Day Two: Thursday 18 June 1998
Understanding Indigenous Cultural and Intellectual Property Rights:
Implications for Environmental Risk Management
Speaker: Maui Solomon
Preface
I have been invited to speak to you today about the nature of indigenous
cultural and intellectual property rights and how this relates to environmental
risk management. I am also recorded on the programme as senior counsel
for some of the Wai 262 claimants. That is the flora and fauna claim that
is currently being heard by the Waitangi Tribunal.
I wish to make it clear that whilst I will refer to the Wai 262 claim
and its relevance in the context of this discussion, the views I express
are entirely my own and are not necessarily shared by the claimants. I
am speaking to you today as an individual and not as counsel for the claimants.
Introduction
The starting point of my discussion is section 4 of the Hazardous Substances
and New Organisms Act 1996 ("the Act"). It states:
Purpose of Act
The purpose of this Act is to protect the environment, and the health
and safety of people and communities, by preventing or managing the adverse
effects of hazardous substances and new organisms."
Protection of the environment is fundamental to Maori people in their
role as kaitiaki and tangata whenua. But Maori, like every other culture,
use and manage their environment. They develop environmental management
techniques for doing so such as the use of rahui (prohibitions on the
use of natural resources for certain periods). But there was a very careful
balance between man and their natural world. These practices were regulated
by ritual and customs. Maori people consider they are one and the same
with the environment. Thus, whakapapa demonstrates the direct genealogical
link between Tane Mahuta (God of the Forest) and Tangaroa (God of the
Sea) down to human beings. Papatuanuku is the Earth Mother and Ranginui
is the sky Father. So to violate or degrade the environment, is to violate
one's own parents.
For example, before chopping down a tree, permission had to be sought
from Tane Mahuta. Before taking a child of Tangaroa, permission had to
be sought from the deities and they had to be appeased. Tributes and offerings
were made in acknowledgement of reciprocal rights and obligations.
In this way, the balance between humankind and nature was maintained and
respected. These practices are still observed today by many Maori in their
local communities.
New Organisms and Environmental Impacts
New organisms introduced by Maori in pre-European days were limited to
the kiore (rat), the kuri (dog) the kumara and the gourd. Of these only
the rat had an impact on the environment but as it was predominantly vegetarian,
its impact on the native fauna was minimal. It was also a source of food
for the early Maori.
Early Maori did have an impact on the environment and the native flora
and fauna. But that impact was minimal compared to the post-colonisation
environmental impacts. Lessons were learnt from those early times and
hence the practices of rahui being imposed on areas where resources were
becoming depleted. There are lessons that New Zealand can still learn
from Maori in this regard if they have a mind too. Environmental protection
and sustainable management didn't start with the Green Movement and the
establishment of the Department of Conservation and Ministry for the Environment.
Maori have been doing it for hundreds of years.
The range of hazardous substances and new organisms in New Zealand today
is prolific. When I did a secondment at the Ministry for the Environment
in 1991, there was some 7-8,000 contaminated sites identified in New Zealand.
I understand that the figure may now be as high as 25-30,00#. Those sites
are leaching chemicals and other impurities into our environment. Maori
have been at the forefront of opposition to polluting the environment
and trying to remedy the adverse effects of industrial pollution. For
example, one of the first Waitangi Tribunal claims heard in the early
1980's was brought by Te Atiawa to prevent the despoliation of their fishing
reefs around the Taranaki Coast from the outfall of the local freezing
works (Motunui Claim). Similarly, the tribes of the Whanganui river have
for the past 150 years fought to preserve the spiritual integrity of the
river.
In presenting evidence at the Waitangi Tribunal on behalf of the Whanganui
tribes, Hikaia Amohia had this to say about the damage that pollution
was causing to the river:
"My people personified the River as an entity allied to our ancestor,
Maru Waranui, with the spirit or taniwha of the River, a personification
of the spirit of the River. Those who cast pollution on to the spirit
of the River are casting it on to the spirit of my people.'-
The Whanganui River Maori Trust Board spent 84 days in the Planning Tribunal
and the High Court objecting to Electricorp's lowering of the Whanganui
River for hydro development. Tribes from the tip of the North Island to
the bottom of the South and out to Rekohu on the Chathams, have for the
past 150 years voiced their concerns about ongoing environmental degradation.
