Chapter 4 Guardianship and the Wai 262 Report

Lai, Jessica Christine

doi:10.1007/978-3-319-02955-9_4

Jessica Christine Lai²

1896 Accesses
1 Citations

Abstract

The analysis in the previous chapter made clear that, though existing intellectual property (IP) and related law could be used to protect some Māori interests in their cultural heritage, it cannot do so in an all-encompassing or satisfying way. This is in large part due to the disparities between how IP and its related laws function and the means by which Māori knowledge systems operate, much of which hinges on the idea of “ownership”. As discussed above (Sect. 3.1), indigenous peoples, including Māori, do not view their relationship with their tangible and intangible cultural heritage as one of “ownership”. In other words, their relationship usually does not equate to the bundle of rights usually associated with “property” of title, possession, exclusivity and alienability. Though in many situations, the relationship may be equivalent to “ownership”, or may be “ownership-like”, it is often better construed as a relationship of guardianship or stewardship (kaitiakitanga). Many indigenous communities care for their cultural heritage as a duty to their ancestors and to future generations. Indigenous peoples, thus, do not own their cultural heritage, so much as have duties and responsibilities over it. The disconnect between ownership and responsibilities also means that indigenous peoples may have duties over that which they do not own. Furthermore, though Western property is individual in nature, indigenous peoples seldom “own” their tangible and intangible property and lands individually, but as a collective. This is true even if one (or several identifiable) individual(s) has (or have) the responsibility over it. The duty is undertaken on behalf of the community.

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Notes

1.
Carpenter et al. (2009), p. 155.
2.
Duties where there is no ownership also exists in Western constructs, such as in corporate management, see ibid., pp. 146–157.
3.
Ibid., pp. 100–204. See also the rebuttal of Brown (2010) and reply Carpenter et al. (2009).
4.
Carpenter et al. (2009), p. 159.
5.
Ibid., p. 145. The approach “moves beyond the ‘all or nothing’ outlook of physical-property regimes”; Kenney (2011), p. 544.
6.
Carpenter et al. (2009), p. 159. See also Fincham (2011). See also Rodgers (2009), p. 550.
7.
Carpenter et al. (2009), p. 181.
8.
Kenney (2011), p. 547. See also Waetford (2007), p. 264.
9.
Kenney (2011), p. 548.
10.
Taubman (2005), p. 524.
11.
As warned against by Coombe (2005), pp. 600–601.
12.
Most notably Brown (2010).
13.
Carpenter et al. (2009), pp. 161, 181 and 204 and Carpenter et al. (2010), pp. 586–587.
14.
Carpenter et al. (2009), p. 161.
15.
Carpenter et al. (2010), p. 587.
16.
Ibid.
17.
See Frankel (2012), pp. 440–441 and 450.
18.
Legislation in the field of resource management also takes into account the role of the guardian (kaitiaki), such as in the Resource Management Act 1991 (NZ) and Fisheries Act 1996 (NZ). Indeed, most of the discourse on indigenous stewardship relates to land-based resources; see, e.g. Jaksa (2006); Rodgers (2009); and Anaya (2004, 2005).
19.
For a definition of “positive” and “negative” rights, see Kongolo (2008).
20.
Namely, Ngāti Kuri, Ngāti Wai, Te Rarawa, Ngāti Porou, Ngāti Kahungunu and Ngāti Koata.
21.
Dengate-Thrush (1998), p. 303. Tangata whenua is sometimes used by the Māori as a term to self-identify.
22.
For a general overview of the claim, see Ministry of Economic Development (MED) (2011) and Austin (2003–2004), pp. 351–357.
23.
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, 1 [hereinafter Wai 262].
24.
Solomon (2005), p. 358.
25.
Zografos (2005), p. 935 and Zografos (2010), pp. 65–70.
26.
Zografos (2005), pp. 935–936 and Zografos (2010), pp. 65–70.
27.
The long length of time taken was also due to the great workload of the Tribunal and its limited funding; see Zografos (2005), p. 935 and Solomon (2000).
28.
As noted by Austin (2003–2004), pp. 341 and 358–362.
29.
Wai 262, supra note 23, p. 14. See also Paul Myburgh (2010), p. 660 and Watson and Solomon (2000).
30.
Wai 262, supra note 23, p. 14.
31.
Ibid., p. 15.
32.
Solomon (1997), p. 6, as cited in Gray (2005), p. 84.
33.
The process taken by the Waitangi Tribunal for the Wai 262 claim has been outlined in Watson and Solomon (2000).
34.
Gray (2005), p. 93.
35.
See Treaty of Waitangi Act 1975 (NZ), preamble.
36.
Frankel (2012), p. 442.
37.
Delegation of New Zealand (2002), annex 2, para. 40.
38.
Wai 262, supra note 23, p. 98.
39.
Ibid., p. 99.
40.
Ibid., p. 32.
41.
See WIPO, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), Secretariat (2013a, b).
42.
WIPO IGC, Secretariat (2013c).
43.
For a summary of the claim in detail, see Dengate-Thrush (1998), pp. 303–310.
44.
See Ministry for Culture and Heritage (MCH) (2011), citing Orange (2004).
45.
Treaty of Waitangi Act 1975 (NZ), s. 2 definition of “Treaty”.
46.
van Meijl (2009), p. 344 and Hall and Fenelon (2009), p. 43.
47.
Waitangi Tribunal (2012) and Report of the Waitangi Tribunal on Te Roroa (1992) Wai 38, p. 210.
48.
Wai 262, supra note 23, p. 15.
49.
New Zealand Māori Council v Attorney-General [1987] 1 NZLR 687 (CA).
50.
The description that follows is adapted from that given by the Tribunal, Wai 262, supra note 23, p. 17.
