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Indigenous Peoples Rights and Obligations by Maui Solomon Nairobi, Kenya, Wellington, Aotearoa / New Zealand
The following paper was presented to the workshop on instruments for access and benefit sharing from genetic resources and related traditional knowledge issues at Global Biodiversity Forum 15, UNEP Headquarters, Gigiri, Nairobi, Kenya, May 12-14 2000 Maui Solomon is a Moriori Maori barrister, an indigenous lawyer from Aotearoa New Zealand. He represents a number of tribes in Aotearoa New Zealand, in particular his own Moriori iwi, or tribe, from the Chatham Islands, a little island 800 kilometers east of New Zealand. He also represents three tribes: Ngati Kuri, Ngati Wai and Te Rarawa (other counsel represent the remaining three) in relation to the Wai 262 flora and fauna and cultural and intellectual heritage rights claim that's currently being heard by the Waitangi Tribunal. Also see: An Interview with Maui Solomon - The Wai 262 Claim by Six Maori Tribes: Interview with Maori community leader Sydney Jackson. Ko Te Rangaapene Te Maunga (Te Rangaapene is my mountain) Ko Te Awa Inganga Te Awa (Te Awa Inganga is my river) Ko Manukau Te Whenua Tapu (Manukau is my sacred lands) Ko Te Awapatiki Te Kopinga (Te Awapatiki is the sacred meeting place) Ko Te Kopinga Te Marae (Te Kopinga is our meeting house) Ko Rekohu Te Motu (Chatham Islands is the island) Ko Tame Horomona Rehe Te Rangatira (Tommy Solomon is my grandfather) Ko Rongomaiwhenua Te Karapuna (Rongomaiwhenua was the founding ancestor on Rekohu) Ko Moriori Te Iwi (Moriori is my tribe) Tihei Mauri Ora! (I sneeze the breath of life) Ko tenei te mihi ki a koutou, te hau kainga, nga tangata whenua o tenei motu. He mihi hoki ki a koutou katoa e huihui mai nei Tena koutou katoa (Greetings to you the local Tangata Whenua (people of this land) and to other peoples present at this meeting) The title of this paper was originally called Intellectual Property Rights and Indigenous Peoples Rights. In gathering my thoughts on what I would say in the paper, I decided to add the word “Obligations” to the title of the paper. It seemed to me that my own Moriori tribe from Rekohu and Maori tribes from Aotearoa are as much concerned about their obligations to one another and to the natural world at large, as they are concerned with asserting their cultural rights. And without access to their rights they cannot exercise their responsibilities. Such is the relationship of respect and reciprocity. This is mainly true of indigenous and traditional peoples all over the world. This paper will discuss the efforts being made by a number of Maori tribes in Aotearoa to have their cultural rights and values recognised and protected. There are a number of different ways in which this is occurring but the most significant case in terms of seeking protection of traditional knowledge is the claim by six tribes currently before the Waitangi Tribunal. I will discuss this claim in more detail later. For the record, the comments I make in this paper are my own and do not necessarily reflect the opinions of the claimants for whom I act. The paper will examine from a Maori perspective their notions of indigenous peoples rights and obligations and how they are fundamentally at odds with existing intellectual property right systems. The paper will also explore how some of the Maori claimants consider their rights should be acknowledged, respected and protected and the inevitable obstacles that must be confronted and overcome before this can happen. Finally, the paper will consider the implications of Article 8(j) of the Convention on Biological Diversity and related provisions, and how they impact on the struggle by the Maori to have their rights and obligations recognised and protected within Aotearoa/New Zealand. Maori View of Their Natural World Like most other indigenous traditional peoples, Maori have a unique relationship with their natural world. They view themselves as part of and not dominant over their natural flora and fauna. The people, the land, the sea, the forest and all living creatures, are all members of the same family. In the beginning was Te Kore or total darkness. There was no life, only potential. Papatuanuku, the Earth Mother and Ranginui, the Sky Father were locked together in an embrace which stifled all growth. Their children, desperate for light, devised a plan to forcibly separate their parents. This job fell on the shoulders (literally) of one of the children, Tane Mahuta, God of the Forests. Binding to his mother below, he pushed upwards with his legs with all his strength and pushed his father apart from the earth. Into the light created between Papatuanuku and Ranginui sprang the raging winds of Tawhirimatea (God of the Winds), the swirling seas of Tangaroa (God of the Sea) and all his progeny, the towering forests of Tane Mahuta and all his progeny and the varieties of cultivated and uncultivated crops. Tane Mahuta fashioned the first human, Hine ahu one from the clay of his mother. He slept with her and begat a daughter, Hinetitama. With Hinetitama, Tane begat other children. Discovering her father and lover were the same, Hinetitama fled to the underworld, where she lives still in the name of Hine nui ite po. The spiritual home of Maori, the home of their gods and of creation is known as:
The Maori name for indigenous peoples is Tangata Whenua. This literally means “peoples of the land”. My own Moriori people of Rekohu claim to have sprung from the earth (no ro whenua ake). Legends tell of different waka or canoes arriving on Rekohu and Aotearoa from Hawaiiki in various migrations from about 900 AD. They named every landmark, stream, rock, mountain and other natural feature in the landscape, including the flora and fauna they found there. Maori regard themselves as one with their natural world. Maori have a direct whakapapa or genealogical connection to the land through their ancestress Papatuanuku, the Earth Mother; to the sea and its marine creatures through their ancestor Tangaroa; to the forest and all its inhabitants through their ancestor Tane Mahuta and to the heavens and all of its celestial domain through their ancestral Sky Father, Ranginui. During a period of 1,000 years occupation, the ancestors of the Maori developed complex rituals and protocols for regulating behaviour between themselves and the environment they found themselves in. But the Maori world was not a perfect one. Like all cultures, mistakes were made by Maori in their interaction with their environment. Some species such as the large flightless Moa bird found by Maori on their arrival in Aotearoa, was hunted to extinction. Lessons learnt were incorporated into traditional practices. Thus, as populations grew and pressures became intense on scarce resources, rahui or prohibitions on the taking of certain species at certain times of the year, became common place. Homage was also paid to the spiritual guardians of the land, the sea and the forests. In order for Maori to survive and prosper from the land and sea, they had first to acknowledge and respect the deities and the Gods of those places. Ritual karakia or blessings were spoken and permission sought before cutting down a tree for canoe building or taking fish from the sea to feed their families. This reciprocity of respect and caring between the people and their creator gods was central to the relationship. By demonstrating caring and respect for the kaitiaki or ancient guardians, they in turn would ensure that the needs of the people were satisfied. There were