It is a sad fact that there is not enough attention given by the media
to efforts made by Maori to protect New Zealand's natural heritage. It
is obvious from the hundreds of witnesses who have appeared before the
Tribunal in various claims, of their deep and abiding concern for the
protection and care of Papatuanuku and her children. It is galling to
me that the media seem to have a fixation portraying the Treaty claims
process in a negative light.
The Treaty claims process need not be feared. As the former Prime Minister
the Right Hon. Jim Bolger recently observed: "its ignorance of the
Treaty of Waitangi which breeds fear". I quite agree with that sentiment.
The claimants assert that there is a particular Maori world view associated
with the natural environment and their association with it which has been
actively suppressed or simply ignored by the legal and political systems
in this country for the past 150 years. There is evidence over the past
decade that these concerns are beginning to be addressed but in an ad
hoc way. Section 6(d) and 8 of the HSNO Act, provisions in the Resource
Management Act ("RMA") and conservation legislation are some
examples.
Unfortunately, from a Maori perspective, much of these legislative provisions
are mere tokenism. For example requirements to "take into account",
"have regard too" will often (and usually) mean that Maori concerns
are relegated to the bottom of the heap of factors that statutory bodies
are required to consider when assessing proposals or applications. That
has certainly been the experience of Maori under the Resource Management
Act. Even where strong wording such as "give effect to the principles
of the Treaty" are used (for example s.4 Conservation Act), Maori
still face an uphill battle in trying to have their voice heard and take
notice of. Inevitably, litigation is the only fall back position that
Maori have if statutory bodies and local authorities are going to take
them seriously. That places a huge burden on Maori who lack the financial
resources to fight the big companies and the system.
Difficulties also arise when those statutory authorities lack the depth
of understanding of what is being put before them by Maori people. It
is not sufficient that statutory decision making bodies merely have policy
advisers, they need to have sitting alongside them people with this level
of understanding and expertise of what Maori people are talking about.
What the Wai 262 Claim is About
The Wai 262 claim is about the imposition of a western set of values in place of Maori values. The Treaty promised something quite different. It promised a partnership. It promised a mutual respect, obligations and responsibilities between Pakeha and Maori. It has not delivered on that promise.
The claim raises issues of protection, control, management and ownership
of indigenous flora and fauna and associated taonga such as Maori designs
and symbols and customary practices. The claim is concemed to ensure Maori
control over the utilisation and access to their traditional knowledge
associated with these taonga.
The claim also expresses concerns over genetic manipulation and modification
of plants, animals and indeed humans. I discuss this a bit later.
Maori values and customary systems do not sit easily within the existing
legal framework of Intellectual Property Rights ("IPR"). For
example, Maori view their customs and practices as taonga that are the
collective right of whanau, hapu and iwi. These rights are inter-generational.
They are mostly collective rights but may also be in, some circumstances,
exercised by individuals. The Intellectual Property Rights system developed
in industrial Europe was established to protect private property rights
for economic reasons. The contrast between the two sets of values are
immediately evident. What the Wai 262 claim seeks to do is to illustrate
these differences and to seek a better understanding and mechanisms for
recognising and protecting Maori knowledge systems and customary practices.
Trying to force them into the existing IPR system will not work
The Wai 262 claim was lodged back in 199#. The claimants represent the
tangata whenua from six tribal groupings, who exercise rangatiratanga
within their respective rohe or tribal areas.
In essence the Wai 262 claim seeks to give Maori the ability to define
for themselves the parameters of their cultural, customary and intellectual
heritage rights and how to control how those rights are used and developed.
Thus, the claim is concerned with the relationship of Maori with their
taonga and in this regard is one of the matters relevant to the purpose
of the HSNO Act under section 6(d) which requires all persons exercising
powers under the Act to take into account:
"the relationship of Maori and their culture and traditions with
their ancestral lands, waters, sites, waahi tapu, valued flora and fauna
and other taonga."
