Waitangi Tribunal Report on flora & fauna claim (WAI 262)

Key Facts

The Waitangi Tribunal's report on the WAI 262 claim was released on 3 July 2011.
Commonly known as the “flora and fauna” claim, the WAI 262 claim addressed the ownership and use of Maori knowledge, cultural expressions, indigenous species of flora and fauna, all known as taonga (treasures), and inventions and products derived from indigenous flora and fauna and/or utilising Maori knowledge.
The claim is pan-tribal. Claimants represented a number of Maori iwi (tribes). It is also the Waitangi Tribunal’s first whole-of-government report, which considers the role of more than twenty government agencies.
The report – ‘Ko Aotearoa Tenei’ (“This is New Zealand”) – found that the Government had failed to comply with its obligations, under the Treaty of Waitangi, to ensure that guardian relationships between Maori and their taonga (their traditional knowledge and artistic works, and their culturally significant species of flora and fauna) were acknowledged and protected, and recommends that future laws, policies and practices do acknowledge and respect those relationships.
The recommendations in the report are not binding on the Government. However, if the current arrangement between the governing party and the Maori Party continues after the November 2011 General Election in New Zealand, it is likely that some of its recommendations will be acted upon.
The report has implications for owners of all intellectual property rights and is particularly relevant to those who may wish to register and use trade marks which include Maori words or symbols, or obtain patents for inventions or plant variety rights which rely on Maori traditional knowledge.

Key Facts for Trade Mark, Copyright and Design Owners

The Waitangi Tribunal has recommended that the existing Maori Trade Mark Advisory Committee be disbanded and replaced by a new, specialised commission. The proposed commission should be empowered to consider all applications to register trade marks and designs that include Maori elements, and consider whether their use would be derogatory or offensive to Maori. The commission’s decisions will be binding on the Commissioner of Trade Marks and Designs.
The commission would hear objections about derogatory or offensive use of Maori signs (words, symbols, designs, images) and make binding decisions.
All existing intellectual property rights will be unaffected with one exception: the derogatory or offensive use of Maori works, either existing or in the future, should be prevented. The question of what uses are derogatory or offensive would be one for the commission to consider.
The future commercial use of certain Maori works or knowledge, for which a kaitiaki(Maori guardian) can be identified, should be the subject of consultation with, and in some circumstances require the consent of, the relevant kaitiaki.
Private and public, non-commercial use of Maori works will not be affected, unless the use is derogatory or offensive.

Key Facts for Patents and Plant Variety Rights Owners

The Waitangi Tribunal recommends that a new Committee (Patents Advisory Committee) be formed to advise the Commissioner of Patents on Maori interests in proposed patents.
The proposed committee would advise the Commissioner on issues relating to novelty, inventive step or utility in relation to matauranga Maori (Maori traditional knowledge).The committee would also advise the Commissioner where kaitiakiinterests are at risk. The Tribunal suggests that where a patent is contrary tokaitiakitanga (the guardianship interest), it could, subject to balancing with other interests, be refused on the grounds that it is contrary to ordre public (public order) – a ground which is permitted under the TRIPS Agreement.
Kaitiaki would be able to register their interest in particular species in order to give patent owners fair warning of the interest. However, an interest would not need to be registered to be taken into account by the Maori Advisory Committee.
Patent applicants should be required to disclose whether an application relies on Maori traditional knowledge. This requirement would be mandatory, although the exact sanctions for failure to disclose were not mentioned in the report.

Background

Established in 1975, the Waitangi Tribunal investigates possible breaches of the Treaty of Waitangi, which was signed in 1840 and guaranteed Maori “undisturbed possession” of their lands and treasures, in exchange for accepting British “sovereignty” over New Zealand. There has been much controversy surrounding the interpretation of the Treaty (it was written in both English and Maori), but since the Court of Appeal’s landmark decision in New Zealand Maori Council v Attorney-General [1], the Treaty’s principles, which are based on a partnership between the Crown[2] and Maori, have been largely settled.

