Arts Law has long been involved in advocating for better protection of traditional cultural expressions. This advocacy work is highlighted by Arts Law’s involvement in the controversial sculpture created by a non-Indigenous artist, commissioned by a non-Indigenous art gallery for installation in the Blue Mountains which incorporated Wandjina images sacred to the Worrora, Wunumbal and Ngarinyin Aboriginal people of the remote Kimberley.[i] The development of guiding principles to provide appropriate protection for traditional knowledge and traditional cultural expressions – Indigenous Cultural and Intellectual Property (ICIP)[ii] – is being considered by the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Arts Law Executive Director Robyn Ayres will attend the WIPO conference in Geneva, Switzerland in July 2013.
The tension that exists between the Australian legal system, derived from the common law of England, and customary laws of the Aboriginal and Torres Strait Islander people was considered in the Mabo case (1992) which resulted in the Native Title Act 1993. In recent years, the High Court in Western Australia v Ward (2002) considered rights in relation to land or waters and cultural knowledge. The earlier John Bulun Bulun case (1998) illustrated that ownership of land and ownership of artistic works are separate statutory and common law institutions and emphasises the difficulties in protecting traditional cultural expressions in the copyright regime. An example of a distinctive cultural expression that could potentially be protected under ICIP legislation (were it enacted in Australia) is the rarkk (cross-hatching), which has its origins in ceremonial art from Arnhem Land.
This article looks across the Tasman Sea to consider recent developments in how New Zealand is managing tensions between the introduced European legal system and Māori customary law and to reflect on the relevance of the New Zealand experience to the advocacy for better protection of traditional cultural expressions in Australia. The first development is the publication of a report of the Waitangi Tribunal titled ‘Ko Aotearoa Tēnei’ (2011), which can be understood as either ‘This is Aotearoa’ or ‘This is New Zealand’.[iii] This report comments on the Māori claim of rights in respect of ‘taonga’ (treasures or precious things) including symbols and images and ‘mātauranga’ or Māori knowledge in respect of indigenous flora and fauna. The second development is the attempt to get the haka ‘Ka Mate’registered as a trade mark; and the third is the announcement that the government of New Zealand will enact legislation to acknowledgment the significance of the haka ‘Ka Mate’.[iv]
To understand the context of the New Zealand engagement with ICIP, a brief account of the ‘Treaty of Waitangi’ (1840; the Treaty) is necessary so as to establish the significance of this document for the management of land, fisheries and, of relevance for this article, tangible and intangible things that are accepted or are claimed to be ‘taonga’ or ‘treasures’ or ‘precious things’. The document titled the ‘Treaty of Waitangi’ has an uncertain status; while it is titled as a ‘treaty’, it was never ratified by the English Crown nor were the principles of the Treaty recognised by legislation enacted by the parliament of New Zealand following independence; therefore the document cannot be enforced as a ‘treaty’.[v] However, as a consequence of the Māori land rights movement in the 1960s and 1970s and references to the Treaty of Waitangi in legislation,[vi] New Zealand created the Waitangi Tribunal in 1975. The Tribunal acts as a permanent commission of inquiry to hear the grievances of the Māori people and to make recommendations on claims relating to actions or omissions of the Crown that breach the promises made to the Māori people in the Treaty of Waitangi.[vii]
Article 2 of the English language version of the Treaty of Waitangi, “confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession”. The Treaty was translated into a version of the Māori language and chiefs of the Māori tribes (or iwi) were invited to sign copies of the translated document. The Māori claim in relation to ICIP is focused on the Article 2 guarantee of possession of the “other properties” which, in the translation of the Treaty into Māori, provides a guarantee of ’taonga’, namely tangible or intangible things of commercial or cultural value. ’Taonga’ can be understood as having a wider meaning than what is recognised as a property interest under the common law of England. For example, the Waitangi Tribunal have accepted that the Māori language andspiritual places of special significance to the Māori are taonga and the allocation of radio frequencies without consultation with the Māori iwi has been described by the Tribunal as a breach of the Treaty.
The potential scope of Māori ICIP is apparent in the Waitangi Tribunal report ‘Ko Aotearoa Tēnei’ (2011),[viii] which considers Māori culture and identity and reviews the operations of more than 20 government departments and agencies and makes recommendations as to the recognition of ICIP through reforms of “laws, policies or practices relating to health, education, science, intellectual property, indigenous flora and fauna, resource management, conservation, the Māori language, arts and culture, heritage, and the involvement of Māori in the development of New Zealand’s positions on international instruments affecting indigenous rights.” Although a Waitangi Tribunal report does not of itself make changes to the law of New Zealand, so that the implications of ‘Ko Aotearoa Tēnei’ will only emerge as the government of New Zealand responds to that report. The range of matters relevant to ICIP that were considered in the Report include the commercialisation of indigenous plant species and traditional Māori knowledge without consent or acknowledgement and the commercialisation of Māori artistic and cultural works such as haka and tā moko (the designs of body and face marking) and the lack of protection against offensive or derogatory uses of Māori artistic and cultural works.
