharenui to Gisborne in 2017; ongoing work with Tamaki collective iwi and other agencies on the proposed World Heritage status for the Auckland volcanic landscape/Ngā Tapuwae o Mataaho project; ongoing work on a Treaty settlement oral histories pilot project; work on the New Zealand Wars 150th Commemorations in 2014; facilitating a cultural sector workshop at Parihaka in 2015; and commissioning a report on Parihaka's culture and heritage needs. Ibid., 3–4.
82 Ibid., 3.
83 Ibid., 2.
84 Ibid., 2. The Treaty clause and a traditional knowledge policy space provision have been included in a number of FTAs since 2008.
85 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 2. Note that the TPP has since been superseded by the CPTPP.
86 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 6. The stocktake notes that New Zealand ‘has played a positive role in the IGC, including providing the committee with a facilitator on a number of occasions’.
87 Waitangi Tribunal, Ko Aotearoa Tēnei, 98.
88 See ibid., 210–2.
89 Ibid., 211.
90 Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 10. This explains why the stocktake does not mention any of the Tribunal's recommendations in the genetic modification or bioprospecting categories, and omits these categories altogether. No progress had been made by July 2017. See Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 20. TPK acknowledges that ‘the [b]ioprospecting recommendations still do not have a clear home within government, and if progress is to occur in this space it is likely that executive or Ministerial decisions will need to be made, especially as there are likely resourcing implications’. Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 56.
91 Waitangi Tribunal, Ko Aotearoa Tēnei, 211–2.
92 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 7 and 10.
93 Ibid., 7.
94 Ibid., 7. See also Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 10–11. I am not sure if I agree. Although it is current practice for patent examiners to consider pre-existing mātauranga Māori in making decisions on patentability, nothing in the Patents Act 2013 prevents patent examiners from refusing to do so.
95 Waitangi Tribunal, Ko Aotearoa Tēnei, 211–2.
96 The stocktake cites the Patents Act 2013, s 225, which requires the Commissioner of Patents to appoint a Māori advisory committee to advise the Commissioner of Patents on whether ‘an invention claimed in a patent application is derived from Māori traditional knowledge or from indigenous plants or animals’ and ‘if so whether commercial exploitation of that invention is likely to be contrary to Māori values’. Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 6–7 and 9–10. See also Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 10; and Te Puni Kōkiri, ‘High-Level Stocktake’ (Jul 2017), 1.
97 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 10. See also Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 10. Patents Act 2013, s 15 states that an invention is not patentable if it is contrary to public order or morality.
98 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 7–9.
99 Waitangi Tribunal, Ko Aotearoa Tēnei, 212.
100 Similar prohibitions apply in respect of trade marks, and wine and spirits: Trade Marks Act 2002, s 17(1)(c); and Geographical Indications (Wine and Spirits) Registration Act 2006, s 13A.
101 Waitangi Tribunal, Ko Aotearoa Tēnei, 212. See also the Plant Variety Rights Amendment Bill 2005. Cabinet decided not to proceed with the Bill in 2007 pending the release of the Wai 262 report. Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 11. The Ministry of Economic Development website noted that ‘[f]urther work on the Bill will be considered once the government has completed its response to the Waitangi Tribunal's recommendations.’ Ministry of Economic Development, ‘Review of the Plant Variety Rights Act 1987’, www.med.govt.nz (published 15 September 2011). The Ministry of Business, Innovation & Employment replaced the Ministry of Economic Development on 1 July 2012.
102 Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 8–9. But note that a recent discussion paper on disclosure of origin could lead to promising outcomes: Ministry of Business, Innovation & Employment, Disclosure of origin of genetic resources and traditional knowledge in the patents regime (discussion paper), September 2018.
103 Some of the initiatives are also the same. The stocktake cites the Crown's work in negotiating the TPP. ‘Stocktake’ (Nov 2015), 10. It also notes that New Zealand has participated in the IGC negotiations for ‘an international instrument or instruments on the property of TK, TCEs and [GR]’. Ibid., 9.
104 Ibid., 8. It should be noted that part of this comment was redacted.
105 Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), para. 14.
106 The review is now required as part of the CPTPP, but would provide an opportunity for the government to decide ‘how to respond to the Waitangi Tribunal's additional recommendations on plant variety rights’ and ‘whether it want[ed] to revive the earlier Crown initiatives that were endorsed by the Waitangi Tribunal’. Ibid., para. 15 (emphasis added).
107 See Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 22.
108 Ibid., para. 24.
109 Ibid., para. 25.
110 Ibid., para. 25.
111 Ibid., para. 26.
112 Ibid., para. 27.
113 On a related note, the Environmental Protection Authority implemented a new approach to its decision-making process. See The Section 8I Report, 11. See also Hazardous Substances and New Organisms Act 1996, s 6(d). The approach required decisions to be considered on a case-by-case basis and with regard to kaitiaki relationships, including by actively seeking out and considering the views of Māori.
