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

Te Reo - Carwyn Jones Analysis of Wai 262 Prelim Report on Maori Language

Sunday, October 24, 2010 Wai 262: Te Reo Māori chapter

Last week the Waitangi Tribunal released a pre-publication chapter that will form a part of the much anticipated Wai 262 report.  Wai 262 (so called because it was the two hundred and sixty second claim to be registered with the Waitangi Tribunal) is sometimes referred to as the Indigenous Flora and Fauna claim, but may be better described as the ‘Traditional Knowledge’ claim as the inquiry encompasses issues around cultural intellectual property that run much wider than flora and fauna.  The Waitangi Tribunal produced a Statement of Issues for the final stages of the inquiry, which gives some indication of the breadth of the issues to be addressed.  The chapter that was released last week covers matters relating to te reo Māori, the Māori language.  The Tribunal had not intended to release pre-publication chapters for this report in the way that some of the recent historical inquiries have done.  However, the decision was taken to release this chapter in order to be able to feed into the review of the Māori language strategy and sector that was announced in July of this year.

There has been reasonably wide media coverage of aspects of the released chapter, particularly around the Tribunal’s findings about the precarious state of te reo.  The Tribunal identifies a number of indicators that suggest a recent decline in the health of te reo, which is certainly alarming and may come as a surprise to many.  The Tribunal recommends a number of measures be taken to halt and reverse this decline, including revitalizing Te Taura Whiri I te Reo Māori by providing it with the powers and resources necessary to lead the recovery of te reo.

Perhaps not so widely-reported is the Tribunal’s analysis of Treaty principles that underpins its findings and recommendations.  The Tribunal sets out the now undisputed status of te reo Māori as a taonga that attracts the protections guaranteed in Article Two of the Treaty of Waitangi.  In doing so, the Tribunal draws support from its 1986 Te Reo Māori Report, the 1993 decision of the Privy Council in theBroadcasting Assets case, and more recently, the recognition of language rights in the United Nations Declaration on the Rights of Indigenous Peoples.  Furthermore, because of its central role in the maintenance and development of Māori culture as a whole, the Tribunal found that “[t]he language is clearly a taonga of quite transcendent importance to Māori…”.  Distinctive tribal dialects also ought to be protected and nurtured as integral to the health of a diverse and dynamic Māori language.  The Crown will, therefore, need to adopt a variety of approaches in order to satisfy the particular preferences of different iwi. 

So the Crown has clear duties arising from the Treaty in relation to te reo, and what is more, the Tribunal notes, there are no real countervailing interests that impact on the Crown’s duty, except perhaps the limitations of financial cost.  In fact, interestingly, the Tribunal points out that it may be argued that all New Zealanders have a vested interest in ensuring the survival and growth of te reo because “te reo helps shape our collective identity”.  The Tribunal is, however, careful to point out that both Māori and the Crown have obligations to foster the growth of te reo.  Noting that the most successful language revitalization strategies in regards to te reo have been the initiatives of Māori communities themselves, the Tribunal’s recommendations aim to empower Māori to take a lead in the development of te reo strategy.  As part of the Treaty principle of partnership, Māori communities must have ownership of the issues surrounding the health of te reo and contribute the initiative, the ideas, and energetic leadership.  Māori must also take the primary responsibility for speaking Māori in the home, where it is neither possible nor appropriate for the government to give direction in these matters.  The Crown for its part must provide expertise and resources in support and ensure that arrangements for decision-making authority encourage and reflect Māori ownership of the issues.  The Crown also has obligations to provide “a Māori-speaking government”.  The Tribunal notes that not only would widespread use of te reo throughout the public sector send a strong message about the importance of te reo through leading by example, but also it would enable and encourage Māori speakers to engage with the state in te reo Māori for all official purposes.  Te reo Māori is, after all, one of our official languages.

The Tribunal notes, in its letter of transmittal to the Minister of Māori Affairs, that although the te reo chapter is being released ahead of the other parts of the Wai 262 report, the Tribunal is still of the view that the real value of the Wai 262 report will come when it can be considered as a whole.  The Tribunal itself has indicated that it is nearing completion of the entire report.  Many people, not least of all the parties involved, will be looking forward to the release of this major report.  If the chapter on te reo Māori is any indication, we can expect a number of significant and wide-ranging recommendations from the complete report.