In considering the WAI 262 claim, the Tribunal said that the claim must be seen in the context of the partnership established by the Treaty. It noted that in the European tradition value is attributed by according property rights, whereas Maori define value in terms of kinship and obligations to the collective, and observed:

“[T]he guiding principals in kaitiakitanga on the one hand and property rights on the other are really different ways of thinking about the same issue – that is, the ways in which two cultures decide the rights and obligations of communities in their created works and valued resources.” (“Te Taumata Tuarua”, Volume 1 page 33)

Key Concepts

matauranga Maori - Maori knowledge, the unique Maori way of viewing themselves and the world. It encompasses both what is known and how it is known and incorporates language, genealogy technology, systems of law and social control, systems of property and value exchange and forms of expression, amongst other things.
whanaungatanga – kinship, the relationship between Maori and all things animate and inanimate in their world, including people (living and dead), gods, plants, animals, mountains and rivers.
kaitiaki – a guardian, a person who has the kaitiakitanga obligation.
kaitiakitanga – the obligation, arriving from the kin relationship, to nurture and care for a person or thing.
taonga – anything that is treasured, including tangible things (such as land, waters, plants, wildlife and cultural works) and intangible things (such as language, identity and culture, and matauranga Maori itself).
taonga works - works that are an expression of matauranga Maori (Maori knowledge) that invoke ancestral connections.
taonga derived works - works that derive their inspiration from matauranga Maori, but do not have ancestral connections.

The WAI 262 Report

The Tribunal found that the Government has an obligation as kiwi guardians to actively protect Maori interests in taonga, and that it had not satisfied that obligation. The report discusses the gap between the protections provided by intellectual property laws and those sought bykaitiaki. The Tribunal acknowledged there was a need to balance Maori interests with those of other participants in the cultural and commercial life of New Zealand. It considered there was a need for a transparent and principled balancing mechanism.

Trade Marks, Copyright, Designs

The first chapter of the report considers the rights of Maori in relation to taonga works,taonga-derived works and matauranga Maori. Claimants had raised particular concerns about misappropriation and inappropriate uses of Maori words, names, images and symbols. People who are not kaitiaki are able to acquire rights in taonga works without the consent – or any benefit accruing to – kaitiaki.

To some extent these concerns are addressed in the Trade Marks Act 2002. The Commissioner must not register as a trade mark any sign the use of which would be likely to offend a significant section of the community, including Maori (section 17(1)(c)). The Act also provides for the establishment of a Maori Advisory Committee to advise the Commissioner.

The Tribunal noted that existing IP laws has failed to prevent derogatory or offensive public uses of taonga works and matauranga Maori. The Tribunal noted that “IP rights are never absolute”; that all IP rights involve a balancing act between the interests of property right holders and the public interest.

Permanent protection is given under New Zealand laws to various names and symbols (such as “ANZAC”, “United Nations”, state flags and emblems) and to images of the British royal family. Thus, “New Zealand could grant perpetual trade mark protection for some forms of taonga works.”

It said that if a balance needs to be struck, “the balance should generally be struck in favour of protecting the cultural integrity of matauranga Maori, taonga works, and the Maori elements of taonga-derived works” (“Te Taumata Tuarua”, Volume 1, p 88)

Recommendations

The Tribunal recommends the maintenance of all existing intellectual property rights in relation to taonga works, taonga-derived works, or matauranga Maori, whether they are owned by Maori or non-Maori, with one exception. The report states that Maori and non-Maori should be able to object to derogatory or offensive use of taonga works, taonga-derived works, or matauranga Maori. In the Tribunal’s view, this power must be retrospective.

The Tribunal recommends that all other uses continue to be governed by New Zealand’s intellectual property framework.

However, future commercial use of taonga works or matauranga Maori, for which akaitiaki can be identified, would require consultation with, or if appropriate the consent of, the relevant kaitiaki. The Tribunal’s view was that this process should not apply totaonga-derived works, as, unlike taonga works, taonga-derived works do not have the same connection with ancestors, and it could unjustifiably suppress innovation and creativity.

The Tribunal believes that just two changes are required to implement its recommendations; law reform and the establishment of a new commission.