The claimants assert that there is such a relationship between Maori
and their taonga and that relationship has been eroded and damaged through
the actions and omissions of the Treaty partner. Remedies are sought to
reinstate that relationship to its rightful position in New Zealand society.
For ERMA (or any other persons exercising powers and functions under the
Act) to fulfil its obligations under s.6(d) it must first understand what
LS the relationship between Maori and their taonga. How can that relationship
be taken into account? To do this with any integrity, ERMA must actively
seek out the contribution of those kaumatua and others who are the repositories
of that knowledge. And there in lies one of the legal dilemmas clearly
raised by Wai 262.
The claimants believe that the present regime of intellectual property
rights is insufficient to provide the protection required if this body
of knowledge is to be made available to a Crown agency such as ERMA. Who
will have control over that knowledge? How is the knowledge to be used
in the future? Who will decide how it is used? What is it to be used for?
How will there be any assurance that those accessing and using the knowledge
will do so with the appropriate understanding of the cultural mores? The
list goes on.
It is also important to Maori that their concepts, values and traditions
are not reinterpreted through a eurocentric "filter" system.
For example there is already some evidence of this happening by the various
interpretations being given to the term "kaitiakitanga" under
the Resource Management Act. There are local authorities and others who
assert that they now exercise kaitiakitanga in relation to natural resources.
These concepts and philosophies are the last cultural capital belonging
to Maori which they hold very dear. Much has already been expropriated.
This explains the extreme reluctance on the part of many Maori kaumatua
and kuia to publicly share knowledge that has been handed down to them
from their tupuna. Witnesses before the Waitangi Tribunal have talked
of the many rituals and wananga that must be gone through to ensure that
knowledge is passed on to the right person and in the right manner. They
regard this knowledge as very tapu. But equally they appreciate the importance
of sharing this knowledge in order that a greater understanding and recognition
of that knowledge can be attained by those in positions of making decisions
about their lives. But this must be done in accordance with their own
kawa or customs and with their prior informed consent.
Indigenous lawyer Moana Jackson has said:
"Perhaps the most fundamental intellectual property right possessed
by an indigenous people is the right to define what their intellectual
property right is: the right to determine the extent and meaning of the
body of knowledge which shapes and is in turn shaped by, their cultural
heritage. "For centuries Maori people exercised the power to define
what their taonga were, and to decide what knowledge (or expressions and
symbols of knowledge) were deemed worthy of transmission and protection.
Such knowledge covered all areas of life, from science to spirituality,
from medicine to music, from history to handcrafts, from astronomy to
art, from the biodiversity of plants to the beauty of birds. "It
was a holistic body of knowledge expressed in tikanga that enabled Maori
to describe their place in the world and to articulate a safe and specific
sense of being. It was a property constantly defined and evaluated by
the people themselves within their cultural context. It was in essence
the expanding sum of the peoples knowledge and the complex philosophies
which determined both its discovery and its use. "The power to define
this intellectual property was a cultural act which enabled iwi to decide
what knowledge was important either spiritually, culturally or economically..."[1]
An Indigenous Perspective of Intellectual Property Rights
The term "intellectual property rights" (IPR) is itself perhaps
inappropriate for describing what it is that Maori seek to have recognised
and protected. As noted above IPR are associated with private property
rights which are usually the result of individual or corporate effort
and have elements of novelty and inventiveness. By contrast, indigenous
rights are communal in nature and have been passed down over many hundreds,
if not thousands of years. These rights are connected in a continuum from
the deities of creation to the ancestors and down to the present day generations.
As noted by Madame Erica-Irene Daes (Special Rapporteur of the SubCommission
on Prevention of Discrimination and Protection of Minorities)[2]
"...Indigenous Peoples do not view their heritage in terms of property
at all - that is something that has an owner and is used for the purpose
of extracting economic benefits - but in terms of community....for Indigenous
Peoples heritage is a bundle of relationships, rather than a bundle of
economic rights. The "object" has no meaning outside of the
relationship, whether it is a physical object such as a sacred site or
ceremonial tool, or an intangible such as a song or a story. To sell it
is necessarily to bring the relationship to an end."[3]
One international authority on indigenous rights (Dr Darrell Posey),
has co-authored a text seeking to overcome this definitional problem by
dropping the term "property" in IPR, preferring instead the
term 'traditional resource rights'.[4] "Traditional" refers
to cherished practices, beliefs, customs, knowledge and cultural heritage
of indigenous and local communities who live in close association with
the earth; "resource" is used in its broader sense to mean all
knowledge and technology, esoteric and spiritual qualities, tangible and
intangible sources that, together, are deemed by local communities to
be necessary to ensure healthy and fulfilling lifestyles for present and
future generations; and "rights" refers to the basic inalienable
guarantee to all human beings and the collective entities in which they
participate to achieve and maintain the dignity and well-being of themselves,
their predecessors, and their descendants.
