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Indigenous Cultural Heritage and Intellectual Property Rights pp 1–10Cite as

Chapter 1 Introduction

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Abstract

Similar to many other colonised indigenous peoples, those of New Zealand (commonly referred to as the Māori) were disenfranchised of their land and of certain rights relative to Pākehā (non-Māori New Zealanders, usually of European descent) and to their own pre-colonisation social and legal system (tikanga Māori). Included in this process, te ao Māori (the Māori worldview) has been ignored, rejected or even purposefully suppressed. The subjugation away from their traditional lands and tikanga Māori subsequently resulted in the “social, economic, spiritual and political degradation of Māori society”. As will be discussed, though vastly improved in recent times, Māori generally continue to make up a disproportionately large number of those considered to be in the lower socio-economic bracket. Statistics, such as those relating to education, immunisation and life-expectancy, also reflect the depressed position of the indigenous peoples compared to those of other ethnic or descent origins in New Zealand.

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Notes

  1. 1.

    There is some argument over whether indigenous communities are “peoples” with respect to international law, or are rather “minorities”. The term “indigenous peoples” is used throughout this discourse without any intention to comment on this debate.

  2. 2.

    Editorial Note: This paper uses a macron accent on vowels in Māori words where appropriate, even when quoting a source that has not done so. In some sources, this accent can also be observed as an umlaut or a circumflex. These have been converted to macrons in this work. Māori words and terms have been italicised, except where it has become a part of everyday parlance in New Zealand, unless not italicised in the source being quoted from.

    The Moriori are a culturally distinct indigenous peoples of the Chatham Islands in New Zealand. For the sake of simplicity, this work uses the term Māori as a general term for all the indigenous peoples of New Zealand, without wanting to make any comment on the history between the Māori and Moriori, or to subjugate the importance of the Moriori. It does so for the sake of brevity and because Moriori share the same general concerns as Māori with regard to their cultural heritage. For a discussion on the historical and legal meaning of “Māori”, see Lai (2010), pp. 5–9.

  3. 3.

    For a discussion on why tikanga Māori was and continues to be unrecognised as law in New Zealand, see Dawson (2008), pp. 55–62.

  4. 4.

    Gallagher (2008).

  5. 5.

    Coates (2009), pp. 49–51 (particularly fns 33–40).

  6. 6.

    See Banner (1999), pp. 807–852.

  7. 7.

    Solomon (2005), p. 359. The use of indigenous cultural heritage in consumer products has increased globally; see UN, Department of Economic and Social Affairs, Secretariat of the Permanent Forum on Indigenous Issues (2009), pp. 69 and 71.

  8. 8.

    Wilson (2003).

  9. 9.

    Janes (2005) and Panoho (2007).

  10. 10.

    Jahnke and Jahnke (2003), p. 11, who call such usage “cultural prostitution”.

  11. 11.

    Zografos (2005), p. 928; and Solomon (for the Ministry of Economic Development) (2005), para. 3.1. See also O’Keefe (1995), p. 390.

  12. 12.

    Aroha Mead quoted in X (2008).

  13. 13.

    See Panoho (2007). Though it can give Māori a “marketing edge”; Janes (2005).

  14. 14.

    Solomon (2000).

  15. 15.

    Xanthaki (2007), p. 221.

  16. 16.

    Palmer and Tano (2004).

  17. 17.

    Jahnke and Jahnke (2003), p. 14.

  18. 18.

    Myburgh (2010), p. 661.

  19. 19.

    In Neleman (1999), p. 13.

  20. 20.

    Zografos (2010), pp. 5–6.

  21. 21.

    This resulted in the restaurant changing its name; van Meijl (2009), p. 342. See also Gray (2005), p. 81.

  22. 22.

    New Zealand First Party (2002).

  23. 23.

    Numerous New Zealand examples are outlined in the Report of the Waitangi Tribunal on Claims Concerning New Zealand Law and Policy Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (2011) Wai 262, pp. 118–136. International examples have been detailed extensively, for example, see Dutfield (2003), pp. 29–33; and Posey and Dutfield (1996), Chaps. 1–5.

  24. 24.

    Te Puni Kōkiri CEO Leith Comer, quoted in X (2008).

  25. 25.

    Ward (2002).

  26. 26.

    Ibid.

  27. 27.

    Victoria University Māori Studies Head Peter Adds, quoted in X (2008). See also Xanthaki (2010), p. 16.

  28. 28.

    The Press (2008).

  29. 29.

    Throughout this discourse, the term “Western” is used to denote that of non-indigenous origins. Though I am aware that the terminology is not strictly speaking always correct and there is some controversy surrounding it, I believe that it is better than the term “modern”, which implies that that which is indigenous is not modern and so is clearly untentable.

  30. 30.

    For example, see the Ministry of Māori Development Act 1991 (NZ) and the Māori Community Development Act 1962 (NZ) (this Act is currently under review; see Māori Affairs Committee 2009).

  31. 31.

    WIPO, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (ICG), Secretariat (2013a), annex 7. This glossary also has a broad and encompassing definition for “heritage (of Indigenous Peoples)” (at pp. 17–18).

  32. 32.

    TK has been distinguished from TCEs by the WIPO. See, for example, the separate TK and TCE WIPO Draft Provisions: WIPO IGC, Secretariat (2013b, c).

  33. 33.

    See, for example, Goldsmith (2009), pp. 327–331; New Zealand (2007), annex 1, p. 4; and Drahos (2011), p. 239.

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  1. Faculty of Law, University of Lucerne, Lucerne, Switzerland

    Jessica Christine Lai

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Lai, J.C. (2014). Chapter 1 Introduction. In: Indigenous Cultural Heritage and Intellectual Property Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-02955-9_1

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