The principal thrust of the law reform should be to prohibit the offensive or derogatory use of taonga works, taonga-derived works, or matauranga Maori and to require those attempting to secure rights to taonga works or matauranga Maori to consult with, or if appropriate seek the consent of, the relevant kaitiaki. The establishment of a new commission would also require law reform.

Commission

The Tribunal recommended that the new specialised commission would have three functions – adjudicative, facilitative and administrative.

i) Adjudicative: The commission would be empowered to consider complaints of offensive or derogatory use of taonga works, taonga-derived works, or matauranga Maori. Complaints could be made by Maori or non-Maori. The commission would also hear complaints from kaitiaki relating to applications for the commercial use of taonga works or matauranga Maori that proceeded without consultation with or consent from kaitiaki. It is envisaged that the commission would replace the Maori Trade Marks Advisory Committee, currently operating within the Intellectual Property Office. All applications to register trade marks and designs that contain Maori elements would be sent to the new commission to consider. The Commisioner’s decisions would bind the Commissioner of Trade Marks and Designs.

ii) Facilitative: The commission would establish best practice guidelines for the use, care, protection and custody of matauranga Maori, taonga works and taonga-derived works.

iii) Administrative: The Tribunal suggests that the commission establish and maintain a register of kaitiaki in respect to taonga works and matauranga Maori. The register would be primarily aimed at works that have – rightly or wrongly – come into the public domain.

Maori Trade Marks Advisory Committee

The existing Maori Trade Marks Advisory Committee is established under section 177 of the Trade Marks Act 2002. Its membership comprises persons who have knowledge of Maori world view, protocol and culture. It meets (quarterly) to consider trade mark applications which have been referred to it by trade mark examiners and provides recommendations to the Commissioner as to whether the use of the trade marks in question, in relation to the goods or services of the applications, would be offensive to Maori. It also advises the Commissioner of the types of uses which would not be considered offensive and these guidelines are published on the Intellectual Property of New Zealand’s website. (It has advised that uses of the word “kiwi” will not generally be offensive, and that uses of certain Maori geographical names would not be offensive unless the mark contains the name of a god or ancestor, or of a sacred site.) The Tribunal considered that the Advisory Committee’s mandate was not sufficient to protect thekaitiaki relationship between Maori and taonga.

The differences between the advisory committee and the proposed commission are:

· At present, the role of the advisory committee is to advise the Commissioner of Trade Marks. The commission’s decisions would be binding.

· Currently, the advisory committee sits within the structure of the Intellectual Property Office. The commission would be an independent, stand-alone entity.

· The role of the advisory committee is to advise the Assistant Commissioner on applications to register trade marks which incorporate Maori elements. The commission’s role would be wider – encompassing the adjudicative, facilitative and administrative functions described above. It would also consider uses of Maori elements – which could include non-trade mark uses.

International Context

Noting that “the TRIPS Agreement is a floor, not a ceiling”, and it is not a “straight jacket”, the Tribunal said that the extra protections for taonga works and matauranga Maori it has suggested would not have the effect of breaching the minimum standards prescribed by TRIPS.

The Tribunal looked at developments in international fora such as the United Nations Declaration of the Rights of Indigenous People (in particular, Article 11 and 31), and the proceedings before the WIPO Inter-Governmental Committee on Traditional Knowledge and Traditional Cultural Expressions. The Tribunal noted that the issues that arose during the hearing of the claim are not unique to New Zealand and its recommendations are not“maverick or extravagant”.

Acknowledging that its recommendations can only apply to New Zealand, the Tribunal expressed the hope that New Zealand would lead by example. If New Zealand protects Maori culture and identity, and thus New Zealand culture and identity, those in other countries might take note and act appropriately.

