Te Reo - Summary of Wai 262 Te Reo Chapter by Lynell Tuffery Huria

WAI 262: Update

By Lynell Tuffery Huria, senior associate, A J Park

On 20 October, the Waitangi Tribunal released one provisional chapter of its report on 

the WAI 262 claim, known as “the flora and fauna claim” or the “intellectual property claim”. 

The provisional chapter reports on the overall picture of the Government’s support for 

and protection of te reo Māori, but does not respond to any of the other issues in the claim, including the intellectual property issues.

This provisional chapter will provide some relief to claimants, all those involved in this 

19-year claim, and the international audience eagerly waiting for the decision. The chapter confirms the Tribunal has made progress towards resolving some of the complex issues presented by the WAI 262 claim.

It is also hoped that the release of this preliminary report means the full report will 

be released in 2011, a year that will mark the twentieth anniversary of the filing of the claim.

Why is the WAI 262 claim dealing with te reo Māori issues?  
The range of issues being considered by the WAI 262 claim is wide-ranging and complex. This issue was not included in the statement of issues agreed between the Tribunal and 

the parties. In fact, the agreed issues focused on much narrower concerns about the loss 

of different dialects and the inappropriate use of te reo Māori.

Wasn’t te reo Māori the subject of an earlier claim?
Te reo Māori was the subject of another claim before the Waitangi Tribunal, WAI 11, and 

a decision with recommendations has already issued on this point.

Why has te reo Māori become part of this claim?
The Tribunal states that submissions on the loss of dialects and inappropriate use of te reo Māori raised much wider issues, and meant that the Tribunal’s response could not be limited in the same way. The Tribunal felt it was necessary to revisit the WAI 11 decision, and review the developments in te reo Māori since that decision, as part of its report on the WAI 262 claim.

Why issue the provisional WAI 262 report now?It is unusual for the Tribunal to publish part of a report before releasing the full report. But the Tribunal explains that the release of this chapter was prompted by an announcement from the Minister of Māori Affairs to carry out a ministerial review of the Māori language strategy and sector. The Tribunal believe this chapter could aid in that review.

Submissions during the WAI 262 hearings also focused on the narrower issues of loss of dialects and inappropriate use of te reo Māori, or were meant to be limited in this way. The Tribunal has issued this report as a provisional report, and provided an opportunity for the parties to file additional submissions in response to the wider issues by 25 November 2010.

What are the findings in the WAI 262 report?
The report concludes te reo Māori is reaching a crisis point and urgent action is needed by the New Zealand government to preserve the language.

The report comments unfavourably on the Government’s response to the recommendations in the Tribunal’s 1986 report on the WAI 11 claim, including the following comments:

1. The Tribunal had not seen “any evidence of a true partnership between Māori and the Crown” to preserve te reo Māori. The report acknowledges the development of a Māori language strategy, but felt this strategy did not help to preserve te reo Māori at a grass-roots level.
2. The Government has not done enough to implement the Tribunal’s 1986 recommendations. The Government has not introduced unrestricted use of te reo Māori in Courts, government departments, and other public bodies.
3. The Government has repeatedly failed to implement policies that would help preserve te reo Māori. For example, the Government failed to ensure there were sufficient teachers well versed in te reo Māori to teach students who had been taught in kōhanga reo.
4. The Government’s Māori language strategy failed, because of “a lack of leadership and commitment amongst the responsible Crown agencies”.
5. The Government failed to commit sufficient resources to preserve te reo Māori.

What does the WAI 262 report recommend?

The report recommends that urgent action is needed, and recommends significant changes to bring New Zealand’s language policies in line with similar policies overseas. These are summarised below:

1. Te Taura Whiri should become the lead Māori language sector agency to address the issues of ownership and leadership of the problem.
2. Te Taura Whiri should function as a true partnership between Māori and the Crown, through equal appointment of Crown and Māori appointees to its board.
3. Te Taura Whiri will need the ability to compel public bodies to help revive te reo Māori. This may include the powers to hold public bodies accountable for the strategies they adopt.
4. Public bodies will need to consult with local iwi as they prepare their plans. This will mean that local iwi make a contribution to revitalisation of te reo Māori in their area.