51.
Ibid., p. 82.
52.
See, e.g. Solomon (1998).
53.
Lord (1999), p. 39.
54.
MED (2002a), para. 88.
55.
Wai 262, supra note 23, p. 33. Similarly, the Julayinbul Statement on Indigenous Intellectual Property Rights (27 November 1993, Jungarra, Australia) declared that “Aboriginal Common Law and English/Australian Common law are parallel and equal systems of law” and “ [j]ust as Aboriginal Common Law has never sought to unilaterally extinguish English/Australian Common Law, so we expect English/Australian Common Law to reciprocate”.
56.
Wai 262, supra note 23, p. 46.
57.
Ibid., p. 78 (emphasis added). See also Yu (2008), pp. 194–195.
58.
Wai 262, supra note 23, p. 78.
59.
Ibid., p. 79.
60.
Morgan (2003), p. 2.
61.
Wai 262, supra note 23, p. 80. These three questions were set out for taonga works and their underlying mātauranga Māori, not for taonga species or the mātauranga Māori relating to biological resources. However, the analysis made by the Tribunal was nevertheless the same; see 193–195.
62.
Wai 262, supra note 23, p. 80.
63.
For a good discussion on the meaning of “public domain”, see Vézina (2012), pp. 204–211.
64.
Wai 262, supra note 23, p. 140.
65.
Ibid. See also Jackson (2003), p. 32; New Zealand (2000), p. 2; and van Meijl (2009), pp. 348–349.
66.
Wai 262, supra note 23, p. 79 (emphasis added). This statement was made regarding mātauranga Māori underlying taonga works, but the same finding was made for that relating to taonga species (194–195).
67.
This has been discussed in Vézina (2012), pp. 219–220.
68.
Tunis Model of Law on Copyright for Developing Countries (1976), s. 17; and Bangui Agreement (1977), Art. 59. See also WIPO IGC, Secretariat (2010), annex, paras 55–58.
69.
Wai 262, supra note 23, pp. 65–71.
70.
Ibid., pp. 71–74.
71.
Ibid., pp. 74–77.
72.
See also Solomon (2005), p. 354.
73.
Wai 262, supra note 23, p. 44.
74.
Ibid., p. 96.
75.
Ibid., p. 84.
76.
Issues relating to the haka have been discussed elsewhere, see Lai (2010), pp. 32–34 and 38–39. See also Frankel and Richardson (2009), pp. 280–283.
77.
Wai 262, supra note 23, p. 84.
78.
Ibid., p. 44.
79.
Ibid., p. 84.
80.
Ibid., pp. 84–85.
81.
Ibid., p. 44. The Air New Zealand koru has been discussed elsewhere, Lai (2010), pp. 36–37. See also Frankel and Richardson (2009), pp. 283–287.
82.
Wai 262, supra note 23, p. 96.
83.
Ibid., p. 85. A similar recommendation was made by the Māori Trade Marks Focus Group, in 2004. This Focus Group made a suggestion that there could be a differentiation between words, symbols, sounds or smells that are important to a specific Māori group (for which evidence of permission to use would be required) and those that are important to all Māori (for which registration would be dependent on whether it were “culturally appropriate”). See Māori Trade Marks Focus Group (1997), p. 20.
84.
This body of experts and its exact function are discussed further below. See Sect. 4.5.3.
85.
Wai 262, supra note 23, p. 96.
86.
See Lai (2010), pp. 36–37 and Sect. 2.2.2(c).
87.
Of course, this depends on how “Māori” is defined and whether one must be Māori to be a kaitiaki . For example, whether it includes those that have no whakapapa, but have been adopted or married into Māori families and are considered Māori by a whānau, hapū or iwi. Problems with defining “Māori” have been discussed elsewhere; Lai (2010), pp. 5–9.
88.
For example, with regard to the Australian Authenticity Certification Label Scheme, as discussed in Graber and Lai (2011), pp. 291–292. See also Wiseman (2001), p. 14; Rimmer (2004), pp. 157–160; Anderson (2003), pp. 240–241; and Janke (2003), p. 147.
89.
Panoho (1996), especially 23.
90.
Ibid., p. 23.
91.
Ibid., p. 24.
92.
Ibid., p. 22.
93.
Ibid., pp. 23–24.
94.
Ibid., p. 25.
95.
Wai 262, supra note 23, p. 96.
96.
Ibid., p. 85.
97.
Ibid., p. 86.
98.
Ibid., p. 85. It was, thus, stated to include “local whakapapa; kōrero about historical and prehistoric ancestors and events; mōteatea [song poetry]; local kōrero about the environment, flora, and fauna; and so on.”
99.
New Zealand (2007), annex 1, 9.
100.
Wai 262, supra note 23, pp. 86–87.
101.
Ibid., p. 87.
102.
Ibid.
103.
Ibid., p. 88.
104.
Ibid., p. 93.
105.
Ibid., p. 94.
106.
Carpenter et al. (2010), p. 587.
107.
As stated by Wellington patent attorney Lynell Tuffery Huria, cited in Duff (2011).
108.
Wai 262, supra note 23, pp. 65–71.
109.
Ibid., pp. 38–41.
110.
Trade Marks Act (2002) (NZ), s. 17(1)(c).
111.
IPONZ Trade Marks Practice Guidelines (26 January 2010), Chap. 4.4.1. See also Zografos (2005), p. 944.
112.
IPONZ Trade Marks Practice Guidelines (26 January 2010), Chap. 4.4.1.
113.
Copyright Act 1994 (NZ), ss 98–101.
114.
Frankel (2011a), p. 305.
115.
I would like to thank Susy Frankel for pointing this out.
116.
Wai 262, supra note 23, p. 88.
