6. Concerns of Māori
99. Many Māori are concerned about the granting of intellectual property rights to life forms, including indigenous flora. There is concern that the grant of an exclusive right over a variety derived from an indigenous variety may infringe what many Māori consider to be their rights under the Treaty of Waitangi to maintain control over their resources, and may also limit the rights of Māori themselves to develop new uses of those resources. There is also concern about the cultural and spiritual implications of the alteration of life forms, and the encouragement given through the intellectual property rights system to continue innovation in this field.
100. Māori are also concerned that if exclusive rights are granted over indigenous varieties, Māori may be denied access to these varieties without either informed consent or arrangements for benefit sharing. The requirement for varieties to be "new" and "distinct" before they can be granted a PVR means that Māori would not be able to obtain protection under the PVRA 87 for existing indigenous varieties.
101. Another concern is that the current intellectual property rights system, which treats intellectual property rights as private property does not as a whole, sit well with the Māori concept of collective ownership of knowledge. It is also argued that the intellectual property rights system allows and promotes the commercial exploitation of knowledge, whereas the objective for Māori is more often the protection of traditional knowledge against inappropriate use and possible loss. In many instances the commercial exploitation of traditional knowledge is culturally offensive.
Consultations to Date
102. Four consultation hui were held in 1994 to discuss Māori concerns raised about proposed changes to intellectual property legislation. As discussed in section 2, most attention at the time was focussed on proposed changes to the Patents Act 1953, and the Trademarks Act 1953. In light of this, and the time that has elapsed since then, it is essential that Māori be consulted further before any changes to the PVRA 87 are considered.
Issues to Be Considered
103. The purpose of this discussion is to assist in exploring the extent to which Māori concerns about the PVR system might be accommodated within the existing or reformed regime while still permitting the system to function effectively in promoting innovation, competition and New Zealand's overall economic interests. There is a broader set of concerns relating to the protection of traditional knowledge and cultural heritage which conventional intellectual property mechanisms, such as the Patents Act or PVRA 87, do not address because of the underlying objectives and values on which they are based. These concerns could be addressed by the development of a stand-alone system to protect traditional knowledge (this issue is discussed further in the discussion document to be released as part of Stage 3 of the Review of the Patents Act).
104. An alternative to adapting existing intellectual property legislation to protect traditional knowledge is to develop a sui generis (stand-alone) system. The development of a sui generis system will address the broader concerns raised about the protection of traditional knowledge which cannot be adequately achieved by adapting existing intellectual property mechanisms.
105. The importance of developing mechanisms to protect traditional knowledge has been recognised internationally. Work is being undertaken in a number of international fora including the World Intellectual Property Organisation, which has recently established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. New Zealand has signaled its support for work by the Committee on sui generis systems to protect elements of traditional knowledge not covered by existing intellectual property systems. This is consistent with recommendation 10.4 of the Royal Commission on Genetic Modification, that:
"New Zealand be proactive in pursuing cultural and intellectual rights for indigenous peoples internationally".
The government has agreed with this recommendation, and has directed officials to implement it. New Zealand has also stated that this approach should not preclude the development of country or region-specific alternative approaches to protecting the knowledge and practices of indigenous communities.
106. Sui generis protection for traditional knowledge could be developed in conjunction with mechanisms governing access to genetic resources and benefit-sharing, as well as other measures such as registries of traditional knowledge, which would be used by patent examiners when considering patent applications. Such protection might include registers recording traditional knowledge and prior informed consent.
107. Some countries, including the members of the Andean14 community and the Philippines, have already introduced sui generis systems at the national level. International agreement on a sui generis system is, however, likely to take some time, as is the development of any sui generis system within New Zealand. Meanwhile it is appropriate to explore ways in which the existing regimes for intellectual property rights, including Plant Variety Rights, can be adapted to address some Māori concerns while still meeting its overall objective to promote innovation and competition.
108. The New Zealand Biodiversity Strategy, released in February 2000, acknowledged the need to encourage Māori participation in managing biodiversity and in developing a framework for the retention and promotion of Matauranga Māori15. It also recognised the need to take Māori interests into account in developing access to and use of New Zealand's indigenous genetic resources and the sharing of benefits of their use. Implementation of the Strategy (which is the responsibility of several government departments, including the Department of Conservation and the Ministry of the Environment) will complement any amendments to the Plant Variety Rights Act to take account of Māori interests in these areas.
109. Currently there is a claim before the Waitangi Tribunal ("WAI 262") which alleges that the Crown has breached its obligation to protect the cultural and intellectual property of Māori. This claim arises from Article II of the Treaty of Waitangi.
