Information Sheet: Treaty of Waitangi Claim Wai 262
[ Last Updated 13 February 2007 ]
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What Is Wai 262?
Wai 262 is a Treaty of Waitangi claim brought against the New Zealand Crown in 1991 by the members of six iwi (Ngāti Kuri, Ngāti Wai, Te Rarawa, Ngāti Porou, Ngāti Kahungunu and Ngāti Koata). It is generally known as the "flora and fauna claim", but its scope is significantly wider. The claim was the 262nd claim lodged with the Waitangi Tribunal [link to Waitangi Tribunal website] and as a result is colloquially known as "Wai 262".
The Ministry of Economic Development, along with the Department of Conservation [link to DoC website], Te Puni Kōkiri [link to TPK website], and the Ministry for Culture and Heritage [link to MCH website], is responsible for advising the Government on its response to the Wai 262 claim. The Ministry has an interest in the "cultural and intellectual property" aspects of the claim, discussed below.
Statements of Claim
There are four statements of claim for Wai 262, which generally assert exclusive and comprehensive rights to flora and fauna, cultural knowledge and property as taonga protected by Article Two of the Treaty of Waitangi [link to Waitangi Tribunal website].
More specifically, the claimants assert that the Crown has:
- Failed to actively protect the exercise of tino rangatiratanga and kaitiakitanga by the claimants over indigenous flora and fauna and other taonga, and also over mātauranga Māori (Māori traditional knowledge);
- 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 the enactment of legislation; and
- Breached the Treaty of Waitangi by agreeing to various international agreements and obligations that affect indigenous flora and fauna and intellectual property rights and rights to other taonga.
To assist its consideration of the claim, the Crown has attempted to distil the broad scope of the Wai 262 issues and different points of emphasis found in the four statements of claim, into four categories:
- Mātauranga Māori (traditional knowledge) - concerning the retention and protection of knowledge concerning ngā toi Māori (arts), whakairo (carving), history, oral tradition, waiata, te reo Māori, and rongoā Māori (Māori medicine and healing). The claimants' concern is about the protection and retention of such knowledge. They note that traditional knowledge systems are being increasingly targeted internationally.
- Māori cultural property (tangible manifestation of mātauranga Māori) - as affected by the failure of legislation and policies to protect existing Māori collective ownership of cultural taonga and to protect against exploitation and misappropriation of cultural taonga, for example traditional artefacts, carvings, mokomokai (preserved heads).
- Māori intellectual and cultural property rights - as affected by New Zealand's intellectual property legislation, international obligations and proposed law reforms. Issues include the patenting of life form inventions, the inappropriate registration of trade marks based on Māori text and imagery, and the unsuitable nature of intellectual property rights for the protection of both Māori traditional knowledge and cultural property.
- Environmental, resource and conservation management - including concerns about bio-prospecting and access to indigenous flora and fauna, biotechnological developments involving indigenous genetic material, ownership claims to resources and species, and iwi-Māori participation in decision making on these matters.
"Cultural and Intellectual Property" Issues
The intellectual property issues raised by the Wai 262 claim relate to what is loosely referred to by many Māori and commentators as "Māori cultural and intellectual property rights". These claims are similar to issues being raised by indigenous people around the world concerning intellectual property rights, laws and international agreements. These issues are currently being considered in a number of international fora including the World Trade Organisation [link to WTO website], the World Intellectual Property Organisation [link to WIPO website], the Convention on Biological Diversity [link to CBD website] and others. Whilst not directly outlined in the Wai 262 statements of claim, the evidence presented by claimants revealed that the focus of the concerns are mainly two-fold:
- First, the adverse effects intellectual property rights can have on traditional knowledge and associated cultural property and biological resources. The key concern here is the granting of intellectual property rights to third parties for creations or inventions based on traditional knowledge or practices (where there is in fact no novelty) and the resulting commercialisation (that occurs in some cases). There are objections from indigenous people to the commercialisation of "sacred-secret" knowledge (where this is not culturally appropriate), and to the lack of equitable benefit-sharing where successful commercialisation occurs.
- Secondly, the inability of indigenous people to obtain or use intellectual property rights to enable them to protect or commercially exploit (where appropriate) their traditional knowledge, cultural property and biological resources.
The concerns raised in the second category relate to what is seen as the fundamental differences between Western intellectual property rights and traditional knowledge protection mechanisms of indigenous peoples. For example, intellectual property rights are usually limited in duration and involve disclosure to the public and the eventual contribution to the public domain. The philosophy behind intellectual property rights is the exploitation, rather than protection, of information and innovations. In many cases, indigenous peoples seek protection in perpetuity and do not want sacred-secret information to be disclosed to the public.
In addition, intellectual property rights are not considered to provide the protections that indigenous people seek because of the criterion of novelty and the requirement to identify an individual (or commercial entity) as the author/creator of a work or innovation and vest intellectual property rights in them. In comparison, the rights that indigenous people often assert are collective, not individual, in nature. Traditional knowledge and traditional knowledge-based innovations and practices may be developed incrementally over several generations.
The World Intellectual Property Organisation [link to WIPO website] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional knowledge and Folklore is currently considering how intellectual property laws might be adapted to address some of these concerns about collective ownership and the duration of protection.
The Process So Far and Where to from Here
Hearings of the claim began in 1998 with tangata whenua evidence completed in March 2001. The Tribunal then heard evidence from claimant expert witnesses and Tribunal commissioned researchers. Further progress on the claim had been delayed pending the Tribunal's release of its Statement of Issues, which was intended to establish the parameters of further inquiry.
The Tribunal released the final version of the Statement of Issues in July 2006. Hearings in the inquiry subsequently resumed, with claimants' refresher evidence having been heard in August-September 2006, interested persons or groups evidence in late September 2006, and finally Crown evidence in December 2006 and January 2007.
Closing submissions are scheduled to occur from 5 to 15 June 2007, and then the Tribunal will enter into its report writing phase.
Further Information
Useful information on the Wai 262 claim and the Treaty of Waitangi [link to Waitangi Tribunal website] generally may be obtained from the Waitangi Tribunal [link to Waitangi Tribunal website].
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