Mai Chen: No big bang but society will change

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

The true significance of the Wai 262 Waitangi Tribunal report (flora and fauna and cultural intellectual property claim) is in the change it is likely to make over time to policy and law, and thus to society.

There will be no big bang as not all of the recommendations will be adopted and implemented. The tribunal's recommendations are non-binding but the Government has to respond and will want to do so after the election so as not to scare Pakeha voters.

The more-than-1000 page report, taking 21 years to complete, is worthy of study. The tribunal's first whole of government report addresses the work of more than 20 departments and agencies concerning Matauranga Maori covering areas such as language, science and technology, laws, history, systems of property and value exchange, rituals, ceremonies and art forms.

Most tribunal recommendations have been wholly or partially implemented by successive governments.

In Wai 262, the tribunal found that laws and policies breach Treaty of Waitangi principles by:

* Allowing others to commercialise Maori artistic and cultural works such as haka or moko without Maori consent.

* Allowing the commercialisation of indigenous plant species that are vital to iwi or hapu identity without their input.

* Allowing others to use traditional Maori knowledge without consent or acknowledgement.

* Providing little or no protection against offensive and derogatory uses of artistic cultural works.

* Not taking account of core cultural values such as whanaunatanga (family) and kaitiakitanga (guardianship).

RECOMMENDATIONS

The Wai 262 report recommends a new commission to protect cultural works against offensive and unauthorised uses, more support for te reo and that Maori have an equal voice in conservation, wildlife and prospecting decisions.

It recommends that DoC policies and practices give Maori a "reasonable degree of preference" when making decisions on commercial activities on the conservation estate. There are also recommendations for Crown engagement over treaties and declarations that affect culture, identity and traditional knowledge.

Some argue the impact of this report will give Maori the right of veto over cultural imagery, the right to advise the Government on any patents that use indigenous animal or plant matter and first option on DoC contracts for pest control in national and forest parks.

This may create opportunities for Maori business. A recent BERL Economics report put the value of the Maori economy in 2010 at $36.9 billion.

There is no doubt this report has enormous significance for Maori and they will be lobbying their Maori MPs hard in all parties to ensure that the recommendations are implemented.

The report is not to everyone's liking. Act Party leader Don Brash says it is "appalling" while Maori Party MP Rahui Katene, daughter of one of the original claimants, John Hippolite, says the report is watered down and politicised in terms of going "nowhere near dealing with te tino rangatiratanga or Maori control of things Maori".

It is essential to find an approach to contemporary claims that all parties can live with.

CONTEMPORARY CLAIMS

The reason is that although the Crown is working to settle all historical claims by 2014, contemporary claims such as Wai 262 will continue to be an aspect of the post-settlement relationship.

The courts and the tribunal have long interpreted the Treaty of Waitangi as creating a partnership between Maori and the Crown.

Contemporary claims are an aspect of that partnership. As the tribunal says this is the future focus of that relationship.

The 2002 Ahu Moana claim (Wai 953) was taken in opposition to the Crown's proposed regulation of marine farming. Ngati Kahungunu and Ngati Whatua claimed it had breached the Treaty by failing to consult Maori.

The tribunal upheld their claim, holding that the proposed aquaculture law reforms amounted to acts, policies, practices and omissions of the Crown inconsistent with Treaty principles.

The claim was eventually resolved with the passage of the Maori Commercial Aquaculture Settlement Act 2004.

Ultimately, the tribunal found in Wai 262 that the displacement of Maori culture from contemporary law and policy compounds a wider picture of social disparity reflected in under-performance in education, employment or health under Article 3 of the Treaty.

As the Prime Minister and the Attorney General say, the report gives plenty of food for thought.

* Mai Chen is a partner with public and employment law specialists Chen Palmer. This is an excerpt taken from her forthcoming book, Public Law Toolbox.