Wai 262 - Intellectual Property and Taonga Works

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. 

Wai 262 - The Tribunal's general approach

The Waitangi Tribunal’s report in response to the Wai 262 claims, Ko Aotearoa Tenei, is clearly a significant document.  The length of the inquiry and the bredth of issues addressed virtually ensures that will be the case.  But, for me, the most significant aspect of the report is that it articulates a vision of law and policy making that is genuinely based on two founding cultures -  what the Tribunal refers to as “perfecting the Treaty partnership”.

I ought to note from the outset that I have worked on the Wai 262 inquiry, as both a Waitangi Tribunal staff member and, more recently, I was contracted to support with the report-writing phase of the inquiry.  So, I have at times been quite close to the Tribunal’s work on this inquiry. Undoubtedly, this affects the way I perceive the report, though I hope it does not detract from my analysis of it.

Important context for the entire report is provided in the report’s introduction, which reflects on the two founding cultures that underpin New Zealand society - the cultures of both “Kupe’s People” and “Cook’s People”.  The meeting of these two peoples and their respective social, legal, scientific and philosophical worlds is the background which led to the Treaty itself and the important commitment of both parties to develop, formally from 1840, together in partnership.  According to the Tribunal, it is this consensus that provides us with the constitutional framework to develop an approach to government that is underscored as much by Maori knowledge, language, culture and ideas, as it is by Western models of philosophy and government.

The concept of kaitiakitanga is at the heart of the report and the Tribunal recommends mechanisms to ensure it is also at the heart of law and policy making.  The Tribunal explains the way it uses this concept as follows:

Kaitiakitanga is the obligation, arising from the kin relationship, to nurture or care for a person or thing. . . Kaitiaki can be spiritual guardians existing in non-human form. . . But people can (indeed, must) also be kaitiaki. . . Mana and kaitiakitanga go together as right and responsibility, and that kaitiaki responsibility can be understood not only as cultural principle but as a system of law.

Essentially, the Tribunal suggests three basic levels of protection that might be applicable to kaitiaki relationships:

1. Full decision-making authority in the hands of the kaitiaki;

2. Partnership with the Crown (not merely Maori input, but genuinely shared decision-making), and;

3. Influence over decisions that affect the kaitiaki relationship.

No doubt many people will be disappointed that the Tribunal has stated that it may no longer be possible to deliver full-autonomy to Maori in all circumstances where Maori interests are at stake.  But it seems to me that the report suggests that the constitutional Treaty guarantee of tino rangatiratanga requires that the default position ought to be that full-decision making authority sits with the kaitiaki.  This is a powerful starting point.  Nevertheless, where other interests are sufficiently strong, these may need to be balanced against the protected Treaty interest, which may in turn lead to some form of shared decision-making.  And in the rare cases where shared decision-making is not possible, the Tribunal notes that it must always be open to Maori to influence decisions that affect their taonga.

In a report that addresses such a broad range of subject matter, the Tribunal has, of necessity, often dealt with matters at the level of general principles, indicating that the precise level of protection of the kaitiaki relationship and the taonga in question will often require a very fact-based, case-by-case analysis.  Yet the principles articulated by the Tribunal in each area give clear guidance as to how the kaitiaki interest should be prioritized and given effect.  Across the range of policy areas that are considered, the key for the Tribunal is to ensure kaitiaki are able to exercise genuine decision-making authority and that government agencies are required to deal with the kaitiaki interest in a way that is consistent, transparent and accountable. 

This is not about extending consultation or establishing advisory committees that have no power to enforce their decisions.  For example, in relation to the use of Maori imagery in trademark applications, the Tribunal recommends shifting from a model of input and advice from an expert Maori committee, to actually vesting decision-making authority on these issues (and related matters) in a commission that is able to assess the kaitiaki relationship in question and determine how it ought to be best protected in any given case.

Whether in the case of Maori forms of artistic and cultural expression or in relation to matters that affect land and the environment, the mechanisms recommended by the Tribunal aim to provide avenues for Maori to articulate the rights and responsibilties they are seeking to exercise as kaitiaki.  So, the Tribunal proposes changes to the resource management regime that significantly enhances the role of Iwi Resource Management Plans (IRMPs).  Iwi Management Plans are not new, but the Tribunal is envisaging a system where agreed parts of these IRMPs must be given effect to by district plans, giving kaitiaki the opportunity to initiate the discussion as to how their vision for the natural environment in their rohe ought to be given expression.