114 Te Puni Kōkiri, Review of the Crown's Activities in Relation to Ko Aotearoa Tēnei (WAI 262) (briefing paper), 20 November 2015, at para. 3. TPK noted that the Crown had been ‘considering’ the Tribunal's report ‘[s]ince the release of the report in July 2011’.
115 In November 2015, the government acknowledged that none of the initiatives cited in the stocktake respond to the Tribunal's recommendations in chapters one or two of its report. The stocktake acknowledged that ‘[t]here are no Crown initiatives that directly address any of [the Tribunal's recommendations with respect to taonga works and intellectual property]’: Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 5. For example, it notes that the Māori advisory committee was established ‘well before the WAI 262 report was released, but was in response to issues raised by the claimants’: Te Puni Kōkiri, ‘Stocktake’ (Nov 2015), 3. TPK also reiterated this in July 2017 when it stated that ‘[a]lthough there are a number of Crown initiatives relevant to the recommendations [in chapters one and two], nothing directly addresses or responds to them’. Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 21. Moreover, TPK conceded that the Crown's initiatives in relation to mātauranga Māori and taonga had been ‘ad hoc’ and ‘never appear[ed] to have been driven primarily by a desire for the Crown to address WAI 262’. Ibid., para. 4.
116 Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 18. According to TPK, the Crown-Māori relationship is ‘dynamic and evolving’ and ‘includes a broad spectrum of [unique] engagements between the Crown and iwi, hapū, and whānau Māori'.
117 Ibid., para. 18. It is interesting that the government espouses this view when it has not developed a whole-of-government response and its initiatives in relation to mātauranga Māori and taonga have been ad hoc.
118 See Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 18. TPK recognised that ‘the response to [Wai 262] is an important issue for Māori’ and ‘neglecting to appropriately implement the recommendations could have implications for the Crown-Māori relationship’. Ibid., para 57.
119 New Zealand Report to CERD, para. 13 In October 2015, the Attorney-General (the Hon Christopher Finlayson QC) expressed this in similar terms, writing that ‘consideration of matters raised by Wai 262 should be located within the broader context of on-going work to strengthen Crown-Māori relationships more generally’. ‘Update on Current Government's Work’ (Oct 2015), para. 12. TPK also argued that ‘it is important to locate any consideration of the WAI 262 report within the broader context of the on-going work to strengthen the Crown-Māori relationship’. Te Puni Kōkiri, ‘Review’ (Nov 2015), para. 4. See also New Zealand Report to CERD, para. 12; and Te Puni Kōkiri, ‘Chapter Summaries’ (Nov 2015), 8.
120 Wai 262 Senior Officials Group, Briefing on ‘Paper 1’ (Sep 2011), para. 11.
121 For example, at the Ngā Taonga Tuku Iho Conference on Māori Cultural and Intellectual Property Rights, Minister Mahuta cited the Haka Ka Mate Attribution Act 2014 as an example of the government undertaking initiatives consistent with the Tribunal's recommendations. Mahuta, ‘Wahanga Tuatahi o te Rā’. It is acknowledged that the Minister was cautious to not ‘overstate the examples’ as she accepted ‘there is more work to do’. However, it is disputed whether the Act is consistent with the Tribunal’s recommendations or not. As I contended in a panel discussion at the Conference, though the Act attributes the haka as a taonga of Ngāti Toa Rangatira, it does not allow that collective group any meaningful control of the haka.
122 See, for example, Maui Solomon, ‘Intellectual Property Rights and Indigenous Peoples Rights and Obligations’ (paper presented to Workshop on Instruments for Access and Benefit Sharing from Genetic Resources and related Traditional Knowledge Issues, Global Biodiversity Forum 15, United Nations Environment Programme, Gigiri, Nairobi, 12–14 May 2000), 11.
123 Te Puni Kōkiri, Update and Next Steps (Jul 2017), para. 74. TPK notes a ‘renewed interest’ in a government response ‘[s]ince the Waitangi Tribunal's inquiry on the Trans-Pacific Partnership Agreement (WAI 2522)’: para. 12. TPK also notes that ‘agencies have received a number of Official Information Act requests regarding the government's response’: para. 12.
124 Ibid., para. 72. TPK has also noted that the government's response is ‘frequently queried by Maori, including the Iwi Chair's Group’: para. 12.
125 Tapa Tahi includes Jenna-Rose Astwood, Claire Charters, Rahera Dyall-Kalidas, Meika Foster, Victor Goldsmith, Jayden Houghton, Horiana Irwin-Easthope, Kerensa Johnston, Carwyn Jones, Robert Joseph, Riki Kotua, Hone McGregor, Aroha Te Pareake Mead, Miriana Stephens, Lynell Tuffery-Huria and Karen Te O Kahurangi Waaka-Tibble.
