Wai 262 - Taonga and the Conservation Estate

While Chapter Three of Ko Aotearoa Tēnei is concerned with environmental law and policy as it relates to resource management and the use of private land, there is a significant set of distinctive issues that arise in respect of the conservation estate.  Chapter Four of the report addresses those issues relating to Taonga and the Conservation Estate.

The first thing to note is the particular importance of the conservation estate in the context of these issues.  In part, the vast size of the conservation estate makes it central to any discussion relating to environmental law and policy.  As the report notes, the Department of Conservation owns or is responsible for more than 8 million hectares of land, about one third of New Zealand.  But the area of land is not the only significant matter.  The conservation estate has not been subject to the sort of farming, urbanization, and other modifications to the land and the environment that other parts of the landscape have undergone.  The conservation estate is therefore home to most of the surviving “taonga places”, where kaitiaki relationships with the natural environment and flora and fauna are possible in a way that they are not in other areas.  The Department of Conservation is also responsible for almost all remaining indigenous flora and fauna species and so control access to these taonga.

The Waitangi Tribunal acknowledges that, in many ways, the Department of Conservation has led the way amongst government agencies in terms of building relationships with Māori, and yet the Department’s structure and guiding policies still fall well short of what is required by the Treaty partnership.  The Department seems to be very comfortable with consultation, but has not taken more substantive steps towards power-sharing. The Tribunal notes that the Conservation Act 1987 includes the most powerful Treaty principles provision in current legislation and recommends significant reforms in order for the Department to meet the obligation to give effect to Treaty principles.

One of the ways in which the Department of Conservation engages with Māori at a local level is through their Pou Kura Taiao.  The Pou Kura Taiao are chosen for their mana within the local Māori community and their knowledge of tangata whenua, tikanga, and te reo.  Their role is to ‘monitor and sustain departmental capability to achieve effective engagement’ between Māori and the Department.  The Tribunal recognises that this is a very effective model for ‘upgrading DOC’s capacity to relate to tangata whenua on the ground’ but stresses that Pou Kura Taiao cannot take the place of the Māori Treaty partner. 

And in order to institutionalise a shift to a partnership model changes are required to the Department’s structure and policy.  For example, the Tribunal considers that the Conservation General Policy and the General Policy for National Parks, which set the key strategic and policy direction for the Department, ought to include obligations to give effect to the Treaty principle of partnership.  Similar to the Tribunal’s recommendations in relation to local authorities in the resource management context, in relation to the management of the conservation estate, the Department of Conservation should be required to seek out and identify opportunities to establish power-sharing arrangements with tangata whenua wherever possible.  The Tribunal is also highly critical of the 2006 document published by Te Puni Kōkiri and the Ministry of Justice entitled Crown-Māori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies.  The Tribunal finds that these guidelines are effectively binding rules that are ‘far too restrictive for an organization with a statutory duty to build sound Treaty relationships.’

The major structural change recommended by the Tribunal is the establishment of a national Kura Taiao Council and conservancy-based Kura Taiao boards.  These entities would sit alongside the existing Conservation Authority and conservation boards.  The Conservation Authority and conservation boards provide important stakeholder input into conservation strategy and planning at both a national and local level. The Tribunal envisages that the Kura Taiao Council and Kura Taiao boards would provide a tangata whenua parallel to the existing organizational structure and engage with the Conservation Authority and conservation boards “to determine, case by case, the appropriate level of tangata whenua control, partnership, or influence over taonga in the environment, and to develop new models for the management of those taonga”. 

The Tribunal’s report addresses two other specific areas of the management of the conservation estate.  The first of these is the customary use of taonga species from within the conservation estate.  This was a significant issue for many of the claimants involved in the inquiry.  Again the Tribunal looks to the development of partnerships between local tangata whenua committees and the Department of Conservation to manage customary harvesting and access to taonga species, emphasizing the importance of joint decision-making in these matters.  The Tribunal also considers the management of commercial activity on conservation land, recommending the Department of Conservation formalize its processes for consulting with tangata whenua about concessions within their rohe as well as providing that tangata whenua interests have a reasonable degree of preference when the Department makes decisions about commercial activities in the conservation estate. 

Wai 262 - Genetic and Biological Resources of Taonga Species

Chapter Two of the Waitangi Tribunal’s Wai 262 report, Ko Aotearoa Tenei, addresses issues relating to genetic and biological resources in taonga species.  Consistent with the general tenor of the report, this chapter places the issues it addresses squarely in the context of two different worldviews, which, in this case, produce different approaches to science and scientific knowledge.  The key sections of the chapter address Te Ao Maori and Taonga Species; Te Ao Pakeha and Research Science; Bioprospecting, Genetic Modification, and Intellectual Property; the Rights of Kaitiaki in Taonga Species; and recommended Reforms.

