Chapter 1 of the Wai 262 report, Ko Aotearoa Tenei, focuses on taonga and intellectual property and is consistent with the general approach the Tribunal has taken throughout this report. The nature of particular kaitiaki relationships to particular taonga sits at the centre of this chapter and the reforms suggested by the Tribunal. Although recognising the importance of assessing each kaitiaki relationship in its specific factual context on a case-by-case basis, this chapter provides clear direction about the principles that ought to guide such an assessment and the legal mechanisms the Tribunal considers necessary to give Treaty-consistent protection to forms of Maori cultural expression.
The key reforms recommended by the Tribunal in this chapter are based around the establishment of a commission that would adjudicate in matters relating to the use of Maori art forms and, more specifically, the matauranga (knowledge) that underlies those art forms. The basic concerns raised by the claimants that the Tribunal is seeking to address in this area are to prevent those who are not kaitiaki from acquiring private rights in taonga works and associated matauranga and also to provide effective recognition of the rights and obligations that reside with the kaitiaki of those taonga works.
The Tribunal recommends the adoption of a two-tier approach, dependent on the nature of the kaitiaki relationship. At one level, Maori forms of cultural expression should be protected from offensive and derogatory use. Any person ought to be able to object to such use. There are already mechanisms in the intellectual property rights regime which recognise such use ought to be prohibited. Greater protection ought to be afforded where there is a specific kaitiaki relationship to the taonga in question. So that ANY commercial use of this type of taonga will require consultation with the kaitiaki and may also require the consent of the kaitiaki.
This two-tier approach is based on the Tribunal’s distinction between ‘taonga works’ and ‘taonga derived works’. According to the Tribunal’s conceptualisation, taonga works are forms of cultural expression (songs, haka, stories, artistic works) which are distinguished by several features. All taonga works, the Tribunal says, have kaitiaki – living individuals or communities that are responsible, under tikanga Maori, for the taonga work. Taonga works have whakapapa – they are seen as representations of ancestors, whether those ancestors are the authors or creators of those works or are embedded in the work in some other way. Taonga works also “have korero”, that is to say that they tell an important story, which places an ancestor or ancestors at the centre of that story. These factors mean that taonga works have mauri – they live – and it is the kaitiaki’s primary responsibility to protect the mauri of the taonga work.
Taonga derived works on the other hand “have a Maori element to them, but that element is generalised or adapted, and is combined with other non-Maori influences.” One example of this category of work that the Tribunal points to is the famous Painting No. 1 by Gordon Walters. These works, the Tribunal says, do not have mauri in the way that taonga works do and there is no natural kaitiaki relationship with a particular kin group or community. The Tribunal takes the view that, while there should be protections relating to the way in which these taonga derived works are used, these protections need not be as extensive as those that would apply to taonga works.
This approach reflects the balance the Tribunal is attempting to strike, effectively between public and private rights. The Tribunal even suggests that “the guiding principles of kaitiakitanga on the one hand and property rights on the other are really different ways of thinking about the same issue – that is, the ways in which two cultures decide the rights and obligations of communities in their created works and valued resources.” The Western intellectual property regime has used the concept of property to define those rights and obligations because of the particular concerns and objectives of historical law and policy makers in Western societies. Maori have used the prism of relationships to work through these issues, reflecting the particular concerns and objectives of Maori communities.
So, a kaitiaki right is not a property right in the orthodox Western sense. Ultimately, the Tribunal found that “taonga works, taonga-derived works, and matauranga Maori are entitled to protection from derogatory and offensive public use” and that “any future use of taonga works for commercial purposes should occur only after consulting and, in appropriate cases, gaining the consent of kaitiaki”. The purpose of the commission that is proposed by the Tribunal would be to provide formal legal recognition of the interests of kaitiaki. In the wider context, the Tribunal notes that recognition of such interests will not only benefit Maori, but ought to contribute to a strong and confident New Zealand culture and identity.