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He Hīkoi Taitu: Aotearoa (New Zealand) Marches Slowly Toward Protection of Indigenous Rights

Published: January 12, 2022

Earl Gray Sangro Chambers Auckland, New Zealand Indigenous Rights Committee

New Zealand’s progress toward a comprehensive long-term solution for the recognition and protection of Indigenous rights has been slow. There is a commitment to get there, but a viable and appropriate framework still seems a long way off.

The Current Position

Provisions Relating to IP Registration

For trademark practitioners, New Zealand’s specific provisions in the Trade Marks Act 2002 will be the most relevant and well-known initiative.

The “offensive trademark” provision in Section 17(1)(c) of New Zealand’s Trade Marks Act 2002 has a specific Indigenous peoples slant. It provides that a trademark should not be registered if its use or registration would, in the opinion of the Commissioner of Trade Marks, “be likely to offend a significant section of the community, including Māori.”

In turn, Sections 177 to 180 of the Trade Marks Act set up a statutory Māori Advisory Committee to assess trademark applications that appear to contain Māori words or images, and to make recommendations to the Commissioner. The Committee has concerned itself with such things as applications to register something that is tapu (sacred) in combination with something that is noa (common). The Intellectual Property Office of New Zealand has published helpful guidelines about these issues.

New Zealand’s Patents Act 2013, Section 15(1), contains a similar provision that excludes inventions from patentability if the commercial exploitation of the invention as claimed is contrary to public order or morality and, by Section 15(3), empowers the Commissioner of Patents to seek advice from the Patents Māori Advisory Committee or any person the Commissioner sees fit. In turn, Section 226 of the Patents Act provides that the function of the Māori Advisory Committee is to advise on whether a claimed invention is derived from Māori traditional knowledge or from Indigenous plants or animals and, if so, whether the commercial exploitation of that invention is likely to be contrary to Māori values.

 

The trademark and patent provisions relating to IP registrations provide a limited type of recognition of Indigenous rights.

New Zealand’s Plant Variety Rights (PVR) Bill 2021, intended to replace the Plant Variety Rights Act 1987 and implement New Zealand’s obligations under the International Union for the Protection of New Varieties of Plants 1991 (UPOV 91), also contains specific provisions. It proposes that a PVR Māori Advisory Committee will assess and determine whether an application, if granted, will or could have adverse effects on kaitiaki (guardian) relationships with the plant variety that is the subject of the PVR application and, if so, whether a condition to mitigate adverse effects on a kaitiaki relationship should be imposed as a formal condition of the grant of the PVR. Thirty years in the making, the draft Bill has been through the Select Committee. Once the Committee’s changes are finalized, it will go through a second and then third reading in Parliament. If it passes at the third reading, the legislation will proceed to Royal assent and come into force. This is expected to happen in 2022.

The trademark and patent provisions relating to intellectual property (IP) registrations provide a limited type of recognition of Indigenous rights. While the provisions prohibit culturally inappropriate trademarks and patent registrations, they generally do not prohibit inappropriate use and exploitation. It seems the proposed PVR provisions will go further, including giving the PVR Māori Advisory Committee the ability to impose conditions on how the relevant variety is used.

Sui Generis Protection

In the IP field, one example of sui generis protection enacted in New Zealand resulted from the settlement of a historical grievance claim with the Māori iwi (tribe) Ngāti Toa Rangatira.

Haka are traditional Māori dances with accompanying songs. The haka Ka Mate is well known for its performance by New Zealand’s men’s national rugby team, the All Blacks, before its international test matches. Ka Mate was composed by Te Rauparaha, a chief of Ngāti Toa Rangatira in the early 19th century and is viewed by Ngāti Toa Rangatira as a taonga (treasure) for which the iwi is kaitiaki.

New Zealand’s Haka Ka Mate Attribution Act 2014 grants Ngāti Toa rights of attribution not otherwise available under New Zealand’s IP laws. In particular, it requires that applicable uses of the haka Ka Mate must be accompanied by a statement identifying Te Rauparaha as the composer and as a chief of Ngāti Toa Rangatira. It also acknowledges the haka Ka Mate as a taonga, and Ngāti Toa Rangatira as its kaitiaki.

New Zealand businesses must include appropriate attribution if they:

  • publish the haka Ka Mate, or part of it, for commercial purposes;
  • communicate it to the public; or
  • include it in a film that is shown or issued to the public.

The right of attribution is subject to any written agreement entered into by the haka’s rights representative.

General Law Developments

New Zealand’s Fair Trading Act 1986 prohibits misleading or deceptive conduct in trade. It seems only a matter of time before a complaint about use of Māori words or images without approval from relevant iwi or other Māori representative organization, is brought under the Fair Trading Act, alleging that the public will be misled into believing the relevant Māori body has given its consent (or at least that it has been consulted).

In public law cases, court decisions in New Zealand now commonly recognize the relevance and applicability of tikanga tikanga (Māori custom) to decisions by public bodies. This illustrates a trend toward recognition of Māori customs, values, and taonga as part of New Zealand’s general law.

The Way Forward

As previously reported in the INTA Bulletin, there is potential for a number of further sui generis protections in New Zealand following New Zealand’s Waitangi Tribunal’s 2011 report into the WAI 262 claims, Ko Aotearoa Tēnei (“This is Aotearoa” or “This is New Zealand”).

The Waitangi Tribunal was established in 1975 to inquire into and make recommendations on Māori claims against the Crown stemming from breaches of the Treaty of Waitangi signed in 1840. The Treaty was intended to provide or preserve certain rights for Māori, and the WAI 262 claim related to the control and use of taonga, including taonga species of flora and fauna, and mātauranga Māori (traditional Māori knowledge and values).

The WAI 262 claim was initiated in 1991, with the Ko Aotearoa Tēnei report issued in 2011. Since 2011, things have continued to move slowly.

 

In public law cases, court decisions in New Zealand now commonly recognize the relevance and applicability of tikanga tikanga (Māori custom) to decisions by public bodies.

A key development occurred in 2020 with the announcement of Te Pae Tawhiti, the work program for a whole-of-government response to the WAI 262 recommendations, following targeted engagement with Māori technical experts, various Māori advisory boards, national Māori bodies, and subject specialists. A whole-of-government approach is perceived as needed to progress this program, regarded as an important part of strengthening the Māori-government relationship, and for New Zealand as a nation to build an economy, community, and services where Māori can elevate their own well-being and reach their goals and aspirations.

Subject to changes that might arise as the program unfolds, the government will organize itself around three broad kete (baskets) of issues drawn from the Ko Aotearoa Tēnei report:

  1. Taonga works.
  2. Taonga species.
  3. Kawenata Aorere/Kaupapa Aorere, covering topics such as Māori engagement at an international level, Māori-Crown engagement, and Māori representation.

In a related development, Te Puni Kokiri, the Ministry of Māori Development, commissioned the He Puapua report to explore options for New Zealand’s implementation of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), to which New Zealand is a signatory. Importantly, Article 31 of UNDRIP relates, generally, to recognition and protection of the cultural and IP of Indigenous peoples, including:

… the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures …, the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

It is expected that New Zealand could combine its response to the He Puapua report with the Te Pae Tawhiti program.

Understandably, New Zealand’s response to the COVID pandemic has slowed progress again with Te Pae Tawhiti. Thirty years after the WAI 262 claim was lodged, it is still too early to predict what changes will ultimately be proposed for Indigenous rights in New Zealand and how the related proposals might affect IP regimes.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2022 International Trademark Association

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