Māori Interests and Geographic Indicators

Strategic Intellectual Management enabling Māori whānau development

Submission to the Hon. Minister Nanaia Mahuta Minister of Māori Development by INDEX E te Minita, Hon. Minister Nanaia Mahuta

Tena rawātu i roto i te āhuatanga o te ao

COVID-19 is unprecedented in the impact it is having on our whānau, the nation, and indeed the world. It is forcing us to revisit and challenge all our generally accepted views, rules and practices. For Māori, this analysis is timely.

The analysis proposes a new approach for Māori to secure and benefit from both tangible and Analysts intangible assets, nationally and internationally, and outlines initial steps towards creating a ‘smart’, Lynell Tuffery-Huria collective Māori economy. The proposals are consistent with the objectives of Government and the Ngāti Ruanui, Ngāruahine, Ngā Rauru three Kete of the Te Pae Tawhiti, but present Māori with the means to seize now valuable options BA, BCA, LLB, DipFinMath for our future. Barrister & Solicitor (NZ) Attorney (NZ and AU) Further, the analysis considers the intersecting views raised by Māori whānau across the motu Trade Mark Attorney (AU) on the protection of Māori rights and interests in whenua, flora and fauna, mātauranga Māori, Wellington, Aotearoa traditional knowledge, cultural property, and data within the system. Penelope Gibson PhD, MLES, MCIOL I commend this analysis to you and trust that it will help to inform government policy and PhD, MSc, LLM, BA Hons free trade negotiations with the European Union and beyond into all future negotiations. Doctoral thesis: Patent , Technology SMEs and Economic Impact Kia ora CIPA ITMA Chris Karamea Insley Paris, Tiamana Te Taumata

Peer Review Panel Jacqui Cane Paul Morgan Whaimutu Dewes Ngai Tahu Te Tauihu Ngati Porou Ngati Rangitihi

Noku te whenua, kei a au te korero Noku te whenua, ko au te Rangatira! Dr Apirana Tuahae Mahuika (Ngati Porou)

INDEX Māori Interests and Geographic Indicators 2 While the New Zealand government has put in place a number of processes and initiatives to address some of the issues raised by Māori on the lack of recognition and protection of Māori interests in our intellectual property system, nothing conclusive has resulted in the nearly 40 years since the Treaty of Waitangi Act was passed and the Waitangi Tribunal established or the Wai 262 claim was filed.

Executive Māori can achieve some benefits and protections for aspects of Māori interests through the registration of different intellectual property rights, including Geographical Indications (GIs). Consequently, it is important that Māori operators and producers are Summary empowered to utilise the current intellectual property framework as a means to achieve commercial success on the global stage. At the same time, it is imperative the New Zealand government commits to reforming New Zealand’s constitutional and legal framework, including the intellectual property regime to better protect Māori interests. The Government can achieve this by adopting a staged work programme.

We discuss in this report how in the short term, the government can support Māori in establishing a smart Māori economy, by capturing their rightful tangible and intangible assets, establishing a binding authority to assist in protecting those tangible and intangible assets, and providing technical and financial support to help Māori contribute to the post COVID19 New Zealand economy.

In the medium term, Māori can assist the Government in adopting and complying with its international obligations under the CPTPP, Nagoya Protocol, Bonn Guidelines, and others, while recognising and protecting tangible and intangible Māori assets.

And longer term, Māori can assist the Government to transform New Zealand’s intellectual property regime into a precedent, setting a new international standard for the recognition and protection of indigenous people’s rights around the world.

It is through hard work and knowledge that we will achieve. Mā te kaha o te mahi i roto i te mātauranga, ka whakawhiwhia. Bring forth our aspirations and lay them out before us Tōia mai te pai tawhiti kia tata Consolidate these aspirations and make them a reality Kia tina te rā nei So grasp the ways of old and bring them into this day and age Pupuritia ngā akoranga ō mua hei tauira mā nāianei For what reason? Hei aha? To take us forward into the future! Hei kawea i a tātou ki ngā rā e tū mai!

– Danny Poihipi (Te Whānau ā Apanui)

INDEX Māori Interests and Geographic Indicators 3 Executive Summary 3

Table of Contents 1. Introduction 6 Purpose of Report 7 Who is Te Taumata 7 Methodology 7

2. Global context (Intellectual Property, trade, and Free Trade Agreements) 8 Intellectual Property 9 9 Registered designs 9 Trade Marks 10 Certification Trade Marks 10 Collective Trade Marks 10 Plant Variety Rights 10 Geographical Indications 11 Appellations of origins 11 Comparison 11 Benefits 11 Disadvantages 11 11 Trade secrets 11 Confidential information 11 International trade policy on intellectual property 12 The role of the WTO 12 What are Free Trade Agreements? 12

3. International developments in IP 13 Mataatua Declaration 14 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 14 United Nations Educational, Scientific and Cultural Organisation (UNESCO) 15 World Intellectual Property Office (WIPO) 15 IGC 15 Convention on Biological Diversity/Nagoya Protocol/Bonn Guidelines 16

INDEX Māori Interests and Geographic Indicators 4 4. New Zealand context (IP, trade, and FTAs) 17 Post signing of the Te Tiriti 26 History of Intellectual property in New Zealand 18 The Treaty of Waitangi Act 1975 and the Waitangi Tribunal 26 New Zealand variations 19 How the Tribunal has interpreted the Treaty 26 Patents 19 Principles of the Treaty 26 Registered design 19 Te Ture mō te reo Māori 27 Trade Marks 19 Wai 262 27 Plant Variety Rights 19 Geographical Indications 19 6. European Union Context (IP, trade, and FTAs) 29 European Union – A Brief Economic Overview 30 Geographical Indications Act 1994 19 European Union intellectual and geographical indications 30 Geographical Indications (Wine and Spirits) Registration Act 2006 20 European Union policy on Indigenous People’s Rights 31 Copyright 20 European Union Trade Agreements 31 Confidential Information 20 Macroeconomic Effect of the European Union – New Zealand Free Trade Agreement 31 Trade and FTAs 20 Key Clauses in the EU FTA Proposal Document 31 GATT 20 Data Protection 33 WTO and TRIPS 20 Strategy for Māori Engagement on International Treaties 20 7. Geographical Indications – A European Union perspective 35 UNDRIP 21 Procedure 36 New Zealand economy 21 Refusal 36 The Māori economy 22 Opposition 37 , research, and development in New Zealand 22 Qualifying GIs 37 5. Traditional Māori context (IP, trade, and FTAs) 23 European Union – Geographical Indications in Practice 39 Other schemes 40 Pre-colonisation 24 EU GIs Examples 41 Rongoā 24 Infringement and enforcement 43 Arrival of Europeans 24 He Whakaputanga o te Rangatiratanga o Nu Tirene: the Declaration of 8. Smart Māori economy and Māori intellectual property 44 Independence of the United Tribes of New Zealand 24 Treaty of Waitangi/Te Tiriti o Waitangi 25 9. GIs - Beyond the European Union 48 Preamble 25 Article 1 25 10. Conclusions 50 Article 2 25 Article 3 25 Appendix 1 – Response to the Discussion Paper on EU-NZ Free Trade Agreement Negotiations: Protection of Geographical Indications in New Zealand 53 Article 4 25 The epilogue 25

INDEX Māori Interests and Geographic Indicators 5 1. Introduction

INDEX Māori Interests and Geographic Indicators 6 Purpose of Report Who is Te Taumata Methodology The purpose of this report is to provide recommendations Te Taumata champions: The methodology included: (i) a review of the international to Te Taumata on an informed position for Māori in the 1. The views and interests of whānau and Māori exporters intellectual property system; (ii) a review of the New Zealand upcoming Free Trade Agreement negotiations with Europe, into all trade negotiations between New Zealand and the intellectual property system; (iii) an analysis of the impact of including recommendations on a position for Māori on rest of the world the intellectual property system on Indigenous peoples rights Geographical Indications (‘GI’s). This report will include 2. Te Tiriti o Waitangi and its principles into all trade in traditional knowledge, traditional cultural expressions, an analysis of the links between intellectual property (‘IP’), negotiations between New Zealand and the rest of the and genetic resources; (iv) a review of international innovation and investment, the impact of our current world developments on the recognition and protection of intellectual property system on Indigenous peoples rights Indigenous peoples rights in traditional knowledge, 3. Sustainability principles and practices into all trade in mātauranga Māori, traditional knowledge, traditional traditional cultural expressions, and genetic resources, (v) negotiations between New Zealand and the rest of the cultural expressions, genetic resources including native a range of hui with Māori across the trade sector to obtain world. flora and fauna, the Wai 262 claim, other international input on Aotearoa/New Zealand’s trade negotiations, (vi) developments on the recognition and protection of Will provide leadership into the New Zealand COVID19 considers a kaupapa Māori approach to intellectual property Indigenous knowledge, the similarities and differences trade strategy of; rights and trade negotiations, including reviewing the WAI with the economic position in Europe on Geographical • Reintegration; 262 claim and report, (vii) a review of the European Union Indications, the benefits and disadvantages of Geographical • Retooling (business support); and (EU) economy and intellectual property system, (viii) a Indications as a tool for Māori to protect not only their • Re-energise (trade discussions). review of GI protection in the UE, (ix) a review of the use commercial interests, but also Indigenous peoples rights of the GI system by indigenous groups in the EU, and (x) a in mātauranga Māori, traditional knowledge, traditional review of other frameworks adopted by indigenous peoples. Te Taumata is a Māori partner for discussion with the New cultural expressions, and genetic resources including native Zealand government on trade related issues drawing on the flora and fauna. The report proceeds as follows. The first section provides an extensive skills, experiences and connectivity of its members overview of the global intellectual property system, the New involved in a diverse range of Māori business, international Zealand intellectual property system, a review of the local trade, academia, treaty claims and community development. and international efforts to recognise and protect Indigenous knowledge. The second section provides an overview of Te Taumata is a unique and independent engagement model the economy and IP law in the European Union (‘EU’) where members are business leaders selected by Māori, for along with case studies relating to Geographic Indications Māori. in the EU and internationally, and assumptions behind the forthcoming EU-free trade negotiations with New Zealand. Te Taumata is continuously reviews its work programme The final section sets out a potential IP roadmap for Māori against the required skillset, to bring on board the expertise and recommendations for negotiation. and diversity required to represent the interests of Māori in the international trade arena. The report writing was led by the co-authors but relied on input from a number of experts in the members of Te Te Taumata engages a range of technical experts and Taumata. working groups, alternates and co-opt specific expertise where required, to undertake its work programme and have engaged relevant members of Māori society to contribute to and the review this report.

INDEX Māori Interests and Geographic Indicators 7 2. Global context (Intellectual Property, trade, and Free Trade Agreements)

INDEX Māori Interests and Geographic Indicators 8 Intellectual Property Patents Registered designs Intellectual property is the tangible or intangible result of Patents protect inventions that are new (i.e. have not been Registered designs protect the visual design of objects that some creative or intellectual activity. Early examples of disclosed), non-obvious (i.e. entail a significant improvement are not purely functional. intellectual property have been found in Ancient Egypt, on what is already known or solve a technical problem) and Ancient Rome, and China. are useful (i.e. can be applied industrially). Some countries In most countries, registered design protection can last for also require that the inventor has developed a way to put up to 15 years. The modern intellectual property concepts and intellectual the idea into effect. In some countries an invention can property system were developed in Europe during the 17th be disclosed before filing the patent application, provided In some countries you must apply for a registered design and 18th centuries, and intellectual property can now be the circumstances meet restricted criteria and the patent before you publicly disclose or use the design. In others the found in almost every country around the world. application is filed within the relevant grace period. applicant can publicly disclose or use the design for several months before applying to register the design. Intellectual property law concerns the protection of Patentable matter includes apparatus, products, composition commercially valuable ideas, secrets, concepts and of matter and processes. Processes range from ‘computer The Hague System for the International Registration of reputations. Intellectual property law was developed to implemented’ processes (using computer programs, Industrial Designs enables the filing of one single design encourage innovation and technological advancement, by software, and artificial intelligence) to methods and means application, which extends to 90 countries around the world. granting the creator or author an exclusive commercial right for extraction or concentrating constituents, for example to exploit the idea, secret, concept, and reputation for a constituents of Indigenous plants and methods for the use of limited period, and enabling the creator or author to prevent Indigenous plants taken from traditional knowledge. unauthorised use of those ideas, secrets, concepts, and reputation. Biological processes for the production of plants or animals are generally not patentable, nor are the plant and animal Intellectual property is recognised as a valuable asset that can varieties produced by the process. However, elements be bought, sold, licensed, exchanged or given away. isolated via a technical process (including gene sequences) may be patentable if they are industrially applicable (e.g. a There is no legal right to an idea itself under intellectual bacterium developed to break down crude oil). As a general property law – only to the idea once it is ‘fixed’. There are rule, if you find a living organism you cannot patent it: if you many examples of intellectual property, and these examples create an organism and it is unlike anything found in nature, are discussed below. you can patent it.

As intellectual property is a tool used as an economic In most countries, patent protection lasts for 20 years. construct, to protect economic and commercial interests, intellectual property rights conflict with the values of The Patent Cooperation Treaty (PCT) assists patent Indigenous peoples. For Indigenous peoples, the main applicants in seeking patent protection for their inventions purposes for protecting GIs or appellations of origin are internationally. Through the PCT, one patent application can social, environmental, or cultural in the first instance, and for become a national application in all or a selected number of economic purposes in the second instance. the 153 countries that are signatories to the PCT.

INDEX Māori Interests and Geographic Indicators 9 Trade Marks Certification Trade Marks Plant Variety Rights Registered trade marks can protect brands, names, logos, A certification trade mark is a trade mark that certifies the Plant variety rights provide particular rights for owners of slogans, colours, shapes, sounds, animations, tastes, and smells, goods or services have been independently certified and are new plant varieties. as well as combinations of these elements. of a particular origin, material, mode of manufacture, quality, accuracy, performance, or other characteristic. All types of plants and fungi are eligible for protection. A Trade mark is the legal term for a brand name which link variety must be new, distinct, uniform and stable. products or services with their supplier. Trade marks are The certification requirements can attest that the products a key part of the goodwill in your business. Trade marks have certain characteristics which are specific to the • New: The plant’s reproductive material must not have communicate quality, performance, dependability, and price to producers in a given region and are linked to the historical, been sold in the territory for longer than one year, or customers. There are two types of trade marks —registered and cultural, or social conditions of the area. overseas for longer than four years (or six years for unregistered. woody plants), before filing. A registered trade mark: The owner of the certification trade mark has the same rights as those that attach to a standard trade mark. But the owner • Distinct: The plant must be distinguishable in at least • must be distinctive of your products or services of the certification trade mark is responsible for certifying one characteristic from another variety of common • can include words, symbols, logos, images, sounds or smells the goods or services, and therefore, is unable to trade in knowledge. • covers goods or services specified in your registration those goods and services. • Uniform: All members of a population of the plant • makes it easier for you stop others from using your trade As part of the registration process, it is common for the variety must be mostly homogenous, having regard mark, or a trade mark that is confusingly similar. owner to file regulations or rules that outline the certification to the variety’s particular features of reproduction or An unregistered trade mark: process including the characteristics of the goods or services, propagation. any process or requirements the users must meet to be • must be distinctive of your goods or services certified, any fees payable, the appeal process, the internal • Stable: The plant variety’s essential characteristics must • can include words, symbols, logos, images, sounds or smells and external competency of the owner to certify the goods or be consistent with its description after propagation. • can get protection if it is distinctive and has been in use for a services. significant amount of time The International Union for the Protection of New Varieties The owner of the collective mark is responsible for ensuring of Plants (UPOV) was established by the International • is harder to protect from misuse than a registered trade mark. the compliance with certain standards (usually fixed in the Convention for the Protection of New Varieties of Plants Trade marks can be registered in 45 classes. Each class covers a regulations concerning the use of the collective mark) by its (“UPOV Convention”). The UPOV Convention came different set of goods or services. members. into force on 10 August 1968, having been ratified by the United Kingdom, the Netherlands and Germany. The When you apply to register your trade mark, you need to In some countries, certification trade marks are also called UPOV Convention was revised on 10 November 1972, 23 specify the products or services you use your trade mark for, or collective trade marks. October 1978, and 19 March 1991, to reflect technological may want to use it for in the future. You can register your trade developments in plant breeding and experience acquired mark in as many classes as you want. with the application of the UPOV Convention. Collective Trade Marks States and certain interGovernmental organizations By registering your trade mark you get the exclusive right to use A is a trade mark that identifies goods or wanting to accede to the UPOV Convention have laws on the mark - and to stop others from using it, on the products or services provided by the members of an association, where the plant variety protection in line with the 1991 Act of the services covered in your registration. association is the owner of the collective trade mark. Convention. The assists trade mark owners by allowing the The association will specify the requirements for membership filing of one trade mark application, which can be extended to of the association, and the members must meet those 122 countries around the world. requirements to be able to use the collective trade mark.

