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The WAI 262 flora and fauna claim, and the Mataatua Declaration, legal statements of tino rangatiratanga

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The Treaty of Waitangi Claim WAI 262 and the Mataatua Declaration are two recent attempts to assert tino rangatiratanga, and to approach governance from a tikanga Māori perspective. This article discusses what each document offers and is likely to achieve.

Introduction
Following the signing of the Treaty of Waitangi and Te Tiriti o Waitangi, the Crown quickly presumed a right to rule, and put in place a means to do so. This presumption has meant that the Crown has imposed its own values and set of laws over tangata whenua and tau iwi alike. Even governments sympathetic to Māori complaints expect Māori to use Crown legal methods to fight against, or negotiate with, the Crown. The presumption of a right to rule means that in addition to being required to use methods set up by the Crown, the burden of proof is on Māori to establish rights over their lands, and the assumption of innocence or ownership is with the government or private ‘owners’. A report by the New Zealand Conservation Authority stated that:

“Iwi and hapu are alienated from... traditional roles and activities, and the ultimate statutory responsibility is assumed by the Crown or private owners; Maori contributions and priorities are only accommodated to a limited extent within the frameworks of contemporary resource management systems.” (p 32)

The Treaty of Waitangi Claim WAI 262 and the Mataatua Declaration are two recent attempts to assert Māori right to rule, and to approach governance from a tikanga Māori perspective.

The WAI 262 Claim
In 1988, kaumātua representing Ngāti Kurī, Te Rarawa, Ngāti Wai, Ngāti Porou, Te Whānau a Rua and Ngāti Kahungunu (Ngāti Koata were to join later) met to discuss how to protect mātauranga Māori and fulfill their role as kaitiaki when plants and animals were being lost and whole ecosystems destroyed (Solomon, 2000). In 1991, they filed the 262nd claim to the Waitangi Tribunal, based on breaches of Article 2 of the Treaty of Waitangi which guaranteed Māori “full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess” (Treaty of Waitangi, Article 2), or in Te Tiriti o Waitangi “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa” (Te Tiriti o Waitangi, Ko te tuarua).

The Claim can be seen as having four parts.
1.
Defines the rights and responsibilities of te tino rangatiratanga guaranteed in Te Tiriti, including the rights to make decisions and benefit from those decisions over all aspects of indigenous flora and fauna (including kumara and kiore), and including the rights and responsibilities of manaakitanga, kaitiakitanga and tapu.
2.
Defines Crown obligations under the Treaty, which imposes “a continuing obligation on the Crown to take active and positive steps to assist in the preservation of te tino rangatiratanga o te Iwi Māori in respect of their taonga”, and to obtain “consent from Maori on issues of tino rangatiratanga... of indigenous flora and fauna and cultural taonga” (WAI 262 Claim, pp 4, 5). The claim states that “any exercise of kawanatanga by the Crown... [is] in denial of te tino rangatiratanga o te Iwi Maori and… in breach of the Treaty of Waitangi” (WAI 262 Claim, p 5).
3.
Outlines breaches of the Treaty and Te Tiriti by the Crown. These can be summarised as: failure to protect Māori tino rangatiratanga and kaitiakitanga over indigenous flora and fauna and other taonga, and over mātauranga Māori; having denied Māori the ability to protect these taonga, failure to protect the taonga itself; usurption of tino rangatiratanga and kaitiakitanga; and signing of international agreements affecting indigenous flora and fauna, intellectual property rights, and rights to other taonga (Ministry of Economic Development, p 1).
4.
Provides a list of remedies that include an apology, compensation, and recognition of te tino rangatiratanga o te iwi Māori in domestic law and international responsibilities.

Although the Claim is written in legal language, it is written from a tikanga Māori perspective. This is most clear in the reported breaches of Te Tiriti and the Treaty (sections 4-13). These sections speak explicitly of creation traditions, atua, Papatūānuku, Te Wao Nui a Tane, the importance of rangatiratanga, kaitiakitanga, manaakitanga, mana whenua and tapu in regards to indigenous flora and fauna, and the importance of cultural and spiritual values associated with specific species and indigenous forests. In addition to these, throughout the Claim the importance of mātauranga Māori, whakapapa, mana, wairua and mauri (especially in regard to genetic manipulation) are clearly central. Hippolite has said that the Claim is not just about having te tino rangatiratanga recognised by the Crown, but also about forcing them to acknowledge why claimants seek it (Jackson, in Paget-Clarke, p2). The validity of the Claim stems from whakapapa not from concepts in Crown Law (Williams, p 10). Williams argues that the Tribunal must consider the Claim from a tikanga Māori perspective “rather than commencing with Crown policies... then trying to accommodate Maori concerns in a framework... already stipulated by... Government policies” (p ix).