Another author, Tony Simpson refers to the term "indigenous, cultural
and intellectual property" as an "oxymoron".
It is a term which applies that the cultural heritage of indigenous peoples
can be protected by a reductionist Western legal philosophy that separates
culture from knowledge and deals with them in different ways. It is also
a term which suggests that Western property law can be adapted to confer
on individuals (both indigenous and non-indigenous) exclusive ownership
and monopoly rights to culture, while at the same time ensuring that the
broader community has access to indigenous peoples' heritage. Many aspects
of the conceptual basis which underpins intellectual property law are
fundamentally inconsistent with the beliefs and values of indigenous peoples,
and therefore offer them very inadequate levels of protection. For example,
in contrast to Western legal systems, indigenous cultural and intellectual
property is generally not owned or monopolised on an individual basis,
but is a collective right that extends to the community as a whole. In
saying this, it is important to note that each indigenous community determines
the balance between individual and collective rights in its own community;
it would be misleading to typify indigenous rights as only being of an
individual or collective nature. Although key individuals may bear particular
responsibilities in relation to the use and management of certain elements
of that 'property', their exercise of authority must be in accordance
with the laws and customs of that person. They cannot for example, alienate
that property from the community by transferring ownership to another
person(s) because that knowledge or cultural expression is part of their
collective identity and has meaning in the context of their community
- not outside it. In spite of these inadequacies and deficiencies of existing
intellectual property law in relation to the protection of indigenous
cultural and intellectual property, indigenous peoples are turning to
intellectual property law to protect their knowledge, traditional lifestyles,
cultural heritage and biological resources. Indigenous peoples' use of
intellectual property law does not necessarily indicate indigenous support
for these mechanisms. Rather it is largely as a result of the fact that
there is increasing international pressure on States to implement domestic
legislation that will guarantee intellectual property rights, and little
attempt on the part of governments to explore alternative legal mechanisms
to adequately protect indigenous cultural and intellectual property. In
view of these criticisms of the term ' indigenous cultural and intellectual
property', this paper believes it is important that indigenous peoples
develop a terminology or language which encapsulates the 'knowledge, innovations
and practices' (to use the terminology of the Convention on Biological
Diversity (Article 8(j) which they want to protect. The development by
indigenous peoples of appropriate terminology is important to ensure that
they understand what issues and rights are actually being referred to
in the debate about their 'cultural and intellectual property', without
using legalistic, vague or culturally insensitive languages. It is also
a means by which indigenous peoples could be brought into the debate in
a more meaningful way, thereby opening up the possibility that indigenous
peoples themselves can find a way through the complex issues which Western
legal systems have failed to grapple with."[5]
From a Maori perspective, cultural and intellectual property can best
be defined
"'taonga tuku iho' or the precious things which explain and make
sense of their world, the things which their world gives to nurture and
protect them, things which give spiritual or artistic expression to their
sense of being".[6]
The Western intellectual property rights regime does not, and in my opinion, cannot, in its current form, accommodate this holistic world view of indigenous peoples rights and relationships.
A New Model Required
As Dr Posey and others have argued, this gives rise to the need for a
sui generis system to recognise and protect indigenous peoples, their
resources and their relationship with those resources. In other words
a system that is unique which does not belong to an existing category
of IPR. Such a system would involve the recognition of tribal intellectual
rights that would recognise the existence of knowledge that is communally
owned and shared.
