WAI 262: the journey so far

23 April 2010
In the next few weeks, the Waitangi Tribunal is expected to release its decision on the 262nd claim it’s received since its inception in 1975.  The claim, commonly referred to as WAI 262, raises important intellectual property (IP) issues for the first time in New Zealand. 

The origins of the claim date back to 1988, when two women found the Department of Scientific and Industrial Research (DSIR) had deposited several cultivars of native kumara at a research institution in Japan.  These kumara had been brought to New Zealand by the Maori people, but were no longer available here.  These women travelled to Japan to bring the kumara back to New Zealand.

The women became concerned at the ease with which this native flora and fauna could be lost to overseas interests, and the lack of Maori involvement in the decision making process.  The women felt the government and DSIR had ignored Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over this particular indigenous flora and fauna.  Work towards filing a claim with the Waitangi Tribunal began.

The claim was finally lodged in 1991 by six individuals on behalf of six Maori tribes.  The claim generated international interest— the name WAI 262 became synonymous with the plight of indigenous peoples around the world.  Many governments struggled to reconcile protection of the collectively owned traditional knowledge of their indigenous peoples with intellectual property systems based on defined ownership and commercial advantage. 

The claim asserted the Crown breached the Treaty of Waitangi, because the Crown:

  • failed to actively protect the exercise of tino rangitiratanga and kaitiakitanga by the claimants over indigenous flora and fauna, and other taonga, and also over matauranga Maori (Maori traditional knowledge)
  • failed to protect the taonga (treasure) itself
  • usurped tino rangatiratanga and kaitiakitanga of Maori in respect of flora and fauna and other taonga through the development of policy and enactment of legislation
  • agreed to various international agreements and obligations that affect indigenous flora and fauna and intellectual property rights and rights to other taonga.

The claimants also asked that one of the remedies include a framework recognising 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.  After the claim was filed in 1991, hearings began in 1997 and were completed in 2007.  Recent signals indicate a decision could issue in the coming weeks.

The Tribunal’s decision is not binding on the New Zealand government.  But 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 government) or any of the frameworks proposed by World Intellectual Property Office (WIPO) through the Intergovernmetal Committee (IGC) on IP and Genetic Resources, Traditional Knowledge, and Traditional Cultural Expressions.

Of one thing we can be certain, the decision will impact on the use of indigenous flora and fauna in research for the food technology sector, the use of Maori words, imagery, and artworks as trade marks, copyrights, and designs, and our IP framework.

An edited version of this article was published in New Zealand Food Technology magazine, April 2010.

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