“The threats to identity are not internal but global. They are the genericising effects of a lowest-common-denominator consumer culture and the ease with which IP-based ventures can pluck Maori culture for its uniqueness and saleability, and bend it to commercial ends. The haka can sell cars in Italy and ta moko provides an interesting twist to haute couture in Paris. It is time for New Zealand law to reflect, and so for the world to learn, that these things belong to New Zealand and that they have kaitiaki.” (“Te Taumata Tuarua”, Volume 1, pages 98-99)

Patents and Plant Variety Rights

Chapter 2 of the Report, deals with the relationship of Maori to taonga species of flora and fauna, (i.e. those species which are treasured by Maori) and acknowledges that iwi(tribe), hapu (sub-tribe) or whanau (family) are kaitiaki (a spiritual guardian, who must always act in the best interests of the taonga) for particular species.

Many taonga species have become the subject of interest in the biotechnology field. It is the potential conflict between the scientific and commercial exploitation of these species, and the kaitiaki role of Maori that Chapter 2 attempts to address. The claimants expressed a number of concerns regarding threats to the kaitiaki relationship of Maori to taongaspecies. Of particular concern was:

Research and commercial exploitation of taonga species and related traditional Maori knowledge that takes place without the knowledge, involvement or authorisation of thekaitiaki, particular where a profit is made with the kaitiaki receiving no benefits;
The potential interference with the taonga species by way of genetic modification; and
The use of the intellectual property regime to assert rights that exclude kaitiaki and undermine the relationship of Maori to the taonga species.

The Report is very clear that kaitiaki do not have the right of ownership over taongaspecies, however the rights and the primacy of those rights will depend on the particular relationship between the iwi, hapu or whanau claiming to be kaitiaki and the species. Nevertheless, the Tribunal did find that the kaitiaki relationship did require further protection and proposed a series of recommendations in three broad areas, bioprospecting, genetic modification and intellectual property.

Recommendations

Of particular interest are the Tribunals recommendations regarding patents and plant variety rights.

The Tribunal was placed in a difficult position in that the Patents Bill currently before Parliament proposes substantial changes to the law in New Zealand. Not least amongst the changes is the proposal for a Maori advisory committee to advise the Commissioner on whether a claimed invention is derived from Maori traditional knowledge or from indigenous plants or animals and, if so, if the commercial exploitation of the invention is likely to be contrary to Maori values. A discussion of further features of the Patents Bill can be found here.

The Tribunal was thus placed in the position of making recommendations on the basis of the law as it currently stands, although being well aware of the intended nature of the new law. As a result some of the Tribunals recommendations are already present in the Patents Bill, however on the whole the Tribunal did not consider that the Crown’s proposals in this regard went far enough.

Patents Advisory Committee

The Tribunal recommends the formation of an advisory committee, similar to that proposed by the Bill, to advise the Commissioner of Patents on Maori interests during the patent procedure. However, the patents advisory committee envisaged by the Tribunal would have powers which extend beyond the committee currently proposed in the Bill.

The Tribunal considers that the advisory committee should have a clear mandate in two broad areas of patent law. Firstly, the committee would be able to advise the commissioner whether matauranga Maori prejudices the requirements of patentability (novelty, inventive step, utility). Secondly, the advisory committee should also be able to advise the Commissioner on whether there are kaitiaki interests at risk. The Tribunal considered that this second function was in line with article 27 of the TRIPS agreement which allows an exclusion for patentability where the exploitation of the invention is contrary to ordre public or morality.

Clause 276 of the Patents Bill states:

276 Functions of Maori advisory committee

The function of the Maori advisory committee is to advise the Commissioner (on request) on whether—

(a) an invention claimed in a patent application is derived from Maori traditional knowledge or from indigenous plants or animals; and

(b) if so, whether the commercial exploitation of that invention is likely to be contrary to Maori values.

Subclause (b) would appear to allow for the second function envisaged by the Tribunal, however to what extent subclause (a) allows for the committee to advise on patentability issues is unclear. Whilst it may allow for the advisory committee to draw the Commissioner’s attention to Maori traditional uses, it certainly falls short of the clear mandate for the committee to consider issues of novelty, inventive step and utility called for by the Tribunal.

Furthermore, the Tribunal considers that the committee should be allowed to investigate any application filed rather than operating on request. At present sub-clause 276 clearly only gives the advisory committee mandate when the Commissioner requests their input. Accordingly, should the Crown wish to implement this recommendation, amendment of the Patents Bill would be required.