rights to access and utilise resources within a tribal territory but only after observing the ritual obligations of reciprocity and respect. Intellectual Property Rights versus Indigenous Peoples Rights and Obligations Acknowledging the spiritual dimension of their universe and respecting the mauri or central life force of every living thing was fundamentally important to the Maori world view. In other words, the reciprocity of obligations was balanced against the right to use and exploit. This can be contrasted with the notion intellectual property rights which focuses on the economic right to exploit for profit and financial gain. The needs of the individual, and corporate legal personalities such as multinationals, are preferred to the collective good. Under this capitalist model, resources are viewed entirely as a means of exploitation for economic gain. There is little or no reciprocity or respect for the integrity of the resources as living and breathing entities with their own mauri or life force. Furthermore, this respect for the mauri of the environment is seen as imposing barriers to the exploitation of resources and economic advancement. Modern progress has little time for ritual and respect. Thus, there can be seen a fundamental clash between the ideological underpinnings of the Intellectual Property Rights system and the philosophical underpinnings of what I have termed Indigenous Peoples Rights and Obligations. For example, a Maori may look at a native totara tree and pay homage to an ancient member of his whanau or family. A scientist or geneticist may look at the same tree and think of ways to alter its genetic programming so that instead of taking 1,000 years to grow to maturity, the tree can reach maturity in 100 years. They consider ways to “improve” the tree by the application of modern technology. This approach is justified under the aegis of progress and technological advancement in a modern society. Maori regard the genetic modification of flora and fauna as the interference or tampering with their whakapapa (genealogy). Modifying or mixing the genes of the same or different species is analogous to genetic experiments on one's own family members. Whilst this may be regarded by some as emotional blackmail or “over the top” emotionalism, the issue really boils down to one of respect. Respect for the fact that Maori and indigenous peoples everywhere, have a special kind of relationship with their natural world. Before economists and scientists go too far down the track of exploiting or re-engineering what the gods created, these relationships and values must be acknowledged and respected. Maori people are not against development and exploitation. But they do insist that the Crown (the Government and all of its various agencies), local authorities and commercial enterprise stop to consider the issues from their cultural perspective. Unfortunately in New Zealand society today, there is only lip service paid to acknowledging Maori cultural values. Whilst there are many words written in policy documents promulgated by the Crown, Maori still face an uphill battle to have themselves and their values accepted and understood. The problem in Aotearoa, as in every other country where peoples have been colonised, the colonisers judge the colonised by their own set of cultural values and standards. Invariably the “conqueror” wrongly assumes that their own values and way of life are superior to those they have “conquered”. Only now are they gradually beginning to see how wrong they were. That in fact, indigenous cultures have a great deal to offer in the way of environmental management and stewardship. The problem is that they still want to have ultimate control over that process. In Aotearoa, Maori knowledge of their environment was ignored and their spiritual healers (tohunga), were dismissed as crazy “witch doctors” who had to be suppressed. In 1909, the Crown passed the “Tohunga Suppression Act” in an attempt to stamp out these practices. Sadly, Tohunga became the subject of ridicule even among their own people who were encouraged to forget about the past and taught to become “Brown Pakeha”. For example, my own father was punished for speaking his native language at school because he was told he had to put all of that “old cultural baggage” behind him. But Maori tribes are strong and resilient. The traditional healing practices were forced underground but have continued to the present day, albeit in a much reduced form. Sadly, a vast amount of this knowledge has been lost as the older generations have died out, and the indigenous institutions, capable of passing on this knowledge, have been suppressed and actively denied legitimacy. I will never forget the powerful and moving evidence given by one of the traditional witnesses for Ngati Wai to the Waitangi Tribunal. This woman was in her late eighties and had practised rongoa Maori (traditional Maori healing using native plants) for more than 70 years. This knowledge had been passed down to her by her father. During the two days she was questioned, she fasted and would only drink water because of the tapu (sacred) nature of the evidence she was giving. When talking about the ngahere (native bush or forest), it was as though she was talking about her own whanau or family. She knew the plants and the animals and they knew her. She knew the exact time to go into the bush, the seasons, the days, the type of plants and what side of the plant to take and in what quantities. She used her knowledge to help peoples from all walks of life (Maori and Pakeha) but would never request payment for her services. Her reason is that she regarded her healing powers and knowledge as gifts that had been bestowed on her by the creator. To use those gifts for profit would only dilute the healing power. But as is common in Maori society, she would accept koha or gifts exchanged to her for her help. These might include food, reciprocal services or could even include money. But it was up to the giver to determine the nature of the koha to be given. This wonderful woman, although 87 years old, looked and acted thirty years younger. She had a healthy body, a sharp intellect and a wonderful sense of humour. She attributed her good physical and mental health to the fact that she had never in her life taken conventional medicines. She had only ever used traditional healing methods and natural remedies. She described how as a nurse in the 1940s and later, her traditional knowledge and practices were frowned upon in the mainstream system, but from time to time she would secretly employ her rongoa Maori knowledge to help patients when conventional medicines would not work. On the final day of her evidence, she was joined by her 89 year old sister and her 78 year old brother who had also been brought up with the knowledge of rongoa Maori. Between them they had a combined total of 254 years knowledge of traditional healing practices. The early Maori recognised the many benefits that interaction and trade with the English settlers would bring for their society. They were a highly inventive and adaptive people. From Captain Cook's first arrival in Aotearoa in 1769 through to 1840 when the Treaty of Waitangi was signed, Maori actively traded with the British settlers and for the most part provided food, protection and in many instances land for the newcomers. There was also intermarriage with many early colonists to cement relationships between Maori and Pakeha. In 1840, the Maori population numbered about 115,000 people. This compared with a British migrant population of approximately 2,000 people. The Treaty of Waitangi (see attached appendix) was signed in both Maori and English. In effect there are two versions of the Treaty. Most Maori Chiefs signed the Maori version. The terms of the two Treaties are, in certain respects, conflicting. For example, in Article 1 of the English version, the Chiefs and Tribes ceded their “sovereignty” to Queen Victoria. But Article 1 of the Maori version refers to a grant of kawanatanga (a missionary transliteration of the world “governor”). Article 2 of the Maori Treaty reserved to the Chiefs and Tribes their tino rangatiratanga o ratou wenua o ratou kainga me o ratou taonga katoa. By this the Chiefs understood that their full chiefly authority to manage their own affairs in relation to their lands, treasures and people would be retained. The equivalent under the English version of Article 2 is just as robust: “Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession ” A lawyer could not have drafted a more contractually watertight provision if he had tried! As one northern Chief who signed noted afterwards when explaining his understanding of the Treaty:
