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WAI 262 Decision Expected; Likely to Impact NZ IP Regime

Issued: May 01 2010
After three years of deliberation, New Zealand’s Waitangi Tribunal is expected to release its decision soon on the WAI 262 claim, according to Lynell Tuffery, a senior associate with AJ Park in Wellington. Tuffery says the decision is likely to impact New Zealand’s intellectual property framework, including access to, and use of, indigenous flora and fauna; and the use of Maori words, imagery, and artworks as trademarks, copyrights, and designs.

The WAI 262 claim, one of the first of its kind globally, raises important IP issues in New Zealand, Tuffery says. “The name WAI 262 became synonymous with the plight of indigenous peoples for recognition and protection of indigenous people’s rights to indigenous flora and fauna and traditional knowledge,” she says.

Tuffery writes in the firm’s IP Newz newsletter that the Waitangi Tribunal was established under the Waitangi Act 1975. “Maori can lodge a claim with the Waitangi Tribunal if they are, or are likely to be, prejudiced by legislation, Crown policy or practice, or any act of the Crown which is ‘inconsistent with the principles of the Treaty of Waitangi,’” she writes.

The WAI 262 claim – the 262nd claim before the Waitangi Tribunal – asserted the Crown breached the Treaty of Waitangi, because the Crown:

• failed to actively protect the exercise of tino rangitiratanga (authority) and kaitiakitanga (guardianship) by the claimants over indigenous flora and fauna, and other taonga (treasures), and also over matauranga Maori (Maori traditional knowledge)

• failed to protect the taonga itself

• implemented policy and legislation that disregarded Maori tino rangatiratanga and kaitiakitanga of flora and fauna and other taonga

• agreed to various international agreements and obligations that affect indigenous flora and fauna and intellectual property rights and rights to other taonga.

Tuffery says the claimants asked that one of the remedies include a framework for recognizing Maori rights to exercise tino rangatiratanga and kaitiakitanga over indigenous flora and fauna, other taonga, and matauranga Maori.

“The progress of the claim has been slow,” she says. “After the claim was filed in 1991, hearings began in 1997 and were completed in 2007. Recent signals indicate a decision could issue in coming weeks.”

Tuffery notes that the Tribunal’s decision is not binding on the New Zealand Government, but that the decision will “undoubtedly receive significant political support” in New Zealand and overseas.

“It will be interesting to see whether the structures proposed by the Waitangi Tribunal incorporate the suggested amendments to the Patents Amendment Bill (currently before the New Zealand Parliament) or any of the frameworks proposed by World Intellectual Property Office through the Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions,” she says.


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