Anyone who has watched the beginning of a rugby union game involving the New Zealand All Blacks rugby team will have seen the performance of a haka. Over the years ‘Ka Mate’ has been the haka that provides the challenge to the opposing team. Significantly, the haka ‘Ka Mate’was created in approximately 1820 by Te Rauparaha, an esteemed Māori chief, with the premise that the haka is a celebration of life over death and describes the escape of Te Rauparaha from his enemies.[ix]
The copyright and trade mark systems are potential sources of protection of the haka. However given the date on which ‘Ka Mate’ was created, any copyright that may have existed in the haka has expired. New Zealand’s Trade Marks Act 2002, as amended in 2004, provides as an absolute ground for refusal of a trade mark that would “offend a significant section of the community, including Māori” peoples.[x] This provision assists the Māori people in responding to applications for trade marks that are considered to be culturally offensive. However this provision does not assist a Māori applicant that may wish to secure control of words and marks of special cultural significance.
The Ngāti Toa, the Māori tribe or iwi to which Te Rauparaha belonged, previously attempted to register trade marks in respect to parts of ‘Ka Mate’. In the trade mark opposition proceedings it was accepted that the haka ‘Ka Mate’ has been used and performed by a range of persons in non-commercial and commercial contexts. As the Ngāti Toa was required to satisfy the test for distinctiveness provided by the Trade Marks Act, it faced the problem that a universally understood sign was merely descriptive. Registration was refused under section 18(1)(b)of the Act of New Zealand as the Trade Mark Commissioner must not register “a trade mark that has no distinctive character”.[xi] The history of use of the haka ‘Ka Mate’ resulted in the Assistant Commissioner concluding that “if the opposed marks were registered, honest traders would effectively be hindered in using the haka Ka Mate in relation to New Zealand themed merchandise and commercial sporting events in New Zealand because they would be uncertain whether they were exposed to infringement proceedings”. The result was that Ngāti Toa were not able not gain a trade mark registration to attempt to control the commercial use of the haka ‘Ka Mate’. Considering that the Ngāti Toa were in the process of negotiating with the government to settle grievances related to the Treaty, the acknowledgment of the importance of the haka ‘Ka Mate’ to the Ngāti Toa was an important part of that negotiation.
In December 2012, the government of New Zealand settled the Treaty claims with the Ngāti Toa and agreed a package of measures to provide cultural redress including enacting legislation which recognises a moral right of attribution for Te Rauparaha as the author of ‘Ka Mate’.[xii] This cultural redress is not expected to result in payment for performances of ‘Ka Mate’, or to give the Ngāti Toa exclusive rights to authorise performances of the haka. The purpose of this aspect of the settlement with the Ngāti Toa was to instead prevent culturally inappropriate use of the haka.
The three developments discussed in this article should not be interpreted as confirming that New Zealand has formally recognised ICIP. However the Waitangi Tribunal report ‘Ko Aotearoa Tēnei’ (2011) is a major statement as to the potential scope of ICIP in New Zealand and additionally, the cultural redress offered to the Ngāti Toa provides an example of the implementation of ICIP.
These developments in protecting ICIP in New Zealand could be described as being intimately linked to the guarantee of possession of ‘taonga’ that is provided by Article 2 of the Treaty of Waitangi. However, it is arguable that the recent judicial decisions and legislative action arethe product of the Māori land rights movement in the 1960s and 1970s which resulted in the social and political commitment to the spirit of the Treaty. The uncertain status of the Treaty of Waitangi produced a key slogan of the Māori land rights movement – ‘the Treaty is a Fraud’.[xiii] The subsequent legislative steps to implement the Treaty, such as the creation of the Waitangi Tribunal, lead to the conclusion that an important factor in the movement to recognise ICIP in New Zealand is the social and political commitment to the spirit of the Treaty.