INDEX Māori Interests and Geographic Indicators 10 Geographical Indications Copyright Confidential information A geographical indication (GI) is a sign used on products Copyright protects original literary (including computer The law can provide remedies where equitable or contractual that have a specific geographical origin and possess qualities programs as they are ‘written’), dramatic, musical and artistic obligations relating to trade secrets and confidential or a reputation that are due to that origin. In order to works (e.g. sculpture) once ‘fixed’. Copyright gives the owner information have been breached. function as a GI, a sign must identify a product as originating of the copyright a right of action against unauthorised in a given place. In addition, the qualities, characteristics or copying of the original work. protection is provided by the law on misuse of reputation of the product should be essential due to the place confidential information. To succeed in a case of ‘breach of of origin. Since the qualities depend on the geographical The Berne Convention 1886 deals with the protection of confidence’, the court must be persuaded that: place of production, there is a clear link between the product works and the rights of their authors. It enables creators with and its original place of production. the means to control how their works are used, by whom, • The information has the necessary quality of confidence, and on what terms. that is, it is not trivial and has been kept secret Appellations of origins • The information must have been disclosed in An appellation of origin is a special kind of GI generally circumstances importing an obligation of confidence consisting of a geographical name or a traditional Trade secrets designation used on products which have a specific quality • There has been an unauthorised use or disclosure of the or characteristics that are essentially due to the geographical The law can provide remedies where equitable or contractual information to the detriment of the discloser. environment in which they are produced. obligations relating to trade secrets and confidential information have been breached. Where trade secret information is disclosed under the terms The Lisbon System for the International Registration of a written agreement, such as a confidential disclosure of Appellations of Origin enables the registration of an A trade secret is business and/or technical information that agreement or software license, any unauthorised use or appellation of origin in 30 countries through the filing of a is kept secret and provides a business with an advantage over disclosure of the information will also be a breach of single application. competitors. Commonly, a trade secret will be information contract. A confidential disclosure agreement might typically concerning the design of a product or a process of be used to enable discussions between an inventor and Comparison manufacture. It even encompasses unpublished recipes, not potential manufacturers prior to a patent application being to mention the composition of soft drinks such as Coca Cola. filed. An appellation of origin is a special kind of GI, because The information may be embodied in written materials, the appellation of origin does not necessarily have to be a tables, databases or drawings, including in electronic form In the US, trade secret protection is not provided by misuse geographical name or location. stored in computer hardware. of information law. Rather, it is a civil wrong to use a trade secret in the US that has been wrongfully obtained. Benefits Trade secrets are given legal protection in a large number of The benefit of protecting geographical indications is that countries. Unlike patents for inventions this protection arises In 2016, the European Union adopted a Directive to they provide a regime for protecting indications that identify automatically, and no registration or other legal formalities standardise (and for some countries upgrade) the national products as originating from a particular place that have are required. laws in EU countries against the unlawful acquisition, particular qualities, characteristics, or reputation, and this disclosure and use of trade secrets. Previously the trade could include manufacturing processes. of a trade secret will constitute a breach secret protection laws in many European countries were of a country’s trade secret law and will be restrained by the different from each other, and in some countries, were Disadvantages courts. almost non-existent. The disadvantage is that in most cases GIs have to be geographical names.

INDEX Māori Interests and Geographic Indicators 11 International trade policy on The role of the WTO resources, and there has continued to be no advancement of these issues within the United Nations (UN), the World intellectual property The WTO has a number of roles including:iii Intellectual Property Organisation (WIPO), and the WIPO Inter-Governmental Committee on Intellectual Property The General Agreement on Tariffs and Trade (GATT), a) opening markets for members and Genetic Resources, Traditional Knowledge and Folklore established in 1948, was the preeminent multilateral body b) providing a forum for Governments to negotiate trade (IGC). governing international trade. Through successive rounds agreements and settle disputes of negotiations, the rules of the GATT were extended, but its provisions in relation to intellectual property remained c) operating a system of trade rules. What are Free Trade Agreements? limited. The WTO’s primary function is adjudicating on any conflicts Countries may choose to negotiate a free trade agreement Since the 1980s, large corporations within the United States between members that arise out of trade. (FTA) with one or more other countries to advance their identified strong intellectual property provisions as an trade interests. important aspect of trade policy for the United States. As The WTO provides a forum for negotiating agreements a consequence, minimum intellectual property standards aimed at reducing obstacles to international trade and A FTA will usually focus on enhancing the economic became a core part of the United States’ trade policy. ensuring a level playing field for all, thus contributing to relationship and trade between the parties and sets out the economic growth and development. The WTO also provides rules for how each party will engage with the other. For During the Uruguay Round of the GATT, which took place a legal and institutional framework for the implementation example, an FTA will include provisions on tariff removal, in 1984-1994, the United States, Europe, Japan, and several and monitoring of these agreements, as well as for settling simplified customs procedures, removal of trade barriers, other large economies lobbied for more detailed rules around disputes arising from their interpretation and application. removal of travel and immigration restrictions. Without intellectual property, which culminated in the negotiation The current body of trade agreements comprising the WTO these restrictions, businesses in each country become more consists of 16 different multilateral agreements (to which all of the Agreement on Trade-Related Aspects of Intellectual competitive in the markets covered by the FTA. WTO members are parties) and two different plurilateral Property Rights (TRIPS). To ensure consistency, TRIPS agreements (to which only some WTO members are parties). imposed minimum requirements for intellectual property WTO member states must also ensure any FTAs they enter protection.i into are in accordance with the WTO rules, including the To facilitate the implementation of the TRIPS Agreement, rules of the TRIPS Agreement. the Council for TRIPS concluded with the World Intellectual The (WTO) was also established Property Organisation (WIPO)1 an agreement on on 1 January 1995, and membership of the WTO requires cooperation between WIPO and the WTO, which came into access to a number of agreements which build on and extend force on 1 January 1996. As explicitly set out in the Preamble ii the GATT, including the TRIPS Agreement. to the TRIPS Agreement, the WTO desires a mutually supportive relationship with WIPO. The Agreement provides Membership of the WTO is attractive, because membership cooperation in three main areas, namely notification of, provides a rule based framework for trading with over 160 access to and translation of national laws and regulations, member states. implementation of procedures for the protection of national emblems, and technical cooperation. To become a WTO member, nations must adhere to and ratify the intellectual property requirements set out in In recent times, we have also seen the concerns of Indigenous TRIPS. peoples being raised at the WTO, as intellectual property law reform continues to impact adversely on the protection TRIPS is now recognised as the most important multilateral and recognition of Indigenous peoples rights in traditional instrument for the alignment of intellectual property laws. knowledge, traditional cultural expressions, and genetic

1WIPO is discussed further below.

INDEX Māori Interests and Geographic Indicators 12 3. International developments in IP

INDEX Māori Interests and Geographic Indicators 13 Mataatua Declaration United Nations Declaration on “1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional On 18 June 1993, 150 delegates from fourteen countries, the Rights of Indigenous Peoples knowledge and traditional cultural expressions, as well including Indigenous representatives from Japan (Ainu), as the manifestations of their sciences, technologies Australia, Cook Islands, Fiji, India, Panama, Peru, (UNDRIP) and cultures, including human and genetic resources, Philippines, Surinam, United States, and New Zealand met at UNDRIP was adopted by the United Nations General seeds, medicines, knowledge of the of fauna Whakatane, New Zealand. The assembly affirmed Indigenous Assembly on 13 September 2007.v At the time of passing of and flora, oral traditions, literatures, designs, sports and peoples’ knowledge is of benefit to all humanity; recognised the resolution by the General Assembly, 144 states adopted traditional games and visual and performing arts. They Indigenous peoples are willing to offer their knowledge to the resolution, 4 votes were against the resolution and there also have the right to maintain, control, protect and all humanity provided their fundamental rights to define were 11 abstentions. As at March 2020, the 4 countries who develop their intellectual property over such cultural and control this knowledge is protected by the international voted against the resolution i.e. Australia, New Zealand, heritage, traditional knowledge, and traditional cultural community; insisted the first beneficiaries of Indigenous United States and Canada have reversed their positions and expressions. knowledge must be the direct Indigenous descendants of expressed support for UNDRIP. such knowledge; and declared all forms of exploitation of 2. In conjunction with Indigenous peoples, States shall iv take effective measures to recognize and protect the Indigenous knowledge must cease. UNDRIP establishes a universal framework of minimum exercise of these rights.” standards for the survival, dignity and well-being of the In Section 2, the declaration specifically asks state, national Indigenous peoples of the world and elaborates on the and international agencies to: existing human rights standards and fundamental freedoms Article 39 also makes it clear that ‘In conjunction with as they apply to the specific situation of Indigenous peoples. Indigenous peoples, Member States shall take effective 2.1: recognise that Indigenous peoples are the guardians UNDRIP is a guidance tool for international organizations measures to recognize and protect the exercise of these of their customary knowledge and have the right to as well as states who are working on the implementation of rights’ and that Indigenous peoples have the right to financial protect and control dissemination of that knowledge. UNDRIP. and technical assistance including through international co- 2.2: recognise that Indigenous peoples also have the right to operation, for the enjoyment of the rights contained in the create new knowledge based on cultural tradition UNDRIP recognises that respect for Indigenous knowledge, Declaration. cultures and traditional practices contributes to sustainable 2.3: accept that the cultural and intellectual property rights and equitable development and proper management of the At the World Conference on Indigenous Peoples held in of Indigenous peoples are vested with those who environment. Though there are various articles which refer 2014, a plan was developed by the UN Secretary-General created them. to the cultural and linguistic diversity of the Indigenous to ensure a coherent approach to achieving the goals of peoples. UNDRIP provides for the right of Indigenous UNDRIP. people to maintain, protect and develop the past, present and future manifestations of their cultures including artefacts, designs, ceremonies, technologies and visual and performing arts and literature (Art. 11(2)); and that States shall provide redress through effective mechanisms, which may include restitution…[of Indigenous peoples’] cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.’ It also includes Indigenous peoples rights to own, use and develop their lands, territories and resources (Art. 26) and their entitlement to redress, including restitution or just, fair and equitable compensation (Art. 28). Article 31 states as follows:

INDEX Māori Interests and Geographic Indicators 14 United Nations Educational, through the mechanism of IP, it states in Article 3 (b) that IGC ICH does not affect the rights and obligations with respect to Scientific and Cultural Organisation any international instrument relating to intellectual property In 2000, WIPO established the InterGovernmental rights. The Article has been clearly inserted to avoid any Committee on Intellectual Property, Genetic Resources, viii (UNESCO) conflict with any treaty/convention arising out of WIPO Traditional Knowledge, and Folklore , which has a mandate UNESCO adopted the Convention for Safeguarding of the IGC. for undertaking text-based negotiations with the objective Intangible Cultural Heritage, 2003 (“ICH”) on 17 October of reaching agreement on a text or texts of an international 2003.vi The ICH is the first legally binding multilateral As at March 2020, UNESCO has protected 508 intangible legal instrument, which will ensure the effective protection instrument for the safeguarding of the Intangible Cultural cultural heritage items of various countries through the ICH. of traditional knowledge, traditional cultural expressions, Heritage. As at March 2020, 178 countries have ratified, genetic resources. approved or accepted the ICH. UNESCO has other conventions that protect aspects of traditional knowledge and cultural heritage including At the General Assembly in October 2019, the IGC was The purposes, as stated in Article 1 of ICH are: Convention Concerning the Protection of the World Cultural granted its mandate for another two years. and National Heritage, International Fund for the Promotion (a) to safeguard the intangible cultural heritage; of Culture, and the Convention on the Protection and The next meeting of the IGC was originally set for March Promotion of the Diversity of Cultural Expressions. 2020, but has been postponed, which has a focus on (b) to ensure respect for the intangible cultural heritage of addressing unresolved and cross-cutting issues (i.e. issues the communities, groups and individuals concerned; arising in texts for both traditional knowledge and traditional (c) to raise awareness at the local, national and international cultural expressions), filling gaps, and considering options levels of the importance of the intangible cultural World Intellectual Property Office for a draft legal instrument(s), in other words, resolving heritage, and of ensuring mutual appreciation thereof; (WIPO) tensions between the two texts. Specifically, in relation to: (d) to provide for international cooperation and assistance. WIPO is a forum for the development of IP services, policy, • objectives information and cooperation.vii The ICH aims to protect the “expressions, knowledge” that • defining subject matter communities, groups as well as individuals recognize as part WIPO was established by the WIPO Convention, which • scope of protection of their cultural heritage. Article 2.2 also states the domains was signed at Stockholm in 1967. WIPO is a self-funding • exceptions and limitations. in which Intangible Cultural Heritage is manifested, which interGovernmental organization that became one of the mainly include: specialized agencies of the United Nations in 1974.

(a) oral traditions and expressions, including language as a The origins of WIPO go back to 1883 and 1886 when the vehicle of the intangible cultural heritage; Paris Convention for the Protection of (b) performing arts; and the Berne Convention for the Protection of Literary and Artistic Works, were concluded. These Conventions provided (c) social practices, rituals and festive events; for the establishment of an ‘International Bureau’. The two (d) knowledge and practices concerning nature and the bureaus were united in 1893 and, in 1970, were replaced universe; by the World Intellectual Property Organization, under the WIPO Convention. (e) traditional craftsmanship. WIPO’s two main objectives are (i) to promote the protection The reference to “expressions, knowledge” seems to be of intellectual property worldwide, and (ii) to ensure loosely based on the terms “traditional cultural expressions administrative cooperation among its members. WIPO and traditional knowledge”. Though the ICH does not currently has 193 member states. specifically protect items of intangible cultural heritage

INDEX Māori Interests and Geographic Indicators 15 Convention on Biological Diversity/ • protection of existing rights Nagoya Protocol/Bonn Guidelines • prior informed consent by Indigenous communities The Convention on Biological Diversity (CBD) was entered • fair and equitable benefit sharing into force on 29 December 1993, and has 3 main objectives:ix • compliance with community laws and procedures 1. the conservation of biological diversity • domestic legislation 2. the sustainable use of the components of biological • customary use and exchange diversity • conservation and sustainable use of biodiversity 3. the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. • predictable conditions for access to genetic resources.