Finally, the Tribunal recommends that the committee chairperson should be able to sit jointly with the Commissioner when relevant issues come before him.

Ordre Public

The Tribunal also recommended that the Commissioner be able to refuse patents that are contrary to ordre public (in the sense that this phrase is used in the TRIPS agreement) in addition to the contrary to morality provision of the Patents Act 1953. The Tribunal considered that issues of the Maori relationship with taonga species could be considered more an issue of social policy as opposed to morality per se.

Ordre public is a ground for refusal under the new Bill (clause 14(1)(a)), however it is unclear whether the wording of this provision achieves the purpose intended by the Tribunal. The wording in the Bill excludes from patentability an invention where “the commercial exploitation of the invention” is contrary to ordre public. An important distinction is that it does not restrict patentability where the granting of a patent is contrary to ordre public. This distinction was discussed in the context of the present section 17 provision in Pfizer Inc v Commissioner of Patents [2005] NZLR 362.

The concerns of the claimants in some circumstances seem to stem from the granting of a monopoly on an invention relating to a particular aspect of a taonga species, or use of ataonga species (see above). If a situation arose where the exploitation of the invention itself would not be contrary to the kaitiaki interest, but the granting of a patent on it may be then, there would be no ground for refusal of a patent (provided of course the invention meets the other patentability criteria).

Finally, with regard to this ground, the Tribunal expressly considers that the Commissioner should balance the interests of kaitiaki, with valid interests of others including the applicant, the wider economy, the community and the species itself. One wonders if, even with the advice of a specialist body on kaitiaki interests, the Commissioner of Patents is the correct person to be making such a decision.

Registration of Interests

The Tribunal also recommends enabling kaitiaki to register their interest in a particular species. This would give patent applicants fair warning of the interest over certain species. However the Tribunal takes care to note that there should be no requirement to register the interest in order that it may be considered against a patent application.

Disclosure requirement

The Tribunal also suggests that patent applicants be required to disclose whether any Maori traditional knowledge or taonga species have contributed to the research or invention. The Tribunal considers that the sanctions for doing so should be decided on a case-by-case basis, but could range from no sanction to the patent being revoked.

Plant Variety Rights

In addition to its recommendations for reform of patent law, the Tribunal also considered that any new plant variety right legislation should include a power to refuse a plant variety right if it would affect kaitiaki relationships with taonga species.

Where to now?

The WAI 262 Report has generated a great deal of discussion in New Zealand. There has been no official response from the government. Maori culture is, as the Tribunal has noted – and as recent events associated with the Rugby World Cup competition in New Zealand have highlighted, an integral aspect of New Zealand culture. As stated in the report, “Maori identity and culture is now a vital aspect of New Zealand identity and culture”.

The opportunity created by the report is succinctly summarised by its authors:

“What we recommend is a simple but important adjustment in New Zealand’s IP framework: an acceptance that there will be circumstances where the relationship between kaitiaki and their taonga works and matauranga Maori should be actively protected by the law. That would create, for the first time in New Zealand’s history, a legal environment conducive to the long-term survival of matauranga Maori and the kaitiaki relationship. If this were the only advantage, it would be amply justified. In truth, the benefits gained by kaitiaki will also accrue to the country as a whole. Taonga works are not just aboutMaori identity – they are about New Zealand identity, and a regime that delivers kaitiaki control of works will also deliver New Zealand control of its unique identity. That is an outcome with which none can argue, for it is the legal foundation of the cultural partnership the Treaty [of Waitangi] itself foresaw. (”Te Taumata Tuatahi”, page 52)

The recommendations made by the Tribunal are not binding on the Crown, and it will be interesting to see which, if any of the proposals are adopted by the Crown. Of concern is that, if it is decided that the Patents Bill should be amended to reflect the Tribunals recommendations, an already long overdue modernisation of New Zealand patent law may be further delayed.

We shall await further developments in this area with interest.

[1] [1987] 1 NZLR 641

[2] The British monarch is still the official head of New Zealand’s government, but in reality the Crown is represented by the New Zealand Government and its agencies.

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