But it was not long before Maori realised that the new colonisers did not intend to honour the terms of the Treaty -- either the English or Maori version. By the 1860s the immigrant population had exploded and there were increasing pressures for land. Maori were subject to dubious land purchase deals and began resisting continual encroachment by settlers and the Crown. This lead to invasion by Crown military forces to expel Maori from their lands and naturally, as a warrior people, Maori responded by defending their lands. Although mostly outnumbered and facing the best that the British Empire had to throw at them, the Maori responded brilliantly. Their military tactics and defence works were inventive and greatly underestimated by the Crown forces. They adapted their traditional fighting Pa (barricaded forts), to counter the British canon barrages which would sometimes go on for days. They survived these assaults by constructing elaborate underground defence works and tunnel systems. These new fighting Pa were built deep in the dense New Zealand bush (forests) where they would lead the unwitting soldiers. Colonial troops were often baffled when they mounted a ground assault only to find that the enemy numbers had hardly been affected by the bombardment. Maori were the first to develop this system of defensive earthworks which were used (but not with the same effect), during the First World War. In many cases, Maori tribes prevailed over the superior Crown forces. The true extent of their military genius is only now being appreciated by NZ historians. However, by sheer weight of numbers and military firepower, the colonisers eventually prevailed. Invasion and military defeat were followed by massive confiscations of land in the 1860s. In the Taranaki region alone (East Coast of the North Island) 1.5 million acres were confiscated by the Crown. In the Waikato, about 3 million acres was taken. This often included land of tribes who had not been involved in the fighting or had even, in some cases, fought on the side of the Crown. This confiscated land was used for settlers and military resettlement. The system of Parliamentary representation imposed on Maori after 1840 was based on the monocultural dominance of British constitutionalism. From 1856-1868, Maori representation was at the pleasure of the Governor. In 1868, Maori were represented through four seats in the Parliament (increased to five seats only in the 1999 election), and powerless to prevent the framing of legislation and policies which continued the confiscations of land and ignored the aspirations of Maori. By 1877, in the infamous case of Wi Parata v The Bishop of Wellington, Prendergrast CJ declared the Treaty to be a “simple nullity”. He could not accept that Maori had “any kind of civil government” or “any settled system of law”, and certainly were not capable of entering into an international Treaty. In 1901, the Privy Council in Nireaha Tamaki v Baker rejected the argument that “there is no customary law of the Maori of which the Courts can take cognizance”. But any cognizance that was taken was in the context of the all encompassing assumptions of the British common law, where Maori customary law is treated as analogous to “local custom” in England. The custom is easily supplanted by statute, and is usually only given recognition where the relevant statute specifically requires it to do so. Being politically powerless to influence the law making process, Maori customary law and practices were marginalised. At the beginning of the 20th Century, Maori were regarded as a doomed race. Population numbers had plummeted, most were living in severe poverty and health was very poor. In effect, Maori had become third class citizens in their own country. But Maori never gave up on the hope that one day the Treaty would be honoured and they continued to discuss and debate it among themselves on marae (traditional meeting places) around the country. But for Pakeha New Zealanders, the Treaty had become a distant relic of the past. They had got what they wanted and that was that. New Zealand was portrayed internationally as a model of how race relations should be -- with Maori and Pakeha living and working in harmony as one people. But, just beneath the surface there lurked a deeper reality. A reality understood by Maori but completely ignored by most Pakeha. For the past 100 years, successive policies of assimilation and integration have failed to substantially improve the socio-economic circumstances of Maori. They continue to top the statistics tables for unemployment, poor health, smoking, low education and crime. Statistics mirrored in every other country where indigenous and traditional peoples have been colonised. But despite their ravaging effects on Maori, these policies have failed to completely homogenise Maori culture and destroy our identity as a people. Today, Maori now comprise 15% of New Zealand's population of 3.5 million people. Despite the ravages that Maori have had to endure, there has always been the beacon of hope and strength kept alive on the various tribal marae around Aotearoa. Today, the younger and more educated Maori generation have begun to fight back guided by the wisdom of their elders. This time using the tools of the coloniser to champion their cause. Renaissance of the Treaty of Waitangi In the 1970s, protest groups such as Nga Tama Toa (Young Maori Warriors) began to stage organised protests over the broken Treaty promises. Maori lands were still being confiscated for public works and other community needs and Maori began staging land occupations and other forms of non-violent protests. This eventually lead to a land march being staged from the tip of the North Island (or the tail of Te Ika a Maui -- the Fish of Maui) down to the seat of Government in Wellington (some 1,200 kilometres distant). This march was lead by an elderly Kuia, the late Dame Whina Cooper, who was in her mid-70s when she led the march. The marchers stopped at every marae along the way until they had reached Wellington. This took place in 1974 and eventually led to the passage of the Treaty of Waitangi Act in 1975. That Act established the Waitangi Tribunal as a body comprising an equal number of Maori and Pakeha members who could receive and enquire into claims from Maori that the Crown had breached principles of the Treaty of Waitangi. As noted by Chief Judge Eddie Durie:
In 1985, the Waitangi Tribunal was given retrospective powers to hear claims dating back to 6 February 1840, the date upon which the Treaty was signed. There are now over 800 claims registered with the Waitangi Tribunal ranging from lands, fisheries, forests, geothermal, language, radio spectrum and of course the claim commonly referred to as the indigenous flora and fauna claim, Wai262. Many of these claims have focused on the protection of fishing reefs, harbours, rivers and lands from the adverse environmental consequences of development. Sadly, the news media in New Zealand are fixated with highlighting Maori claims as a continued grab for resources rather than portraying a balanced and fair view of the claims process. Consequently, vast numbers of New Zealanders have a negative view of the Treaty of Waitangi process and a woeful knowledge of Maori culture. Most have little or no knowledge of the real issues other than what they read in the newspapers which most often presents a biased view. As one of the most important social issues facing our country today, I find this attitude staggeringly irresponsible. I believe that the Crown and the news media have a responsibility to ensure that its citizens are better informed and educated about the history of their own country. Whilst this is slowly happening in schools, the efforts are often grudging and tokenistic. The Waitangi Tribunal only has powers of recommendation to the Crown. They are not binding on the Crown. While early Tribunal recommendations carried a lot of weight and persuasiveness, increasingly the Crown simply ignores the Tribunal's recommendations and continues down its own path. Although the Tribunal was given certain binding powers in relation to Crown owned forests and State owned assets (in many cases being sold off to foreign owned companies), subject to claims, the Tribunal has never exercised those powers. A previous Minister of Justice threatened to repeal those powers if they were ever exercised! But the influence of the Waitangi Tribunal and its many reports, have had considerable influence on both the judicial and political landscape of Aotearoa. Maori have been able to use the Tribunal process and findings as leverage in negotiations with the Crown and/or as a springboard for further litigation in the ordinary Courts. But progress is often grindingly slow and every inch gained is achieved at considerable cost to Maori. Whilst the Tribunal only has the status of a Commission of Inquiry (as opposed to an ordinary Court), its process of hearing evidence from tribal claimants and the Crown and the making of legal submissions is rigorous and robust. The process is also unique as the Tribunal can invoke tikanga Maori (Maori customary protocols) when hearing traditional evidence on marae and evidence can be given in Maori. The norm is for the Tribunal to sit on marae when they are hearing historical claimant evidence. The usual course is for claimant counsel to make opening submissions outlining the nature of the case and the evidence to be brought. This is followed by elders and other tribal experts giving their evidence (which can be traditional and contemporary). The Crown lawyers then have an opportunity to question the witnesses as do the members of the Tribunal. There are usually between three and five members on the Tribunal who have a mixture of tikanga Maori, legal, historical and anthropological skills. Traditional witnesses are followed by professional, academic expert testimony that is subject to more rigorous cross-examination from Crown lawyers. The Crown then presents its evidence and calls witnesses who are also subject to cross-examination by claimant counsel. There may be more than one claimant group in any one hearing and each counsel have the right to cross-examine. The Tribunal may also call its own evidence at the hearing. In the case of Wai262, the Tribunal has commissioned five major research reports on different aspects of the claim. For example, all Crown policy concerning management of the environment and Treaty related issues from 1840 up to the present day. At the last count the draft report was 700 pages long! Finally, the claimants and the Crown make their closing submissions and the Tribunal adjourns to write its report and issue its findings and recommendations. Sadly, due to a gross lack of funding for the Waitangi Tribunal and its work, claims can often take years to be heard and more years to be reported on. My own Moriori tribe's claim in relation to the Chatham Islands was filed in 1988, began hearing in 1994, was completed hearing at the end of 1995 and we are still awaiting the report. As regards the Wai262 claim, it was filed in 1991, began hearing in 1997 and is still ongoing. Five of the six claimant tribes have presented their traditional evidence and the last tribe will present its case in June 2000. The three tribes I represent (Ngati Kuri, Te Rarawa and Ngati Wai), propose calling expert Maori evidence on all aspects of the claim. This evidence will demonstrate how Maori values, traditional matauranga (traditional Maori knowledge) has been misused, exploited and suppressed within New Zealand society. It will also focus on the need for a Tikanga Maori Framework (a system based on Maori values) of legal and non-legal mechanisms to recognise and protect that traditional knowledge. But more about that later. Resource Management Act 1991 and Other New Zealand Legislation The Treaty of Waitangi and Maori cultural values are also given recognition in the Resource Management Act 1991 (RMA) which deals in a comprehensive way with the management of our environment. The main purpose of the Act is sustainable management. There was considerable consultation with Maoridom in the development of the legislation and therefore much hope that Maori would have a greater role in environmental decision-making processes. Sadly, after nine years experience under the RMA, this is not the case. In 1993 the Waitangi Tribunal ruled that the Resource Management Act was “fatally flawed”, because the Treaty protections contained within the RMA were too weak. The Crown, once again, ignored these findings. Local authorities, whom have delegated authority from the Crown to manage the natural resources and issue resource consents to developers, largely pay lip service to their obligations to Maori under the RMA. Much touted provisions to enable local authorities to delegate responsibilities to local tribal authorities for managing natural resources (which the tribes have a traditional association with), have not been exercised by any of the local authorities. Indeed, there is still a reluctance to involve Maori in meaningful consultation, let alone grant control over, issues which affect their environment. Whilst there are heavy expectations on Maori to fulfil their obligations as kaitiaki (guardians) of the environment, they neither have the funding nor the resources available to fulfil their customary obligations. Yet they are required to deal with and respond to the Crown and its agencies, which for Maori is like dealing with a multi-headed taniwha (mythical monster!). The other major piece of legislation relevant to the environment is the Conservation Act 1987. The Department of Conservation (DOC), is the single largest owner and manager of lands in New Zealand. Historically, DOC has displayed a patronising attitude towards Maori and their traditional knowledge of the environment. This attitude is gradually beginning to change as a consequence of Maori assertiveness and a growing acceptance from DOC that they have no option but to work in partnership