The Nagoya Protocol on Access to Genetic Resources and The first assessment and review of the effectiveness of the Fair and Equitable Sharing of Benefits Arising from their the Nagoya Protocol was held in November 2018. The Utilization to the Convention on Biological Diversityx is a next assessment will take place in 2024. While no specific supplementary agreement to the Convention on Biological recommendations were made for New Zealand, key take- Diversity. The Nagoya Protocol entered into force on 12 aways from the 2018 assessment include: October 2014 and has been ratified by 117 countries. The Nagoya Protocol is derived from Article 8j of the CBD and • supporting Indigenous peoples and local communities the main object is the fair and equitable sharing of benefits in developing community ABS protocols in a manner arising out of the utilization of genetic resources and that ensures the outcomes represent community values, related traditional knowledge, and the benefits arising from practices and aspirations utilization of the same. • clarifying the rights of Indigenous peoples and local The Bonn Guidelines on Access to Genetic Resources and communities over genetic resources and/or traditional Fair and Equitable Sharing of the Benefits Arising out of their knowledge associated with genetic resources xi Utilization assist parties when establishing administrative, • identifying the different groups of Indigenous peoples legislative or policy measures on Access and Benefit Sharing and local communities, understanding the way they are (ABS) and/or when negotiating contractual arrangements organized, and linking traditional knowledge with the for access to genetic resources and benefit-sharing. A holder/s of such knowledge key principal of ABS and the Guidelines is ensuring prior informed consent. • developing clear procedures to follow to access genetic resources and associated traditional knowledge. The principles covered by the CBD, Nagoya Protocol, and Bonn Guidelines include: New Zealand ratified the Convention on Biological Diversity on 29 December 1993, but New Zealand is not a party to • access, benefit-sharing and compliance the Nagoya Protocol and has not implemented the Bonn Guidelines. • the established right of Indigenous communities to grant access to genetic resources and traditional knowledge • identification of rights holders

INDEX Māori Interests and Geographic Indicators 16 4. New Zealand context

(IP, trade, and FTAs) In its last assessment of the Māori economy, Chapman‘ ‘ Tripp’s 2017 Te Ao Māori - Trends and Insights estimated the value of the Māori asset base at over $50 billion.

INDEX Māori Interests and Geographic Indicators 17 History of Intellectual 1835: He Whakaputanga o te Rangatiratanga o Nu Tirene: The Declaration of Independence of United Tribes of New Zealand signed. property in New 1840: Treaty of Waitangi/Tiriti o Waitangi guaranteed Māori authority over their taonga, including intellectual property. xii 1860: The first New Zealand Patents Act was passed allowing the Governor to issue Letters Patent. Zealand 1866: The first New Zealand Trade Marks Act was passed allowing the Registrar of Trade Marks to issue Registration Certificates. 1884: The Patents Act of 1883 came into force which formalised the patent application process and Patent Office structure, including the appointment of a Commissioner. 1889: The Patents, Designs and Trade-marks Act of 1889 established the New Zealand registered design system, patent agent register, and introduced ‘International and Intercolonial’ priority filing date claim provisions. 1973: A new IP asset registration system was added under the New Zealand Plant Varieties Act. The New Zealand Plant Varieties Office was first established under the Ministry of Agriculture and Fisheries. 1975: Treaty of Waitangi Act passed, and Waitangi Tribunal established 1987: An amendment to the Trade Mark Act meant that the New Zealand trade mark classification schedule could now include service classes. 1985: The powers of the Waitangi Tribunal extended to claims dating back to 1840. 1991: Wai 262 claim filed 1992: New Zealand becomes a member of the Patent Co-Operation Treaty (PCT). 1993: Mataatua Declaration signed 1994: The maximum patent monopoly term is extended from 16 to 20 years, and new rules and regulations are incorporated as New Zealand adopts the PCT International and National phase entry system and aspects of the World Trade Organization TRIPS agreement. 1999: The Trade Marks Act was amended allowing collective trade marks to be registered. A collective mark is owned by an association whose members use the mark to identify themselves with the product or service characteristic(s) set by that particular association. For example, a wine growers’ association collective mark where the wine is produced from grapes grown in a specific location. 2003: The Trade Marks Act 2002 came into force and substantially updated New Zealand’s trade mark law, including establishing the Māori Trade Mark Advisory Committee to provide independent advice on whether trade marks that contain Māori words or imagery are offensive. 2010: New Zealand endorses UNDRIP. 2011: The Major Events Management Act 2007 provides a new layer of protection for major sponsor IP owners to combat unauthorised exploitation or ‘ambush marketing’ at major events such as the Rugby World Cup 2011. 2011: The Waitangi Tribunal releases its report on Wai 262: Ko Aotearoa Tēnei issued. 2012: New Zealand acceded to the Madrid Protocol relation to the International Registration of . New Zealand ratified the Singapore Treaty on the Law of Trademarks. 2013: New Zealand acceded to the Nice Agreement concerning the International classification of trade marks goods and services. 2014: The Patent Act 2013 came into full effect and updated New Zealand’s patent law, including establishing the Māori Patent Advisory Committee to provide independent advice on whether the commercial exploitation of a patent derived from Māori traditional knowledge or Indigenous plants or animals is contrary to Māori values. IPONZ-State Intellectual Property Office of the People’s Republic of China (SIPO) bilateral arrangement signed in Wellington New Zealand. 2019: Ngā Taonga Tuku Iho Communiqué signed. 2019: New Zealand Government announces whole of Government framework to respond to Waitangi Tribunal report Ko Aotearoa Tēnei.

INDEX Māori Interests and Geographic Indicators 18 New Zealand variations Trade Marks In addition, the remaining recommendations in the original paper have not been adopted. In 1991, the Government initiated a review of the Trade Marks Patents Act 1953 and suggested some changes to the Act. Māori raised However, in two decisions issued by the Commissioner of Trade a number of concerns about the proposed changes, and in One of the purposes of the Patents Act 2013 is to ‘address Marks, the Assistant Commissioners referred to Te Ture mō Te particular, were of the view the amendments did not adequately Māori concerns relating to the granting of patents for Reo Māori as a basis for a different interpretation of the rules protect Māori culture and intellectual property. inventions derived from Indigenous plants and animals or that apply to trade marks that incorporate Māori words and/or from Māori traditional knowledge’. The Government established the Māori Trade Marks Focus images. Group, who produced a paper called Māori and Trade Marks: A The Act enables the Commissioner to appoint a Māori Discussion Paper.xv New Zealand is also a member of the Madrid System. Advisory Committee, which has the function of advising the Commissioner on whether: The Paper made a number of recommendations on how the Plant Variety Rights a) an invention claimed in a patent is derived from Māori Government could recognise te reo Māori and mātauranga traditional knowledge or from Indigenous plants or Māori in the Trade Marks Act. As part of New Zealand’s obligations under the Comprehensive and Progressive Agreement for Trans-Pacific animals, and Only two of those recommendations were adopted by Cabinet, Partnership (CPTPP), the New Zealand Government must and the new Trade Marks Act was passed in 2002. b) if so, whether the commercial exploitation of that accede to UPOV 91 or legislation that gives effect to UPOV 91 xiii invention is likely to be contrary to Māori values. One of the purposes of the Trade Marks Act 2002 is to ‘address legislation by the end of 2020. The Commissioner has the power to refuse a patent for an Māori concerns relating to the registration of trade marks that The Government embarked on a two staged engagement invention where commercial exploitation of the invention contact a Māori sign, including imagery and text’. strategy, involving a round of engagement in relation to an would be contrary to public order or morality. The Act enables the Commissioner to appoint a Māori Issues Paper (2018) and a second round of engagement in For the purpose of deciding on whether a patent is contrary Advisory Committee, which has the function of advising the relation to an Options Paper (2019). to public order or morality, then Commissioner may seek Commissioner on whether the proposed use or registration advice from the Māori Advisory Committee. of a trade mark that is, or appears to be, derivative of a Māori The engagement also considered the amendments proposed sign, including text and imagery, is, or is likely to be offensive to in Ko Aotearoa Tēnei to the Plant Variety Rights Act and how The Commissioner is not bound by that advice, but the Māori.xvi this legislation could become Treaty of Waitangi compliant. Commissioner must consider that advice. The Commissioner has the power to refuse a trade mark if Cabinet confirmed in November 2019 that the Act would be New Zealand is a member of the PCT. ‘the use or registration of which would, in the opinion of the updated, and a draft Bill is expected in May 2020.xvii In 2018, the New Zealand Government undertook Commissioner, be likely to offend a significant section of the community, including Māori’. consultation around the introduction of a disclosure of Geographical Indications origin requirement, which would require patent applicants to The Commissioner is not bound by that advice, but the include the origin of any genetic resources and/or traditional Commissioner must consider that advice received. The Geographical Indications (Wines and Spirits) Registration knowledge used in their inventions. The consultation was Act 2006 is limited to preventing businesses misuse of completed in December 2018 and there has been no update The number of marks incorporating Māori words and imagery geographical names on wines and spirits. from the Government since then.xiv is increasing, and the number of marks being refused on the basis that they are offensive is increasing. But to date, no cases The Act prevents the registration of any geographical Registered design has been heard by the Commissioner of Trade Marks or the New indication if its use in relation to wine or spirits or its Zealand courts to provide any assurance or guidance to Māori registration would, in the opinion of the Registrar, be likely Registered design protection can last for up to 15 years in that the offensiveness provision is sufficient to assist Māori in to offend a significant section of the community, including New Zealand. asserting rights guaranteed under Te Tiriti o Waitangi. Māori.xviii New Zealand is a signatory to the Hague Convention.

INDEX Māori Interests and Geographic Indicators 19 The Advisory Committee established under the Trade (d) facilitate the purposes set out in paragraphs (a), (b), and Copyright Marks Act can advise the Registrar on whether the use of a (c) in a manner consistent with New Zealand’s rights geographical indication in relation to wine or spirits, or the and obligations under the TRIPS Agreement In 2019, the New Zealand Government undertook consultation registration of the geographical indication, is, or is likely to in relation to a review of our Copyright Act, to address the be, offensive to Māori. The regulations to implement this legislation came into force technology shortcomings within our current act. The review from 1 July 2017. also raised the issue of introducing a new protection regime for taonga works. The consultation completed in April 2019 and xix Geographical Indications Act 1994 Under the Act, a geographical indication is defined as: there has been no update from the Government since then. The first geographical indications act in New Zealand was passed in 1994 to meet New Zealand’s obligations under A geographical indication is an indication that identifies Confidential Information TRIPs. The Act provided for registration of Geographical a wine or spirit as originating in the territory of a Indications for specific goods. country, or a region or locality in that territory, where In New Zealand, it is also an offence under the Crimes Act a given quality, or reputation, or other characteristic, to dishonestly take or copy any document knowing that it xx The legislation was never fully implemented, because the of the wine or spirit is essentially attributable to its contains a trade secret. supporting regulations needed were never passed. geographical origin. Trade and FTAs The Act was eventually repealed and replaced with the The Act was amended in 2016 to include a provision that the Geographical Indications (Wines and Spirits) Registration Registrar must not register a geographical indication if the GATT Act 2006. use, in relation to wine or spirits, or its registration would, in New Zealand was one of the original contracting parties the opinion of the Registrar, be likely to offend a significant to GATT and has been a member since 30 July 1948. New Geographical Indications (Wine and Spirits) section of the community, including Māori. Zealand’s trade policies depend on the principles of GATT.xxi Registration Act 2006 The Act also introduces a new function for the Māori The second geographical indications act in New Zealand Advisory Committee established under the Trade Marks WTO and TRIPS Act 2002 to advise the Registrar whether the use of a was passed in 2006. The Act provides for registration of New Zealand has been a WTO member since 1 January 1995, geographical indication in relation to wine or spirits, or the Geographical Indications for wines and spirits. and a party to the TRIPS agreement. registration of the geographical indication is, or is likely to The purposes of this Act are to: be, offensive to Māori. Strategy for Māori Engagement on (a) contribute to the development and continual growth To date, there have been 23 GI registrations in New Zealand, of, and innovation in, the wine and spirits industries in including names registered under statute such as New International Treaties New Zealand by providing a suitable legal framework Zealand, North Island, and South Island, names registered for the registration of geographical indications by New Zealand applicants for Marlborough, Gisborne, and In 2001, the New Zealand Government approved a Cabinet (b) provide a sound trading and marketing environment Central Otago, and names registered by overseas applicants Paper entitled Strategy for Engagement with Māori on that facilitates, rather than creates barriers to, the trade for Scotch Whiskey, Cognac, and Prosecco. International Treaties, which is now part of the International in wine and spirits Treaty Making Guide – Guidance for government agencies No applications have been made to register GIs that on practice and procedures for concluding international (c) protect the interests of consumers of wine and spirits incorporate Māori geographical names, and therefore, no treaties and arrangements – August 2018. in New Zealand by providing assurance that a wine GIs have been referred to the Māori Advisory Committee for or spirit using a registered geographical indication review. The Paper and Guide set out the following objectives for originates in the territory, region, or locality to which any Government strategy when engaging with Māori on the registered geographical indication relates international treaties and arrangements:

INDEX Māori Interests and Geographic Indicators 20 1. to identify areas of developing international law of UNDRIP New Zealand economy relevance to Māori interests and the Crown’s Treaty of Waitangi relationship, and in particular, new New Zealand initially voted against the resolution to adopt In an effort to grow the New Zealand economy, New Zealand international treaties which may make a potential impact UNDRIP at the UN General Assembly in 2007, and only has gone from being one of the most regulated economies in the on Māori announced its support of the declaration in 2010. OECD to one of the least regulated, most free market economies.

2. to ensure that issues relevant to Māori in international Since affirmation of UNDRIP, New Zealand has received New Zealand exports now make up approximately 30% of treaties are identified early, and that engagement with strong criticisms from the UN Committee on Economic, GDP. Half of all goods exported from New Zealand are primary Māori on a particular treaty is appropriately tailored Social and Cultural Rights (CESCR) on the human rights commodities. Other significant sectors include education, according to the nature, extent and relative strength of issues that continue to face Māori, including a number of manufacturing and service sectors, a growing technology the Māori interest recommendations that the Government, in partnership with sector, tourism, film products, and wine. Māori: 3. to ensure that engagement with Māori is effective and Given the economy’s heavy reliance on the export sector, New efficient in its use of Government resources. Zealand’s intellectual property law framework has traditionally a) implement the recommendations of the Constitutional been shaped by trade policy, including the WTO TRIPS The Paper and Guide detail how Crown should engage with Advisory Panel regarding the role of the Treaty of Agreement and its network of FTAs. Māori, including assigning responsibility to the lead agency Waitangi within its constitutional arrangements for : Although New Zealand’s economy is growing, and New b) implement the proposals put forward in the 2016 Matike Zealand’s investment in research and development is Mai Aotearoa report • identifying whether the proposed treaty is relevant to comparable to the size of its economy, New Zealand is still Māori c) implement the Waitangi Tribunal’s recommendations, a net importer of intellectual property. The table belowxxiii • highlighting these issues for Māori including those in Ko Aotearoa Tēnei suggests that the current framing of intellectual property through trade policy, and the current investment in research d) ‘develop a national strategy to bring legislation and public • establishing the appropriate nature, extent, and timing of and development, is not resulting in commercially valuable policy into line’ with the UNDRIP and resource the the engagement with Māori ideas, secrets, concepts and reputations that are then converted independent mechanism monitoring it • ensuring that appropriate engagement with Māori occurs. into intellectual property rights. e) implement ‘mechanisms to ensure meaningful The Paper and Guide also require MFAT to keep Māori participation of Māori in all decision-making processes New Zealand’s Economic indicator informed of developments in the Government’s participation affecting their rights’ ranking in the international legal framework, including a six monthly nd report for Māori, and maintain an ongoing partnership f) ‘take effective measures to ensure compliance with the Nominal GDP 22 relationship with Māori on international treaties and the requirement of obtaining the free, prior and informed Purchasing power parity GDP 31st consent of Indigenous peoples’. protection of Māori interests. Research and development investment 21st (in the OECD) Patents – total filings in NZ 31st The Paper and Guide also identify the areas that are likely In 2019, the Government established a Declaration Working th to be of interest to Māori, including intellectual and cultural Group (DWG) to provide advice to the Minister for Māori Patents – originating from NZ 34 property, genetic resources, New Zealand flora and fauna, use Development on a plan and engagement process to progress Trade marks – total filings in NZ 37th of natural physical resources, Indigenous rights, and national towards the aspirations of the United Nations Declaration on Trade marks – originating in NZ 42nd language. the Rights of Indigenous Peoples in Aotearoa.xxii To date, there th has been no report or plan released publicly by the DWG. Designs – total filings in NZ 39 Designs – originating in NZ 51st Plant Variety Rights – total filings in NZ 20th Plant Variety Rights – originating in NZ 25th