126 The Ngā Taonga Tuku lho Conference Organising Committee was Aroha Te Pareake Mead, Miriana Stephens, Lynell Tuffery-Huria and Karen Te O Kahurangi Waaka-Tibble. The Conference featured politicians, academics, practitioners and community stakeholders. The speakers and panellists in general were critical of the government's progress. See, for example, Moana Jackson, ‘Rights, Wrongs, and Reaffirmation – The Struggle for the Recognition of Indigenous Intellectual Property’ (Ngā Taonga Tuku Iho Conference), Whakatū, 17 September 2018.
127 Te Tauihu Ngā Taonga Tuku Iho Communiqué (4 March 2019).
128 See, for example, Leigh-Marama McLachlan, ‘Government accused of ignoring Waitangi Tribunal reports’, Radio New Zealand, 17 December 2018, www.radionz.co.nz/news/te-manu-korihi/378413/government-accused-of-ignoring-waitangi-tribunal-reports.
129 See Mahuta, ‘Wahanga Tuatahi o te Rā’.
130 I say this as a featured panellist at the Conference.
131 Mahuta, ‘Wahanga Tuatahi o te Rā’. For example, the Te Urewera and Whanganui River settlements are creative developments in the spirit of Wai 262, but neither settlement evolved explicitly from Wai 262 or in response to the Tribunal's recommendations. The Minister was careful not to overstate the initiatives she cited as being in response to the Tribunal's report.
132 Mahuta, ‘Wahanga Tuatahi o te Rā’.
133 Ibid.
134 Ibid. Minister Mahuta signalled her desire to take action on Wai 262 in ways that the National Government did not.
135 This inference was supported by the publication of The Section 8I Report, which provided an update on the government's progress in responding to the Tribunal's recommendations across all of its reports. Wai 262 is featured for about half of the report. Mahuta, The Section 8I Report, 6–35.
136 See Te Puni Kōkiri, Revised Cabinet paper on Wai 262 for Ministerial consultation (briefing paper), 14 December 2018 [Revised Cabinet Paper (Dec 2018)].
137 Te Puni Kōkiri, Wai 262 – Revised Cabinet Paper (briefing paper), 21 March 2019, para. 19.
138 Ibid., para. 20.
139 However, this internal position was not necessarily communicated to the public. For example, the Department of Conservation devised a strategy to respond to criticisms of the Crown's ‘inadequate consultation' and the lack of ‘genuine engagement as [Treaty] partners' by framing the engagement as an ‘opportunity' for the Treaty partners to ‘work towards a stronger relationship more broadly’. Department of Conservation, Communication plans: Wai 262 response (draft), 9 September 2019, 5.
140 See Te Puni Kōkiri, Wai 262 – Initial Launch: Update and next steps (briefing paper), 22 May 2019 [Initial Launch: Update (May 2019)], para. 2.
141 See ibid., para. 3. The arrangement had its origins late the previous year when TPK suggested ‘group[ing] Ministers into four focus areas representing thematic areas of the Wai 262 report and with connection to government priorities and existing work streams’. Te Puni Kōkiri, Revised Cabinet Paper (Dec 2018), para 3.
142 See generally Te Puni Kōkiri, Initial Launch: Update (May 2019).
143 Te Puni Kōkiri, Wai 262: Starting Well in 2019, 22 May 2019 (emphasis added).
144 Ibid.
145 Ibid.
146 Some government agencies at the time were reportedly ‘struggling to resource a response to Wai 262’ and ‘having capacity/capability issues in respect of considering Wai 262 implications in their mahi’ (work) (emphasis added). Meeting minutes: Wai 262 DOC reference group, Department of Conservation, 3 July 2019, 2–3. See, for example, email from Kayla Kingdon-Bebb to Wendy Evans, Tui Arona and Kimba Stainton-Herbert regarding advice on Wai 262 engagement, Department of Conservation, 10 September 2019: ‘over the longer-term … undertaking a more granular stocktake exercise (that can capture regional/local initiatives) would be valuable … [h]owever, for the moment we have neither time nor capacity to deliver this’. It was also recorded that government agencies in all three kete were ‘seeking more support from TPK’. Meeting minutes, 3.
147 See Te Puni Kōkiri, Invitation Letter for Wai 262 Claimant Hui, 31 May 2019; Te Puni Kōkiri, Wai 262 – Initial Launch: Further information on initial hui with claimant representatives (briefing paper), 21 June 2019 [Initial Launch: Further Information (Jun 2019)]; and Te Puni Kōkiri, Initial Hui with representatives of original Wai 262 claimants (final meeting pack), 5 July 2019.