117.
Discussed in Lai (2013).
118.
Wai 262, supra note 23, p. 89.
119.
Ibid.
120.
Ibid.
121.
IPONZ (2006); as cited in Frankel and Richardson (2009), p. 287.
122.
Trade Marks Act (2002) (NZ), s. 17(1)(c).
123.
IPONZ Trade Marks Practice Guidelines (26 January 2010), Chap. 4.1.
124.
Morgan (2004), p. 73; and Delegation of New Zealand (2002), para. 47.
125.
With respect to their “stewardship” model of property, Carpenter, Katyal and Riley also note that the duty of stewardship must originate in tribal customary law, predating colonisation. Tribal law will itself limit the claims of indigenous communities. See Carpenter et al. (2010), p. 587.
126.
Wai 262, supra note 23, p. 89.
127.
Ibid.
128.
Ibid.
129.
Carpenter et al. (2010), p. 587.
130.
Wai 262, supra note 23, p. 96.
131.
Ibid.
132.
Ibid., p. 89.
133.
Carpenter et al. (2010), p. 587.
134.
See, e.g. Shand (2002), p. 55.
135.
Wai 262, supra note 23, p. 89.
136.
See MCH (2009), p. 41; Statistics New Zealand (2009), p. 31 [this Draft also discusses how there is currently insufficient data on the impact on Māori culture on non-Māori New Zealanders (27 and 32)].
137.
UN, International Covenant on Civil and Political Rights (CCPR), 999 UNTS 171 and 1057 UNTS 407; 6 ILM 368 (adopted on 16 December 1966, entered into force 23 March 1976), Art. 17. For a discussion on what “privacy” is, see Joseph et al. (2000), paras 16.01–16.02.
138.
Carpenter et al. (2009), p. 161.
139.
Wai 262, supra note 23, p. 92.
140.
Frankel (2011a), pp. 119 and 152.
141.
WTO, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299; 33 ILM 1197 (adopted on 15 April 1994, entered into force 1 January 1995).
142.
Frankel (2011b), p. 256.
143.
Canada has the “Igloo Tag” for Inuit art and Alaska utilises the “Silver Hand” certification mark; see Zografos (2010), p. 103 and fn 1, and 113–119. The US has the Indian Arts and Crafts Act 1990, 25 USC 305–310, which seeks to ensure authenticity and to create “trademarks of genuineness and quality for Indian products” that could be registered with the US Patent and Trademark Office, free of charge. Furthermore, civil and criminal penalties were created for counterfeiting the marks and for misrepresenting a work of art as Indian made when not. See above, Sect. 3.5.2. Australia also implemented an state-backed authenticity label, but this failed, though notably more for lack of consultation and poor accountability, rather than a failure of the underpinnings of trade mark law; see Graber and Lai (2011), pp. 290–292.
144.
Trade Marks Act 2002 (NZ), ss 17(1)(c) and 178.
145.
Wai 262, supra note 23, p. 64.
146.
Ibid., p. 93.
147.
Ibid., p. 92.
148.
This is a permitted act in New Zealand, under Copyright Act 1994 (NZ), s. 73.
149.
Wai 262, supra note 23, p. 94.
150.
Ibid.
151.
Ibid.
152.
Discussed above, see Sect. 3.4.4(c).
153.
Sections 177–180 (establishing the Māori Trade Marks Committee), 199 and 200 came into force on 5 December 2002, and the rest of the Act on 20 August 2003; see Trade Marks Act 2002 (NZ), s. 2.
154.
Trade Marks Act 2002 (NZ), s. 73. See also New Zealand (2007), annex 1, 13.
155.
Wai 262, supra note 23, p. 93.
156.
Ibid.
157.
Ibid., p. 95.
158.
As, Maui Solomon has noted, most companies use Māori names and designs without being aware that they have caused offence Solomon (for the MED) (2005), para, 5.8.
159.
Māori Trade Marks Focus Group (1997), p. 10, regarding registered trade marks.
160.
Ibid., p. 12.
161.
Wai 262, supra note 23, p. 95.
162.
Ibid.
163.
Ibid.
164.
Ibid.
165.
Ibid., p. 96.
166.
UN, Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res. 61/295 (UN Doc. A/61/L.67 and Add.1) (adopted on 13 September 2007), Art. 18 (emphasis added).
167.
Charters (2009), p. 656. Interestingly, in the US, government legislation specifically for Native Americans is justified as not discriminatory, as they are for separate political, rather than racial, groups; Morton v Mancari (1974) 417 US 535 (SC).
168.
See Banner (1999), pp. 813–814.
169.
Jackson (2003), p. 33.
170.
Daes (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations) (1993), para. 80.
171.
For example, Zografos (2005), p. 940; Daes (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations) (1993), para. 32; and Solomon (2000).
172.
Wai 262, supra note 23, p. 137.
173.
Māori academic Ocean Ripeka Mercier has described the Māori knowledge system as “culturalised, spriritualised, but [not] intellectualised”; compared to the Western knowledge system, which document all trial and error, experimentation and theory implementation, making the knowledge “intellectualised”. Mercier noted that much Māori knowledge would have been developed through such trial and error, observation, hypothesis making and experimentation, but this was never recorded, making it not “intellectualised”, or at least seemingly so. See Mercier (2007), pp. 22–23.
174.
The concerns of the claimants are summarised at Wai 262, supra note 23, p. 144.
175.
The Crowns arguments are summarised in ibid., pp. 146–147.
176.
The existing law on access to biological resources are discussed in the report in ibid., pp. 153–155. The ownership of natural resources by the Crown is of course objected to by Māori; see Solomon (for the MED) (2005), para. 8.2.
177.