Australia has its own path to the recognition of ICIP that starts with discussion in the Mabo case as to the relationship of customary law and the common law;[xiv]and in Western Australia v Ward (2002), which confirmed the role of customary law,[xv] although the High Court rejected any finding that the Native Title Act could be used to create new species of intellectual property such as a right to ‘maintain, protect and prevent the misuse of cultural knowledge” of the native title holders.[xvi] As a result, the Native Title Act presents an uncertain path to the recognition of ICIP.
Australia has international obligations to provide protective measures for cultural activities under the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).[xvii] In 2007, Australia committed to implement the United Nations’ Declaration on the Rights of Indigenous People (DRIP), which states that Indigenous people have a right to control their traditional knowledge and traditional cultural expressions.[xviii] As a consequence the Commonwealth Parliament could (and should) apply the external affairs powers to enact legislation to implement the UNESCO Convention and DRIP.[xix]To date, the current government’s position appears to be that its international obligations are met through the existing legal framework and thus no further action is required; however, some encouraging signs are contained in the Creative Australia policy released on 13 March 2013, which recognised the need for work to be done to protect and respect Aboriginal and Torres Strait Islander traditional cultural expressions with an action plan expected by 2014.[xx] In December 2012, Arts Law made submissions to the Australian Law Reform Commission (ALRC) inquiry in the Copyright in the Digital Economy and commented on the need to develop copyright law so as to implement the UNESCO Convention and DRIP.[xxi]
Arts Law continues to advocate for the implementation of ICIP legislation.In 2013, Arts Law will work to build a stronger social and political commitment to the protection of traditional knowledge and traditional cultural expressions.
[i]Safeguarding Cultural Heritage – The Case of the Sacred Wandjina (December 2011) WIPO Magazine http://www.wipo.int/wipo_magazine/en/2011/06/article_0003.html
[ii]Arts Law Information Sheet‘Indigenous Cultural and Intellectual Property (ICIP)’ https://www.aitb.com.au/index.php/information-sheets/entry/indigenous-cultural-and-intellectual-property-icip
[iii]Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity, http://www.waitangi-tribunal.govt.nz/news/media/wai262.asp
[iv]Ngati Toa Settlement Summary: The Crown and Te Runanga o Toa Rangatira signed a Deed of Settlement on 7 December 2012. http://nz01.terabyte.co.nz/ots/fb.asp?url=livearticle.asp?ArtID=-670688307
[vi]In New Zealand Maori Council v Attorney General (1987) (the State Owned Enterprises (SOE) case), the NZ Court of Appeal defined the ‘principles of the Treaty’ in considering the SOE Act, which stated that “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. The court held that the proposed sale of government assets was found to be in breach of this proviso. This case established the principle that if the Treaty is mentioned in legislation, it takes precedence over other parts of that legislation should there be a conflict with the principles of the Treaty.
[viii]Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity, http://www.waitangi-tribunal.govt.nz/news/media/wai262.asp
[ix]Te Rauparaha’s authorship of the haka was acknowledged by the Waitangi Tribunal in ‘Ko Aotearoa Tēnei’ (2011) at 30-31.
[x]Section 17(1)(b) Trade Marks Act 2002.
[xi]Te Runanga O Toa Rangatira Incorporated v Prokiwi International Limited  NZIPOTM 14.
[xii]Ngati Toa Settlement Summary: The Crown and Te Runanga o Toa Rangatira signed a Deed of Settlement on 7 December 2012. http://nz01.terabyte.co.nz/ots/fb.asp?url=livearticle.asp?ArtID=-670688307
[xiv]Brennan J stated that ‘the only title dependent on custom which the common law will recognize is one which is consistent with the common law’, Mabo case . See also the discussion by Brennan J of the “skeletal principle” and whether any particular rule of common law is an essential doctrine of the Australian legal system – Mabo case . See also Deane and Gaudron JJ -.
[xv] In relation to the Native Title Act: ‘Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s 223(1). This is the “recognition” of rights and interests. To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of “recognition”.’  perWestern Australia v Ward  HCA 28  per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[xvi]Ibid. -. Compare the judgment of Kirby J -.
[xvii]The Convention entered into force three months after Australia became a party on 18 September 2009.
[xviii]Article 31 of the UN Declaration on the Rights of Indigenous Peoples refers inter alia to “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions”.
[xix]Commonwealth of Australia Constitution Act – s. 51 (xxix) external affairs.
[xx]Creative Australia — The National Cultural Policy, http://creativeaustralia.arts.gov.au/full-policy/#m-179
[xxi]Arts Law submissions to the ALRC inquiry into Copyright in the Digital Economy (16 Dec. 2012) [13.6] http://www.alrc.gov.au/sites/default/files/subs/171_org__artslawcentreofaustralia.pdf