Responding to Wai 262: whole-of-government approach proposed for “flora and fauna claim”
October 17, 2019
The Government has proposed a whole-of-government approach for addressing the Wai 262 claim and the Waitangi Tribunal’s corresponding report, Ko Aotearoa Tēnei.
This proposal signals the start of a highly complex and lengthy process, leading to an outcome that is likely to affect all New Zealanders. It also coincides with the reviews of the Copyright Act 1994, Plant Variety Rights Act 1987, and Haka Ka Mate Attribution Act 2014, along with other key legislation.
Summary: what you need to know
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Background: Overview of Wai 262
The Wai 262 claim, also known as the “flora and fauna claim”, relates to the control and use of taonga (treasured works that are significant to Māori culture and identity), including taonga species of flora and fauna, matauranga Māori (traditional Māori knowledge and values), and traditional Māori roles such as kaitiaki (guardians) and their relationship with taonga. The claim was lodged in 1991 with the Waitangi Tribunal, a commission of inquiry that makes recommendations on claims by Māori in relation to alleged breaches of the Treaty of Waitangi.
Ko Aotearoa Tēnei, released in 2011, recommends changes to policy and practice in New Zealand as a result of the Wai 262 claim. Our earlier report on Ko Aotearoa Tēnei is available here.
Ko Aotearoa Tēnei was the outcome of the Waitangi Tribunal’s first whole-of-government inquiry, addressing the work of over 20 Government departments and agencies. It is therefore unsurprising that the Government has proposed a whole-of-government response for addressing Wai 262. This reflects the complexity of the issues underlying the claim.
Details of the Government’s proposed approach
The Government has released a paper, Preliminary Proposal for Crown Organisation, intended to seek views on how the Government organises itself internally, how it can assist and work with Māori, and how it might prioritise and undertake the work.
To coordinate the various government agencies, the Government has proposed establishing a Ministerial Oversight Group, along with Ministerial groups for three broad “Kete” (baskets) of issues:
- Kete 1, covering taonga works and intellectual property, Te Reo Māori, and mātauranga Māori;
- Kete 2, covering genetic and biological resources of taonga species, relationship with the environment, the conservation estate, and rongoā Māori (traditional medicine and healing); and
- Kete 3, covering Māori interests at an international level.
Each Kete would cover several work streams.
As part of the process, the Government recently held discussions with the representatives of the original Wai 262 claimants. This will be followed by targeted engagement with Māori technical experts, advisory boards, national Māori bodies, and subject specialists.
The Government intends to issue a paper to Cabinet by the end of 2019. The paper will confirm the proposed organisational structure and next steps for developing a coordinated approach to Wai 262 issues.
Discussion: too complex, and no conclusion in sight?
Notably absent from the Government’s proposal are: (a) a proposed timeframe for the overall process and individual work streams; and (b) a proposed form of the work output, including how this will address individual work streams.
This is somewhat unsurprising given that the process is likely to be highly complex and politically contentious. However, it creates some uncertainty for work streams that are already well underway, such as the reviews of the Copyright Act and Plant Variety Rights Act, even though Māori issues are being considered as part of those reviews.
A positive interpretation of the Government’s proposal is that it has at least begun the process of responding to Wai 262. A sceptical interpretation is that the Government is simply making a political “kick for touch”. Either way, we are hopeful that a comprehensive plan will be announced following the Cabinet paper due later this year.
Next steps: public input
Public input on the Government’s proposal can be provided by emailing wai262@tpk.govt.nz.
The Ministry of Business, Innovation and Employment has also created a new webpage with information relating to protecting taonga works and mātauranga Māori. A list of submissions and a summary of public feedback the Ministry received at recent workshops relating to the review of the Copyright Act 1994 can be accessed here.
Please get in touch with any of our contacts to discuss this development and for assistance in making a submission.
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