Editorial: Appropriate to tread warily on kaitiaki claim

Maori want to have control of their art forms. Photo / Alan Gibson

Of all claims to the Waitangi Tribunal, the one filed as "Wai 262" has been perhaps the most unsettling to non-Maori who knew what it was about.

The claim was lodged 20 years ago when global trade negotiations were heading to an agreement on the protection of "intellectual property".

That term has a strictly limited meaning in patent law and copyright. It gives the likes of authors, artists, plant breeders and product developers an exclusive right to profit from their efforts for a limited period.

Wai 262 attempted to extend intellectual property rights beyond works of creation or invention to cover scientific uses of native plants and animals, as well as ancestral art and design, tribal folklore and indeed a whole category of knowledge for all time.

It challenged the important principle that there can be no copyright on knowledge and discovery, only on invention and techniques.

The tribunal has taken a long time to resolve the claim. Its report, issued last weekend, takes a while to absorb. In essence, the tribunal has endorsed the idea that Maori can have a permanent property right - not as owners but as "kaitiaki" (guardians) - to native flora and fauna and cultural creations such as placenames, traditional design patterns, music and haka.

The tribunal proposes that any medical research, for example, that uses Maori knowledge of the therapeutic properties of a native plant should need the consent of those who claim their ancestors discovered the plant's benefits.

Any writer or film-maker using tribal stories should need kaitiaki consent, as would tattooists who wanted to copy an ancestor's moko or a sporting team that wants to do Te Rauparaha's haka.

The All Blacks, who made that haka famous, have already sought and received Ngati Toa approval. Writers and film producers who mine a tribe's folklore for material usually seek the tribe's blessing.

In practice, the tribunal's proposals are not quite the outrage to artistic freedom they may seem in principle.

They are aimed at offensive or derogatory uses of cultural works, which are not always intended. It might surprise many to learn that the world's longest placename does not amuse some people in Hawkes Bay. It tells a valued story of their ancestor and they complain that it has appeared without their consent in advertisements, on T-shirts, coffee mugs, a wine label, even a pop song.

The cultural precautions proposed are of less concern than the implications of this report for scientific, medical and horticultural research and, above all, for the principle that knowledge should be available to everyone.

Intellectual property rights do not give authors and inventors exclusive ownership of their ideas, or the information they gather or discoveries they make.

Copyright protects only their expression of ideas and information. Likewise, patents protect the marketing of a new discovery, not the knowledge of it.

The property right the tribunal is proposing for native flora and fauna is different.

The claimants want to keep secret their inherited knowledge of the medicinal qualities of certain plants - some of their evidence was given to the tribunal confidentially - but if it is picked up for medical or genetic research they want control of it.

It is unlikely that law anywhere would award an intellectual property right to people who have not created knowledge or invested in its commercial application but have guarded it and tried to keep it to themselves.

The tribunal cites international steps to acknowledge indigenous intellectual property rights but to restrict the use of raw knowledge would be a step too far.