As with other chapters, the kaitiaki relationship is to the fore and there are also a handful of other central concepts that the Tribunal uses.  ‘Taonga Species’ draws on the same ideas used in the definition of ‘Taonga Works’ in the preceding chapter.  Like Taonga Works, Taonga Species are defined by the matauranga Māori (Māori knowledge), whakapapa (genealogy), and kōrero tuku iho (stories and information transmitted from one generation to the next) that are associated with those species.  But in this case, the subject of the chapter is not artistic forms of cultural expression, but rather species of indigenous plants and animals.  The Tribunal examines some examples of Taonga Species in detail, including harakeke (flax), koromiko, pōhutukawa, kōwhai ngutukaka, puawānanga (NZ clematis), poroporo, mānuka, kūmara, and tuatara.  The Tribunal’s examination of these species illustrates the importance of Taonga Species as food sources, medicines, materials for construction and technological development, and a range of other purposes.

The chapter then goes on to consider the ways in which plant and animal species are understood and knowledge relating to them conceptualised within Western science and philosophy.  Though the Tribunal is careful to note that this should not be seen as a strict binary with no areas of overlap with te ao Māori.  The categorisation of plants and animals according to isolated characteristics within Western science is contrasted with the inter-connectedness identified through a Māori, relationship-based lens.  Ultimately, the values that underlie Western science determine where the balance between the public and private good derived from research ought to sit and leads to the development of the patent system. 

The Tribunal sees Bioprospecting, Genetic Modification, and Intellectual Property Rights as mechanisms which reflect different stages of the research process.  Bioprospecting is defined as “the search, extraction, and examination of biological material or its molecular, biochemical, or genetic content . . . for the purpose of determining its potential to yield a commercial product”.  Genetic modification is the process of changing in some way the genetic characteristics of an organism.  For example, the introduction of an insect-resistant gene into potatoes and other vegetables.  Intellectual Property Rights, such as patents, are “both the culmination of the research process and the starting point for commercial development”.  That is to say that patents are “assets that can be used to obtain finance to develop research into saleable commodities”.

Claimants raised concerns that bioprospecting can conflict with kaitiaki interests in a number of ways.  Other parties, it was argued, should not be able to use the traditional knowledge associated with Taonga Species to exploit the genetic or biological resources from those species without the consent of the kaitiaki.  Where bioprospecting was inconsistent with tikanga Māori, it would be harmful to the relationship between the kaitiaki and the Taonga Species. Some claimants were not opposed to the commercialisation of the knowledge associated with, or genetic or biological resources derived from, Taonga Species, so long as that was done in a way that was consistent with tikanga Māori and any commercial benefit was shared with the kaitiaki community.  The Tribunal notes that this would be consistent with moves in the international community to ensure Prior Informed Consent for the use of these species is gained from appropriate people and that there is some form of Access and Benefit Sharing arrangement in place.

In respect of genetic modification, the Tribunal notes that the Environmental Risk Management Authority (ERMA), which is the body that makes decisions as to whether or not to approve the development or import of genetically modified materials, can and does seek advice from a specialist Māori committee.  However, the claimants contended that this committee has insufficient powers to ensure that Māori interests are properly weighted in ERMA’s decision-making.   The Tribunal recommend a number of changes to the law and policy regulating genetic modification aimed at ensuring appropriate priority is given to Māori interests and kaitiaki relationships.  Although the Tribunal suggests that the Māori committee that supports ERMA retain a primarily advisory role, it recommends that it appoint members to ERMA (that is, the decision-making body itself) and that the Māori committee, not ERMA, be the body that determines when specialist Māori advice is required.

Similarly, the Tribunal recommends the establishment of a Māori advisory body to the Commissioner of Patents.  Again, although the functions of this body would primarily be to advise the Commissioner, as with the ERMA committee, the advisory group itself ought to decide when its advice is relevant to an application.  One of its functions would be to advise the Commissioner that a patent should not be granted because it conflicts with a kaitiaki relationship.  Patent legislation, the Tribunal says, ought to enable the Commissioner to refuse registration of a patent on the grounds that it unduly interferes with a kaitiaki relationship with a Taonga Species.  This would not be inconsistent with international intellectual property law.  And, in keeping with the general themes of the report, the Tribunal also recommends a register be created of kaitiaki interests, based on the idea that kaitiaki should be able to proactively set out the nature of their relationships with Taonga Species.