So, those are just a few general points that strike me about the overall layout of the report and the conceptualisation of the issues it touches upon.  There is a great deal in this report and, like most people, I am still getting to grips with much of the detail.  I will try to post again soon to address some of the report’s content in specific subject areas.

Wai 262 Report to be released this Saturday

The Waitangi Tribunal is scheduled to release the final report on its long-running Indigenous Flora and Fauna and Cultural and Intellectual Property inquiry on Saturday, 2 July.  Commonly known by its original claim reference number, Wai 262, the inquiry has also been referred to as “the grandfather of all Treaty claims” because of the fundamental nature and broad-ranging scope of the issues that it addresses.  A statement of issues produced by the Waitangi Tribunal in 2006 identified key questions around intellectual property and taonga; biological and genetic resources in indigenous species; the protection and promotion of tikanga, matauranga, and te reo Māori; and a range of matters concerning the claimant groups’ relationships with the natural environment.

The original claim was lodged with the Tribunal in 1991.  To say that the report has been long-awaited is therefore something of an understatement.  Although dealing with generic issues that are of concern to Māori throughout the country, the inquiry has focused on the specific claims of six iwi: Te Rarawa, Ngati Kuri, Ngati Wai, Ngati Porou, Ngati Kahungunu, and Ngati Koata.

The first hearings in the Wai 262 inquiry were held in 1997 and tangata whenua evidence was heard at a series of hearings from that point through until 2001.  Evidence from expert witnesses and Tribunal commissioned researchers was also heard.  Sadly, the original presiding officer in the Wai 262 inquiry, Judge Richard Kearney, died in 2005.  The then Waitangi Tribunal chairperson, and now a judge of the High Court, Joe Williams took over the inquiry at that point and presided over something of a re-organization of the inquiry, framed by the 2006 Statement of Issues.  Hearings resumed in August 2006 with Crown evidence presented in December 2006 and January 2007.  Closing submissions were heard in June 2007.

Touching, as it does, on such a wide-range of issues, the report’s recommendations could have potentially significant ramifications for policy across the whole of government.

The complexity and range of issues addressed  have obviously contributed to the length of this inquiry.  It has been a long and, at times, frustrating road for all those involved in the inquiry over the last 20 years.  As noted in a recent Herald article the release of the Tribunal’s report on Saturday will be anticipated with some excitement but also with sadness as thoughts turn to those who have made valuable contributions over the course of this inquiry but have since passed on – including members of the claimant communities, claimant lawyers, and Tribunal members.  It is of particular sadness that only one of the six original claimants in this inquiry has lived to see the release of the Tribunal’s report.

The report will be available on the Waitangi Tribunal’s website from Saturday morning and I will write a post on the contents of the report once I have had an opportunity to read it.

PostTreatySettlements.org.nz

A new website designed to stimulate debate about issues relating to the Treaty of Waitangi in the post-settlement environment was launched yesterday.  On the website you can find a number of issues papers addressing five key topics.  The site is the outcome of a project undertaken by the Institute of Policy Studies and Te Kawa-a-Māui (the School of Māori Studies at Victoria University). Personally, I would have liked to have seen a greater number of the issues papers written by Māori contributers.  One might also quibble with the way in which the key issues have been chosen and prioritised.  And I think that many of the additional opinion pieces referred to  actually place obstacles in the path of having an intelligent, well-informed, and balanced discussion of these issues.  But, I would encourage people to have a look at the site and form their own views on those matters.  The site is intended to be interactive and comment is encouraged.  I certainly endorse the objectives of the project team and congratulate all those involved for providing a space to engage people in discussion on these important issues.

Taniwha, railroads, and consultation

Dr Kepa Morgan, a senior lecturer in civil and environmental engineering at Auckland University, has written an excellent piece for the Herald that highlights the value, when embarking on a major construction project, of understanding and addressing concerns that arise out of a body of indigenous knowledge.


Well worth a read, especially if you have been frustrated by the more sensational coverage of this issue that we have seen in the media over the last week or so.

Haronga v Waitangi Tribunal (Supreme Court)

About this time last year, I wrote a brief post on the Court of Appeal’s decision Haronga v Waitangi Tribunal.  The case was subsequently appealed to the Supreme Court and that court issued its decision last month.  The Supreme Court overturned the Court of Appeal’s decision and, quite dramatically, overturned the Waitangi Tribunal’s own decision not to grant an urgent hearing.

