Ratification of UPOV 91
40. The definition of "breeder" in UPOV 91 may present an obstacle to ratification by New Zealand of UPOV 91. Under UPOV 91, a "breeder" is defined as a person who bred, or discovered and developed a variety. If the variety satisfies the other requirements for grant of a PVR, (that the variety is new, distinct, uniform, and stable), a PVR must be granted to the breeder.
41. Under this definition, if, for example, a person were to go into a national park or conservation land, take an indigenous plant, and use it develop a new variety , then, under UPOV 91, that person would be considered to be the "breeder" of the new variety. It would not be possible, under the provisions of UPOV 91, to refuse to grant a PVR (or revoke a granted PVR) on the grounds that the breeder had not obtained (for example) prior informed consent to use the variety in that way.
42. Ratification of UPOV 91 is likely to be strongly opposed by many Māori, in particular the WAI 262 claimants. They may consider that ratification of UPOV 91 would be in breach of the Crown's obligations under the Treaty of Waitangi, and may preclude the possibility of amendments to the PVRA as part of any government response to a Waitangi Tribunal decision regarding the WAI 262 claim.
43. In addition, ratification of UPOV 91 may also limit any future amendments to the PVRA to take account of the objectives of a New Zealand bioprospecting policy.
44. On the other hand, a decision not to immediately ratify UPOV 91 may, however, be disadvantageous to New Zealand. It is possible that plant breeders in other countries that have ratified UPOV 91, such as the United States, Australia and the European Union countries, may see deferral of ratification as suggesting a lack of commitment to the protection of plant varieties. This could lead to reluctance by overseas plant breeders to allow their new varieties to be exploited in New Zealand. If this occurred, New Zealand's access to new and improved varieties may be restricted, leading to New Zealand being placed at a disadvantage to countries which had ratified UPOV 91.
45. In light of this, and because the WAI 262 claim may take some time to resolve, it would also be prudent to re-visit the issue of ratification of UPOV 91 before the claim was resolved, if this does not occur within a reasonable time, say, three years. This would allow consideration of whether or not deferral of ratification was restricting New Zealand's access to new and improved varieties.
46. Consequently, I recommend that UPOV 91 not be ratified at this time, but that ratification be considered after the WAI 262 claim has been resolved and work on a bioprospecting policy is completed, or within three years of this decision, whichever is sooner.
47. Although it is my recommendation that UPOV 91 not be ratified at this stage, there would be some advantages in incorporating some of its substantive provisions into the PVR Act.
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