WAI 262: end of a long road for indigenous rights?

In the next few weeks the Waitangi Tribunal is expected to issue its decision on the 262nd claim that it has received since its inception in 1975. The claim, commonly referred to as WAI 262, raises certain significant IP issues for the first time in New Zealand.

The origins of the claim date back to 1988, when two women found that the Department of Scientific and Industrial Research had deposited several cultivars of native kumara (sweet potato) at a research institution in Japan. The kumara had been brought to New Zealand by the Maori people, but were no longer available there. The women travelled to Japan to bring the kumara back to New Zealand.

The women became concerned at the ease with which native flora and fauna could be lost to overseas interests, and at the lack of Maori involvement in the decision-making process. They felt that the government and the department had ignored Maori rights of authority and guardianship over New Zealand's indigenous flora and fauna. Work towards filing a claim with the tribunal began.

The claim was finally lodged in 1991 by six individuals on behalf of six Maori tribes. The claim generated international interest and WAI 262 became associated with the plight of indigenous peoples around the world. Many governments still struggle to reconcile protection of the collectively owned, traditional knowledge of their indigenous peoples with IP systems based on defined ownership and commercial advantage.

The claim asserted that the crown had breached the Treaty of Waitangi, which guarantees Maori ownership of lands and other properties. It was claimed that the crown had:

• failed actively to protect the claimants' exercise of their rights of authority and guardianship over indigenous flora and fauna, other cultural patrimony and Maori traditional knowledge;
• failed to protect the patrimony itself;
• usurped Maori rights of authority and guardianship in respect of flora and fauna and other patrimony through the development of policy and the enactment of legislation; and
• agreed to various international agreements and obligations that affect indigenous flora and fauna, IP rights and rights to other patrimony.

The claimants also asked that one of the remedies include a framework recognizing Maori rights of authority and guardianship over indigenous flora and fauna, cultural patrimony and traditional knowledge.

The progress of the claim has been slow: hearings began in 1997 and were completed in 2007. However, a decision is expected to be issued in the coming weeks.

The tribunal's decision is not binding on the New Zealand government, but will undoubtedly receive significant political support in New Zealand and overseas.

It remains to be seen whether the structures that the tribunal proposes incorporate the suggested amendments to the Patents Amendment Bill (before the New Zealand government) or any of the frameworks proposed by the World Intellectual Property Office through the Intergovernmetal Committee on IP and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions. The decision is likely to have a significant impact on the use of indigenous flora and fauna, as well as the use of Maori words, imagery and art in connection with trademarks, copyrights and designs.

For further information on this topic please contact Lynell Tuffery at A J Park by telephone (+64 4 473 8278), fax (+64 4 472 3358) or email (lynell.tuffery@ajpark.com).