As I noted in an earlier post, the basic facts of the case are as follows:

In Haronga, the application for an urgent hearing was made in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.

Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing.  There were three key planks to Judge Clark’s reasoning:

1. The Tribunal had, in its report, Turanga Tangata, Turanga Whenua, already made recommendations as to the settlement of claims in the Gisborne region and it had not specifically recommended return of the land in question to the current owners of Mangatu and it was unlikely that the Tribunal would reach a different outcome faced with the specific issues that would form the basis of an urgent hearing.
2. Settlement negotiations were underway with the Crown and had not broken down in such a way as to require the Tribunal to act as a “circuit-breaker”.  Admittedly, the Crown was not negotiating directly with Mangatu Incorporation, but then the incorporation had not sought a mandate to negotiate specifically a settlement relating to the purchase of the relevant Mangatu block.
3. The shareholders in the Mangatu Incorporation would not miss out on benefitting from the settlement because all of them are members of Te Whakarau, the relevant mandated group within Te Manu Whiriwhiri that is engaged in the ongoing settlement negotiations with the Crown.

Both the High Court and the Court of Appeal took the view that Judge Clark’s decision not to grant an urgent hearing on the matter of remedies specifically in relation to the Mangatu State Forest was lawful.  The fact that the remedies sought would potentially involve the exercise of the Waitangi Tribunal’s special jurisdiction in relation to Crown forest land did not affect the question of whether an urgent hearing ought to be granted in this case.

The Supreme Court disagreed.  The majority determined not only that the exercise of jurisdiction in relation to Crown forest land required particular consideration in reaching a decision on whether to grant an urgent hearing, but it affected that decision to such an extent that the only conclusion that could lawfully be reached would be to grant an urgent hearing and specifically address the remedies sought by Mr Haronga.  In most cases where the court finds an administrative decision is legally flawed, the court will direct the decision-maker to make the decision again.  Therefore, it is of no small significance that in this case the court has substituted its own decision for the Tribunal’s and directed the Tribunal it must grant an urgent hearing of Mr Haronga’s claim.

The fact that this claim sought the return of Crown forest land was central to the reasoning of the majority in the Supreme Court.  This called into play the Tribunal’s particular jurisdiction in relation to Crown forest land, under which the Tribunal has the power to make binding recommendations that such land be used to settle well-founded claims to that land.  The Court determined that, having decided the that the Mangatu Incorporation’s claims was well-founded, the Tribunal was then obliged to decide whether to grant the remedy sought by Mr Haronga.  The Court noted:

            While the Tribunal is not obliged to recommend a remedy for all claims it has decided are well-founded, it is required to determine whether it should do so. . . The obligation to inquire into each claim is not discharged by a determination that the claim of Treaty breach is well-founded.

The Court also referred to Justice Baragwanath’s decision in Attorney-General v Mair, where he commented that the particular jurisdiction of the Tribunal in relation to Crown forest land provides for a Tribunal determination which “while expressed as recommendatory, [is] ultimately adjudicatory”.  The majority were of the view that the special characteristic of these recommendations (binding, as opposed to the Tribunal’s other, mostly non-binding recommendations) ought of have been given particular consideration in determining whether an urgent hearing should have been granted.  The Court found it was not considered in this case.  Consequently, the Tribunal’s decision not to grant and urgent hearing was fatally flawed as the 

prejudice to the claimants of that decision could not have been properly assessed.

The Court, therefore, disagrees with all three key planks of Judge Clark’s reasons.  Given the Court’s reading of the statutory scheme, the majority found that the general findings in the Turanga Tangata, Turanga Whenua report could not constitute a discharge of the Tribunal’s responsibilities.  The Court also found that Mr Haronga’s actions indicated that, as far as he and the proprietors of Mangatu Incorporation were concerned, negotiations with the Crown in relation to the settlement of their specific claim had broken down.  Te Whakarau could no longer be said to have a mandate from the owners of Mangatu Incorporation to address the Mangatu purchase in their negotiations with the Crown, and the fact that those negotiations were ongoing was irrelevant. Judge Clark was, therefore, incorrect when he concluded that the owners of Mangatu Incorporation would not be prejudiced by his decision not to grant an urgent hearing.  As the Supreme Court pointed out, “[t]he settlement negotiated [by Te Whakarau] will not deal with the specific claim for resolution of the land under the adjudicatory jurisdiction of the Tribunal”.  The majority in the Supreme Court considered that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s application and ordered the Tribunal to undertake such a hearing.