Being endemic or not does not affect a species ability to be taonga. For example, the kumara (a sweet potato) is not endemic to New Zealand, but was brought to Aotearoa from Hawaiki in the canoes when the Māori first arrived. Before Polynesia, kumara came from South America. Because they came over with the canoes, their status as taonga is even greater. See Wai 262, supra note 23, p. 135.
178.
Paget-Clarke (2001).
179.
Mead (1994), p. 8.
180.
Wai 262, supra note 23, pp. 114–115.
181.
Ibid.
182.
Ibid., pp. 192–194. In the Wai 262 claim, the Crown attempted to deny that species and genetic information could be taonga for the purposes of the Treaty, as genetic resources were not known of in 1840. However, this contention was weakly made and not taken seriously by the Tribunal. It was already an established principle that what falls within the purview of the Treaty is not static, but dynamic (193).
183.
See MED (2002a), paras 75–80 and MED (2002b), pp. 99–101.
184.
See also de Werra (2009a), pp. 178–179, who notes that the answer does not only lie in patent law, but must also look at other areas of law.
185.
The law in New Zealand regulating bioprospecting is discussed in Wai 262, supra note 23, pp. 144–158.
186.
The law in New Zealand regulating genetic modification is discussed in ibid., pp. 158–169.
187.
Ibid., pp. 181–189.
188.
Ibid., p. 192.
189.
Ibid., p. 193.
190.
Ibid., pp. 193–194.
191.
Ibid., p. 194.
192.
Wai 262, supra note 23, pp. 194–195.
193.
Ibid., p. 194.
194.
Ibid., pp. 204–205. The Tribunal cited the definition given in the 2006 provisions for TK; WIPO IGC, Secretariat (2006), annex, 19. By July 2013, the WIPO TK Draft Articles had a different definition from that cited by the Tribunal. The definition cited by the Tribunal also differed from the Glossary of key terms released by the WIPO IGC. See, respectively, WIPO IGC, Secretariat (2013b), Art. 1.1; and WIPO IGC, Secretariat (2013d), annex, 40.
195.
Ibid., pp. 144–145 and 178–179. For a discussion on bioprospecting and the commercial use of Māori TK, see also Solomon (1998).
196.
Wai 262, supra note 23, pp. 194–195.
197.
Ibid., p. 195.
198.
Ibid., pp. 195–197.
199.
Carpenter et al. (2010), p. 587.
200.
Wai 262, supra note 23, p. 157.
201.
Ibid.
202.
Ibid., p. 189.
203.
Ibid., p. 158.
204.
Ibid.
205.
Established by the Conservation Act 1987 (NZ), s. 5.
206.
Wai 262, supra note 23, p. 198.
207.
Conservation Act 1987 (NZ), s. 4. Maui Solomon has stated that the New Zealand courts have applied a minimalist interpretation of this section; Solomon (2000).
208.
See DOC (accessed 19 April).
209.
Wai 262, supra note 23, p. 154.
210.
Ibid., p. 198.
211.
Ibid.
212.
Ibid., p. 199.
213.
Ibid., pp. 190–192.
214.
Ibid., pp. 199–200. The EPA came into existence on 1 July 2011, the day before the release of the Wai 262 report. The report makes reference to the “Authority” as the decision-making body, which is now called the “Board”. To save from confusion, this chapter uses the term “Authority”. Furthermore, this new Authority now oversees the Hazardous Substances and New Organisms Act 1996.
215.
Roberts (2009), pp. 145–146.
216.
Environmental Protection Authority Act 2011 (NZ), ss 18–21. This Advisory Committee also advises the Authority for the purposes of the Hazardous Substances and New Organisms Act 1996.
217.
That the ERMA Authority was unable to do so, regarding Māori concerns relating to GM, was discussed by Maui Solomon; Paget-Clarke (2001).
218.
New Zealand Human Rights Commission (NZHRC) (2010a), p. 148.
219.
Solomon (1998), in relation to the ERMA, the Hazardous Substances and New Organisms Act 1996 and Resource Management Act (RMA) 1991. See also Lord (1999), p. 36, who stated that the processes established to recognise Māori Treaty rights (in the Conservation Act 1987, RMA 1991 and Treaty of Waitangi State Enterprise Act 1988) “are more often confined by the interpretive and conceptual skills of those operating at the level of implementation”; Smith (1999), pp. 54–56, regarding the RMA 1991 and Historic Places Act 1993; and Turvey (2009).
220.
As Aroha Mead has noted, in New Zealand, there are still debates about whether Māori knowledge is in fact scientific and scientists, academics and corporate professionals will need to be “de-programed” in order to work with indigenous peoples and their communities in a “very direct and active way”. Mead goes so far as to call this “racist”. See Mead (1994), pp. 2–3. See also Turvey (2009).
221.
Solomon (1998).
222.
Environmental Protection Authority Act 2011 (NZ), s. 9.
223.
Environmental Protection Authority Act 2011 (NZ), s. 19(1).
224.
Environmental Protection Authority Act 2011 (NZ), s. 19(2).
225.
Māori Advisory Committee—Ngā Kaihautū Tikanga Taiao Terms of Reference 2011–2014, cl. 3.1.
226.
Māori Advisory Committee—Ngā Kaihautū Tikanga Taiao Terms of Reference 2011–2014, cl. 4.2.
227.
Māori Advisory Committee—Ngā Kaihautū Tikanga Taiao Terms of Reference 2011–2014, cl. 4.3.a.
228.
The terms of reference must be reviewed at least every 3 years by the Authority in conjunction with Ngā Kaihautū; Māori Advisory Committee—Ngā Kaihautū Tikanga Taiao Terms of Reference 2011–2014, cl. 5.1.
229.
