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. 

Saana Murray

I was very sad to hear of the passing of Saana Murray at the weekend. Saana was the only one of the original Wai 262 claimants that was still alive when the report was released in July and, before any further discussion of the report, it is important to acknowledge her.  Without the foresight shown by her and her fellow claimants all those years ago and the determination they demonstrated in pursuing the issues addressed in the Wai 262 inquiry we might not yet have come to directly consider, in such a comprehensive way, the Crown’s failure to recognise and respect mātauranga Māori across the whole of government. Her role in the Wai 262 inquiry was, of course, just one example of her passion and her commitment to Māori rights and the wellbeing of her people.  She was laid to rest today at Kapowairua.

Wai 262 - Relationship with the Environment

The third chapter of the Waitangi Tribunal’s report on the Wai 262 inquiry addresses the relationships between Maori communities and the natural environment.  This chapter is the first of two chapters that deal with this subject matter.  Chapter 3 essentially considers how those relationships ought to be given expression in the context of private land within the framework of resource management law and environmental policy.  Chapter 4 is focused on the operation of the Department of Conservation and how Maori communities’ relationships with the natural environment ought to be given expression in the context of the conservation estate.  I will post some comments on Chapter 4 another time.

Some of the key concerns that the Tribunal heard from claimants related to the fact that Maori interests rarely seemed to be determinative or be given an appropriate weighting in decisions affecting the environment.  Chapter 3 begins with the saying ‘Kei raro I nga tarutaru, ko nga tuhinga a nga tupuna’ (beneath the herbs and plants are the writings of the ancestors) and the Tribunal goes on to ask “how can the voice of matauranga Maori, etched as it is in the land, still speak in our changed circumstances?”  In order to address this question, the Tribunal considers the nature of that voice in terms of an environmental philosophy.  Referring to the writings of the late Maori Marsden, the Tribunal identifies whanaungatanga and kaitiakitanga as the two central values that underlie Maori environmental law and policy, before turning to the issue of how those values ought now to be given expression in New Zealand’s modern environmental law and policy that revolves around local authorities, the Ministry for the Environment, and a legislative framework including the Resource Management Act 1991.

One of the central themes of this chapter is that, although the Resource Management Act contains a number of provisions designed to provide opportunities for Maori to participate in environmental decision-making, many of those provisions have rarely been used and overall the Act has failed to deliver on its potential in this regard.

As earlier chapters have illustrated, the Tribunal is careful not to impose blanket solutions for the entire range of issues that kaitiaki and other environmental decision-makers may need to contend with.  Once again, the Tribunal proposes mechanisms designed to give appropriate expression to kaitiaki interests to be determined by reference to matters such as the nature of the kaitiaki relationship and other interests that ought to be recognized and provided for.  The Tribunal suggests that a Treaty consistent system of environmental management should be able to deliver the following:

•         control by Maori of environmental management in respect of taonga, where it is found that the kaitiaki interest should be accorded priority;

•             partnership models for environmental management in respect of taonga, where it is found that kaitiaki should have a say in decision-making but other voices should also be heard; and

•             effective influence and appropriate priority to the kaitiaki interests in all areas of environmental management when decisions are made by others.

The Tribunal suggests that one of the key reforms necessary to implement such a system is the enhancement of iwi resource-management plans.  There is already provision within the Resource Management Act for the development of iwi management plans, but the Tribunal proposes radically changing the status of these plans and giving them real teeth.  The Tribunal takes the view that iwi should be supported to set out their own vision for the way in which they wish to give expression to the values of whanaungatanga and kaitiakitanga in the management of the natural environment and in relation to their particular taonga.  Crucially, the Tribunal recommends that confirmed aspects of an iwi resource management plan be complied with in the same way that district and regional plans must be.  A transparent process is recommended for the way in which an iwi resource management plan may be confirmed.  Any aspects that the local authority agrees with can automatically be confirmed, but where there is disagreement between the iwi and the local authority a statutory negotiation process may be entered into, and ultimately the Environment Court may decide the matter.  This means that, at the least, local authorities must genuinely engage with iwi resource management plans, provide reasons for any disagreement with such plans, and be accountable to the Environment Court for its decisions.  But, in most cases, it ought to provide much more than that, such as giving kaitiaki the ability to exercise real decision-making authority in relation to their taonga and consolidating important partnership relationships in the management of the natural environment.

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.

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.