INDEX Māori Interests and Geographic Indicators 21 The Māori economy Bioprospecting, research, and Māori have a long history in international trade. Today, the development in New Zealand Māori economy includes a range of iwi and hapū authorities, New Zealand currently has no comprehensive bioprospecting businesses (large and small), and self-employed individuals scheme, and in fact, bioprospecting is mostly unregulated. who identify as Māori. This includes the majority of bioprospecting in New Zealand, which is conducted by the Crown Research Institutes (CRIs). Māori currently own a significant proportion of assets in the primary sectors: 50% of the fishing quota, 40% of forestry, Any review of the intellectual property system that 30% in lamb production, 30% in sheep and beef production, attempts to recognise and protect Māori rights and interests 10% in dairy production and 10% in kiwifruit production. (including kaitiaki relationships) must include a review of These products face the highest tariffs in our main export broader policy considerations relating to bioprospecting, markets. research, and development in New Zealand. In particular, that review must address: The Māori economy is also diversifying, with new investment areas including geothermal, digital, services, education, tourism and housing. - increased funding of research and development with a focus on Māori driven research and development In its last assessment of the Māori economy, Chapman Tripp’s 2017 Te Ao Māori - Trends and Insights estimated the - incorporation of kawa, tikanga, and Māori values value of the Māori asset base at over $50 billion. within the discipline of science and research, and the promotion of its understanding and use by science Māori have been identified as well placed to benefit from the students (particularly post-graduate students) and in increasing wealth in Asia-Pacific, because culture, family, and research whakapapa are important in these markets as well. - the promotion of and assistance with, collaboration between scientists, researchers, and iwi organisations in accordance with kawa, tikanga, and Māori values and subject to appropriate access and benefit regimes - the consideration of having a Māori advisor on ethics committees for science projects and research projects (or a standalone committee that can address issues of tikanga that could arise in various projects) to provide guidance on the rights of Māori - the creation of a New Zealand bioprospecting and access and benefit sharing policy in line with the Nagoya Protocol and Bonn Guidelines.

INDEX Māori Interests and Geographic Indicators 22 5. Traditional Māori context (IP, trade, and FTAs)

Successful resolution to Wai 262 and 2522 represents an ‘ opportunity for New Zealand to develop a world-leading model‘ for the protection and promotion of indigenous intellectual and cultural property rights based on an indigenous framework.

INDEX Māori Interests and Geographic Indicators 23 Pre-colonisation aware, however, that other terms have traditionally existed There is a Māori and English version of the declaration, but to describe leaf medicines, such as ‘wairākau’.) Thirdly, only the Māori version was signed by Māori. Before European arrival in New Zealand, hapū (sub-tribes) tohunga use mirimiri, a form of massage, usually to relieve were the main political and economic unit as is reflected in sore joints and limbs but sometimes also to force evil spirits The English version asserts New Zealand’s independence Te Tiriti o Waitangi. The early economy for each hapū was or kēhua from a sufferer’s body. Sub-categories of mirimiri as a sovereign state as ‘The United Tribes of New Zealand’, determined by environmental factors such as climate, locality, include romiromi (using the fingers) or takahi (the feet). recognises the collective capacity of the chiefs and heads of and the availability of natural resources. Hapū were adept at Fourthly, water is used in cleansing rituals or treatment tribes as having all sovereign power and authority, declares exchanging goods, for example, coastal tribes relied heavily on of sickness, a practice probably common to all societies. that no other law making authority was permitted in New seafood and would trade with inland tribes for forest products Traditionally the water used for healing came from springs Zealand except as appointed by the collective, agreed to or other hapū for obsidian and pounamu (greenstone). or clear, natural streams ; in other words, tapu water was meet annually to address issues of justice, peace, good order, the purest. Lastly, there were minor surgical procedures, and lastly, thanked the King for his acknowledgement of Interactions within and between hapū were regulated by kawa such as blood-letting to relieve swelling, incisions to drain New Zealand as an independent state and asked the King and tikanga. infected ear drums, and so on. to continue to protect Māori from any threats on their independence and authority. Māori lived as one with the environment and resources were carefully managed to ensure long term sustainability of the Arrival of Europeans In the Tribunal’s report, it states that the Māori version: land, resources, and the hapū. Māori embraced trade with Europeans after the arrival of Captain Cook. In exchange for Indigenous products, Cook and a) declared Māori rangatiratanga, kingitanga, and mana Customary law granted Māori rights and interests in flora and other Europeans provided firearms, cloth, iron, potatoes and over their territories as hapū fauna, matauranga Māori, traditional knowledge, and cultural turnips. property, but also imposed duties and obligations to ensure b) declared that no one could come into Aotearoa and make Māori cultural heritage was preserved for future generationsxxiv laws or perform any role of Government without being Māori also established a flax trade with Australia with trading appointed by Māori stations set up in Northland, Waikato, Taranaki, coromandel, Rongoā Bay of Plenty, the East Coast, Southland, both sides of Cook c) agreed that Māori would meet annually at Waitangi and Strait, and Banks Peninsula. address issues such as justice, peace, good order, and Rongoā is a sophisticated health system that existed in trade Māori society before Europeans arrived. The most skilful d) acknowledged the friendship with Britain and the trading practitioners (tohunga) would be able to address not only the He Whakaputanga o te Rangatiratanga benefits for Māori achieved by that relationship root cause of an illness but the symptoms at the same. The methods adopted by a tohunga can be divided into five areas o Nu Tirene: the Declaration of e) renewed the request for British protection of Māori and were described by Professor Mason Durie in the WAI 262 Independence of the United Tribes of against other threats to Māori authority, in return for claim as follows:xxv Māori protection of British subjects and British interests New Zealand in Māori territories. The first include karakia and ritenga, or incantations and He Whakaputanga o te Rangatiratanga o Nu Tirene: the The Declaration was subsequently gazetted in London and rituals (we switch to the present tense here because we Declaration of Independence of the United Tribes of New New Zealand was recognised by King William IV under are describing practices that are still very much alive). Zealand (He Whakaputanga)xxvi has for a long time had little international law as an official nation under the mana of the Depending on the severity of the breach of tapu, powerful legal effect in New Zealand. karakia might be required indeed. Second are rongoā, chiefs of New Zealand. by which Professor Durie means plant medicines. (In However, the Waitangi Tribunal in its report He He Whakaputanga had another important effect in that this report, we refer to these herbal remedies as ‘rākau Whakaputanga me te Tiriti – The Declaration and the Treaty it enabled Māori to engage in international trade as an rongoā’, whereas ‘rongoā’ describes all categories of – The report on Stage 1 of the Te Paparahi o te Raki Inquiry independent nation, under its own flag, which had been traditional healing. This is also the usage favoured by (Wai 1040) reviewed this document and its role as part of New recognised by the British, one of the most powerful nations at the Wai 262 claimants and Government officials. We are xxvii Zealand’s constitutional framework. that time.

INDEX Māori Interests and Geographic Indicators 24 The Tribunal’s report discusses how this interpretation of He Article 1 considered to be taonga of immense value by the ancestors Whakaputanga clarifies the interpretation of the Treaty of and continue to be so’.xxxiii Waitangi/Te Tiriti o Waitangi, which is discussed below. In the Māori text of article 1, Māori gave the British ‘kawanatanga’, the right of governance, whereas in the In the English text, the Queen guaranteed to Māori the English text, Māori ceded ‘sovereignty’. undisturbed possession of their properties, including their lands, forests, and fisheries, and other properties, for as long Treaty of Waitangi/Te Tiriti o One of the problems that faced the original drafters of the as they wished to retain them. This text emphasises property te reo Māori text of the Treaty was that ‘sovereignty’ had no and ownership rights. Waitangi direct equivalent in the context of Māori society. Rangatira Two versions of the Treaty of Waitangi were signed between (chiefs) exercised full authority (‘mana’) over land and Article 2 provides for land sales to be effected through the February and October 1840, one in English and Māori. The resources on behalf of the wider community. Crown. This gave the Crown the right of pre-emption in land Māori text was signed by over 500 rangatira throughout sales. Aotearoa, while the English text was only signed by The term used in the te reo Māori version, ‘kawanatanga’, approximately 30 rangatira at Port Waikato.xxviii was a transliteration of the word ‘governance’, which was then in current use. Māori understanding of this word came Article 3 from familiar use in the New Testament of the Bible (when The Treaty has three articles and there are significant In article 3, the Crown promised to Māori the benefits of referring to the likes of Pontius Pilate), and from their differences in the interpretation of the two versions. royal protection and full citizenship. This text emphasises knowledge of the role of the Governor of New South Wales, equality. What follows below is a general guide to the meaning of the whom they referred to as ‘Kawana’. Treaty texts as stated by the Waitangi Tribunal.xxix We note here that in He Whakaputanga, the word mana Article 4 is used to refer to sovereignty. Therefore, when signing Te Preamble Tiriti, Māori understood that under Te Tiriti Māori did not In addition, William Colenso referred to an incident cede sovereignty, and instead, ceded only kawanatanga or immediately prior to signing the Treaty of Waitangi where The preamble to the English version states that the British governance. Captain Hobson agreed to protect Māori custom in the intentions were to: alleged fourth oral articlexxxiv which was recorded as stating:

• protect Māori interests from the encroaching British Article 2 E mea ana te Kawana ko nga whakapono katoa o settlement The Māori version of article 2 specifically recognises and Ingarani, o nga Weteriana, o Roma, me te ritenga Māori • provide for British settlement protects ‘te tino rangatiratanga o o ratou wenua o ratou hoki e tiakina ngatahitia e ia. – The Governor says that the several faiths (beliefs) of England [Anglican], of the • establish a Government to maintain peace and order. kainga me o ratou taonga katoa’. Wesleyans [Methodist], of Rome [Catholic], and also Māori custom shall alike be protected by him. The Māori text has a different emphasis. It suggests that the The text uses the word ‘rangatiratanga’ in promising to Queen’s main promises to Māori were to: uphold the authority that tribes had always had over their lands and taonga katoa. This choice of wording emphasises This article emphasises religious freedom given that one • secure tribal rangatiratanga status and authority over taonga katoa. religion had dominated the Treaty proceedings, but also • secure Māori land ownership. reaffirmed for Māori protection of customary law. The wording taonga katoa has been interpreted to cover both tangible and intangible, including, lands, posessions, tikanga (Māori custom)xxx, languagexxxi, and economic interestsxxxii. The epilogue In the epilogue, the signatories acknowledge that they have Therefore, taonga katoa could be ‘construed to include Māori entered into the full spirit of the Treaty. culture, customary laws and the protection of real, personal and intellectual property under tikanga Māori since all were

INDEX Māori Interests and Geographic Indicators 25 Post signing of the Te Tiriti In most instances, following the Tribunal’s report, the Crown naturally be understood by Indians’ supports the will initiate settlement negotiations with the affected party. principle (d) above. Immediately after signing the Te Tiriti, Māori adapted to take Treaty settlements, while not intended to compensate for any g) Treaties should be interpreted in the spirit in which they advantage of the increased trading opportunities with the loss, may still offer substantial awards, enabling a resurgence were drawn considering the surrounding circumstances new arrivals in the domestic market. Before now, Māori had in the Māori economy. focussed on the international market. and any declared or apparent objects and purposes.

As demand for land for the settlers increased rapidly, and How the Tribunal has interpreted the wars broke out around the country, the Crown took steps Principles of the Treaty to dispossess Māori of their lands through purchase or Treaty Given the conflicts in the meanings and understandings confiscation, despite the rights guaranteed to Māori under Te Each Tribunal panel is constituted to determine the meaning attributed to the different texts of Te Tiriti, it was not possible Tiriti. These efforts continued through the late 19th century and effect of the Treaty based on the claims before it. Readers to give effect to both texts simultaneously in legislation or and early 20th century. interested in the Tribunal’s interpretation of the Treaty when interpreting Te Tiriti. Consequently, The Waitangi and its principles are directed to the Tribunal’s reports Tribunal and the Courts have identified a number of Throughout the middle of the 20th century, suffering from themselves. principles give effect to the intentions within te Tiriti. Recent significant land loss, the migration of Māori from rural legislation has also required that new legal frameworks must areas to urban areas became evident. By 2006, nearly 85% The approach to Treaty interpretation set down in the 1987 be applied in accordance with the principles of the Treaty. of Māori would live in urban areas. And with lower levels Report on the Orakei Claim has influenced many Tribunal of education, they became susceptible to the sweeping inquiry panels. A summary of these principles are set out below. economic policies adopted during the 1980s and 1990s. It is reasonable to apply to the interpretation of the Treaty - the principle of partnership is used to describe the of Waitangi the general principles of treaty interpretation as relationship between Māori and the Crown, and The Treaty of Waitangi Act 1975 and applicable to municipal law. Relevant principles are: imposes a duty on both parties to act reasonably, the Waitangi Tribunal honourably, and in good faith, including a duty to make a) The primary duty of a tribunal charged with interpreting a genuine effort to work out agreements over issues A number of high profile protests by Māori, sought a treaty is to give effect to the expressed intention of the arising between them recognition and restitution for Crown breaches of the Treaty parties, that is, their intention as expressed in the words of Waitangi. used by them in the light of surrounding circumstances. - the principle of protection, which imposes an obligation on the Crown to actively protect and take positive steps b) It is necessary to bear in mind the overall aim and The Treaty of Waitangi Act 1975 established the Waitangi to ensure that Māori interests are protected Tribunal to hear claims for breaches of the Treaty of purpose of the treaty. - the principle of participation, which requires as a Waitangi. The Tribunal was initially limited to hearing c) In relation to bilingual treaties neither text is superior. breaches that had occurred only after the Act came into starting point equal status of the Treaty partners, force. However in 1985, the Treaty of Waitangi Amendment d) Given that almost all Māori signatories signed the imposes an obligation on the Crown to actively protect Act extended the scope of the Tribunal to allow it to Māori text, considerable weight should be given to that Māori treaty rights, to provide redress for past breaches, investigate breaches of the Treaty dating back to 1840. version. and to consult with Māori e) The contra proferentem rule that in the event of - the principle of prosperity, which requires that the needs The Tribunal researches and investigates the alleged breaches, ambiguity such a provision should be construed against of both cultures must be provided for and the parties and its reports make recommendations to the Crown for the party which drafted or proposed that provision (in should work towards achiving mutually beneficial resolution of those breaches. The recommendations of this case the Crown) applies. outcomes. the Tribunal are not binding, and a small number of the Tribunal’s recommendations have been implemented by the f) The United States Supreme Court ‘indulgent rule’ that These principles now inform interpretation and application xxxv Crown to date. treaties with Indigenous people (American Indians) of Te Tiriti in New Zealand today. should be construed ‘in the sense which they would