One model called "community intellectual rights" was suggested
in a Third World Network discussion paper in 1994 as a means of bringing
about the evolution of new criteria for claiming patent rights compatible
with cultural values and practices of indigenous people. Posey and Dutfield
suggests that the purpose of such a model would be to prevent the "privatisation
and usurpation of community rights knowledge through existing definitions
of innovation"
To meet the novelty or innovation requirement of regular patent protection
criteria, indigenous peoples are described in the 1994 paper as "innovators"
because the knowledge they have accumulated has been unknown to the outside
world. The Third World Network paper suggests the establishment of a "community
register" in which the local people could document all known plant
and animal species with full details of their use. The community would
then be in a position to refuse access to the register or set conditions
under which access would be allowed.
Individual proprietary rights in the granting of exclusive monopolies
to the inventor is essential to the notion of the IPR system. The monopoly
provides the financial incentive for inventors to continue advancing innovation.
The GATT:TRIPS Agreement, which New Zealand acceded to in 1994, has further
enhanced the need to obtain individual proprietary rights. With the encouragement
of free trade the granting of proprietary rights over all that has commercial
or useful value is regarded as a priority. The obstacle for Maori, under
the present IPR system, is that it fails to provide protection or means
of advancement for communal creators of traditional Maori knowledge which
has evolved over a 1000 years. The Western IPR system is regarded as inappropriate
to protect Maori interests.
For example, the tendency of the IPR system to divide property into three
separate categories of intellectual, cultural and scientific is contrary
to the holistic view of Maori people.
As noted by Madame Daes:
"...the distinction between cultural and intellectual property is,
from an indigenous peoples view point, an artificial one and not very
useful. Industrialised societies tend to distinguish between art and science
or between creative inspiration and logical analysis. Indigenous peoples
regards all products of the human mind and heart as inter-related and
as flowing from the same source: the relationships between the people
and their land, their kinship with other living creatures that share the
land, and with the spirit world. Since the ultimate source of knowledge
is the land itself, all of the art and science of specific people are
manifestations of the same underlying relationships, and can be considered
manifestations of the people as a whole."
It is this inter-relation between the human mind and heart, the relationship with the land and other living creatures, together with the belief of their spiritual world which together create the concept of "community property" for indigenous peoples. Maori are no exception in this regard.
Environmental Risks and the Treaty
Maori are concerned about the risks to the natural environment from pesticides
such as 1080 poison to control possums, the destruction being caused by
possums to the native bush and from the introduction of viruses such as
the rabbit calcivirus to control the rampant rabbit population. Evidence
has also been given to the Tribunal about the effects that pesticides
and herbicides are having on rongoa Maori practices and native plants
that Maori traditionally rely on for healing purposes.
But it is not just the physical health of the ngahere (native bush) that
concerns Maori. It is also the spiritual health of the environment. For
example, a Maori traditional healer cannot simply go to any stand of bush
and gather plants for healing. He or she can only go to a particular area
that he or she is familiar with and knows the plants. Indeed, evidence
was given by one kuia that she knew all of the plants in her bush and
that they all knew her. Even plants labelled as "weeds" had
curative properties.
Some of these kaumatua and kuia have a remarkable knowledge that they
regard as a gift from the creator. That knowledge is not to be abused
or commercialised. Indeed most, if not all, refuse to take financial payments
for the services they perform. These services are performed for Maori
and Pakeha alike. Whoever is in need. But because of the special spiritual
relationship between themselves and their plants and animals, the payment
of cash for their services would diminish the curative properties and
thus their own healing powers. This is perhaps another example of a fundamental
philosophical difference between the existing IPR system and the Maori
based value system.
Indeed, Darrell Posey observes in his book that some $USD40 billion in
revenue is generated worldwide each year by pharmaceutical companies and
multi national from pharmaceutical products derived from knowledge obtained
from indigenous and local communities around the world. There are organisations
worldwide including the International Plants Genetic Resource Institute
which have established databases for collecting plant genetic material
and associated traditional knowledge and mythologies associated with that
material. This material and information is then sold or distributed to
agricultural and multi national organisations throughout the world. Maori,
as with indigenous peoples elsewhere, are particularly concerned at the
growing interests and exploitation of their traditional knowledge of plants
and medicines.