Māori Advisory Committee—Ngā Kaihautū Tikanga Taiao Terms of Reference 2011–2014, cl. 3.4 and 3.5.
230.
Patents Act 2013, ss 275–278.
231.
Wai 262, supra note 23, p. 202.
232.
Ibid., p. 201.
233.
See supra note 178.
234.
Susy Frankel has listed the Māori values most relevant intellectual property as: taonga, whakapapa, mauri, kaitiakitanga and tino rangatiratanga; Frankel (2011a), pp. 123–125.
235.
Wai 262, supra note 23, p. 201.
236.
Ibid.
237.
Patents Act 2013, s. 278. This is the same in the Trade Marks Act 2002 (NZ), s. 180.
238.
Metiria Turei (Green Party), House of Representatives, Supplementary Order Paper No. 348 (27 August 2013). The Paper was also concerned with how membership to the Committee is selected, as discussed in Sects. 3.4.4(c)(i) and 4.5.3(d).
239.
By the Committee of the Whole House of New Zealand; Tisch (2013).
240.
Delahunty (2013).
241.
Wai 262, supra note 23, p. 201.
242.
Ibid.
243.
Discussed in ibid., pp. 202–203 and 207. For a discussion on why registration should be voluntary, see Frankel (2011a), p. 138; and Dutfield (2005), pp. 515–516.
244.
MED (2002a), para. 109 and MED (2002b), para. 106.
245.
Heath and Weidlich (2003), p. 78; and Kongolo (2008), p. 38.
246.
Discussed at Wai 262, supra note 23, pp. 203–205. Frankel has also supported the introduction of a disclosure mechanism into IP laws, with appropriate consequences on failure to comply; Frankel (2011a), p. 131.
247.
Wai 262, supra note 23, p. 204.
248.
Frankel (2011a), p. 138.
249.
See, e.g. WIPO IGC, Documented Submitted by the European Communities (2005), p. 4. Switzerland’s proposals for modifying international patent law are for TK in general, not just that connected to genetic resources; WIPO IGC, Document Submitted by Switzerland (2007), p. 13.
250.
The consequences of non-compliance are discussed at Wai 262, supra note 23, pp. 205–206.
251.
This was noted by de Werra (2009a), p. 156.
252.
A flexible approach to sanctions was also promoted by de Werra, ibid., pp. 164–165 and 176–177.
253.
Heath and Weidlich (2003), pp. 81–82.
254.
WIPO, Patent Law Treaty, 2340 UNTS 3; 39 ILM 1047 (adopted on 1 June 2000, entered into force 28 April 2005).
255.
See WIPO IGC, Document Submitted by the European Community (2005), p. 5; and WIPO IGC, Document Submitted by Switzerland (2007), paras 26–27.
256.
WIPO IGC, Document Submitted by the European Community (2005), p. 5.
257.
WIPO IGC, Document Submitted by Switzerland (2007), para. 27. See also Federal Act on Patents for Inventions 1954 (CH), Arts. 49a and 81a. The possibility of using criminal sanctions in patent law has been challenged due to the requirement that there be intent, meaning that they could not be applied in situations where the owner had no knowledge of the TK after performing his/her due diligence, or when the owner purchased the patent from another party in good faith; de Werra (2009a), pp. 155–156.
258.
The WIPO Patent Law Treaty is considered to be a main barrier against challenging the validity of granted patents utilising TK; see de Werra (2009a), p. 155.
259.
Wai 262, supra note 23, p. 205. Similarly, in its review of the current Patents Act 1953, the MED stated that questions of ABS would ideally be managed by the parties concerned and not be a matter of legislation, though it acknowledged that this may either not occur or occur inequitably in the absence of legislation; MED (2002a), para. 96.
260.
Plant Variety Rights Amendment Bill, Draft for Consultation, 2005 (NZ).
261.
Wai 262, supra note 23, p. 206.
262.
Plant Variety Rights Amendment Bill, Draft for Consultation, 2005 (NZ), cl. 4 (emphasis added).
263.
Plant Variety Act 1987 (NZ), s. 6(1).
264.
International Convention for the Protection of New Varieties of Plants (UPOV 1991) (adopted 2 December 1961), as revised at Geneva (10 November 1972, 23 October 1978 and 19 March 1991).
265.
MED (2002b), para. 116.
266.
Wai 262, supra note 23, p. 206.
267.
Ibid.
268.
MED (2002b), para. 118.
269.
UPOV 1991, Arts. 21(2) and 22(2).
270.
Plant Variety Rights Amendment Bill, Draft for Consultation, 2005 (NZ), cls 3(2) and 5. Currently, under the Plant Varieties Act 1987, s. 2, the definition of “variety” is a “cultivated variety”, meaning that they need only be grown or raised, but not necessarily developed.
271.
UPOV 1991, Art. 1(iv).
272.
Email from Chris Barnaby, Assistant Commissioner, IPONZ (2012a, b).
273.
Wai 262, supra note 23, p. 206.
274.
Ibid.
275.
Antons (2012), p. 173; and Drahos (2011), p. 235.
276.
New Zealand is a party to the CBD, but has yet to sign the Nagoya Protocol: Rio Convention on Biological Diversity, 1760 UNTS 79; 31 ILM 818 (opened for signature 5 June 1992, entered into force 29 December 1993); and Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (UN Doc. UNEP/CBD/COP/DEC/X/1) (adopted on 29 October 2010).
277.
Wai 262, supra note 23, p. 207.
278.
Ibid.
279.
This is noted as a general problem of the claim, in Dengate-Thrush (1998), p. 309. See also Roberts (2009), pp. 146–148, who makes a case study illustrating the difficulties that researchers can have in trying to navigate between Māori individuals, hapū, iwi and organisations, which can ultimately “frustrate efforts on both sides to engage in meaningful consultation.”