INDEX Māori Interests and Geographic Indicators 26 Te Ture mō te reo Māori The claim asserted the Crown breached the Treaty of of whether the Crown has implemented any recommendations Waitangi, because the Crown: made by the Waitangi Tribunal about treaty issues. Te Ture mō te reo Māori recognises in legislation that te reo Māori is a taonga, protected by article 2 of Te Tiriti o • failed to actively protect the exercise of tino On 29 August 2019, the Minister released Te Pae Tawhitixxxvi, Waitangi, and iwi and Māori are the kaitiaki of that taonga. rangitiratanga and kaitiakitanga by the claimants over a proposed approach to addressing the Waitangi Tribunal’s Indigenous flora and fauna, and other taonga (treasure), report. The Minister proposes a whole of Government It is important here to acknowledge the legislation sets and also over mātauranga Māori (Māori traditional approach to addressing the issues raised, including the out a number of principles that are intended to guide the knowledge) establishment of three ministerial work groups tasked with intepretation of the Act and development of any Māori answering the following questions: language strategies. • failed to protect the taonga itself These principles should also help guide any legislative • usurped tino rangatiratanga and kaitiakitanga of Māori in Kete 1: Taonga works me te Mātauranga Māori framework that impacts on the use of te reo Māori, including respect of flora and fauna and other taonga through the a) Kaitiakitanga – How can we better enable kaitiaki to the use and registration of te reo Māori within an intellectual development of policy and enactment of legislation more fully exercise kaitiakitanga over taonga works and property framework. • agreed to various international agreements and mātauranga Māori? obligations that affect Indigenous flora and fauna and IP b) Protection – Should there be a new legal framework rights and rights to other taonga. Wai 262 to protect taonga works and mātauranga Māori? What should it look like? The Wai 262 claim is the 262nd claim before the Waitangi The claimants also asked that one of the remedies include Tribunal. The claim was lodged by six claimants on behalf of a framework based on tikanga Māori (or Māori customary c) Partnership – How should we make decisions affecting themselves and their iwi: Haana Murray (Ngāti Kurī), Hema values) that recognises Māori rights to exercise tino taonga works and mātauranga Māori in New Zealand and Nui a Tawhaki Witana (Te Rarawa), Te Witi McMath (Ngāti rangatiratanga and kaitiakitanga over Indigenous flora and who should make them? Wai), Tama Poata (Ngāti Porou), Kataraina Rimene (Ngāti fauna, other taonga, and mātauranga Māori. Kahungunu), and John Hippolite (Ngāti Koata) in 1991. d) Stewardship – How should the Crown manage taonga In 2011, the Waitangi Tribunal released its report Ko works and mātauranga Māori it holds? How should the Māori were increasingly concerned about the loss of native Aotearoa Tēnei. The Waitangi Tribunal made a number of Crown approach Māori data stewardship and governance plants and animals, the destruction of ecosystems, the recommendations to the Crown, including amendments to issues? How can the Crown better manage its metadata to continuing erosion of mātauranga Māori (traditional Māori laws covering IP, Māori language, resource management, enable access to the mātauranga Māori it holds? knowledge), the continuing creation and amendment by the cultural artefacts, environmental protections, and Government of intellectual property legislation that failed recommendations on how the New Zealand Government Kete 2: Taonga Species me te Mātauranga Māori to recognise Māori IP rights, including the introduction of should sign up to international instruments. new intellectual property legislation through the signing of a) Kaitiakitanga – How can we better enable kaitiaki to international agreements. To date, the Crown has not issued a comprehensive response more fully exercise kaitiakitanga over taonga species and to the claim or the recommendations in the Waitangi Tribunal mātauranga Māori? The claim concerned who controls and owns traditional report. Māori knowledge, arts and cultural works. It also concerns b) Protection – How should we protect taonga species and the role of kaitiaki and their ability to protect taonga. Unlike mātauranga Māori? How might better information systems In 2018, the Minister for Māori Development (‘Minister’) many other claims submitted at the time, the claim was about taonga species and mātauranga Māori be developed? released a s8l report, which included a significant piece on contemporary in nature and raised concerns for not just iwi, the WAI 262 report, Ko Aotearoa Tēnei, suggesting that more c) Partnership – How should we make decisions affecting but also hapū, whānau, Māori culture and identity. work on the response to Ko Aotearoa Tēnei was in progress. A taonga species and mātauranga Māori in New Zealand and The claimants asserted exclusive and comprehensive rights to s8l report is provided by the Minister for Māori Development who should make them? How we might transition Māori- Indigenous flora and fauna, cultural knowledge and property to the House of Representatives at the end of each year. A s8l Crown engagement on taonga species and mātauranga as taonga protected by Article Two of Te Tiriti o Waitangi. report provides the House of Representatives with an update on Māori from a transactional, issue-by-issue approach to a current Treaty negotiations and settlements and an overview relationship-based model?

INDEX Māori Interests and Geographic Indicators 27 Kete 3: Kawenata Aorere / Kaupapa Aorere a) Māori would like some clarity on what partnership means in practical terms, which will require some a) Māori interests at international level – How should the upskilling in the Crown, as well as a clear commitment Crown work with Māori to identify Māori interests from the Crown to engage with Māori throughout the and the nature and strength of those interests when WAI 262 work. negotiating international instruments and the nature and strength of those interests when negotiating b) Māori would like to see an inclusive process, where the international instruments and participating in Māori-Crown partnership is reflected at all levels of international forums? the kete structure, agreements and processes in place are honoured, and all issues that are relevant to iwi and b) Engaging with Māori – How should Government Māori are addressed. agencies engage with Māori when representing New Zealand? c) The mana of the original WAI 262 claim needs to recognised and maintained, as does the importance of c) Māori representation – How Māori should be the kaitiaki role of the representatives of the original represented in international forums? claimant roopū, to ensure integrity in the process. d) The Crown needs to ensure that Māori have sufficient The workstreams group together chapters within the WAI resources to be able to engage with the Crown, but also 262 report Ko Aotearoa Tēnei and identify Government to have Māori-to-Māori conversations. reviews underway and currently planned that fall within each work programme, including the review of the Copyright Act, e) The Crown needs to ensure its approach is broad the review of the Plant Variety Rights Act, and a review of the enough to support social and economic parity, and the Haka Ka Mate Attribution Act. Crown can engage on the full range of Māori and Crown interests. The scope of the work programme is far-reaching, extending f) The Crown needs to provide more clarify on the phasing to almost every Government department. and timeframes of the work programme.

The Minister also proposes to establish a ministerial Final recommendations, work plans, and timeframes are yet oversight group to oversee the Government’s high-level to be announced, which only continues to frustrate domestic response across Ko Aotearoa Tēnei and to assist ministers economic development for Māori. to co-ordinate within and across the three ministerial work groups referred to above. It is critical for Māori that the Government resolve some of the outstanding issues around Māori cultural and intellectual The proposal anticipates the Crown will need to engage with and cultural property rights, before engaging on new regimes Māori once the structure is established but fails to identify that are yet to be tested as providing sufficient protection for how the engagement process might happen. Māori rights and interests (including kaitiaki relationships). As discussed in the Trade For All Advisory Board Report: Consultation with the whānau of the original claimants, the Iwi Chairs Forum, and targeted Māori groups was carried out ‘Successful resolution to Wai 262 and 2522 represents in 2019. In March 2020, Te Puni Kokiri released its Targeted an opportunity for New Zealand to develop a world- Engagement Reportxxxvii, which identified the following key leading model for the protection and promotion of themes from its initial engagement. Indigenous intellectual and cultural property rights based on an Indigenous framework.’

INDEX Māori Interests and Geographic Indicators 28 6. European Union Context (IP, trade, and FTAs)

INDEX Māori Interests and Geographic Indicators 29 European Union – A Brief Economic Overview The purpose of this section of the report is to give The European Union (‘EU’) is made up of 27 member statesxxxviii with a total population of 513 million people (87 distinct peoples, a brief overview of the EU economic and legal 33 ‘majority populations’, and 54 ‘minorities’). context for the EU-New Zealand FTA negotiations and to illustrate considerations and opportunities EU GDP in 2019 was 17 € trillion (NZ$32 trillion). for Māori.

This section addresses, via reference and case European Union intellectual property law and geographical indications studies, the subject matter raised in the MFAT European Union intellectual property law and geographical indications Discussion Paper of December 2019. EU law is made up of Treaties, Regulations, and Directives. Treaties lay down the objectives of the EU, the rules for EU institutions, how decisions are made and the relationship between the EU and its member countries. Regulations have binding legal force The section also builds on the sections above throughout every Member State and enter into force on the same date in all the Member States. Directives describe the results that a to propose steps forward, both in anticipation law must achieve, but each Member State is free to decide how to transpose Directives into national laws. of response to the Waitangi Tribunal Report Ko Aotearoa Tēnei and independent of those EU IP law comprises international, EU, and national laws. Although national IP laws were already in place (for example, GIs date discussions. from the 19th century), IP law was rationalised at an international level as international trade expanded and various multilateral agreements emerged (e.g. the Paris Convention, the Madrid Agreement and Protocol, the Lisbon Agreement, TRIPS, and the As above, through various conventions and Geneva Act). declarations, the need to redress Indigenous peoples rights within an adequate legal framework Within the EU IP is governed by : is being addressed, albeit as yet subject to national law. The following section therefore also presents Design Regulation 6/2002 some examples of how other groups are using existing IP law to protect their Indigenous flora Trade mark Regulation 2017/1001 and fauna, cultural knowledge and property. Chapter VIII, Section 1 Collective Marks Articles 74-82 Chapter VIII, Section 2 Certification Marks Articles 83-93

Copyright Copyright Term Directive, Information Society Directive, Directive on Copyright in the Single Digital Market, Database Directive, ‘Software’ Directive and national copyright laws

Data Privacy Regulation 2016/679 (GDPR)

‘Know-how’, Trade Secrets Directive 2016/943

Plant Varieties Community Plant Variety Right

Patent EU-wide legislation is imminent, but all EU member states are members of the European Patent Organisation (EPO)

Utility Model 16 of the 27 member states have national legislation

Geographical indications Regulation 1151/2012 agricultural products and foodstuffs Regulation 1308/2013 wines Regulation 110/2008 spirits Regulation 251/2014 aromatised wine products

INDEX Māori Interests and Geographic Indicators 30 European Union policy on European Union Trade Agreements Key Clauses in the EU FTA Proposal Indigenous People’s Rights The EU currently has over 120 trade agreements in various Document stages of progress: including 33 trade agreements in effect, EU policy on Indigenous peoples rights is outlined in various The EU FTA proposal requires the implementation of 48 trade agreements waiting to be ratified by all parties, 25 statements including: international agreements, unless national law is of a higher ‘pending’ signature and ratification, five agreements in the standard. Among the international agreements are TRIPS process of being updated, and 21 in negotiation (including - the ‘European Commission Working Document of (Art X.2), treaties that govern IP and unfair competition and the FTA with New Zealand). May 1998 ‘On support for Indigenous Peoples in the UPOV. The EU Proposal Document stipulates further that Development. Co-operation of the Community and exemptions to breeders rights will apply, including that the Member States’, which establishes the objectives of Macroeconomic Effect of the plant breeder’s rights may be restricted to permit farmers supporting Indigenous peoples’ rights, and integrating to use for propagating purposes, on their own holdings, the concern for Indigenous peoples as a cross-cutting aspect European Union – New Zealand Free product of the harvest which they have obtained by planting, of human empowerment and development cooperation, on their own holdings (Art. X .47). and advocates for the full and free participation of Trade Agreement Indigenous peoples including their prior consultation, According to a Sustainability Impact Assessmentxxxix Importantly, national and in the case of the EU regional, consent and control over activities affecting their lives conducted by the European Commission (an analysis of ‘exhaustion’ of IP rights – the first sale doctrine - will apply and land, and the identification of their own priorities the potential economic impact of an FTA between the (Art X.3). This provision means that once a proprietor has for development; EU and New Zealand), the FTA will have overall positive placed their goods for sale in one EU member state, either macro-economic effects. For example, EU bilateral exports themselves or via an authorised party, they cannot prevent - the ‘November 1998 Council Resolution of are expected to be 31.7% higher by 2030 and real GDP will the importation and sale of their goods in any other EU Development Ministers of the European Union increase, albeit marginally, compared to a situation without member state. Their rights to control sale after the first sale, Member States’, which acknowledges that development the FTA. For New Zealand, bilateral exports are forecast are ‘exhausted’. cooperation should contribute to enhancing the right to expand by 23.4% and real GDP by 0.5% (over NZ$100 and capacity of Indigenous peoples to their ‘self- million, based on GDP in 2018). New Zealand entities will have ‘national treatment’ (a development’, including the right to object to projects principle which requires equal treatment of foreign and local and compensation where projects negatively affect the The Impact Assessment also indicated that, while wages in interests) within the EU (Art X.4) which has implications for livelihoods of Indigenous peoples; and the EU would be unaffected, wages would increase in New term of rights, especially copyrightxl. Copyright term currently - the ‘Report from the Commission to the Council of 11 Zealand for both unskilled and skilled workers. Although differs by 20 years: the term of copyright in the EU is life June 2002’, whereby the concerns of Indigenous peoples there are sectoral variations, SMEs and consumers in both of author plus 70 years, and the term of copyright in New are to be voiced in political dialogues with partner the EU and New Zealand are expected to benefit, as will Zealand is life of author plus 50 years. countries as an integral part of the human rights clauses. ‘connected’ third country economies. There are strict requirements and guidelines in terms of Consistent with EU policy statements and its core principles Given that the Māori economy is a significant proportion the collective management of rights (Art. X.13) including of respect for human rights, equality and zero tolerance of of the overall economy in New Zealand, these economic cooperation between EU and New Zealand collective discrimination, the EU has supported UNDRIP since its benefits are also expected to flow directly to Māori. management organisations; transparency of collective adoption in 2007 management organisations regarding revenue and deductions, The Impact Assessment also touches on human rights and the use of the rights revenue collected, the distribution environmental effects, suggesting that the effect on human policy and their repertoire, no discrimination, and accurate rights will be marginal, or potentially negative; and the reporting. This provision may be of interest to Māori in terms environmental effects, marginally negative. of collectively owned, cultural works of commercial potential.

