“Tikanga Maori Framework”
A Framework for Protection, Use, Control and Ownership of Matauranga Maori me o Ratou Taonga Katoa
Maui Solomon
It is argued here that a framework and process relating to the protection, use, development, ownership and control of Matauranga and all other taonga guaranteed protection under Te Tiriti o Waitangi needs to be agreed and developed by Maori and for Maori in consultation with the Crown and other stakeholders.
A Tikanga Maori Framework for Matauranga Maori me o ratou Taonga Katoa (The Tikanga Framework) could have some or all of the following features:
1. Te Tiriti o Waitangi/Treaty of Waitangi
2. Tikanga, customary laws and values;
3. NZ legal system, government policy and regulations;
4. International customary laws, and conventions (eg Declaration on Rights of Indigenous Peoples, Mataatua Declaration, WIPO draft objectives and guidelines, Convention on Biodiversity etc) ;
5. Relevant codes of ethics and research guidelines both national and international.
In order to enforce compliance with this Tikanga Framework, some form of legal recognition and protection will be necessary within the current New Zealand legal system. But there may also be non-legal codes of ethics, guidelines and protocols containing rights and obligations, designed to educate and persuade voluntary compliance with the Tikanga Framework. The Tikanga Framework could have some or all of the following responsibilities for:
Acknowledgments
Janke, Terri Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Right
Maui Solomon
It is argued here that a framework and process relating to the protection, use, development, ownership and control of Matauranga and all other taonga guaranteed protection under Te Tiriti o Waitangi needs to be agreed and developed by Maori and for Maori in consultation with the Crown and other stakeholders.
A Tikanga Maori Framework for Matauranga Maori me o ratou Taonga Katoa (The Tikanga Framework) could have some or all of the following features:
- The Tikanga Framework to be developed by Maori after full consultation among Maori following a series of regional and local hapu, Iwi and national hui. There would also be a need for consultation with Crown agencies and other relevant private sector stakeholders and interests groups (eg nursery groups, design groups, and intellectual property groups etc);
- Any system designed should be based primarily in tikanga Maori, reflecting Maori cultural values and practices but also taking into account existing legislative and regulatory frameworks and the interests and views of the business communities sectors;
- Implicit would be the expectation that the NZ legislative structures would need to be altered and amended to accommodate a Tikanga Framework. A series of options could evolve under this model including utilizing, developing and strengthening existing tikanga models and customary laws, development of sui generic mechanisms and adapting existing laws and processes;
- Inherent in this system will be the acknowledgement; protection and promotion of rights and obligations to control, manage, protect, utilize, and develop resources in accordance with Maori cultural values, protocols and tikanga;
- Whatever structure or structures are settled upon will need to be flexible enough to take account of issues that affect Maori at a Iwi, hapu, whanau, individual and national level (i.e. issues that have generic application for many or all Iwi/hapu). The structure must also accommodate the rights of individuals such as Maori artists, carvers, musicians and designers;
- A national structure or body would be appointed by Maori with representatives of the original Wai 262 claimants forming the nucleus of a body to widely consult with Maoridom on the establishment, form, structure, functions and administration of any such national body;
- In terms of the resourcing of the framework, the claimants would seek an allocation of funds from the Crown (as part of their remedies package), to undertake nationwide consultation with tribes and urban Maori to discuss the formation of an appropriate structure or structures.
- Resources and Funding would also be needed to develop, implement and administer the Tikanga Framework on an ongoing basis;
- The Tikanga Framework would be responsible for developing mechanisms for protecting and promoting the use of Matauranga Maori me o ratou taonga katoa taking into account:
1. Te Tiriti o Waitangi/Treaty of Waitangi
2. Tikanga, customary laws and values;
3. NZ legal system, government policy and regulations;
4. International customary laws, and conventions (eg Declaration on Rights of Indigenous Peoples, Mataatua Declaration, WIPO draft objectives and guidelines, Convention on Biodiversity etc) ;
5. Relevant codes of ethics and research guidelines both national and international.
In order to enforce compliance with this Tikanga Framework, some form of legal recognition and protection will be necessary within the current New Zealand legal system. But there may also be non-legal codes of ethics, guidelines and protocols containing rights and obligations, designed to educate and persuade voluntary compliance with the Tikanga Framework. The Tikanga Framework could have some or all of the following responsibilities for:
- Acting as a national point of contact and referral body to Iwi, hapu or whanau or individuals, once it is determined at which level of Maori decision-making the relevant issue is most appropriately dealt with. Where it was obvious that certain issues affected particular tribes, the issue would be referred to that tribe to deal with. If it was a matter which affected Maori at a national level, then a national body as contemplated above could deal with and undertake research at that level;
- Acting as a resource support body for tribes and organisations to help empower them in undertaking of their own research over which they would have control;
- Liaising with government departments, private enterprise, local authorities and other bodies who have responsibility or decision making regarding Matauranga Maori me o ratou taonga katoa;
- Consultative body with Maoridom. This would be a key component of the Tikanga Framework. Hui and consultation with Maori would need to take place on a regular basis;
- Development of policies, codes of ethics, compliance issues, research guidelines, educational and awareness programmes, etc in relation to respect for cultural values, access, use and identifying circumstances in which matauranga Maori may be appropriately commercialized and circumstances in which it should not be commercialized. Such policies will need to take into account tikanga values, national and international regulatory and customary regimes and instruments, customary laws and tikanga and the development of any sui generis systems in Aotearoa/NZ;
- Any such national body could act as a ‘Principal Point of Contact’ for those commercial operators and research institutions both in New Zealand and overseas who wish to access traditional Maori knowledge for commercial and non-commercial purposes;
- Education about Maori cultural values and their application within a modern day context. This might include the general public, government agencies, research institutions and the private sector;
- Overseeing and advocating for legislative and regulatory change;
- Acting as an advisory body to various government departments dealing with TK/IPR issues and issues relating to genetic modification;
- Determining and advising on how the interface between TK and IPR can occur in a practical manner including the development of codes of conduct and ethical guidelines for the commercial sector etc.
Acknowledgments
Janke, Terri Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Right