with Maori tribes -- just as the Treaty had foreseen. The recent appointment of a Maori Minister of Conservation is widely regarded as a major step forward although the requirement of collective cabinet responsibility is a political reality for any Maori politician under the current system. Although the Conservation Act 1987 contains a strong Treaty protection provision, the Courts have applied a minimalist interpretation of this section - and in doing so have demonstrated a failure to comprehend Maori customary rights to their resources. Claims to the Tribunal (such as the Wai262 claim) often focus on the relationship between Maori and DOC, and this has had a major influence on DOC's responsiveness to Maori concerns. But this is a double-edged sword for Maori. Whilst Maori are forced to go through the long and expensive process of having their claim heard (with the prospect of a report not available for another few years), the Crown is proceeding to develop and implement policies and legislation that pre-empt the concerns of the claimants. The difficulty is that such changes are made at the Crown's pace and within the context of the Crown's agenda. Consequently, such mechanisms are inherently flawed because of their pre-emptiveness. They fall far short of providing Maori with the guarantees and protections that were promised in 1840. Historically, New Zealand's legislative response to “fixing the Maori problem” has been marked with ad hoc, ill-considered, quick-fix solutions designed more to appease the non-Maori majority who vote governments in and out of power, than to genuinely address the real issues facing Maoridom and the country as a whole. I have mentioned previously that in New Zealand society today there is a gaping chasm of ignorance and misinformation about Maori culture and the value of traditional knowledge. The simple reason is that for 150 years it has simply not been a part of mainstream New Zealand society and its diverse institutions. There are fears that Maori are getting something for nothing at the taxpayer's expense. There are fears that Maori want a form of apartheid where there are separate rules and laws for Maori and those for Pakeha. There are fears that Maori want to claim all of the indigenous plants and animals in Aotearoa and prevent Pakeha from using these resources. These fears are often played on by some influential politicians and the news media alike. A chance is rarely missed by these scaremongers to massage the fears and prejudices of their majority audience and readership. Common refrains often heard from Pakeha New Zealanders is that “we can't go back to 1840; why should we be blamed for what our ancestors did?” Or, “when is it all going to end?” There is a hankering to return to the days when the assimilationist policies were at their height and New Zealanders “were all one people”. Others maintain that Maori culture has got no relevance for them or their children in modern day New Zealand. I am sure for many of you here today, these sentiments are not unfamiliar. In my personal experience, the average Kiwi (New Zealander) who holds these fears has not bothered to do any research themselves on the Treaty of Waitangi and its subsequent history. I believe that if people were better informed and educated, many of these fears would disappear. I have often asked my Pakeha friends when we debate this issue to describe how Treaty claims have affected their quality of life. Most find this question difficult to answer. The fact is that a proper understanding of Maori identity and culture has benefits for all New Zealanders. For example, Maori culture makes New Zealand unique from the rest of the world. Whenever there are international leaders visiting such as the recent APEC Conference, Maori are called upon to undertake the welcoming ceremonies and cultural performances. Some of you may have seen a picture of a leading Maori elder from the Ngati Whatua tribe giving a traditional hongi (pressing of noses) greeting to U.S. President Bill Clinton when he arrived in Aotearoa. Maori images, icons and symbols are regularly used to promote New Zealand internationally by tourist companies and major corporates including Air New Zealand and Telecom New Zealand. However, that is often as far as it goes. The recognition is usually superficial and undertaken without consultation or the consent of the people concerned. Unfortunately, New Zealanders will often avail themselves of Maori culture and identity when it suits their purpose but when it comes to sharing the benefits of that exploitation, it is another matter. But there are also an increasing number of Pakeha New Zealanders who are strongly supportive of the Treaty of Waitangi and Kaupapa Maori (Maori cultural objectives). They have no fear of acknowledging Maori culture because they can see that it can only strengthen New Zealand's identity as a nation both at home and internationally. Maori demand that in terms of their culture, matauranga and intellectual heritage rights, they should be in control of their own destiny. They want recognition and effect given to their tino rangatiratanga or full chiefly authority. Some say that this is going back to the past. But Maori are a forward thinking and moving people. For Maori, it is about applying traditional values within a modern day context. This has benefits for Maori and Pakeha. The Wai262 Claim to Indigenous Flora and Fauna and Cultural and Intellectual Heritage Rights and Obligations Concerned over the increasing loss of native plants and animals, the destruction of ecosystems and the continuing erosion of matauranga Maori (traditional Maori knowledge), a group of Maori elders got together in 1988 to formulate a claim to the Waitangi Tribunal. The claimants represent Ngati Kuri (Mrs. Saana Murray), Te Rarawa (Mrs. Hema Nui a Tawhaki Witana or Del Wihongi), Ngati Wai (Mr. Witi McMath), Ngati Porou (Mr. Tama Poata) and Ngati Kahungunu (Ms. Kataraina Rimene). I represent the three tribes of Ngati Kuri, Te Rarawa and Ngati Wai. The claim is founded upon the rights guaranteed in Article 2 of the Treaty of Waitangi which guaranteed to Maori the “ full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess ” (English version). In the Maori version of the Treaty, the guarantee was in relation to their tino rangatiratanga over all of their taonga or treasured things. The Statement of Claim which was filed in 1991 with the Waitangi Tribunal and amended in 1997 states as follows:
The claim also includes reference to native species of flora and fauna and to the Crownís obligations to Maori in relation to international treaties and Conventions. In that context, the claimants argue that the New Zealand Government should not make commitments under international treaties and protocols without the prior consultation and agreement of Maori where these treaties impact on Maori rights under the Treaty of Waitangi. The claim has had a small measure of influence on government policy. For example, in 1994 the claimants narrowly failed to obtain a Treaty of Waitangi protection mechanism in the legislation giving effect to the GATT: TRIPS Agreement. The vote was lost 40:42 in Parliament on the GATT: TRIPS (Uruguay) Round Bill. Almost 50% of the Ministers of Parliament agreed that some form of prejudice to Maori rights would arise. And they were right. The claimants were also successful in lobbying the Minister of Commerce in 1995 to defer the Intellectual Property Law Reform Bill that was then on the Governmentís legislative agenda. Sadly for the claimants, the claim is taking far too long to be completed. The Tribunal suffers from a shortage of funds for the prompt hearing of evidence, and for adequate research. The adversarial manner in which the claims are increasingly handled also means that solutions are more difficult to find because of the closed minded attitude claimants are often confronted with. Compounding the delays is the appalling lack of funding support for the claimants. In many cases, the claimants and their immediate families are left to carry the emotional and financial burden themselves. Since the claim was filed in 1991, two of the named claimants have died and another two have been seriously ill. Only in April this year, the Tribunal announced that it had only sufficient funding to hear two weeks of evidence in the whole of the 2000/2001 financial year. There is at least another 10-12 weeks of hearing time required before the claim is completed so that this announcement came as a shock to the claimants. They are in the process of considering their response including the possibility of seeking urgent interim remedies to protect their position until the claim can be completed. In terms of the nature of evidence being given, it is truly humbling for me as legal counsel, to work with elders who are so dedicated to the cause. They are people who care deeply about their environment and the degradation that is occurring. And yet, they are often labelled as radicals and separatists. Ignorance can sometimes be a wonderful tool for the oppressor. The following is a poem written by one of the claimants, Mrs Saana Murray of Ngati Kuri, in the 1960s, describing the pain, love and suffering for her land and people and her feeling of cultural oppression:
This poem also reflects the reality for many Maori that they also have shared Pakeha ancestry. It is not surprising that those who are a mixture of Maori and Pakeha (European) descent, almost invariably identify more strongly with their Maori side. Perhaps it is the sense of belonging to the land and the spiritual connectedness that explains this deep sense of feeling for being Maori. Qualities that are inherent in all indigenous and traditional cultures but sadly lacking in our modern western society. This is not to say that Pakeha cannot and do not feel a spiritual connection with the land, but that Pakeha can never state that his or her connection and cultural relationship with the environment has been actively suppressed. Without the rights of tino rangatiratanga (including rights of ownership, control and decision making), Maori are unable to exercise their obligations of kaitiakitanga (guardianship and protection) and manaakitanga (sharing and providing for others). How can Maori care for the land and its resources if they are denied ownership or control over it? For example, of the 66 million acres of land in New Zealand, some 64 million acres have passed from Maori into Pakeha ownership. This is a result of confiscations, dubious purchases, the operations of the Native Land Courts (designed to “Europeanise” customary Maori land title) and compulsory acquisition under the Public Works legislation. Without their land the Maori are nothing. Without their land they are cut off from their links to the past, the rich tapestry of who they are and where they came from. Today, gradual steps are being taken to return land to Maori tribes through the Governmentís Treaty settlement process. As one tribe has stipulated “as land was taken, so must land be returned”. But these settlements are achieved at a huge cost to the tribes concerned, not so much for what they are receiving but for what they are being asked to give up. As one tribal negotiator lamented “settlements are not about fairness and justice but about what is politically acceptable to the non-Maori majority who elect Governments”. Most of the settlements to date have returned to Maori the financial equivalent of between 1-3% of the total loss based on present day values. The Crown, in seeking its “pound of flesh”, insists that such settlements are “full and final”. But even then, such settlements are invariably slammed in the media as “HANDOUTS”. The public come to perceive Maori as a privileged class of people rather than an immensely disadvantaged group receiving small compensation for the loss and suffering endured over a 200-year period. What are Maori Seeking: A Tikanga Maori Framework of Protection (TMFP) It is critically important to the claimants that any remedies are built on a foundation of tikanga Maori or Maori customary values. Just “tweaking the edges” of the existing legislative regime and IPR system will not be acceptable to the claimants. It is true that aspects of the IPR system can be accommodated within a Tikanga Maori Framework. However, because of the ideological differences between IPR and “Indigenous Peoples Rights and Obligations” discussed above, we need to start from first principles. That means viewing any system of protection from a Maori cultural viewpoint; not something imposed from the outside. The claimants are still in the process of giving careful consideration to what such a system may look like, how it will be structured and how it will operate. But one thing is absolutely certain. That such a system must be owned and controlled by Maori and not simply another Crown agency set up by statute with members appointed by the Crown. These Crown imposed structures and processes have in the past, (with a few rare exceptions) been dismal failures for Maori. Past attempts to Europeanise, patronise and assimilate Maori and to otherwise control and direct their lives have all failed miserably. A Tikanga Maori Framework of Protection would have some or all of the following features: the system be developed by Maori; the system be based in tikanga Maori, reflecting Maori cultural values and ethos; inherent in this system will be the acknowledgement, protection and promotion of rights and obligations to manage, utilise and protect resources in accordance with Maori cultural values and preferences; flexibility will be very important. Whatever structure or structures are chosen will need to be flexible enough to take account of issues that affect Maori in a national sense as well as at the regional and local marae level. The structure must also accommodate the rights of individuals such as Maori artists, carvers, musicians and designers). How such a framework is mandated by Maori will be a vital and challenging ingredient. In New Zealand today there are many national bodies that represent Maori, including Maori Congress (an Iwi or tribal based organisation), New Zealand Maori Council (a statutory body), Maori Womensí Welfare League, The Confederation of United Tribes (based on the 1835 Declaration of Independence), and others. There are also various Iwi organisations and bodies, Land Trusts, Maori Incorporations and Marae trustees, to name a few. Indeed, one of the most challenging issues confronting Maoridom is the issue of mandate. Who speaks for the people? In a political sense, in terms of achieving unity within Maoridom, tribalism is a double-edged sword. On the one hand, tribes are fiercely protective of their individual cultures and identities. On the other hand, the same tenacity of character can be a barrier to achieving unity at a national level. This lack of unity has often played into the hands of successive governments, who have been adept at employing the tried and true strategy of “divide and rule”. A situation not unfamiliar to most of the participants at this Conference! In terms of the resourcing of the framework, the claimants would