110. Article II of the Treaty of Waitangi preserves the rights of Māori to exercise te tino rangatiratanga ("their full chiefly authority") over their taonga (literally "treasures"- rendered in the English version of the Treaty as natural resources including lands, forests, fisheries and other properties).
111. The Wai 262 claim may be seen, at least in part, as a response to the tension between what are understood by Māori to be Article II rights and obligations, and the proprietary rights granted under intellectual property rights legislation, including the PVRA 87. The claim asserts that the Treaty guarantees rights of ownership, control, and authority over the genetic resources of indigenous flora and fauna, and cultural and intellectual heritage and traditional knowledge. It also asserts that the Crown is in breach of Article II of the Treaty through the enactment of legislation, including the PVRA 87, which is inconsistent with those rights.
112. The Wai 262 inquiry is some way from completion. Meanwhile the government is proceeding with other legislative reform that may go some way towards addressing the issues raised by the claim. For example, the new Trade Marks Bill introduced in June 2001, will, if enacted, require the Commissioner of Trade Marks to refuse to register a trade mark where the Commissioner considers that its use or registration would be likely to offend a significant section of the community, including Māori. The Bill goes some way towards addressing some of the concerns raised in the Wai 262 claim by ensuring that the Crown is not inappropriately registering trade marks containing Māori text and imagery.
Māori Concerns and the Review of the PVRA 87
113. Māori may be concerned that a PVR, through its grant of an exclusive right to use and commercially exploit a new plant variety, may prevent Māori from continuing to use the variety from which the new variety was derived. It is important to note however, that a PVR gives rights only in respect of a specific variety and nothing more. A PVR on a variety derived from an existing indigenous variety does not prevent the continued use of that existing variety.
114. If there were to be changes to the PVRA 87 it will be necessary to take account of the implications for Māori in granting intellectual property rights which may be perceived to conflict with Māori rights and interests in traditional knowledge and native plants. The Crown also has an obligation to consult with Māori on matters affecting their interests under the Treaty.
115. Māori interests in indigenous flora could be given some protection through amendments to the PVRA 87 while continuing to comply with New Zealand's international obligations. These might include, for example, providing for consultation with Māori when deciding to grant a PVR on a variety derived from a native variety. This could include advising whether the variety was "new" or "distinct". Māori could also be given explicit standing to object to the grant of a PVR under sections 6 and 15 of the PVRA 87.
116. Section 6 of the PVRA 87 allows "any person" to make an objection to an application for a PVR before the PVR is granted. Any person who objects to the name or "denomination" proposed for the variety can make an objection under s6(1) to the Commissioner of Plant Variety Rights ("the Commissioner"). This allows Māori to object to the inappropriate use of Māori words or names for plant varieties.
117. Section 6(3) allows any person to make an objection to the Commissioner that a variety that is the subject of a PVR application is not "new, distinct, stable or homogeneous". A similar objection can be made after grant under s15(1) of the PVRA 87. This enables Māori to object to the grant of a PVR on an existing native plant variety.
118. It would be possible to take into account some Māori concerns, as discussed above. It would not be possible, however, under the provisions of either UPOV 78 or UPOV 91 to refuse to grant a PVR on cultural grounds, for example, that the grant of a particular PVR was offensive to Māori. Where an application to register a new variety related to a variety derived from an existing indigenous variety, it would also not be possible to refuse the grant of a PVR if the applicant had not obtained "prior informed consent" for the use of that indigenous variety.
119. Under s6(2) of the PVRA 87, any person who considers that an application for a PVR has been made by or on behalf of an applicant who is not the owner of the variety concerned may object the granting of the PVR to that applicant. A similar objection can be made after grant under s15(2). These provisions could provide Māori with an avenue to object to the grant of a PVR where, for example, the new variety was based on a discovery on Māori owned land. This would not, however, deal with the situation where a breeder developed a new variety from an existing, known, indigenous variety.
Questions
- How could the PVRA be amended to take account of Māori concerns regarding the granting of proprietary rights over indigenous plant varieties?
- Should there be specific consultation with Māori before a PVR is granted on a new plant variety derived from a native variety? If not, why not?
- If there were to be specific consultation with Māori, what form should this take? Should there be a Māori advisory committee be established? How would such a committee be constituted?
- Who should initiate the consultation? Should the onus be on PVR applicants to consult Māori, or should it be on the Crown, or a combination of both?
- Should the PVRA 87 be amended to give Māori specific standing to object to the grant of a PVR or to apply to have a grant cancelled?
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