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Monday 31 October 2011

The WAI-262 claim #lianza11 #keynote3

Aroha Te Pareaka Mead (Speaker notes)
The WAI-262 Taonga Claim

Treaty of Waitangi claim - WAI# is the chronological number, so 262 is a fairly old claim. The WAI-262 claim has big implications for people working with Māori knowledge.

Six original claimants: Ngāti Kuri, Ngāti Wai, Te Rarawa, Ngāti Porou, Ngāti Kahungunu asserted that Crown had
  • failed to actively protected exercise of tino rangatiratanga and kaitiakitanga by claimants over indigenous flora and fauna and other taonga and also over mātauranga Māori
  • failted to protect the taonga
  • usurped tino rangatiratanga and kaitiakitanga
  • breached Treaty of Waitangi by agreeing to various international agreements/obligations that affect these.
Complex claim - includes all native species; Māori arts and designs; traditional knowledge, medicines; DNA, genetic modification. Covers misappropriation, offensive use, inappropriate use, and trademark laws that prevent Māori from using Māori language terms - a singer who couldn't use her name Moana in Germany because it'd already been trademarked there.

Claim lodged in 1991; hearings began 1998; 2001 other evidence; 2006 statement of issues and 2nd round of hearings; 2007 end of hearings; 2011 Ko Aotearoa Tēnei report (very long but you should either read all or nothing - can't just read a bit - but very good and recommended). Only one of the six original claimants still alive to hear the report, and has since passed on.
Report created new definitions of taonga species (significant to culture or identity of iwi), taonga works (significant because there's inherited body of knowledge associated with it and iwi or hapu obliged to act as kaitiaki), taonga derived works (works with a Māori element but generalised or adapted and combined with other non-Māori influences - eg new artform by Ta Moko experts for non-Māori requesting moko).

Report decided that:
  • Treaty entitles kaitiaki relationships and a reasonable degree of control but not ownership or veto over uses of IP in all cases.
  • Māori are not 'the other' - the Treaty partnership requires the Crown to be both Pākeha/Māori. Crown has often acted in a hostile way towards mātauranga Māori issues. Treaty principles must be read collectively, not cherrypicked.
  • Crown has a right to govern but Māori interests vital.
  • Can't do business as usual - need a more sophisticated Treaty partnership.
Mead says it's like a marriage in dire need of counselling. One partner has got a lot more out of the marriage than the other; one partner thinks the other is a continual whinges. Lots of bruises, scars, fights, but when they think about the kids, and they don't know what to do with the chattels - though one of the partners is trying to sell off the chattels.

Intellectual Property in taonga works
Should be able to protect against offensive or derogatory use. Kaitiaki should be able to object to commercial uses of taonga works. Should develop a register of cultural works such as haka, moteatea so kaitiaki can be identified. Should be a new commission to hear objections to commercial uses.

Basically tinkering with existing system. Claimants had wanted an indigenous system.

Māori and the environment
Three levels of protection:
  • full decision-making authority to kaitiaki
  • partnership with crown - shared decision-making
  • influence over decisions
Tribunal suggest moving to the first, acknowledging we're not even at the third.

Text in legal situations re Māori issues tend to be very waffly eg "give consideration to". Tribunal says we need to be more specific.

Wildlife Act should be amended to give Māori and Crown shared management - rather than Crown ownership. (This is the only act where the Tribunal comes straight out about.)

Taonga and the Conservation Estate
"For Māori [this is about] the survival of their own identity. Without the mātauranga Māori that lives in the DOC estate, kaitiakitanga is lost." Less than 4% of land is left in Māori ownership. Everything other than land has been given to Māori - have actually lost more land. 33% is held in the conservation estate.

So much land is 'hands off' - ideally to protect species, but it's not working. All frogs threatened, 5 of 6 species of bat endangered, 2420 species threatened, 180 species on brink of extinction. The best conservation outcomes come from communities living alongside and working with nature. "Nature without people" doesn't work - need connection between people and land.

Tongariro National Park was first park in the world to be created by a gift of land by an indigenous people.

When the Crown controls mātauranga Māori
Report points out Crown is in control of funding/managing education/arts, etc, so is basically controlling mātauranga Māori whether it knows it or not.

Distinction between kaitiaki relationship (when taonga legitimately sold/transferred) and rangatiratanga relationship (when taonga lost or wrongfully taken or newly discovered). When held in libraries/archives, Māori have a strong interest in it - but important to maintain relatively free public access. Recommend managing use through objection-based approach. Should be free access for private research but commercial use should consult/gain consent.

Recommendation to establish viable partnerships to support mātauranga māori. Real proactivity required.

Q: Thanks for speech - media never gives balanced picture and bad for everyone.
A: When report promoted, attempt by someone else to make it as racially divisive as possible - often a challenge to turn around media's challenges.

Q: Please explain more about where rangatiratanga would apply to objects acquired wrongly - is this objects overseas or within NZ?
A: Tribunal makes distinction between items wrongfully taken (especially through Antiquities Act), where Māori interests weren't identified; now you can go through Land Court to establish your interest. Gisbourne just got their wharenui returned from Te Papa. Need to be discussions - kaitiaki might decide to let the items remain. But other situations where Māori just have 'an interest'.

Q: Might a commission be set up for libraries and archives (to monitor use of IP etc)?
A: Good question - but commission the Tribunal's recommending has a specific legal and commercial reason to exist. In case of libraries probably less of an imperative. But still sitting on collections where people might access info for commercial purposes and we need to work out how we manage that access.

Q: Process around how to access information - weren't asked who they were or why they wanted, and might have been easier to access if it had been known that it was the iwi representatives.
A: Need to delegate the care of taonga to iwi, who are the people who can/should give access decisions.