280.
Mead (1994), p. 4.
281.
Ibid., p. 10.
282.
Wai 262, supra note 23, p. 207 (emphasis added).
283.
Ibid. See also Solomon (2000).
284.
See, e.g. de Beer (2006), p. 120.
285.
See also Graber and Lai (2011).
286.
WIPO, Berne Convention for the Protection of Literary and Artistic Works (1886) (adopted on 9 September 1886), as revised at Paris (24 July 1971) and as amended on 28 September 1979; and WIPO, Paris Convention for the Protection of Industrial Property, 828 UNTS 303 (adopted on 20 March 1883, entered into force 16 April 1970), as revised at Stockholm (14 July 1967).
287.
See, e.g. Mead (1994), pp. 9–10 and Mead (1993), p. 2.
288.
Solomon (2000) and Smith (2003), p. 39 The impact of TRIPS and multilateral agreements on Māori TK and TCEs is discussed thoroughly in Lord (1999), pp. 37–43.
289.
Frankel (2011a), p. 119.
290.
Dengate-Thrush (1998), pp. 306–307.
291.
Wai 262, supra note 23, pp. 50–51 and 72–74.
292.
Ibid., p. 74.
293.
MED (2002b), para. 105.
294.
TRIPS Agreement, Arts. 13 (copyright), 26.2 (trade marks), 27.2 and 27.3 (patents).
295.
This is required by Berne Convention, Art. 5(2).
296.
The TRIPS preamble recognises the need to provide “adequate standards and principles concerning the availability, scope and use of trade-related” IPRs (emphasis added). Correa (2007), p. 7, stated that “[s]ince IPRs confer negative rights (that is, the right to exclude others from exploiting protected subject matter), essentially the ‘use’ of such rights aims to ensure their enforcement”.
297.
This is in civil law jurisdictions, as well as common law ones; see Daum (2010), para. 3.0.2; and Frankel (2011a), p. 210. See also Berne Convention, Arts. 8, 9(1), 11(1), 11bis, 11ter, 12, 14(1) and 14ter; and Copyright Act 1994 (NZ), s. 16.
298.
TRIPS Agreement, Arts. 13 and 14.6.
299.
Berne Convention, Arts. 9, 10 and 10bis.
300.
The limitations and exceptions set out in the TRIPS Agreement and the Berne Convention are discussed in Sterling (2003), para. 22.10; Van den Bossche (2008), pp. 766–769; and Goldstein and Hugenholtz (2010), pp. 364–367. See also Frankel (2011a), p. 210, who stated: “From the copyright owner’s perspective these [copyright rights] are exclusive rights. From everyone else’s perspective they are restricted acts.”
301.
TRIPS Agreement, Art. 9.1.
302.
WTO, Panel Report, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTO Doc. WT/DS362/R, adopted 20 March 2009, para. 7.124. The Panel further held that Art. 17 does not, however, confer the right to deny copyright altogether, as it does not have anything to do with substantive rights (para. 7.127) [hereinafter China—IPRs].
303.
Ricketson and Ginsburg (2006), paras 13.88–13.89 and Goldstein and Hugenholtz (2010), pp. 42–43.
304.
Masouyé ( 1978 ), para. 17.2.
305.
China—IPRs, supra note 303, para. 7.126.
306.
Ricketson and Ginsburg (2006), para. 13.90.
307.
Ibid., paras 13.89–13.90.
308.
Copyright Act 1994 (NZ), s. 16.
309.
Ricketson and Ginsburg (2006), para. 13.90.
310.
See the definition of “adaptation” in Copyright Act 1994 (NZ), s. 2.
311.
China—IPRs, supra note 303, para. 7.132.
312.
WTO, Panel Report, US—Section 110(5) Copyright Act, WTO Doc. WT/DS160/R, adopted 27 July 2000, para. 6.108.
313.
Ibid., para. 6.109.
314.
Ibid., para. 6.183.
315.
Ibid., para. 6.224.
316.
Ibid., para. 6.223.
317.
Ibid., para. 6.229.
318.
Van den Bossche (2008), p. 768.
319.
Gervais (2008), para. 2.122.
320.
Ricketson and Ginsburg (2006), para. 13.90.
321.
Berne Convention, Art. 6bis. Articles 15.1(c) and 15.2 of the CESCR also protects the moral interests of authors.
322.
Though the TRIPS Agreement adopts into it Arts. 1–21 of the Berne Convention, Art. 6bis is specifically excluded; TRIPS Agreement, Art. 9.1. See also Sundara Rajan (2011), pp. 250–258. This means that moral rights are not enforceable through the WTO dispute settlement process. Nevertheless, New Zealand has Berne Convention-like moral rights implemented into the Copyrights Act 1994 (NZ), ss 94–119; derogatory treatment is dealt with in ss 98–101.
323.
New Zealand law covers additions, alterations or adaptations; Copyright Act 1994 (NZ), s. 98(1)(a).
324.
The US has some laws that allow artists to prevent the destruction of their works under certain circumstances; The Visual Artists Rights Act of 1990, 17 USC § 106A(a)(3)(B) and 113(d).
325.
WIPO IGC, Secretariat (2013d), annex, 35.
326.
Sundara Rajan (2011), pp. 45–49; Sundara Rajan argues against the approach that the Berne Convention has taken in favouring author’s reputation over the integrity of the work. Notably many states (particularly those of the civil law tradition) have implemented stronger protection than that required by the Berne Convention, not requiring any harm to the reputation or honour of the author, but just a negative impact on the integrity of the work; see de Werra (2009b), pp. 268–269.
327.
CCPR, supra note 138, Art. 17.
328.
See Joseph et al. (2000), paras 16.01–16.02.
