The remarkable elasticity of the Treaty of Waitangi is again being demonstrated in government proposals to insert a Treaty clause in the Plant Varieties Act.
Intellectual Property Office consultations on the issue wrap up on Wednesday.
An attempt to mollify Maori with a Treaty clause was portended in September last year when Commerce and Consumer Affairs Minister Kris Faafoi released an issues paper for public consultation on New Zealand’s plant variety rights law, which regulates intellectual property protection over new plant varieties.
Faafoi released the paper while attending the Ngā Taonga Tuku Iho Conference, which provided a platform for attendees to lament it had been 25 years since the Mataatua Declaration (on the Cultural and Intellectual Property Rights of Indigenous Peoples) was developed. It was 26 years since the WAI-262 Indigenous Flora and Fauna Waitangi Tribunal Claim was lodged and seven years since the Tribunal released its Ko Aotearoa Tēnei report on the claim.
Conference notes said:
” … and yet, are we any clearer about accessing, utiising and benefit-sharing of taonga Māori – indigenous flora and fauna and Māori iconography, artforms and te reo?”
“New Zealand’s intellectual property laws and practices are still not addressing the core issues Māori have been consistently raising.”
The issues paper released by Faafoi identified key issues related to the effectiveness of the current plant variety rights regime and invited feedback.
The recognition of Maori rights was portended in Faafoi’s remarks:
“A robust plant variety rights regime gives plant breeders intellectual property rights over new plant varieties they have developed. The certainty of those rights encourages the development and dissemination of new plant varieties, which is both good for plant breeders, users of plants and seeds, and provides consumers with a wider choice of products.
“At the same time, I want to ensure our plant variety rights regime strikes the right balance between the interests of rights holders, Māori, farmers and growers, consumers and our wider economy so New Zealand gains maximum benefit from the regime while meeting our international and Treaty of Waitangi obligations.”
Faafoi explained that New Zealand has obligations under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (to modernise its regime to meet international standards for plant variety rights protection and must do that within three years of the agreement coming into force for New Zealand.
The whiff of the Treaty being invoked could be discerned when he further said:
“New Zealand also negotiated a specific exception in the CPTPP to be able to adopt any policy it considers necessary to give effect to our Treaty of Waitangi obligations.
“Ensuring the plant variety rights regime includes adequate protection and recognition of Māori interests in the regime will be an important outcome of this review.”
Alongside the plant variety rights consultation, Faafoi announced the release of a discussion document that considered whether New Zealand should require patent applicants to provide information on the origin of genetic resources or traditional knowledge used in their inventions.
The consultation closed on 21 December.
The general news media paid scant attention to the issue.
Te Ao Maori News, however, recognised the potential for scoring gains for indigenous people and reported:
While some delegates at the inaugural Māori intellectual, cultural and property rights conference, Ngā Taonga Tuku Iho, in Nelson are not entirely sold on the existing structure in which Māori are not accorded the status deserving of a Treaty partner, it was emphasised that it is important for Māori to participate in the discussions.”
This report said the government had a difficult balancing act to perform, which did not necessarily lend itself to Māori interests prevailing.
Alongside Māori, it has international obligations under CPTPP and the competing interests of rights holders, farmers, growers, consumers and wider New Zealand.
The Intellectual Property Office of New Zealand seems to have got in on the act since then and is seeking public comment on proposed reforms to its Plant Variety Rights regime.
The only account we could find of the office’s review of the law was here in IPOPro.
It said an initial IPONZ review of the Plant Variety Rights Act 1987 was given the green light in the early 2000’s, but was put on hold due to the release of the Waitangi Tribunal’s Wai 262 report, which highlighted several recommended alterations needed to the Plant Variety Rights regime.
IPONZ wants to modernise the Plant Variety Rights Act 1987, as well as aligning it with the Crown’s Treaty of Waitangi obligations.
The office emphasises that the plant breeding industry
“ … has changed significantly over the last 30 years, and this review is necessary to ensure that the Plant Variety Rights Act is fit-for-purpose going forward”.
Any review of the legislation was delayed for a second time due to negotiations related to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
Under the CPTPP, New Zealand is required within three years to modernise the Plant Variety Rights regime to be consistent with the updated international agreement on plant variety rights (UPOV 91). New Zealand’s new plant variety regime must be in place by December 2021.
All submissions to IPONZ need to be sent by 17 July 2019. That gives you two days, dear reader.
The only comment Point of Order could find in a quick Google search came from, Hobson’s Pledge spokesperson Casey Costello.
The addition of an absurd Treaty of Waitangi clause in the Plant Varieties Act raises the question whether “Maoridom” will claim royalties on new plant varieties, she warned.
According to her press statement, the Ministry of Business, Innovation and Employment (“the great compliance Ministry”) has decided to add Treaty compliance to the Plant Varieties Act so that:
- The Crown protects Maori guardian (kaitiaki) interests in the plant variety rights regime, and that
- This requires consideration of Maori guardian interests at all stages of the plant variety rights process, from the start of the breeding programme to the decision on whether or not to grant a plant variety right.
Every year more than 100 new varieties of plants are registered with the New Zealand Intellectual Property Office.
This enables those who created those new varieties to earn royalties from licensing others to produce and sell propagating material from them.
But because the Plant Varieties Act has never had a Treaty clause,
” … MBIE foolishly asked the Waitangi Tribunal for a recommendation – and got one that cited the Wai 262 Maori culture and identity inquiry.
“The tribunal recommended that the plant variety rights regime (along with bioprospecting, genetic modification and other intellectual property law and policy) facilitate better protection for guardian (kaitiaki) relationships with highly prized (taonga) species and Maori knowledge (matauranga).
“The tribunal made specific recommendations to ensure Maori guardian (kaitiaki) relationships were considered effectively in plant variety rights decision-making processes.”
Costello huffed that this is “nonsense”, especially when discussing pasture, fruit and vegetable varieties, and ornamentals that never grew in New Zealand until settlers brought them here.
“Besides, how can a new variety which no one other than the creator of that variety has any knowledge of be regarded as a part of Maori knowledge?” she said.
“While changing the traits of plants to produce desired outcomes, what specific steps must the plant-breeding scientist now take to match his or her work to the Treaty world view?” Ms Costello said.
The word “taonga” simply meant property in 1840, she contended.
Since then, the meaning has been changed so that simply by calling something “a taonga” enables a Treaty claim over it, Costello said.
“To suggest that a treaty made almost 180 years ago, guaranteeing the same political rights to all New Zealanders, also enables a property right to unnamed Maori people over a new plant breed is the height of absurdity, she said.
News media seem to have ignored the statement and Point of Order can find no statements in rebuttal.