Justice William Young did not agree that this was an appropriate remedy in this case.  Justice Young did not accept that the Tribunal’s binding powers in relation to Crown forest land meant that the Tribunal, when exercising those powers, was functioning as if it were an adjudicatory court.  If it was, he argues, there would be no need for the staged interim and final recommendations required in exercising this jurisdiction.  Furthermore, the Tribunal’s decision as to whether it ought to make any recommendations is distinct, considers Justice Young, from its duty to inquire into claims.  On this view, the granting of an urgent hearing in this case is not an inevitable consequence of the Tribunal’s powers when properly exercised.  Justice Young maintains that the Waitangi Tribunal is better placed to make a determination on these matters than is the Court.

The majority’s decision is notable for requiring the Tribunal to undertake an urgent hearing of Mr Haronga’s application and make a decision as to what, if any, remedy is appropriate in this case.  This, in itself, is likely to have considerable ramifications for the way in which the Tribunal approaches urgency applications in future, particularly those that relate to remedies.  Both the majority and minority decisions also include some significant comments in relation to settlement negotiations and the nature of the mandates held by representative bodies in those negotiations, which could also have an impact on the settlement process more broadly.

Indigenous law clinics and legal education

I recently attended a conference at the University of British Columbia that focused on the role of clinical legal education in the teaching and learning of indigenous law (including indigenous legal traditions, tribal codes and federal Indian law in the USA, and legal issues of particular relevance to indigenous peoples).  Clinical programmes are a more common feature of legal education in North America than they are in Aotearoa.  Most of the participants at this conference were involved in running law clinics that provide legal advice and advocacy for indigenous communities and at the same time enable law students to gain practical experience.  The Southwest Indian Law Clinic at the University of New Mexico is one of the oldest such clinics.  The university's website describes the work of the clinic as follows:

In the Southwest Indian Law Clinic (SILC), student attorneys represent Native clients in state, federal, and tribal courts and in governmental agency hearings. Students also have the opportunity to work with tribes, pueblos, and organizations serving the Native American community.  SILC faculty emphasize community involvement and sensitivity, collaborative lawyering, and multi-disciplinary problem solving.

There are similar, well-established programmes at a number of other universities throughout North America, including at Gonzaga University in Washington state, Washburn University in Kansas, and the University of British Columbia in Vancouver.  These programmes aim to assist students to develop skills and knowledge through more experiential learning than can be provided in an ordinary classroom setting.  But these are all closely supervised programmes, which include the kind of lectures, seminars or tutorials with which a New Zealand law student might be more familiar.

I was particularly interested in the way that a combination of classroom and clinical formats are being used in these programmes to help students develop a measure of cultural literacy.  One of the conference participants, Aliza Organick, has written about the importance of building the concept of culture into legal education.  Organick has suggested that problem solving in a cultural context is a crucial skill for a lawyer and that, if anything, understanding culture, and legal culture in particular, is becoming more important as the legal field becomes more globalized and rights relating to culture are being articulated in international human rights instruments. 

At its heart, an awareness and understanding of culture is central to a lawyer’s ability to represent his or her client.  In the context of representing indigenous groups, Christine Zuni Cruz, one of the founding directors of the Southwest Indian Law Clinic, has written:

Lawyering which respects those who comprise the community as being capable and indispensable to their own representation and which seeks to understand the community yields far different results both for the community and the lawyer.  Self-determination is important to lawyering which benefits the community and the people within that community.  If the lawyer cannot respect a people’s culture, which means understanding a people’s goal toward self-determination, then the people will not be well-represented.

For Zuni Cruz, culture and community are overarching themes in any lawyer-client relationship. These themes are perhaps most visible in relationships in which distinctive cultures meet and cultural boundaries need to be navigated.  Indigenous law clinics then, and even the study of indigenous law more generally, provide an excellent context in which these themes can be explored.  The study of indigenous legal traditions and legal issues that face indigenous communities can be a valuable part of legal education - of great benefit to law students in understanding these important aspects of the lawyer-client relationship.  Indigenous law clinics can enhance these benefits through practical and experiential learning and, at the same time, assist in providing legal services to communities that often face challenges in access to justice.