329.
UN, Human Rights Committee (UNHRC) (1988), para. 5.
330.
Ibid., para. 3.
331.
Ibid., para. 8.
332.
Ibid., para. 4.
333.
Ibid.
334.
Toonen v Australia (1994) Comm No. 488/92, para. 8.3 (UNHRC).
335.
Designs Act 1953 (NZ). Industrial designs are also regulated by the Paris Convention. There is also an international registration system, overseen by WIPO (Hague System for the International Registration of Industrial Designs, see www.wipo.int/hague/en/), however New Zealand is not a Member to this.
336.
TRIPS Agreement, Art. 25.1.
337.
Ibid. See also Designs Act 1953 (NZ), ss 5(2) and 2(1).
338.
TRIPS Agreement, Art. 26.1.
339.
These being “making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design”; TRIPS Agreement, Art. 26.1. See also Designs Act 1953 (NZ), s. 11.1.
340.
See Frankel and Gervais (2013).
341.
Paris Convention, Art. 6(1).
342.
Paris Convention, Art. 6quinquies.B.3.
343.
Gervais (2008), p. 343.
344.
WTO, Appellate Body Report, US—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/AB/R, adopted 20 April 2005, para. 6.467 [hereinafter US—Gambling]. See also Gervais (2005), pp. 375 and 379.
345.
Gervais (2005), pp. 375 and 379.
346.
US—Gambling, supra note 345, para. 6.465.
347.
Gervais (2005), pp. 375 and 379.
348.
Wai 262, supra note 23, pp. 201 and 210.
349.
The Tribunal ultimately concluded that ordre public would be contravened if a patent were to unduly interfere with the kaitiaki relationship with a taonga species; ibid.
350.
It only stipulates that Member States shall require that applicants “disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art”, and may require that applicants “indicate the best mode for carrying out the invention known to the inventor” and information regarding corresponding foreign applications and grants; TRIPS Agreement, Art. 29.
351.
Dutfield (2005), p. 507.
352.
WTO, General Agreement on Trade in Services (GATS), Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 UNTS 183; 33 ILM 1167 (adopted on 15 April 1994, entered into force 1 January 1995).
353.
GATS, fn 5.
354.
Van den Bossche (2008), pp. 639–640.
355.
US—Gambling, supra note 345, para. 6.465.
356.
It has been ruled that “laws or regulations” means domestic laws or regulations”; WTO, Apellate Body Report, Mexico—Taxes on Soft Drinks, WTO Doc. WT/DS308/AB/R, adopted 24 March 2006, paras 68–70.
357.
Ibid., sect. VII.15.B.
358.
Ibid., para. 74.
359.
Ibid.
360.
GATT, Panel Report, US—Section 337, BISD 36S/345, adopted 7 November 1989, para. 5.26.
361.
WTO, Appellate Body Report, Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WTO Docs WT/DS161/AB/R and WT/DS169/AB/R, adopted 10 January 2001, para. 162.
362.
Ibid., para. 163.
363.
Ibid., para. 164.
364.
For a discussion on the relevant WTO case law of the matter, see Van den Bossche (2008), pp. 641–651.
365.
WTO, Appellate Body Report, US—Shrimp, WTO Doc. WT/DS58AB/R, adopted 26 November 1998, para. 177.
366.
WTO, Appellate Body Report, US—Gasoline, WTO Doc. WT/DS2/AB/R, adopted 20 May 1996, 27.
367.
WTO, Apellate Body Report, Brazil—Retreaded Tyres, WTO Doc. WT/DS332/AB/R, adopted 17 December 2007, para. 225.
368.
For a discussion on the relevant WTO case law of the matter, see Van den Bossche (2008), pp. 650–651.
369.
UNDRIP, supra note 167. See Sharples (2010).
370.
The history to New Zealand’s adoption of UNDRIP and the political force of the Declaration has been outlined elsewhere; see Lai (2011).
371.
UNESCO, Mexico City Declaration on Cultural Policies, World Conference on Cultural Policies (26 July–6 August 1982, Mexico City), preamble.
372.
The “culture concept” is discussed by Graber (2010a), pp. 174–176 and Anderson (2009), pp. 108–203.
373.
Graber (2010a), pp. 174–180. See also von Schorlemer (2009), para. 5.
374.
UNESCO, Mexico City Declaration on Cultural Policies, preamble, para. 5.
375.
UNESCO, Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2440 UNTS 311 (adopted on 20 October 2005, entered into force 18 March 2007), Art. 4(1). The definition therein was also adopted for the Glossary for the IGC, see WIPO IGC, Secretariat (2013d), annex, 6. The “expression” focus is discussed by Graber (2006), p. 558 and Graber (2010a), pp. 176–177.
376.
Xanthaki (2007), p. 115.
377.
Daes (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations) (1993), para. 66.
378.
UN 1994, Art. 7.
379.
Xanthaki (2007), pp. 113–114. However, this distinction is not always made, see Thornberry (2002), pp. 387–388.
380.
Xanthaki (2007), p. 114. Xanthaki puts forth that this is not true, as protection from “ethnocide” is a logical step from other UN instruments.
381.
Xanthaki (2010), p. 17.
382.
CCPR, Art. 1; and CESCR, Art. 1.
383.
Graber (2009), p. 26.
384.
CCPR, Art. 27. This has been implanted, almost word-for-word, into the New Zealand Bill of Rights Act 1990, s. 20. The UN, Universal Declaration of Human Rights (UDHR), UN GA Res. 217A (III) (UN Doc. A/810) (10 December 1948), Art. 22, provides that every person has the right to the “social and cultural rights indispensable for his dignity and the free development of his personality”, however the UDHR is not binding on its parties. See also CESCR, Art. 15.1(a), which recognises the right of everyone to take part in “cultural life”, discussed in O’Keefe (2012).