The WAI 262 Claim has massive implications. It is based on the rights of tangata whenua, not on the principles of the Treaty, or on rights to Aboriginal title in British law. Rather than focus on specific acts of the Crown in breach of the Treaty of Waitangi, it questions the right of the Crown to rule at all. Additionally, it questions the Crown's presumption of rights over everything not known at the time of the signing of the Treaty/ Te Tiriti.

“From a tino rangatiratanga perspective... radical title to land and... taonga lies with the hapū of te iwi Māori and the burden of proof should properly be on the Crown to establish its rights.” (Williams, p 6)

I believe it is no overstatement to say this is revolutionary.

If the claimants are successful, it is most likely that the Crown will ignore the Tribunal's recommendations: in relation to Māori right to contest ownership of the foreshore and seabed, the findings of the Tribunal were relatively inconsequential, but rather than act on them, the Crown legislated in the opposite direction. The Crown is already undermining WAI 262 by implementing policies and legislation that pre-empt the Claim (Solomon, p 9). What the WAI 262 will do though, is give more ammunition to those fighting for te tino rangatiratanga, and provide another opportunity for Māori to debate and re-politicise ourselves. Commentary on the hearings shows the Claim as justified and reasonable (eg Williams, Solomon, Jackson), but it deserves more publicity. It clearly states the basis of claims to tino rangatiratanga, and the flaws in the Crown's approach to the Treaty/ Te Tiriti. It offers an opportunity to debate fundamental assumptions in the settlement stories of New Zealand and our 'national identity'; but so far Pākehā are largely ignorant of the Claim. The Claim will likely force the Crown again to deny the Treaty. Again it will raise the question, if not the Treaty, on what basis does the Crown assume its right to rule? Every moment that exposes the Crown as an illegitimate governor is an embarrassment to them and for potential tangata whenua.

The Mataatua Declaration
Information about the Human Genome Biodiversity Project has deepened fears of indigenous peoples about the exploitation of their knowledge and cultural practice. Already 'bioprospecting' from the medical knowledge of indigenous peoples accounts for more than 75 % of plant-derived prescription drugs (Knudtson and Suzuki, cited in New Zealand Conservation Authority, p 22). The First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples was held over 6 days in 1993 (the United Nations International Year for the World's Indigenous Peoples), hosted by the nine tribes of Mataatua.

“Over 150 delegates from 14 countries attended, including indigenous representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA, and Aotearoa.” (Mataatua Declaration, p 1)

Delegates discussed issues including:

“the value of indigenous knowledge, biodiversity and biotechnology, customary environmental management, arts, music, language and other physical and spiritual cultural forms.” (Mataatua Declaration, p 1)

These discussions lead to the passing of the Mataatua Declaration on the final day.

The body of the Declaration consists of four parts.
1.
A list of statements. These include the right to self-determination, the common experience of indigenous peoples to exploitation of their cultural and intellectual property, the benefits of this knowledge to all humanity and their willingness to share this if their rights are protected, and a declaration that all forms of discrimination and exploitation of indigenous peoples must stop.
2.
Recommendations to indigenous peoples. These are focused on regaining control over their intellectual and cultural property, they include defining that property and developing a code of ethics in regards to use, prioritising education in traditional knowledge, reacquiring lands, maintaining traditional practices, and working with other indigenous peoples.
3.
Recommendations to states, national and international agencies, and their responsibilities in recognising the rights and expectations of indigenous people, and to biodiversity and customary environmental management.
4.
Recommendations to the United Nations, including the responsibility for participation and representation of indigenous peoples, monitoring and action against states who damage the rights of indigenous people, adoption of the Mataatua Declaration, and an end to the Human Genome Diversity Project.