seek an allocation of funds from the Crown (as part of their remedies package), to undertake nationwide consultation with tribes and urban Maori to discuss the formation of a structure. Funding would also be needed to implement and administer the new body on an ongoing basis. Finally, there are considerations of enforceability. In order to enforce compliance with this new regime, some form of legal recognition and protection will be necessary within the current New Zealand legal system. But there may also be non legal codes of ethics, and protocols containing rights and obligations, designed to educate and persuade voluntary compliance with the TMFP. The TMFP might be responsible for: acting as a referral body to Iwi (tribes), hapu (sub tribes) or whanau (families) or individuals, once it is determined at which level of Maori decision making the relevant issue is most appropriately advanced. Where it was obvious that certain issues affected particular tribes, the issue would be immediately referred to that tribe to deal with. So, for example, if someone wanted to research the Pupu Harakeke (flax snail) they would have to deal with the Ngati Kuri people of the Far North. If it was a matter which affected Maori at a national level, then a national body could deal with and undertake research at that level; acting as a support agency for Maori tribes and organisations in the undertaking of their own research; liasing with mainstream government departments; consultative body with Maoridom. This would be a key component of the TMFP. Hui and consultation with Maori would need to take place on a regular basis; assisting Maori in the formulation of policies to assist them in their role as kaitiaki of their various taonga (treasured things). Policies might deal with issues of respect for cultural values, access, use and where appropriate (and sanctioned by the tribe), commercial exploitation. Such policies themselves would have to be flexible to take account of the different tikanga and relationship that each tribe or hapu has with the taonga within their own rohe (tribal territories); acting as a principal point of contact for those wishing to access and exploit traditional Maori knowledge of native flora and fauna for commercial gain; education about Maori cultural values and their application within a modern day context. This might include the general public, government agencies and the corporate sector. Benefits to Aotearoa/New Zealand Many more businesses in New Zealand are beginning to appreciate the “added value” and marketing opportunities that a distinctive Maori identity, Maori place names and traditions give to New Zealand businesses operating in the international market. As one New Zealand marketing strategist has observed:
Maori culture and imagery is a powerful branding tool for New Zealand. But Maori want to have control over how and to what extent this should happen. They do not want their culture or values denigrated or portrayed in an offensive manner. Accurate and culturally appropriate portrayal of Maori values or traditions will not only protect those values but also enhance the commercial value of any product it may be associated with. But it is for Maori to finally determine what is and what is not appropriate for commercial exploitation and how the benefits of that are to be shared. Maori self-determination of their own destiny, in dialogue and co-operation with their Treaty partner (but on an equal basis), would be beneficial for Maori but also enable Maori to make a greater collective contribution to New Zealand society as a whole. This is perhaps what Chief Judge Eddie Durie intended when he said:
The CBD Process and Article 8(j) The maintenance of cultural diversity is now regarded by the world at large as necessary to the maintenance of biological diversity. However, one has the impression that this acknowledgement is often grudgingly given and is more often than not perceived as an impediment to progress in a modern society. Even though Article 8(j) talks about respecting, preserving and maintaining traditional knowledge as it relates to sustainable use of biological diversity and that this must be done with the “approval and involvement of the holders of such knowledge”, these worthy sentiments are overridden by the caveat that such protections are “subject to national legislation”. In other words, each Contracting Party (national government) is only obliged to respect and maintain such knowledge “as far as possible and as appropriate” to their own countryís circumstances. The voice of indigenous peoples are invariably marginalised because they do not get to vote in the decision-making processes of the CBD. One could argue that if indigenous, traditional and local communities are responsible for the preservation of 90% of the Earthís biological diversity, that those people should be given greater standing in the decision-making process. Perhaps there is the same fear at this level as permeates New Zealand society. We think we understand the value of your culture to us, but we want to control how it is used.” Whilst this may not be true of all Parties, it is certainly true of most. Until indigenous peoples are given a greater role in the decision-making processes, the longer it will take to achieve what are the most important objectives of the CBD; namely the conservation of biological diversity and the sustainable use of its components (Article 1). Having said that, there are some positives that have emerged from the CBD process in recent years. The most obvious is the establishment of the Ad Hoc Open Ended Inter Sessional Working Group on Article 8(j) and Related Provisions ,(“the Article 8(j) Working Group”). But, although the work of that group is to be commended, there is still a feeling that ultimately the destiny of traditional knowledge holders is in the hands of those who are “Parties” as opposed to those (such as indigenous and traditional peoples), who are just “Observers” at the COP. Article 15.1 of the CBD, is a sobering reminder that sovereign rights over natural resources rests with the Parties, not indigenous peoples. What needs to be confronted by the Parties and the Secretariat of COP (but will not be for obvious political reasons), is that indigenous rights and obligations are inseparable from ownership of genetic resources. In this regard, it is pleasing to note from the Report of the Panel of Experts on Access and Benefit Sharing (UNEP\CBD\COP\5\8, 2 November 1999, paragraph 131(c)) that they identify: “(c) a need to ensure that granting intellectual property rights does not preclude customary use of genetic resources and related knowledge;” and further at paragraph 133(b): “(b) making provision to ensure the continued use of genetic resources and related knowledge.” in relation to IPR and Access and Benefit Sharing Agreements. Similar sentiments are expressed by the World Intellectual Property Organisation (WIPO) in their statement to the Article 8(j) Working Group at Seville, Spain, March 27-31, 2000:
Whilst the observations by the Panel of Experts and the work of WIPO in particular, are welcome advances, there are nevertheless some fundamental issues of conflict that remain to be addressed. The first is that it is not just customary use but also ownership; and control that is important to indigenous and traditional peoples and local communities. The next major point of conflict is that the rights and obligations of indigenous peoples are philosophically at odds with the western concept of resource exploitation and intellectual property rights. For example, within the tribal territory of Ngati Kuri in Parengarenga Harbour in Northland, Aotearoa, silica sands are being mined and commercially exploited for the making of glass. The magnetism of the silica sands attract and guide the kuaka migrating from Siberia to Aotearoa. Practically all her life, Mrs Saana Murray has been fighting to protect those sands from over exploitation and the importance those sands have for the surrounding ecosystems. The sands also have importance because of Ngati Kuriís customary relationship with the kuaka. These are all treasured taonga to Mrs Murray and her people. The Government and its agencies grant the licenses for the exploitation of these resources (in the exercise of their self-proclaimed “sovereign rights over the natural resources”), and the indigenous and local communities can do little about it. Even the Resource Management laws in Aotearoa (which are by world standards quite advanced), are wholly inadequate to protect traditional and customary rights of Maori. It seems that indigenous and traditional communities are expected to preserve and maintain the Earthís biological diversity (as they have done for thousands of years), but only to the extent that governments and multi nationals will allow them to do so. Until this reality is grasped by the Parties, efforts to effectively protect traditional knowledge will remain largely ineffective and at best, tokenistic. However, if the COP agenda is to exploit rather than protect traditional knowledge, then there would seem to be little incentive for the Parties to “grasp the nettle”. I have read the WIPO statement and find it very helpful in summarising what are quite complex issues. I also acknowledge that it makes good sense to involve international organisations such as WIPO in the implementation of the CBD and Article 8(j) in particular. But how does WIPO and COP (and more importantly Indigenous Peoples) propose to deal with what may be seen as an inherent conflict in WIPO (and WTO) driving this process. For example, as noted in the Introduction to the WIPO statement to the Seville meeting of the Working Group on Article 8(j):
It goes on to note that the definition of “intellectual property” is defined in the Convention Establishing the World Intellectual Property Organisation, 1967 and includes rights relating to: literary, artistic and scientific work; performances of performing artists, sound recordings and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs; trademarks, service marks and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. There exists an interesting juxtaposition between the role of WIPO on the one hand to promote and protect the existing IPR systems whilst at the same time taking a lead role in the development of sui generis systems for the recognition and protection of traditional knowledge. Although it is arguable that the definition of “intellectual property” could be extended to include aspects of traditional knowledge and indigenous value systems, I think this is to put a much strained interpretation on that definition. The definition under the Convention could be amended to specifically include “traditional knowledge systems and cultural values”. However, this does not address my central argument that the two systems of IPR and IPRO would appear to be fundamentally and philosophically at odds with each other. This is not to argue that aspects of the IPR system are not useful for the protection of traditional knowledge and values. My point is that it must be indigenous peoples who are driving this process and deciding for themselves what is and is not necessary for the protection of their knowledge and the granting of access to it. To have it any other way, would be to have the “tail wag the dog”. Indigenous and traditional peoples are also limited in the effectiveness of their input to the process through lack of funding. Whilst they are able to participate in the Working Group on Article 8(j), limited funding is a barrier to effective participation. For such participation to occur, indigenous and traditional peoples should be allocated sufficient resources and funds through either the CBD and/or the United Nations process to ensure that they have more ownership and control over the direction in which the process is moving. Although, in the current climate, this may seem an unrealistic expectation, it is certainly not an unreasonable one. Maori support the call for a new approach for the recognition and protection of their rights and obligations. For this reason, they are likely to support the recommendations of the Article 8(j) Working Group, in relation to the development of sui generis and other appropriate systems for the protection of traditional knowledge. However, they will insist in being directly involved in any decision-making processes to develop and implement such systems for protection of matauranga Maori in Aotearoa/New Zealand. This accords with the requirement under Article 8(j) that the application of traditional knowledge be undertaken with the “Ö approval and involvement of the holders of such knowledge.” It is not acceptable for the Crown to implement its own policy agenda in this area whilst at the same time the Wai262 claimants face the prospect of yet further delays in completing their already long running claim. On a global level, the issues are larger and even more complex. However, the Wai262 claim can be seen as a microcosm of the global struggle confronting indigenous and traditional peoples seeking protection, not just of their traditional knowledge, but of their whole cultural values system. Just as the Wai262 claimants are confronted with delays, there will, at the current rate of progress, continue to be considerable delays in implementing protection mechanisms for traditional knowledge under the CBD process. The longer the delays, the more damage that is being done and the greater the prejudice to indigenous peoples. For this reason, the Maori claimants have been calling for interim protection measures until the claim can be properly heard. Such measures can include provisions in legislation protecting the Treaty interests, embarking on direct negotiations with the government, the call for moratoriums, educative programmes, and voluntary codes of ethics (e.g. the International Society of Ethno biologists Code of Ethics and Conduct, as finalised and ratified at the 5th Congress of the ISE held in Whakatane, Aotearoa in 1998). Similarly, if the process of developing and implementing sui generis mechanisms under Article 8(j) and related provisions is going to move with glacial speed, then there may be good reason to argue for a recommendation from COPV for interim measures to be adopted by national governments until such systems are fully developed and in place. Yesterday, I had the pleasure of listening to the presentation of Mr Brendan Tobin at the GBF on traditional knowledge. I totally endorse his call for the COP and the Secretariat to move beyond “shuffling paper” (my words, not his), and get down to the real business of making concrete recommendations that will expedite the development of mechanisms that “respect, preserve and maintain knowledge, innovations and practices ”, of indigenous peoples. From a Maori perspective, once that is achieved, only then should we start to talk about “equitable sharing of the benefits”, arising from the utilisation of such knowledge and practices.
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| Published in In Motion Magazine April 22, 2001. |
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