Maori are also concerned about the wholesale export of plant genetic material
out of New Zealand. For example, in January of this year the Royal Botanic
Garden, Edinburgh, sent a 6 week expedition to New Zealand with a brief
to collect as wide a range of native species from as many varying habitats
as possible throughout New Zealand and the Chatham Islands. Seeds and
selected living specimens were also to be collected. The purpose behind
the expedition was to increase the RBGE's holdings of New Zealand plants
for use in the UK.
There was no known consultation with Maori or the claimants.
A report to the Australasian Wildlife Management Society in 1995 (discussing
submissions made to the New Zealand Conservation Authority as a result
of meetings around New Zealand) noted that:
"The use of medicinal plants for rongoa / natural medicines was a
major concern for Maori at all the hui and meetings up and down the country,
but it was virtually ignored by non-Maori respondents. Possibly the Pakeha
public are not aware of these kind of uses for native plant species. However
in Maori communities natural health and medicinal traditions are increasingly
widely supported. Access to adequate supplies to rongoa materials and
protection of these resources on the conservation estate or other public
lands are major priority. Many Maori gave painful testimony of heedless
destruction or damage to such plant resources by councils or forestry
developments."
Modem day access to traditional Maori medicines are still of great importance
to Maori people. There is also a growing awareness generally in New Zealand
as elsewhere in the world of the use and importance of traditional methods
of healing and products developed as a result of access to knowledge of
indigenous and traditional communities.
However, access to traditional knowledge of medicinal and other useful
properties of plants are perceived as being under threat by Maori, not
only through environmental degradation, but also through a process known
as "bioprospecting". Bioprospecting entails the identification
of new pharmaceutical and chemical compounds that form the nucleus for
new drugs, cosmetics, building materials, fertilisers, repellents, insecticides,
dyes, soaps and other useful products. Biodiversity prospecting is the
scientific evaluation of properties of flora and fauna for scientific
and / or commercial reasons. New Zealand is particularly concerned with
this issue in regards to biological resources contained within the Conservation
Estate.
There are undoubtedly significant benefits of increased access to traditional
knowledge and plant varieties. Gene manipulation can allow disease resistant
crop varieties to be developed for agricultural purposes, and it can enable
the production of crop varieties which carry greater productivity and
value to farmers. Traditional plant varieties of crops and traditional
knowledge of medicinal and other useful properties of plants and animals
provide significant benefits to the economic development of countries.
On the other hand, genetic manipulation and the use of traditional plants
and knowledge, with little or no regard to the rights of the indigenous
people or local communities from whom that knowledge is being extracted,
can produce intellectual property claims which are offensive, contrary
to morality, and destructive to the communities and people concerned.
Moreover, such research is often carried out in the absence of the prior
informed consent of the people concerned and without compensation.
Many Maori are also concerned that by genetically manipulating plants
may weaken their natural and curative properties. But there are also spiritual,
ethical and moral issues that need to be considered. There is the relationship
aspect that must be considered at the time of any proposed introductions
of new organisms or hazardous substances. The effects on Maori cultural
and spiritual beliefs is an adverse effect that needs to be taken into
account in appropriate circumstances.
The more dubious side of genetic manipulation was brought home to me at
a recent conference I attended on the Convention of Biological Diversity
in Slovakia. Attached is an article published in April 1998 by the Royal
Advancement Foundation International (RAFI). It tells of a patent that
was issued in March of this year to the US Department of Agriculture and
an American cotton seed company, Delta and Pine Land Co., over a technique
that genetically alters seeds so it will not germinate it if re-planted
a second time. The article states that technology aims to prevent farmers
from saving seed from their harvest to replant the following season. Because
of its sinister potential, RAFI have dubbed the technique "terminator
technology".
It is this kind of genetic engineering as well as the patenting of human
gene cell lines that has real concerns to the Maori claimants. For example,
the human genome project is dedicated to collecting DNA samples of all
of the world's indigenous peoples who are considered to be in the "threatened
with extinction" category. Genetic samples are collected and put
into a database. What that database will be eventually used for one can
only speculate. But the permutations are potentially scary. Already, one
US company, applied for and has obtained a patent over the DNA cell line
from a tribesman from the remote parts of Papua New Guinea. The company
had discovered that the cell showed some resistance to leukaemia. Although
there may be medicinal and economic benefits to be gained, there are enormous
issues - ethical, moral and cultural that need to be addressed.