The Declaration is not written from a western legal concept of intellectual and cultural property rights, but from a radically different perspective. Because it comes from an internationally represented forum and is directed at States, the United Nations, and indigenous peoples around the world, it does not explicitly refer to Māori concepts. It is obvious though, that Māori who contributed to the Declaration saw it as an expression of the mana of the indigenous peoples, te tino rangatiratanga, and the tapu of mātauranga. The first statement, the right to self determination, is clearly an assertion of te tino rangatiratanga of indigenous peoples. The second statement, on the exploitation of indigenous cultural and intellectual property, can be seen as asserting that their rangatiratanga has been ignored. In Māori terms, cultural and intellectual property are mātauranga. The remaining statements speak of the tapu of this mātauranga, and the rangatiratanga of indigenous peoples in relation to it. As a whole, the Declaration aims to re-establish the mana of the indigenous peoples. I assume these concepts were common to the participants from other nations.

The Mataatua Declaration has the potential to reshape international (and national) law and thinking around cultural and intellectual property. International law reflects Western concepts of intellectual property where the focus is exploitation of information and encouraging innovation (Ministry of Economic Development, p 3). Patents are granted allowing property rights for a limited time where there is novelty and invention, but not where something is part of the 'common heritage of mankind' or the 'public domain' (Young, p 2). It has been argued that this is a “terra nullius perspective” (Mead, cited in Williams, p 8 ): it allows innovation based on generations of research and use by indigenous peoples to be patented by others, and at the same time denies indigenous people the right to protect their own knowledge if it is not novel or innovative, or is widely known. The Mataatua Declaration is focused on control over the cultural and intellectual property of indigenous peoples, and protecting it from exploitation. This has been called the clash between the underpinnings of the Intellectual Property Rights system and Indigenous Peoples Rights and Obligations (Solomon, pp 3, 4). At its foundation is the right of indigenous people to self-determination, to not be subject to foreign legal concepts that always seem to lead to their exploitation. I believe there is more sympathy to this at the United Nations than on a national level. Unfortunately, member states generally ignore the United Nations when they disagree with it, and the United Nations has shown itself to be impotent without the agreement of its most powerful members. For example, it is inconceivable at this time that the US would provide its voice or resources against states who are damaging the cultural and intellectual property rights of indigenous peoples, when they are themselves as guilty as most. The Declaration does present a moral basis for arguments to reshape the legal structures of cultural and intellectual property rights, and is a clear statement of an alternative world view.

Summary
Both the WAI 262 Claim and the Mataatua Declaration are bold statements of tino rangatiratanga that have tikanga Māori at their foundation. The Wai 262 Claim is set on the national level, concerning Māori rights to defining and controlling Māori taonga, but it has international implications – not just because it will affect many of New Zealand's international agreements. Commentators on indigenous rights from around the world have been and will be watching how the New Zealand state handles itself in the hearings and following the findings of the Tribunal. The Mataatua Declaration is set on the international level, and will also have national and international implications. It can be seen as a message from the International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples in support of the WAI 262 Claim and demands for protecting Māori intellectual property. Internationally, it has the potential to transform the way indigenous peoples are treated, giving them the power to dictate the terms themselves.

These two documents have several things in common. They each provide an alternative to the currently dominant western legal paradigm, with the indigenous authors assuming their right to determine tikanga, rather than to be trapped trying to fit indigenous values into western legal concepts. In doing this, they each remind us of where we are: we belong to this whenua, we have the responsibility to defend and protect it according to the tikanga and mātauranga that evolved here, we have never ceded those duties to anyone, rangatiratanga remains with tangata whenua. Both documents show that we currently do not have the power to enforce this, and they remind us why we are fighting for that power: not so that we can be successful according to Pākehā values and laws, but rather to re-establish our own values and law that work for us.

The WAI 262 Claim and the Mataatua Declaration show us a way forward. They are an important step in the movement towards self-determination for tangata whenua worldwide. They are taonga for those of us who have only known the Pākehā world. I am grateful to the kaumātua who envisioned and contributed to these statements of tino rangatiratanga. Ka mihi atu ki a koutou, ngā puna mātauranga e ārahi nei i ā tātou. He mihi nui, he mihi aroha. Tēnā koutou.