INDEX Māori Interests and Geographic Indicators 31 Reflecting recent developments in EU law to tackle on-line Unregistered trade mark rights are upheld under Art. infringement, there is also a requirement for adequate X.22(3). This provision means that a trade mark shall not technical means to prevent infringement and piracy (Art entitle the proprietor to prohibit a third party from using, X.15 & 16). in the course of trade, an earlier right which only applies in a particular locality if that right is recognised by the laws Provision for trade marks is consistent with the law of of the EU state or New Zealand and within the limits of the New Zealand. Exceptions to the rights conferred by a trade territory in which it is recognised. mark (under Art. X.22) include the of descriptive terms including geographical indications, and - provided There are some important requirements in the field of design the legitimate interests of the proprietor of the trade mark as the EU requires that New Zealand accedes to the ‘Geneva and of third parties are taken into account - a third party’s Act to the Hague Agreement Concerning the International use of their own name or address; indications concerning Registration of Industrial Designs’xli in addition to the the kind, quality, quantity, intended purpose, value, national provision for registering new and original designs geographical origin, the time of production of goods or of (a design having individual character) for up to 25 yrs. (Art rendering of the service, or other characteristics of goods X.26). The EU also requires that New Zealand recognises or services; or the intended purpose of a good or service, in unregistered designs (Art X.28) with a term of up to 3 years. particular as accessories or spare parts, provided they are This differs from the current provision in New Zealand used in accordance with honest practices in industrial or which provides protection for design drawings and models commercial matters. under New Zealand copyright law (for 16 years from the date of industrial application i.e. duplication of manufacture Art. X.36 includes that a trade mark application will be of more than 50 articles to the design). The EU unregistered refused if it would contravene a registered GI; and trade design right is in addition to copyright in the drawings or marks registered in breach of such term will be invalidated. other ‘fixed’ representation (Art. X-30). In terms of pre-existing trade marks, GIs can be protected where a prior trade mark has been applied for, registered Provision for ‘trade secrets’ protocol is included in Section or established by use, but that such a trade mark may B, Sub-section 6, Art. 43. ‘Trade secrets’ are defined as: continue to be used and renewed for the related product. i) information that is not, as a body or in the precise However, use of the protected GI shall be permitted as well configuration and assembly of its components, generally as the use of the relevant trade marks. The exception is known among or readily accessible to persons within the where the reputation and renown of the trade mark is so circles that normally deal with the kind of information substantial and has continued over such a time period that in question; ii) has commercial value because it is secret; a concurrent GI would mislead the consumer as to the true and iii) has been subject to reasonable steps under the identity of the product. circumstances, by the person lawfully in control of the information, to keep it secret.xlii

INDEX Māori Interests and Geographic Indicators 32 Data Protection These prescribed provisions differ from the relatively flexible natural person; for the performance of a task carried out in the nature of New Zealand’s Information Privacy Principlesxlv. public interest or in the exercise of official authority vested in Data will be integral to the smart Māori economy and the the Controller; and for the purposes of the legitimate interests ownership of data relating to mātauranga Māori, Māori The GDPR comprises 173 Recitals (explaining the intent and pursued by the Controller or by a third party, except where xlvi natural resource and personal data (including biometric, context) and 99 Articles . The key terms are clearly defined such interests are overridden by the interests or fundamental genetic and health) is a valuable asset. in Art. 4. For example: ‘Personal Data’ is defined as any rights and freedoms of the data subject which require information relating to an identified or identifiable person, protection of personal data (in particular where the data Data ownership and the right to use data are subject to referred to as the ‘data subject’ ; and ‘Processing’ as any subject is a child). The overriding lawful basis is processing for various laws including intellectual property laws, the law operation on personal data by automated or non-automated which the data subject has given consent. of confidentiality, and laws relating to privacy and data means and including collecting, recording, organising, protection. Anonymised, pseudonimised or de-identified structuring, storing, adapting, altering, retrieving, consulting, Data subject Consent must be a freely given, specific, data generally falls outside the scope of data protection law using, disclosing, transmitting (or otherwise making informed and unambiguous indication of the data subject’s lvii but may be integral to copyright works or database rights. available), aligning, combining, restricting, and even erasing or wishesx ; and it must be in the form of a written declaration xlviii However, the related data privacy law often does not define destroying. that is clearly distinguishable from the other matters , easily the terms ‘anonymised’, ‘pseudonimised’ or ‘de-identified’ accessible, and in clear and plain language. The data subject and its status (i.e. adequacy of pseudonimisation) can be The GDPR also refers to the roles of Controller and Processor, must be able to withdraw their consent as easily as they gave it. relative to the technical means (such as the sophistication and their respective responsibilities. of encryption, the retention of a second key) and economic Processing of ‘sensitive’ personal data (relating to racial or circumstances.xliii A Controller is a natural or legal person, public authority, ethnic origin, political opinions, religious or philosophical agency or other body which, alone or jointly with others, beliefs, genetic data, biometric data and data concerning In the EU, the protection of personal data is governed by determines the purposes and means of processing. The health or a natural person’s sex life or sexual orientation) is Regulation (EU) 2016/679 (the General Data Protection Processor is a natural or legal person, public authority, agency prohibited or subject to a higher level of scrutiny. Certain Regulation (GDPR)) which came into effect in all EU or other body which processes personal data on behalf of the exemptions do apply (Art. 9) most notably where processing member states on 25th May 2018.xliv The GDPR applies to Controller. is necessary for the vital interest of the data subject, research all entities that ‘use’ personal data of an EU citizen whether (although this is also subject to ethics approval) and such use takes place inside or outside the EU. Use includes Under Art. 5, Personal Data is to be processed lawfully, fairly substantial public interest (for example, protection against offering goods and services (whether or not for money) and/ and in a transparent manner and only for specified, explicit and threats such as Covid-19). But again, the exemptions apply or the monitoring of behaviours. legitimate purposes. Personal Data cannot be further processed proportionately and only if the fundamental rights and in a manner that is incompatible with the initial purpose. The interests of the data subject are safeguarded. The main principles of the GDPR – lawfulness, fairness and data must be minimal for the purpose, accurate, retained for no transparency - are common to data protection laws in many longer than is necessary for the purpose and under conditions The rights of the data subject are further detailed in Chapter countries. However, the GDPR significantly enhances the with appropriate security (i.e. secure against unauthorised or III of GDPR. These include that: the Controller must provide rights of the data subject, imposes strict obligations on those unlawful processing, accidental loss, destruction or damage, adequate means for the data subject to assert their rights; who want to use the data and sets in place procedures and using appropriate technical or organisational measures. The information about where and how their data is stored; the penalties for non-compliance. Controller is responsible for and must demonstrate compliance right (and the means) to access to their data; the right to with these requirements. have the data corrected and deleted; the right to restrict or The GDPR further prohibits the transfer of personal data refuse processing of their data; the right of portability (and an outside the EU (including inter-company transfer) unless the Lawful processing (Art. 6) includes processing that is necessary obligation for the Controller to provide the data in a portable country, territory or one or more specified sectors within that : for the performance of a contract to which the data subject form). third country, territory or sector ensures a level of protection is party or in order to take steps at the request of the data that the European Commission deems adequate (Articles 44 subject prior to entering into a contract; for compliance with and 45). a legal obligation to which the Controller is subject; in order to protect the vital interests of the data subject or of another

INDEX Māori Interests and Geographic Indicators 33 A Controller must also demonstrate that they have processing operations and the purposes of the processing, As noted above, the GDPR complements the principles and implemented appropriate technical and organisational including, where applicable, the legitimate interest pursued objectives of the Nagoya Protocol (in particular Arts 6l and measures to meet their obligations under GDPR, including by the Controller; an assessment of the necessity and 7li ) and many of its provisions applied to Indigenous peoples’ company privacy policies, adherence to approved codes of proportionality of the processing operations in relation to data would make misappropriation more difficult and conduct (Art. 40) or approved certification mechanisms the purposes; an assessment of the risks to the rights and introduce meaningful penalties for breach. The procedural (Article 42). freedoms of data subjects; and the measures envisaged to provisions are also complementary to Māori tikanga (ethics, address the risks, including safeguards, security measures and processes and principles). For example, a Controller can A Controller can only use a Processor that similarly provides mechanisms to ensure the protection of personal data and to be a single entity, or more than one entity can agree to be sufficient guarantees to implement appropriate technical and demonstrate compliance with the GDPR taking into account Joint Controllers (Art. 26) which sets a model for collective organisational measures that meet the requirements of the the rights and legitimate interests of data subjects and other ownership and management by Māori, and by collaborations, GDPR and ensure the protection of the rights of the data persons concerned. for example within Māori, between iwi, hapū, individual subject. And, although a Processor can only access data on businesses and Government. and according to instructions from the Controller (Art 29), a Where a Controller and Processor’s core activity entails Processor is culpable along with the Controller, in the event regular and systematic monitoring of data subjects on a large Correlation of the GDPR with the Nagoya Protocol also of breach. scale, or the processing of special categories of data, a Data presents a basis for the return of Māori data (primary and Protection Officer must be appointed (Art 37). aggregated) to Māori stewardship. A Controller can only use a Processor that similarly provides sufficient guarantees to implement appropriate technical and But perhaps the most notorious Article of the GDPR is Art. organisational measures that meet the requirements of the 83(6) – fines and penalties. Art. 83(6) states that: ‘Non- GDPR and ensure the protection of the rights of the data compliance … shall…be subject to administrative fines up to subject. And, although a Processor can only access data on 20 000 000 €, or in the case of an undertaking, up to 4% of the and according to instructions from the Controller (Art 29), a total worldwide annual turnover of the preceding financial Processor is culpable along with the Controller, in the event year, whichever is higher.’ Fines to date have ranged from 500 of breach. € (levied against a medical centre in Bulgaria for insufficient legal basis to transfer a UK citizen’s medical data to a Regional Apart from the obligation to keep detailed records (Art 30), Health Insurance Fund and then to another medical centre in the event of a security breach the Controller must notify in the process of changing their GP), to multi-million Euro the relevant supervisory authority within 72 hours of the headline grabbing fines, including a 204.6 € million fine breach, providing full details and the facts, the effects and levied under Art 32 (‘Security of processing’) against British remedial actions (Art. 33). And if the breach is likely to result Airways (when their poor security enabled the personal data in a high risk to the rights and freedoms of the data subject, of 500,000 customers to be diverted to a fraudulent site) and the Controller must also notify the data subject (Art. 34). a 110.3 € million fine levied against Marriot International Hotels (for the exposure of 339 million guest records). The GDPR also requires that Controllers and Processors Other big fines have been levied under Art. 6 (‘Lawfulness undertake a Data Protection Impact Assessment (DPIA) of processing’) including Google’s 50 € million fine for the prior to processing (Art. 35)xlix. Although obligatory for illicit creation a Google account during the configuration of a processing special categories of data, such as health data, mobile phone using the Android operating system. in practice a DPIA is an effective way to comply (and to demonstrate compliance) with the documenting, reporting and other obligations which are taken in to account by a Supervisory Authority in the event of breach. The DPIA usually includes: a systematic description of the envisaged

INDEX Māori Interests and Geographic Indicators 34 7. Geographical Indications – A European Union perspective

INDEX Māori Interests and Geographic Indicators 35 Geographical Indications Procedure The proposed procedure includes: GIs are highly valued in the EU as an effective means to benefit trade, maintain or increase employment and • establishing a GI register; especially to support rural development and economic • an administrative process to verify that GIs identify diversification (locally-based, high-quality small producers, a good as originating in a territory, region or locality supported by collective organisation). where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical According to WIPO Statistics, 4,968 GIs were in force in the origin; EU in 2018lii, and the GI market in the EU is estimated at 55 € billion (NZ$94 billion). • a requirement that a registered name will correspond to a specific product for which a specification has been The criteria are strict, they are effectively enforced and there submitted; is high consumer awareness. • amendment of a specification only by due administrative process; Surveys have established that consumers associate GIs with quality assurance and also accept the GI product premium • the application of controls; and price (the premium price is on average 2.23 times the price of • adequate enforcement and protection of registered non-GI products) as a means of supporting local industry. names by public authorities. Based on the success of GIs, there is increasing interest in the EU to extending GIs to non-agricultural products and Legal provisions will establish that a registered name may be a November 2019 report by a European Parliament ‘Think used by any operator marketing products conforming to the Tank’liii estimated such an extension would increase intra- corresponding specification. EU trade by 5-5.6%; raise exports by of 37-50 € billion; and create 280,000-338,000 new jobs. A product specification should be the version approved, including any amendments also approved, by the authorities In relation to GIs, under the New Zealand-EU FTA, of the Party in the territory from which the product New Zealand would protect ‘qualifying’ existing EU GIs originates; and the protection of GIs under the FTA may only nominated by the EU (and listed in an Annex to the FTA). be cancelled by the Party in which the product originates. It is expected that at least 2,200 EU GIs will be included. The EU would in turn protect qualifying existing New Zealand GIs nominated by New Zealand (listed in an Annex to the FTA). The parties would agree a mechanism for adding new names to the lists of GIs in the future, and the EU has proposed that New Zealand adopt a regulatory protection framework for GIs that is similar to the existing EU framework. The EU framework is significantly different to New Zealand’s existing framework.

The proposed terms relating to GIs are laid out in Section B, Sub-section 4 of the EU FTA ‘Proposal Document’.

INDEX Māori Interests and Geographic Indicators 36 Refusal Opposition may also detail how the name, for which Among the General Rules (Art. X-38), a Party would not be able protection and registration is considered, is generic. For to protect a name as a GI if that name conflicts with the name of a Applications to register a GI may be refused on the grounds example, the GI ‘Camembert’ has now become a generic for plant variety or an animal breed and if the use of the name as a GI that the term is homonymous or partly homonymous with a type of cheese and the name can consequently be used on would mislead the consumer as to the true origin of the product. already registered terms, or terms that are customary in any Camembert-type cheese made anywhere in the world, common language (e.g. common names for goods, or terms not just France. However, ‘Camembert de Normandie’ is a Homonymous names which may mislead consumers into comprising or including the names of plant varieties and French Appellation of Origin for Camembert produced only believing that a product comes from another territory would also animal breeds) although refusals will take into account the in Normandy. be prohibited, even if the name is accurate as far as the actual legitimate interests of all parties concerned. territory, region or place of origin of the product in question is concerned. The EU and New Zealand would mutually decide on A prior existing trade mark shall not prevent the Qualifying GIs the conditions of use of wholly or partially homonymous GIs, and registration and use of a name as a registered GI except GIs that ‘qualify’ will be listed in an annex to the FTA and how they would be differentiated from each other, considering where a trade mark is renown and has been used for such new GIs can be added in accordance with a mechanism both the need for equitable treatment of the producers and that a length of time that consumers would be misled by the agreed between the EU and New Zealand. Once listed, the consumers are not to be misled. subsequent use of the geographical indication on products GIs will be protected against: not covered by the trade mark. Seized by Māori and used to full effect (in particular the - any direct or indirect commercial use for comparable qualifying characteristics in the GI specification) GIs would Opposition products not compliant with the product specification be a useful tool to protect Māori flora, fauna and mātauranga of the protected name, or in so far as use exploits the Māori. The EU proposal that no fees should be charged for Opposition to a GI may be filed within three months from reputation of a GI, including when that product is used the protection of GIs might also be beneficial if reciprocal. the date of the publication of the information notice. The as an ingredient; However, this is contentious as New Zealand currently operates Opposition Procedure would entail submitting the names the GI register on a full cost recovery basis (i.e. cost to serve the and the product type to the European Commission or New - any misuse, imitation or evocation, even if the true whole register, not cost to serve each unit). The fees include an Zealand authority, along with evidence of how the GI would: origin of the product is indicated or if the protected application fee of NZ$5,000 for the examination and the first name is translated, transcribed, transliterated or five years of registration of a GI, renewal fees of NZ$2,000 for • conflict with the name of a plant variety, including a accompanied by an expression such as ‘style’, ‘type’, the first 10-year renewal term and NZ$500 for each subsequent wine grape variety or an animal breed and as a result ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or 10-year renewal term. would be likely to mislead the consumer as to the true ‘similar to’, including when the protected product is used origin of the product; as an ingredient; As with trade marks, GIs are potentially unlimited in duration, as long as the qualitative link between the products and the place • is a homonymous name which would mislead the - any other false or misleading indication as to the is maintained and the indication has not fallen into genericity. consumer into believing that products come from origin, nature or essential qualities of the product, on But unlike trade marks, GIs cannot be assigned or licensed to another territory; the inner or outer packaging, advertising material or documents relating to the product concerned, and the someone outside the place or not belonging to the group of • in the light of a trade mark’s reputation and renown and packing of the product in a container liable to convey a authorized producers. the length of time it has been used, be liable to mislead false impression as to its origin, including when those the consumer as to the true identity of the product; products are used as an ingredient; Once protected, a GI may be used by any operator marketing a product which conforms to the respective specification. To • jeopardise the existence of an entirely or partly identical - any other practice liable to mislead the consumer as to qualify for use of a GI, the raw materials and the development name or of a trade mark or jeopardise the existence of the true origin of the product. or processing of the GI product do not necessarily need to take products which have been legally on the market for at place entirely in the defined geographical area: it might suffice least five years preceding the date of the publication of Once listed a GI will not become generic in the EU or New that a single criterion is attributable to geographical origin, be notice. Zealand but will cease to be protected in the other territory if it is not protected or ceases to be protected in the territory it a quality or other characteristic of the product, or simply its of origin. reputation.