In New Zealand the establishment of Te Pu Hao Rangi Maori Culture and
Resource Centre Trust is an endeavour to advance Maori knowledge, particularly
pertaining to traditional Maori plant use and development. This Trust
was established under the auspices of Mrs Del Wihongi, one of the principal
claimants under the Wai 262 claim. The research undertaken by the Pu Hao
Rangi Trust aims to promote and display the wealth of plants of traditional
use, to nurture the knowledge, practice of skills and wisdom based on
those traditions, and contribute to Maori cultural development by undertaking
research into selected aspects of Maori plant use and traditional information.
Plot trials are being carried out using Maori techniques on selected variety
of crops, in particular kumara. For Mrs Wihongi and the other claimants,
it is fundamental that the interests of hapu and iwi are recognised and
protected in these resources and their future use and development.
Principles of the Treaty
I next wish to talk about the principles of the Treaty of Waitangi. I
have already mentioned earlier that I consider the fluffy language of
"take into account" insufficient to protect Maori rights and
interests in the legislation. But these are the words in the Act which
ERMA must work with. So what do they mean in practice?
One of the central principles of the Treaty is the guarantee to the Crown
of kawanatanga - the right to govern. There is little doubt that this
principle has been fully expressed in the HSNO Act. ERMA, a specialist
statutory body, holds the sole responsibility for consent procedures relating
to the importation, containment and use of hazardous substances and new
organisms. The Minister for the Environment is responsible for the overall
management of the procedures under the Act. The Governor-General is given
the power to make regulations on a wide range of matters.
This is kawanatanga, alive and kicking.
Another major principle of the Treaty of Waitangi is the guarantee to
Maori of their rangatiratanga over their resources. As mentioned above,
the recognition of rangatiratanga in terms of ownership and control by
Maori over their resources has been virtually non-existent. Even today,
under the RMA, there is not one local authority in New Zealand that has
transferred powers to an Iwi authority in relation to managing a heritage
protection site, despite having powers under the Act to do so. New Zealanders
appear to have great difficulty in the notion that Maori should have management
functions at a local let alone a national level.
One is left in no doubt as to which principle of the Treaty is being taken
into account, and which is being ignored. In that sense, Wai 262 does
have real implications for the way risks to our environment are managed.
There is a large gulf between what is perceived to be "acceptable"
Maori involvement in the management of the environment, and what the claimants
believe is the level of control guaranteed to them through the exercise
of their rangatiratanga
New Zealand's international obligations
Section 6(f) requires New Zealand's international obligations to be taken
into account in achieving the purpose of the Act. An international instrument
with which the Wai 262 claimants are particularly interested is the Convention
on Biological Diversity (CBD). New Zealand is a signatory to that convention.
With the rapid development in biotechnology and the increased research
on DNA structures, all lifeforms are now capable of alterations and cloning
in any manner which humans choose. The HSNO Act specifically recognises
this in its definition of "new organism" in section 2 as including
a genetically modified organism, not previously approved for release into
New Zealand. Biodiversity raises ethical issues such as the effects of
obtaining exclusive monopolies over lifeforms; the complexity of applying
intellectual property systems to lifeforms; the recognition of contributions
of many generations of indigenous peoples and local communities in shaping
those lifeforms; and the need to balance the interests of society as a
whole for continuous innovation against the interests of the individual
inventor for reward and compensation.
The Convention on Biological Diversity promotes the conservation of biological
diversity and its sustainable use. It also seeks fair and equitable sharing
of the benefits from the use of genetic resources. The role of indigenous
communities and environmental management is acknowledged under Article
8(1) of the Convention which requires Nation States to:
"Respect, preserve, and maintain knowledge, innovations and practices
of indigenous and local communities, embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity
and promote their wider application with the approval and involvement
of the holders of such knowledge, innovations, and practices and encourage
the equitable sharing of the benefits arising from the utilisation of
such knowledge, innovations and practices."