148 See, for example, Te Puni Kōkiri, A new approach on Wai 262 (letter from Nanaia Mahuta to Sheridan Waitai, representative of Haana Murray, Ngāti Kuri), 10 June 2019.
149 Nonetheless, it seems that some options were already off the table. TPK was wary of the claimants seeing the hui as the start of Treaty settlement negotiations for monetary redress for Crown breaches with respect to mātauranga Māori and taonga. Te Puni Kōkiri, Initial Launch: Further Information (Jun 2019), paras. 14–15. Internal governmental communications confirm that the government only intended the response to be in the form of changes to laws, policies and practices, not monetary settlement. See, for example, Te Puni Kōkiri, Launch of whole-of-government approach to WAI 262, 7.
150 See Te Puni Kōkiri, Wai 262 Targeted Engagement: Urgent Review of material for Ministerial Oversight Group and media release (briefing paper), 16 August 2019. By that time, the Minister had been working on Te Pae Tawhiti for several months, originally under the name Ko Aotearoa ki Tua (beyond Ko Aotearoa Tēnei). Te Puni Kōkiri, WAI 262: Proposed Approach to Targeted Engagement (briefing paper), 28 June 2019, para. 21. Internal governmental communications acknowledge that Minister Mahuta's announcement was the government's first formal response to Wai 262. See, for example, Tui Arona, Wai 262 – DOC's progress to date (memo to Michelle Hippolite), Department of Conservation, 17 October 2019, 2.
151 Te Puni Kōkiri, Wai 262 – Te Pae Tawhiti.
152 Ibid., 13 and 17.
153 See ibid., 16–17.
154 Wai 262 Internal Reference Group, Update, 9 September 2019, 1.
155 Te Tiriti o Waitangi 1840, art 2.
156 I applauded Minister Mahuta for committing to address these issues with a formal, public response. Jayden Houghton, ‘An Opportunity for Māori and the Crown to Reconcile’, Newsroom, 5 February 2020, www.newsroom.co.nz/2020/02/06/1020702/an-opportunity-for-maori-and-the-crown-to-reconcile.
157 Tapa Tahi met with Geoff Short, Erin Keenan and Nadia Ward of Te Puni Kōkiri in Wellington, New Zealand, 3 August 2020. Whilst the Tribunal's recommendations will be influential, the government is entering the engagement with an openness to other approaches. The Department of Conservation, for example, has emphasised that the Tribunal's recommendations should be regarded as ‘useful guidance' and ‘anticipate[d] that in some areas the recommendations may be the best way forward, [but] in other areas they may not be’. Te Puni Kōkiri, Launch of whole-of-government approach to WAI 262 (internal media advisory), 5 July 2019, 6.
158 Wai 262 – Te Pae Tawhiti – Crown Stewardship Group (WT-CSG): Inaugural Hui (meeting minutes), 3 October 2019, 3 (emphasis added).
159 See, for example, Wai 262 Kete Tahi: Taonga Works and Mātauranga Māori Hui Minutes, 6 April 2019; Wai 262 Kete Rua: Taonga Species and Mātauranga Māori Hui Minutes, 9 May 2019; and Wai 262 Kete Toru: International Indigenous Matters Hui Minutes, 7 April 2019.
160 Te Arawhiti, MCR Weekly Report for the period 16 to 20 March 2020 (report to the Minister for Māori Crown Relations: Te Arawhiti), 12 March 2020.
161 TPK has recently acknowledged that ‘[t]he honest, although likely unsatisfying, answer is that the Crown is only now starting to look at the suite of issues raised by Wai 262 and Ko Aotearoa Tēnei in a joined up way’. Te Puni Kōkiri, Initial Launch: Update (May 2019), para. 20.
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Jayden Houghton
Jayden Houghton (Rereahu Maniapoto) is a Lecturer at the Faculty of Law, University of Auckland. Jayden specialises in Indigenous peoples' rights to knowledge and culture, and property law. Jayden currently teaches “Land Law”, “Māori Land Law”, “Contemporary Issues in Land Law”, “Mātauranga Māori and Taonga: Cultural Property and Indigenous Intellectual Property”, and “Law and Social Justice”. Jayden was recently awarded the University of Auckland Early Career Excellence in Teaching Award 2020 in recognition of his teaching in the areas of Indigenous peoples' rights to knowledge and culture, and property law. Jayden has provided expert advice for working groups on Māori claims to mātauranga Māori and taonga. He has also been invited to give public lectures and speak in panel discussions on mātauranga Māori and taonga issues, such as at the Ngā Taonga Tuku Iho Conference on Māori Cultural and Intellectual Property Rights (Whakatū, 2018). Jayden is the current editor of Te Tai Haruru: Journal of Māori and Indigenous Issues.