INDEX Māori Interests and Geographic Indicators 37 Importantly, GIs do not directly protect the subject matter or The Montecristi straw hat from Ecuador (the ‘Panama’ hat) private commercial monopoly (which is subject to sufficient is made in the town of Montecristi in the Manabi province other proprietary rights). Thus a GI intended to protect of Ecuador, by expert weavers, and dates back to the 16th Māori interests could in fact be used by non-Māori, third century. Its production involves a labour-intensive series of parties who conform to the specification. However, this need steps from harvesting the green leaves of the toquilla plant, not be counter to the objective. GIs are also used to protect boiling the fibres, weaving the intricate spiral patterns, Indigenous and traditional names, signs and symbols even pounding the rudimentary hats into their distinctive shape where they have no direct geographical meaning and among (authentic Montecristis hats have no seams) and the addition existing, registered GIs are GIs that relate to natural resources of finishing touches. In 2005, a group of toquilla fibre and handmade artefacts crafted from those resources using artisans filed an application to register a GI (an Appellation methods embedded in the traditions of local communities of Origin) with the Ecuadorian Institute of Intellectual and having qualities derived from their geographical origin. Property. Consequently, only the cooperative and other The inherent quality, traditional processes and respective community members from Montecristi and its surrounding premium pricing make other producers less tempted to region are allowed to use the label, and other hat makers replace traditional processes by cheaper, lower quality from Ecuador and other countries are barred. ones. For example, Banarasi saris have been part of Indian traditional culture since the era of Mughals. They are made In 2008, the Asociación de Ceramistas Vicús, the Asociación in six districts of the Uttar Pradesh region. Cheap imports Civil de Ceramistas Tierra Encantada and the CITE from China and Surat were threatening the culture and Cerámica de Chulucanas were granted the Appellation of the livelihoods of the weavers (60% of whom had already Origin ‘Chulucanas’ for ceramics. The region of Chulucanas abandoned the trade to take up low skilled, poorly paid in the province of Morropón, Department of Piura in Peru work). A GI was set in place and the associated specification has produced a type of ceramics for centuries with unique used to educate the public on the attributes of, and how to characteristics that come from the endemic natural resources identify, an authentic Banarasi sari including the ‘warps and and the ancestral techniques the craftsmen use. The main wefts’ in the weave, the pin marks indicating attachment to natural components of Chulucanas pottery are clay, sand, the loom, the authentic Moghul patterns (amru, ambi and mango leaves and the climate. The clay is extracted from domak). While the cheap imitations were sold for 2,400 – particular quarries that contain yellow clay and black clay 4,000 rupees, under the GI the Banarasi maintained a price and, following a dozen or so steps in manufacture, the of 8,000 – 300,000 rupees. In addition the Banarasi saris are characteristics of the clay give a brightness to the ceramics now also protected by Certification Marks (SILK Mark and which are polished by hand with a black stone, to give it a Handloom Mark). brilliant shine.

A form of GI, Appellations of Origin (or PDOs), proffer stricter control. Appellations of Origin also designate a geographic region but require that the quality or characteristics of the product must result exclusively or essentially from its geographical origin. For example, the raw materials should be sourced in the place of origin and the processing of the product should in the place of origin.

INDEX Māori Interests and Geographic Indicators 38 European Union – Geographical Label Protection Product Specification Example Indications in Practice Protected , Every part of the production, Kalamata olive oil (is entirely As mentioned above, products marketed under GIs Designation of agricultural processing and preparation process produced in the region of in the EU contribute tens of billions (55 € billion Origin products and must take place in the specific region. Kalamata, Greece, using olive (NZD93 billion)) to EU GDP. EU GIs are also wines For wines, this means that the grapes varieties from that area. attributed with creating, maintaining and increasing (‘PDO’) have to come exclusively from the rural economic development and diversification geographical area where the wine is (locally-based, high-quality small producers, made. supported by collective organisation). Similar to Collective Marks under which disparate, small enterprises can capitalise on collective marketing campaigns, GIs encourage and support ‘collective’ Protected Food, For most products, at least one of the Westfälischer Knochenschinken action and as a consequence of an effective brand Geographic agricultural stages of production, processing or ham is produced in Westphalia exclusivity, GIs enable ‘premium pricing’ to be Indication products and preparation takes place in the region. using age-old techniques, but applied to qualifying products: estimates put the wines In the case of wine, this means that at the meat does not originate premium price multiple at 2.23, although premiums (‘PGI’) least 85% of the grapes used have to exclusively from animals born vary (from 2.75 for wines to 1.16 for fresh meat, 4.22 come exclusively from the geographical and reared in that specific for French spirits, 4.06 for Spanish wines and down to area where the wine is actually made. region of Germany. 1 for several other products).

The range of products currently protect by GIs in the Geographic Spirit drinks For most products, at least one of the Scotch has been EU includes fresh meat and meat products, cheeses, Indication of and stages of distillation or preparation produced for over 500 years other products of animal origin (eggs, honey, dairy Spirit Drinks aromatised takes place in the region. However, raw in Scotland, including the products), oils and fats, fruit, vegetables and cereals, and wines products do not need to come from the distillation and maturation, fish, molluscs, and crustaceans,, beer, chocolate, Aromatised region. but the raw materials do not bread, pastry, cakes, confectionery, biscuits, beverages Wines exclusively come from Scotland. made from plant extracts, pasta, salt, natural gums and resins, mustard paste, hay, essential oils, spices, (‘GI’) cork, cochineal, flowers and ornamental plants, cotton, wool, wicker, scutched flax, leather, fur, feather and products derived from all such products. Traditional Food and Traditional speciality guaranteed Gueuze is a traditional beer Speciality agricultural (TSG) highlights the traditional obtained by spontaneous EU GIs comprise four categories: Protected Guaranteed products aspects such as the way the product is fermentation. It is generally Designation of Origin (‘PDO’), Protected Geographic made or its composition, without being produced in and around Indication (‘PGI’), Geographic Indication of Spirit (‘TSG’) linked to a specific geographical area. Brussels, Belgium. Nonetheless, Drinks and Aromatised Wines (‘GI’) and Traditional The name of a product being registered being a TSG, its production Speciality Guaranteed (‘TSG’). There are also related as a TSG protects it against falsification method is protected but could schemes such as ‘Mountain Product’ and ‘Product of and misuse. be produced somewhere else. EU’s Outermost Regions’.

INDEX Māori Interests and Geographic Indicators 39 Other schemes

Label Protection Product Specification

‘Mountain Product’ Agricultural and food Raw materials and animal feed come from mountain areas with difficult natural conditions. For processed products products, production should take place in such areas as well.

Product of EU’s Agricultural and food Produced in outermost regions especially with difficult natural conditions e.g. Guadeloupe, French Outermost Regions products Guiana, Réunion and Martinique - and the Azores, Madeira and the Canary Islands

Example for the Island of Réunion

Within the EU, application for a GI is relatively the product and the geographical environment, including the whether the name has been traditionally used to refer to straightforward. It entails submission of an application form inherent natural and human factors and for a PGI, the given the specific product, identifies the traditional character or stating: the Name(s) of the PDO or PGI; the Member State quality, reputation or other characteristics of the product) specific character of the product; a description of the product or third country; a description of the agricultural product or and an explicit statement on which of the given factors to include its main physical, chemical, microbiological or foodstuff or product, feed (for products of animal origin only) (reputation, given quality, other characteristic of the product) organoleptic characteristics showing the product’s specific and raw materials (for processed products only); the specific the causal link is based. character; a description of the production method of the steps in production that must take place in the identified product to which the name applies that the producers geographical area and justification(s) for any restrictions Where a product qualifies under ‘Traditional Speciality must follow including, where appropriate, the nature and or derogations; rules concerning presentation (e.g. slicing, Guaranteed’, the required information also includes whether characteristics of the raw materials or ingredients used, grating, packaging, etc) of the product that the registered and how the product: results from a mode of production, and the method by which the product is prepared; and a name refers to; rules concerning labelling of the product; a processing or composition corresponding to traditional description of the key elements establishing the product’s concise definition of the geographical area; the link with the practice for that product or foodstuff; is produced from raw traditional character. geographical area (for a PDO, the quality or characteristics of materials or ingredients that are those traditionally used;

INDEX Māori Interests and Geographic Indicators 40 EU GIs – Examplesliv

PDO - ‘’ Appellation of Origin - ‘SWISS’ /’Swiss Made’ Appellation of Origin & PDO - RIOJA

‘Roquefort was registered in the 1960s by the Confederation ‘SWISS’ / ’Swiss Made’ designates watches made in RIOJA is recognized as a qualified Appellation of Origin in Générale des Producteurs de Lait de Brebis (the organisation Switzerland according to the tradition, know-how and Spain and registered as a PDO in the EU for a wine produced of sheep’s milk producers) and the Industriels de Roquefort quality criteria of Swiss watchmaking. The Appellation was in the Rioja region of Spain. The PDO protects the name for a blue cheese made in the southwest of France around conferred by ordinance (Federal Council Ordinance of RIOJA as such. Two logos including the name RIOJA are Roquefort-sur-Soulzon. December 3rd, 1971 and revised June 17th, 2016). registered as a Collective Mark and an individual trade mark to reinforce protection of the name against misuse. The cheese is smooth and compact, with even blue veins, a The Ordinance was passed in response to a request from very distinctive aroma, a slight scent of mould and a ‘robust’ Swiss watch makers who wanted to guarantee satisfaction of taste. It is made from raw, full-fat sheep’s milk from the the consumer who expects a Swiss made watch to correspond Lacaune breed. to the quality and to the reputation of Swiss watchmaking tradition and therefore to be manufactured in Switzerland Before it is pressed, the raw cheese is cultured with spores of and to incorporate a high added value of Swiss origin. penicillium roquforti. It is aged for at least 14 days in natural caves in the foothills of the calcareous cliffs in the region ; According to the Ordinance, the geographical indication then outside the caves for at least 90 days from the date of ‘Switzerland’ or ‘Swiss’ can be used on a watch if: its technical its manufacture. It is the characteristics of the milk from development is carried out in Switzerland; its movement Indigenous breeds of sheep, the characteristics of the caves (the motor of the watch) is Swiss; its movement is cased in which the cheese is aged and the traditional ‘know how’ in up in Switzerland; the manufacturer carries out the final each step of the cheese making process that give Roquefort inspection in Switzerland; at least 60% of the manufacturing its unique features and taste. cost are generated in Switzerland; and the components of Swiss manufacture account for at least 50% of the total value, without taking into account the cost of assembly.

INDEX Māori Interests and Geographic Indicators 41 Appellation of Origin and a Collective Mark PDO - ‘Prosciutto di Parma’ PGI – ‘Bayerisches Bier’ – ‘Parmigiano Reggiano’ ‘Prosciutto di Parma’ is registered for ham which has been ‘Bayerisches Bier’ denotes beer brewed since the middle ‘Parmigiano Reggiano’ is recognized as an Appellation of made since the Roman times in eleven regions of Italy. It can ages in a region of Bavaria between the Alps and the Origin in Italy and registered as a Protected Designation only be produced from the hind legs of specially selected Rhön mountains in Bavaria. Originally only brewed in of Origin (PDO) in the EU for a cheese made according heritage breed pigs that have been raised according to the monasteries, there are now more than 600 breweries to specification in the provinces of Parma, Reggio Emilia, highest standards as monitored, inspected, traced and producing around 20 million hectolitres of Bayerisches Bier. Mantua (to the right of the Po River), Modena and Bologna approved by the Consorzio. (to the left of the Reno River) in Italy. Bavaria is one of the leading regions for barley malting, and the Bavarian region of Hallertau is the largest organized The name ‘Parmigiano Reggiano’ is also protected by a hop-growing region in the world. Historically renowned for Collective Mark for the pin-dot writing printed on the rind its purity, Bayerisches Bier now also conforms to the German of the cheese, where it is commercialized pre-packaged. Beer Purity Law, which states that beer can be made from only four ingredients – beer, water, barley, and hops. Within these criteria, Bavarian brew masters have created a unique variety of brews and high-quality brand specialties.

INDEX Māori Interests and Geographic Indicators 42 Infringement and enforcement EU Member States themselves are responsible for controlling all GI products produced and marketed in their territory lv Infringement of a GI entails: (independent of the territory of production). According to the Regulations, Member States must take appropriate • any direct or indirect commercial use in respect of measures, including administrative and judicial steps, to products not covered by the registered GI where those prevent or stop unauthorised use of protected names that are products are comparable to the products for which produced or marketed in that Member State. the GI is registered or where using the GI exploits the reputation of the protected name, including when those Infringement is monitored via the market controls products are used as an ingredient; undertaken by authorities in Member States. Controls apply • any misuse, imitation or evocation, even if the true origin on a production level (verification that products comply with of the products or services is indicated or if the protected specifications, including organoleptic and analytical testing) name is translated or accompanied by an expression such and market level (to verify that products comply with the as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’ or approved product specification after they are placed on the similar, including when those products are used as an market) and are carried out through random checks (based ingredient; on risk analysis and sampling). The number of authorities in charge of these controls varies from EU State to State, and • any other false or misleading indication as to the the same authority often controls both wines and foodstuffs. provenance, origin, nature or essential qualities of the Member States report annually to the European Commission product that is used on the inner or outer packaging, on their control activities. advertising material or documents relating to the product concerned, and the packing of the product in a container Based on these reports, it is estimated that approximately 9% liable to convey a false impression as to its origin; and of EU GI products are infringed representing a value of 4.3 € lvi • any other practice liable to mislead the consumer as to billion (NZ$7.3 billion) .The rate of infringement varies per the true origin of the product or its ingredients. class of goods:

Class Infringement rate Infringing market value (€ million) Wine 8.4% 2,182.0 Spirits 12.7% 811.6 Cheeses 10.6% 644.7 Fresh meat and meat products 11.0% 402.3 Beers 0.1% 1.2 Fruit, vegetables and cereals 11.5% 94.0 Other 10.0% 277.1 Total 9.0% 4,327.2

INDEX Māori Interests and Geographic Indicators 43 8. Smart Māori economy and Māori intellectual property