385.
UN and HRC (1994), para. 7.
386.
See Graber (2008), p. 105.
387.
Ibid., p. 107.
388.
Ibid., p. 110; and UN and HRC (1994), para. 6.2. See also Brownlie (2008), p. 579, who states that “[i]t is not necessarily the case that there is a divorce between the legal and human rights of groups, on the one hand, and individuals, on the other. Guarantees and standards governing treatment of individuals tend, by their emphasis on equality, to protect groups as well”.
389.
UN and HRC (1994), para. 9 (emphasis added).
390.
UN, Department of Economic and Social Affairs, Secretariat of the Permanent Forum on Indigenous Issues (2009), paras 9, 15 and 36.
391.
Ibid., para. 11.
392.
Ibid., para. 13.
393.
Ibid., paras 15 and 48–54.
394.
Ibid., para. 50.
395.
Ibid., para. 49.
396.
O’Keefe (2012), para. 4.
397.
Ibid., para. 14.
398.
UN, Department of Economic and Social Affairs, Secretariat of the Permanent Forum on Indigenous Issues (2009), paras 18–19.
399.
UN, Economic and Social Council, Committee on Economic, Social and Cultural Rights (2006), para. 4.
400.
Article 11.2 is complemented by Art. 12.2, which states that “States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.”
401.
Lenzerini (2010), p. 41.
402.
UNDRIP, preamble.
403.
Daes (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations) (1993), para. 9.
404.
Jahnke and Jahnke (2003), pp. 6–7. Indeed, Aroha Mead has stated that though whether “culture” and “intellect” are separate or interrelated “might be an academic issue for some—it is an insult to us”; Mead (1993).
405.
Kuprecht (2012), p. 49.
406.
Xanthaki (2007), pp. 117 and 119. For example, the ILO Convention No. 169 is silent on both intellectual and cultural property rights, referring only to general cultural rights (see 201). New Zealand has not ratified ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1659 UNTS 383 (adopted on 27 June 1989, entered info force 5 September 1991).
407.
UN (1994), Art. 29.
408.
Xanthaki (2009), p. 31. Examples of sui generis systems are the TK and TCE Treaties being negotiated in WIPO: see WIPO IGC, Secretariat (2013a, b).
409.
Stoll and von Hahn (2008), p. 27.
410.
Note though that the Native American Graves Protection and Repatriation Act [25 USC 3005(a)(5)] states that, for the purposes of the second prong to determine the allocation of cultural property (sacred objects and objects of cultural patrimony), “control” over an object correlates to ownership. See Kuprecht (2012), pp. 42–43.
411.
Lai (2010), pp. 32–34.
412.
Lai (2011), pp. 24–27.
413.
Mai Chen, quoted in New Zealand Press Association (2010).
414.
Watkins (2010).
415.
Wiessner (2008), p. 1165.
416.
Charters (2007), p. 123. Erica-Irene Daes also views the instrument as a “normative instrument”, capable of “driving cultural and political transformations”; see Daes (2011), p. 38.
417.
Round (2009), p. 392.
418.
For example, the NZHRC lists promoting awareness of UNDRIP as one of its top 30 priority areas for action on human rights in New Zealand; NZHRC (2010b).
419.
Finlayson (Attorney General) (2011).
420.
Ibid. Prime Minister John Key made similar statements that the Government would not be rushed; Chapman and McCammon (2011).
421.
Finlayson (Attorney General) (2011).
422.
Brunei Darussalam, Canada, Chile, Malaysia, Mexico, Peru, Singapore and Viet Nam.
423.
James (2011).
424.
See, e.g. Lord (1999), pp. 41–42.
425.
X (2011). For an extreme view, see Newman (2011). Newman’s article borders on being propaganda-like and racist in nature. In the least, it is dangerously provocative. It is clear that she either did not read the full report before writing her piece, or did not grasp the intention behind the recommendations of the Waitangi Tribunal. Yet, states that the claimants have a “race-based lust for power and control”, that non-Māori “are being increasingly marginalised by the cunning strategies of a greedy tribal elite”; and are treating non-Māori as fools by claiming spirituality that does not exist. Moreover, she places fire under fears already existent in mainstream New Zealand that any rights given to Māori will create a “country permanently divided by race, with a Māori aristocracy based on privilege.” Māori lawyer Joshua Hitchcock stated that her opinion was an “utter disgrace” and “nothing more than an attempt to spread fear through the Pākehā population that [the Wai 262] Report will be the catalyst for the takeover of New Zealand by a Māori Oligarchy”; Hitchcock (2011). For another paper that seems to miss the point, see Levine (2010).
426.
Such as Act Party Leader Don Brash; O’Brien (2011).
427.
Katene (2011a).
428.
Mead (1994), p. 1.
429.
Graber (2010b), pp. 251–252 and Graber (2012), pp. 10–18.
430.
Graber (2012), p. 10.
431.
Ibid., p. 11, citing Habermas (1996), pp. 409–410.
432.
Frankel (2012), p. 454.
433.
UN, Department of Economic and Social Affairs, Secretariat of the Permanent Forum on Indigenous Issues (2009), pp. 61–62.
434.
Dengate-Thrush (1998), p. 309. See also Lord (1999), p. 35, who stated that having tino rangatiratanga in their traditional cultural heritage is about restoring mana, cultural integrity and dignity, and strengthening cultural identity.
435.
Katene (2011b).

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Jessica Christine Lai

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Lai, J.C. (2014). Chapter 4 Guardianship and the Wai 262 Report. In: Indigenous Cultural Heritage and Intellectual Property Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-02955-9_4

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