Thursday, August 11, 2011

Guest Post: Will the WAI 262 report stop misuse of Maori words and images?

Thanks to Lynell Tuffery Huria for this article.

The WAI 262 report, released on 2 July 2011, discusses the misuse and misappropriation of Maori words and images.  Despite this report, we continue to see Maori culture being used in commercial activities with little or no consultation with Maori.

Most recent examples include:

These examples are nothing new.  Aspects of Māori culture have been exploited for commercial gain since colonisation.  Similar problems exist for most, if not all, indigenous cultures around the world.

Some say Māori culture should be available for all to use and benefit from.

Māori do not agree.  Māori have a unique relationship with their culture.  They see themselves as the kaitiaki (guardian) of that culture.  The kaitiaki role includes ensuring any use of their culture complies and acknowledges the value system that underpins that culture.

The ongoing misuse of Māori culture (amongst other things) led to the lodging of the WAI 262 claim.  This claim sought protection for Māori culture, but also sought recognition of the role of Māori, through iwi and hapū, as kaitiaki of that culture.

How does the WAI 262 report propose to deal with this problem?

The Waitangi Tribunal agreed with Māori.  The Tribunal saw an urgent need for the integrity of Māori culture to be maintained.  The Tribunal acknowledged that Māori were not involved in decisions on the use of their culture.  The report seeks to change this current position and involve Māori in all decisions relating to its culture in this future.  The Tribunal saw this as a real opportunity for New Zealand to move forward in partnership, as intended by the Treaty of Waitangi.

The Tribunal did not grant full authority or control over Māori culture to Māori.  Instead, the Tribunal recommended a regime that would replace the Trade Mark Advisory Committee (established under the Trade Marks Act 2002) with a new Commission.  This Commission would have the responsibility to:

  • hear objections on whether use of a taonga work, taonga derived work, or mātauranga Māori is offensive or derogatory
  • hear kaitiaki objections that a taonga work is being commercially used without consultation or consent
  • make decisions on whether a work is a taonga work
  • identify kaitiaki
  • keep a register of taonga works and kaitiaki
  • develop and produce guidelines and best practices for the use, care, protection, and custody of taonga works.

The new Commission’s decisions will be binding.  The Trade Mark Advisory Committee’s recommendations are currently not binding.

The exact shape and makeup of the Commission is not clear.  But involvement of Māori is considered imperative to achieve the partnership vision outlined in the report.

Could these recommendations stop the recent examples of use of Māori culture?

The Tribunal’s recommendations are restricted to use of Māori culture in New Zealand.  Therefore, the recommendations could impact on how and when Māori culture is used in New Zealand in the future.  For example, if the Commission found the sale of the MAORI personalised plate or the sale of cheap Māori souvenirs was offensive or derogatory, then the sale of those products could be stopped by the Commission.  This action is not currently possible.  This is a fundamental change.

Could the recommendations stop use of Māori culture overseas?

The Tribunal’s recommendations will not have any effect on the use of Māori culture overseas.  For example, the Commission could not stop the use of tā moko on models for a French magazine or the use of TUATARA as the name of a new sports car.

But the WAI 262 claim was considered revolutionary when it was filed.  This claim was considered synonymous with the plight of indigenous peoples around the world, and the report has been eagerly awaited by a wide international audience.

It is possible other indigenous peoples could rely on this report as a basis to achieve a similar level of recognition for their culture in their home countries.  And consequently result in reciprocal rights for Māori culture to be recognised around the world.

It is also quite possible this decision could influence the ongoing negotiations on this issue in WIPO through the Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions.

Do the recommendations affect existing trade mark rights?

The Tribunal report states it will be difficult to retrospectively remove any existing trade mark rights.  In fact, the Tribunal only sees a need to remove these trade mark rights if they are considered derogatory or offensive.

For those that already use Māori culture as part of their commercial activities, you can breathe a sigh of relief.  But you should seek advice and make sure your use will not be considered derogatory or offensive.

Where to from here?

These recommendations are non-binding.  The government will consider which aspects of the report to adopt, and then we can expect further legislation to amend our trade mark legislation.

In the meantime, if you adopt a brand or trade mark that is derived from Māori culture, then you should consider obtaining some advice on whether this use should be considered derogatory or offensive, or is derived from a taonga work.  In either situation, consultation with Māori is the key.

Ko Aotearoa Tenei – “This is New Zealand”

Ko Aotearoa Tenei, “This is New Zealand” is the three volume report in response to the WAI 262 claim.  Twenty years in the making, the report is the Tribunal’s first whole of government report that addresses the work of more than 20 government departments and agencies in areas such as trade marks, copyrights, patents, plant variety rights, language, science and technology, conservation, laws, history, education, art, and international agreements.

For more background on the claim, see our earlier article.

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