References
PUBLISHED MATERIAL
Ministry of Economic Development, Information Sheet: Treaty of Waitangi Claim WAI 262. Ministry of Economic Development, 2005

Paget-Clarke, Nic, “Interview with S Jackson”, In Motion Magazine, http://www.inmotionmagazine.com/nztrip/sj1.html, 2001

Solomon, Maui, “Intellectual Property Rights and Indigenous Peoples' Rights and Obligations”, Paper presented to the Workshop on Instruments for Access and Benefit Sharing from Genetic Resources and Related Traditional Knowledge Issues. Global Biodiversity Forum 15, Kenya, 2000

Williams, David, Matauranga Maori and Taonga: The Nature and Extent of Treaty Rights held by Iwi and Hapu in Indigenous Flora and Fauna, Cultural Heritage Objects and Valued Traditional Knowledge. Waitangi Tribunal, 2001

UNPUBLISHED MATERIAL
The Indigenous Flora and Fauna Claim: WAI 262, 1991

The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, 1993

New Zealand Conservation Authority, “The Māori Unniverse”, Compiled in Law 1/1: The Laws of Tāne: Compilation of Readings and Resources. Te Wānanga-o-Raukawa, Diploma in Māori Laws and Philosophy, Ōtaki, 2008

Te Tiriti o Waitangi, 1840

The Treaty of Waitangi, 1840

Young, Susan, “The Patentability of Maori Traditional Medicine and the Morality Exclusion in the Patents Act 1953”, LLB Honours Paper. Victoria University Wellington, 2000

Comments

Re: The WAI 262 flora and fauna claim, and the Mataatua Declarat

thanks, great article...

Re: The WAI 262 flora and fauna claim, and the Mataatua Declarat

Law v Lore

That is where the arguement is.

Thanks for this article. Will pass it around some networks for others to comment i te ao maori.

Re: Re: The WAI 262 flora and fauna claim, and the Mataatua Decl

Thanks for your comment

'law v lore'

I think tikanga has been called lore as a way of writing it off as some primitive, spiritualist thing that indigenous people do, as opposed to a well-defined system of understanding and managing our relationships (including our relationships with our environment and ancestors), which it is (like law). When the ethnologists, or whoever, called it lore, it made it justifiable to them to lay british law over the top (because there was no law, only lore).

What do you think makes lore different from law?
Maori law comes from a different philosophy and has taken a different approach from western law, but does that mean it isn't law?
Western law also comes from a spirituality, it just pretends that it has moved on from its christian origins.
Western law has become really rule based in application, whereas Maori law is principle based, but that doesn’t seem to be a big enough difference to call one law and the other lore (because the rules of western law are still decided by principles).

I'm not sure if this is what you were meaning?
I'd like to hear what you think about this.
kim

Re: The WAI 262 flora and fauna claim, and the Mataatua Declarat

"When the ethnologists, or whoever, called it lore, it made it justifiable to them to lay british law over the top (because there was no law, only lore). "

First I will admit I don't know what a ethnologists is. But as for the rest I am speaking from a tikanga base, wairua base, an aroha base. I am well aware of how others see lore and law.
Let me take law.
Did I make it? Was I part of a process that made it? Is it there to help me? Who are the laws designed to control and for who? For who profits are these laws made?
Let me look at lore
Lore to me is the safty net for us all to live here. It comes directly out of tikanga theefore the atua. It bears very little realationship to law. Law is determed by one small group to control a larger group. Lore is about common sense. It is based on learning from a long time ago. Our tipuna have handed lore down to us.

As for when and why laws were made that is simple. To control those they could not control in any other way. Laws are made to sound resonible and we are told this is what you get when you vote for the rich and allow them to run your lives. How can law be even compared to lore? One is about profit margins The other is about protection for the future, for the moko of our moko.
There is a strong wairua base to lore and wairua and money are like oil and water they don't mix. In fact it creates a barrier to movement hence the problems with law and lore.

I also look forward to some strong debate on this issue and agree with Ira...great article.

Thanks

Re: Re: The WAI 262 flora and fauna claim, and the Mataatua Decl

Thanks for your response, that's an awesome exlanation.
I think it's always going to be difficult when we have to choose between pakeha words. I've been in the 'tikanga is a form of law' camp because I have a bigger dislike of some parts of the meaning of 'lore', and you've explained why 'law' is just as bad. It hadn't occurred to me that other people would have as big a emotional reaction to law as I have to lore (which is pretty dumb of me, considering). I think I need to stop trying to fit such big concepts into one pakeha word.
Thanks for that.
Mauri ora

Re: The WAI 262 flora and fauna claim, and the Mataatua Declarat

Whakawhanaungatanga

Lets build towards new relationships. Not about maori or pakeha rather it is about my relationship with you and the community/whanau I/we live with or in.

Money is a barrier but aroha is wairua and aroha is the glue is the glue.

Sounds simple and to me it is.

Aroha works.

Good luck with your journey and again thanks.