However as the Convention is subject to the laws prevailing in each signatory
country, this limits the degree of protection that is afforded to indigenous
peoples.
Whilst the Convention may be viewed as promoting international sharing
of resources, the increasing trend of commercialising goods throughout
the world is having a major impact on research and gives rise to the need
to resolve conclusively who has access to, and ownership of, original
material which is the subject of research, as well as any modified forms
which may be produced as a result of research and knowledge.
At the recent convention of the parties to the CBD which I attended in
Slovakia, there were representatives of indigenous peoples and local communities
from all over the world endeavouring to negotiate with governments the
establishment of the Working Group to implement Article 8(j). Attached
with this paper is the text of the decisions adopted by COP IV in May
199#. From this can be seen the growing international recognition and
importance placed on traditional knowledge and its importance to the preservation
of biological diversity.
I have also attached by way of background information a copy of the report
produced by the Workshop on Traditional Knowledge and Biological Diversity
convened in Madrid, Spain (24-28 November 1997) on traditional knowledge
and biological diversity (UNEP/CBB/TKBD/1/2). There are many other international
instruments and conventions including the draft Declaration on the Rights
of Indigenous Peoples and the Covenant on Civil and Political Rights which
Maori and other indigenous peoples look to for recognition and protection
of their rights and customary practices.
Maori have also expressed concerns to various government departments and
in the context of Wai 262 about access/ownership issues that arise under
the CBD and in the context GATT:TRIPS Agreement which create the obligations
to open trade access for goods and services. These international agreements
create the need to vest ownership of innovative manipulations of the environment
in specific legal entities and grant the power to exclude others, or demand
monetary payment for their access and use. A problem which arises for
Maori, as indigenous people, is that there are few (if any) guidelines
in place to ensure ethical practices are observed, or to regulate the
"ownership" concept of intellectual property, over plant and
human genetic resources.
Conclusion
From a holistic Maori world view, the environmental legislation in New
Zealand deals with Maori concerns and interests in a piece meal fashion.
The legal provisions governing Maori environmental concerns are, at best,
add ons, and as with the RMA, have proven to be largely tokenistic and
toothless. From a cost and administration point of view, they place enormous
burdens on time and limited resources of Maori for little return. Given
the identical language used in the ERMA legislation, the prospects for
Maori appear just as dim. Legal precedent from the RMA will see to that.
However, I would urge ERMA and those bodies with powers and functions
under the Act to be more responsive than local authorities have proven
thus far under the RMA. Knowledge surrounding the relationship of Maori
with their environment, to be taken into account, needs to be given a
meaningful opportunity for expression. The holders of that traditional
knowledge need to be confident that the sufficient protection from misappropriation
exists and that they retain control over the use of their own knowledge.
The current system of intellectual property rights does not provide that
protection. The Wai 262 claimants hope that the Tribunal's findings will
address (among other things) that gap.
There continues to be a need for all functionaries under the Act to make
a commitment to increasing their own understanding of these issues, and
in particular of the Maori relationship with their flora and fauna and
taonga katoa. Once knowledge protections are in place, and issues of control
and ownership clarified, the claimants and others will be in a position
to contribute some of their traditional knowledge for the management of
our common environment, and our common good.
[1]Moana Jackson, "Defining Intellectual Property: A Paper Prepared
for the World Indigenous Conference on Intellectual Property, Mataatua,
Aotearoa/New Zealand", March 1992.
[2] Madarne Erica-Irene Daes, Special Rapporteur of the Sub-Commission
on Prevention of
Discrimination and Protection of Minorities, and also Chairperson of the
Working Group on
Indigenous Peoples, produced a report "Discrimination against Indigenous
Peoples" (e/CN.4/sub.2/1993/28) paragraph 21.
[3]
[4] Posey, D A and Dutfield, G, "Beyond Intellectual Property: Towards
Traditional Resource Rights for Indigenous People and Local Communities",
1996
[5] Tony Simpson, Indigenous Heritage and Self-Determination, 1997, p.18-20
[6] Jackson, Moana, "Defining Intellectual Property: A Paper prepared
for the World Indigenous Conference on Intellectual Property, Mataatua,
Aotearoa/New Zealand", March 1992