What happens next?
Submissions can be made on this report until 25 November 2010.

The Tribunal has not provided any time frames for future developments on the full report or when the full report will issue.

It is great to see some progress from the Tribunal on the WAI 262 claim, but the claimants and all those involved in the WAI 262 claim will be hoping the release of this provisional report does not create more delays for the release of the full report.

What is WAI 262?
WAI 262 is the two-hundred-and-sixty-second claim before the Waitangi Tribunal. The origins of the claim date back to 1988, when two women found the Department of Scientific and Industrial Research (DSIR) had deposited several cultivars of native kumara at a research institution in Japan. These kumara had been brought to New Zealand by the Māori people, but were no longer available here. The women travelled to Japan to bring the kumara back to New Zealand.

The women became concerned at the ease with which this native flora and fauna could be lost to overseas’ interests, and the lack of Māori involvement in the decision-making process. The women felt the government and DSIR had ignored Māori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over this particular indigenous flora and fauna.

As work towards filing a claim with the Waitangi Tribunal began, the concerns extended to include the ever-increasing loss of native plants and animals, the destruction of ecosystems, the continuing erosion of mātauranga Māori (traditional Māori knowledge), and the continuing creation and amendment by the government of intellectual property legislation that failed to recognise Māori intellectual property rights.

The claim was lodged in 1991 by six individuals on behalf of six tribes.

What’s in the claim?
The claim asserted the Crown breached the Treaty of Waitangi, because the Crown:

• failed to actively protect the exercise of tino rangatiratanga and kaitiakitanga by the claimants over indigenous flora and fauna, and other taonga (treasure), and also over mātauranga Māori;
• failed to protect the taonga itself;
• usurped tino rangatiratanga and kaitiakitanga of Māori in respect of flora and fauna and other taonga through the development of policy and enactment of legislation; and
• agreed to various international agreements and obligations that affect indigenous flora and fauna and intellectual property rights and rights to other taonga.

The claimants also asked that one of the remedies include a framework based on tikanga Māori (or Māori customary values) that recognises Māori rights to exercise tino rangatiratanga and kaitiakitanga over indigenous flora and fauna, other taonga, and mātauranga Māori.

What do we expect the claim to say?
The decision could make recommendations on:

• when and how you can use intellectual property aspects of taonga works (including Māori words, imagery, and artworks, but is defined as artistic and literary works that incorporate some aspect of mātauranga Māori, and the mauri of taonga works, that reflects in some way the culture and/or identity of the kaitiaki of the work);
• when and how you can obtain some form of registered protection for taonga works, such as trade marks, copyrights, designs, and a right protectable under passing off;
• when and how you can use biological and genetic resources of indigenous and taonga species (defined as those species of flora and fauna having particular cultural or spiritual significance to Māori);
• when and how you can obtain some registered form of protection like a patent or plant variety right for a taonga species;
• how New Zealand will comply with its obligations under international treaties, including Trade-Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity; and
• a new framework for the protection of intellectual property that recognises Māori intellectual property rights.

It will be interesting to see whether the structures proposed by the Waitangi Tribunal incorporate the suggested amendments to the Patents Bill (currently before the New Zealand Parliament) or any of the frameworks proposed by the World Intellectual Property Organization through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore.

At least, we expect the decision will impact on access to and use of native flora and fauna, the use of Māori words, imagery, and artworks as trade marks, copyrights, and designs, and our IP framework.

Lynell Tuffery Huria is a senior associate at intellectual property firm A J Park. Email: lynell.tuffery@ajpark.com.

NZLawyer extra, 5 November 2010, Edition 14