INDEX Māori Interests and Geographic Indicators 44 The Wai 262 Waitangi Tribunal Report (2011) included derived from Māori flora. Trade mark owners have rights in Since the late 1960s, EU companies have used extracts from several recommendations which have implications for logos based on Māori designs and designers’ have rights in the bark of the Prunus Africana tree in drugs to treat prostate Māori IP: new partnership bodies with responsibilities Māori artefacts that they have manufactured. Such rights may be enlargement, a pre-condition for prostate cancer and a global around culture and heritage; a new commission to protect international and subject to different law and/or practice. market estimated at US$12.8 billion. The raw material is grown Māori cultural works against derogatory, offensive and and harvested in Cameroon, Uganda and the Democratic unauthorised (commercial) uses; a new funding agent for That said, traditional knowledge is not a static, retrospective Republic of Congo and the Prunus Africana trees grown in mātauranga Māori in science; Māori advisory bodies for knowledge. It is vital, dynamic knowledge that has a traditional agroforestry schemes that rely on the skill of the Indigenous patents and environmental protection; improved support for link to a community. It is about innovation and offers new people. But the Indigenous people were excluded from any rongoā, te reo Māori, and other aspects of Māori traditional current and on-going opportunities. benefits. knowledge; and amendments to laws covering Māori resource management, cultural artefacts, environmental While historic Māori economic activity is an established start Salinispora Tropica is a marine actinomycete bacteria found protection, patents and plant varieties, and more. What point for innovation, (fishing, forestry, meat production, dairy in marine sediments of the Bahamian coasts. In 1989, the remains unclear is to what extent the Crown will implement and kiwifruit), new areas are emerging that have significant Government of the Bahamas authorized the Scripps Institution these recommendations, the ultimate ownership, the form, potential: geothermal, digital, services, nutraceuticals, of Oceanography of the University of California to collect and and the extent of Māori self-governance. pharmaceuticals, botanicals, and the life sciences. use sediment samples as part of a project looking for potential drug candidates. Researchers discovered the secondary While the existing IP system per se may run counter to Māori Lifesciences, and biotech in particular, is one of the most metabolite Salinosporamide A produced by Salinispora principles and beliefs, IP rights provide means to maintain contentious areas for misappropriation of traditional knowledge Tropica, which showed anti-cancer activity via proteasome integrity and control on a cultural level, as well as means for and genetic resource. Pharmaceutical and agri-business inhibition. Over 80 international patents have since been commercial monopoly. An alternative approach to IP could transnational corporations are aggressive in their bid to gain filed by the University of California and other companies for secure several options for Māori – both retrospective and access to and control over Indigenous knowledge and genetic medicinal applications of Salinosporamides and synthesis of forward-looking. Importantly, the process of IP must not be resources that can bring them huge profits. For them, traditional Salinosporamide A with no benefit to the Bahamian people. confused with an IP strategy. knowledge effectively comprises generations of R&D on the properties, potential applications and testing of genetic resources. In 1995, the filing of a patent by the University of Mississippi A key concern is that what might constitute Māori IP Medical Centre (USA) for the wound healing properties has already been misappropriated and used so widely, in In the field of biotech, for example, 49% of small molecules of turmericlviii gave rise to a ground-breaking initiative by New Zealand and abroad, that it has been devalued or identified for cancer treatment since the 1940s are natural the Indian Government - the creation of the Traditional compromised: for example, that mātauranga Māori has been products or directly derived from natural products which Knowledge Digital Library (TKDL)lix. disclosed (in books, databaseslvii, art works, museum exhibits, have been integral to traditional medicine for generations. and other archive documentation) to such an extent that These natural products are also elements of vaccines, inactive A group of experts in India had estimated that about 2,000 Māori have already lost control over the knowledge and that components of final products and tools in the research and patents based on Indian systems of medicine were being some ‘secrets’ are compromised. Redressing this situation will production processes. wrongfully granted every year at international level. Patents be time consuming and will require significant organisation were able to be granted (i.e. the applicants were able to meet (including Māori collective action) and investment. An estimated 18,000 plants are currently used in modern the novelty criterion), because the ‘prior art’ (the proof that medicine for humans and animals and technological advances the inventions were not novel) only existed in local languages A further consideration is that, in recovering and asserting have expanded interest to other biodiverse sources, namely such as Sanskrit, Hindi, Arabic, Urdu, Tamil and was neither their rights, Māori may themselves be infringing others’ marine and terrestrial microorganisms. accessible nor comprehensible for patent examiners at the rights. Under the existing IP system, the person who wrote international patent offices. down the Māori legend owns the copyright in their version Technicalities within IP law have enabled the private of the Māori legend, the person who records the Māori monopolisation of such genetic resource and the inherent song owns the sound recording of the song and possibly the understanding of Indigenous peoples regarding the related arrangement. Authors can assert . Patentees have properties and resource management. Examples date back rights in the process of concentrating an active compound decades.

INDEX Māori Interests and Geographic Indicators 45 The TKDL set about scientifically converting and structuring the knowledge (around 290,000 medicinal formulations to date) of the ancient texts on Indian Systems of Medicines (i.e. Ayurveda, Siddha, Unani and Yoga), translating the information into English, Japanese, French, German and Spanish and correlating them with the feature codification system of International Patent Classifications in the digital library. Country Nature and subject matter of registration The TKDL is only available to examiners at international patent offices (including European Patent Office, US Patent & Office, Japan Patent Office, UK Patent Office, Canadian Intellectual India Copyright registration A-67292/2004 for DARJEELING logo Property Office, German Patent Office, Intellectual Property Australia, and Chile 532240 for DARJEELING logo Patent Office) under a TKDL Access Agreement and on a confidential basis. Examiners at the patent Certification Mark 831599 for DARJEELING word offices can use TKDL for search and examination purposes only. DARJEELING word as geographical indication No 1 So far about 200 patent applications by pharmaceutical companies from the US, UK, Spain, Italy and DARJEELING word as geographical indication No 2 China have either been set aside, withdrawn or amended post-grant, based on the prior art evidences present in the TKDL database and at no cost to the Indigenous owners; and 1,200 further cases are in Australia Certification Mark 998593 for DARJEELING logo pre-grant opposition. Certification Mark 998592 for DARJEELING word The TKDL is not only an effective defensive mechanism against biopiracy, it is in itself valuable IP. Its success and reputation (it is recognized as a global leader in the area of traditional knowledge European Union Community Collective Mark 004325718 for DARJEELING word protection) also encouraged use of new models of protective engagement such as benefit sharinglx. Community Collective Mark 008675327 for DARJEELING logo For example, when international scientists collected extremophile micro-organisms from the hot, sulphurous springs at Lake Bogoria in Kenya for research and exploitation of their endurance of heat PGI for DARJEELING word under Regulation 510/06 and acids, the Kenyan authorities implemented a benefit sharing agreement (for the extremophile Commission Implementing Regulation 1050/2011 microorganisms and other genetic resources) which included IP, license terms and future license fees. The Indigenous Endorois people were represented by the Endorois Welfare Council and a Biocultural Japan Trademark 2153713 for DARJEELING logo Community Protocol was developed to support the Endorois communities in benefit sharing negotiations. Regional Collective Mark for DARJEELING TEA word (Application No 007-103568) Other Indigenous groups have also harnessed the existing IP system to protect their rights and economic security. For example, Darjeeling Tea. Taiwan Certification Mark 01327971 for DARJEELING word Certification Mark 01327972 for DARJEELING logo Darjeeling Tea is protected by a GI in India and a combination of IP rights in over 30 other countries. The tea has been grown in the Darjeeling, Kalimpong district in West Bengal, India since 1840 and unlike most other teas from India (which use the large-leaved Assam plant,) Darjeeling is made from USA Certification Mark 1632726 for DARJEELING logo a small leaved, Chinese variety which produces a thin-bodied, light-coloured tea with a floral aroma. Certification Mark 2685923 for DARJEELING word Darjeeling was the first product to receive a GI mark by the Indian Patent Office in 2004, since when the producers have protected the right internationally. Canada Official Mark 0903697 for DARJEELING logo The GI enabled producers of Darjeeling tea to exclude use of the term ‘Darjeeling’ for tea not grown in the tea gardens of Darjeeling and not produced according to the standards set out in the code of practice International Collective Mark 528696 for DARJEELING logo for Australia, for the Darjeeling GI. However, the GI doesn’t stop others making tea using the same techniques as Registration France, Germany, Italy, Montenegro, Portugal, Serbia, Spain, those set out in the GI standards. (Madrid System) Switzerland

INDEX Māori Interests and Geographic Indicators 46 While New Zealand may develop a sui generis IP system in Strategy – Based on the above, a roadmap can be order to give effect to the Crown’s obligations under Te Tiriti, drafted (including timing and cost) for each asset; an and accepting that the international IP frameworks have organisation structure devised; models of ‘use’ devised evolved without regard to Indigenous rights, the examples (‘open’ or commons commercial exploitation, benefit-share above illustrate that Māori may similarly use a range of mechanisms (including monetary and non-monetary)); IP rights to at least reserve ‘options’ for Māori, including appropriate parties appointed; responsibilities allocated; and preparatory steps towards a ‘multiple modes’ economy. Most sources of funding identified. importantly, Māori might use existing IP system for their benefit internationally. On-going management – the Māori IP portfolio will comprise patents, utility models, trade marks, GIs, Collective The process might entail three essential steps : Marks, Certification Marks, copyright, design rights, trade secrets, Confidential Information, and database rights. But Audit – An ‘audit’ will ascertain what tangible and IP rights do not automatically constitute economic value intangible assets Māori own, or might own in the future; and or imply commercial viability. They must be monitored, what third party rights might apply (including e.g. Māori SME maintained and managed (for effectiveness, especially for rights under the ‘umbrella’ of collective Māori rights). The cost-benefit). The financing model will also change as the lxi audit process might start with five high-level questions : portfolio matures; and effective ‘policing’ and enforcement must be undertaken. • What type of tangible and intangible assets do Māori own? Collective rights such as GIs also require a cohesive • What form of legal right (IP and other) could be used to approach, which has to be created and nurtured between all protect the asset? the parties involved, who will together establish traceability, verification and control schemes to ensure continued quality • What conditions must be met to obtain the right? and compliance with the code of practice or regulations of • What opportunities do those rights provide? use; devise marketing strategies; obtain legal protection for the GI and designing an enforcement strategy. • For how long? Funding will be a critical issue for Māori should the NZ Further considerations will emerge iteratively relating to Government move forward with the New Zealand – EU free ownership, the ‘value’ of respective contribution, genetic trade negotiations, as anticipated to support New Zealand’s resources, traditional knowledge, scientific and/or other; economic recovery post COVID19. the terms of joint ownership and inherent rights that are independent of contribution; obligations to sponsors (private Consequently, the Government needs to sufficiently resource organizations or Government bodies); licensing issues; and Māori so that they are on a level playing field when engaging responsibility for defence and maintenance. with any new GI regime. To achieve this, the Government needs to ensure that Māori have time and are financially resourced to identify, develop, establish, protect, and enforce their own GI rights, including funding for internal and external Māori-to-Māori consultation, funding to support Māori to address any industry conflicts that arise from any retrospective and ongoing misuse and misappropriation, and funding for Māori-to-Crown consultation.

INDEX Māori Interests and Geographic Indicators 47 9. GIs - Beyond the European Union

INDEX Māori Interests and Geographic Indicators 48 International GIs, Collective Marks Costa Rica, Peru, Serbia Cuba and Israel each have around New Zealand FTAs and IP provisions 1,000 GIs in force. and Certification Marks New Zealand currently has a number of FTAs and economic Country predominance changes again for Collective Marks: partnership agreements in place including ASEAN-Australia Consolidated statistics published by WIPO demonstrate how New Zealand Free Trade Area (AANZFTA between countries with Indigenous peoples are adopting and using Country Collective Marks in force Australia, Brunei Darussalam, Cambodia, Indonesia, Lao GIs, Collective Marks and Certification Marks to define and Brazil 1,515 PDR, Malaysia, Myanmar, New Zealand, Philippines, protect their interests.lxii Singapore, Thailand, Viet Nam), the New Zealand-China Peru 906 Free Trade Agreement, the Trans-Pacific Strategic Economic According to WIPO, around 65,900 GIs are in force around Vietnam 217 Partnership (P4), the New Zealand and Thailand Closer the worldlxiii. Australia 211 Economic Partnership, the New Zealand and Singapore Closer Economic Partnership, the Australia and New USA 163 Country GIs in force Zealand Closer Economic Relations (CER), the New Spain 111 Zealand-Korea Free Trade Agreement, the Comprehensive China 7,247 Argentina 100 and Progressive Agreement for Trans-Pacific Partnership EU 4,968 (CPTPP between New Zealand, Canada, Australia, Brunei, EU 64 Moldova 4,732 Chile, Japan, Malaysia, Mexico, Peru, Singapore and New Zealand No information available Vietnam) and a Free Trade Agreement with Malaysia is Bosnia Herzegovina 4,499 signed but not yet in force. 4,426 And again for Certification Marks. As with the New Zealand-EU FTA, these agreements reflect Armenia 3,228 Country Certification Marks in force the fundamental principle of ‘national treatment’ that is Ukraine 3,115 USA 501 included in the Paris Convention, the Berne Convention, Australia 2,064 the Rome Convention, the Universal Copyright Convention, India 483 WTO Agreement, TRIPS, the WIPO Performances and Mexico 1,687 Brazil 445 Phonograms Treaty (WPPT) and the World Copyright Vietnam 1,130 Canada 144 Treaty. Under the principle of ‘national treatment’, a USA 779 signatory country must grant the same rights and benefits Turkey 104 to the citizens of the other signatories as it does to its own lxiv New Zealand 23 Australia 97 citizens; and imported goods should be accorded the same UK 91 protection as locally produced goods, once they have entered the market. EU 88 New Zealand 13 Importantly, the member state and its courts can apply their own law. As such, national treatment was a solution to the principle of territoriality (where countries can only grant protection within the boundaries of their own territory) and the practical problems of reciprocity of potentially contradictory national laws.

In so far as New Zealand is a signatory to the underlying international agreements, Māori will enjoy national treatment and their international strategy does not need to wait for the establishment of FTAs.

INDEX Māori Interests and Geographic Indicators 49 10 Conclusions

INDEX Māori Interests and Geographic Indicators 50 Aotearoa/New Zealand has always been a trading nation. interests in Indigenous flora and fauna, mātauranga Māori Engagement Report, which includes adopting new and Given our relative size in the world economy, the New (Māori traditional knowledge), cultural knowledge, and innovative strategies to prevent the ongoing erosion of Māori Zealand approach has focussed on securing larger markets cultural property. interests given that traditional intellectual property legislative and lower tariffs for our operators and producers. This frameworks in trade agreements fail to adequately recognise approach has come at a cost, because our trading partners We also acknowledge that Māori operators and producers and protect those interests. have imposed their intellectual property frameworks on need to succeed in the global economy. Indigenous peoples Aotearoa/New Zealand. throughout the world have utilised the current intellectual If the Government introduces an EU compliant GI regime property framework as a means to achieve commercial in the NZ-EU FTA, then they also need to ensure that it It is well accepted the intellectual property system is success. protects current and future Māori intellectual property inconsistent with and adversely impacts on Māori interests. To these ends, extending the GI regime to include rights, responsibilities, and interests (including kaitiaki The 2011 WAI 262 Ko Aotearoa Tēnei Report also noted food products and ensuring the GI regime acknowledges the relationships), because it requires: that aspects of Māori interests can be protected under New status of te reo Māori as a taonga are necessary minimum Zealand’s current intellectual property system such as words/ requirements. Furthermore, the Government should support a) an identifiable owner names as trade marks; and new inventions derived from Māori to engage fully with the anticipated new GI regime by b) limited period of protection traditional knowledge as patents. Geographic Indications ensuring they have sufficient time and resources to identify, c) commercial exploitation to maintain rights. (GIs) are an additional tool that can protect aspects of Māori develop, establish, protect and enforce Māori GI interests, interests in products derived from Indigenous flora and and it remains imperative that New Zealand revises our IP In contrast, Māori interests are generally: fauna, mātauranga Māori, cultural knowledge and property. system to better reflect Māori interests. We also see benefit in adopting qualitative categories of GIs a) held on behalf of the community – for example, ‘Protected Designations of Origin’, ‘Protected To achieve these outcomes, the work programme must b) enduring Geographical Indication’, and ‘Traditional Speciality include: c) maintained even without any need for commercial Guaranteed’ – with the associated criteria, procedures, a) an immediate assurance and ongoing active preservation exploitation. and penalties. Extending GIs to non-agricultural products of Māori interests guaranteed under Te Tiriti o Waitangi such as natural resources, and handmade artefacts will also in the NZ-EU FTA negotiations While the New Zealand government has put in place a help Māori to achieve some broader protection for Māori number of processes and initiatives, nothing conclusive has interests. b) a comprehensive review of the current New Zealand resulted in the nearly 40 years since the Treaty of Waitangi intellectual property regime to develop a bespoke Act was passed and the Waitangi Tribunal established or Consequently, Māori can achieve some benefits and regime that gives effect to Māori intellectual property the Wai 262 claim was filed. The whole government Te Pae protections for aspects of Māori interests through the interests guaranteed under Te Tiriti o Waitangi Tawhiti approach announced in 2019 promises to be an registration of different IP rights, including GIs, until c) ongoing technical and financial support to assist Māori equally long process. Even ignoring the pace of the modern the current New Zealand intellectual property regime is to identify, develop, establish, protect, and enforce GI world, this is unacceptable. reformed to better protect Māori interests. interests that comply with the EU GI framework It is time for New Zealand to review its traditional position The current New Zealand-EU (NZ-EU) free trade d) Implementation of the recommendations in the 2011 as importing its intellectual property framework and negotiations are a priority to, inter alia, enable New Zealand WAI 262 Ko Aotearoa Tēnei Report and addressing the transform the intellectual property regime for Aotearoa/ to recover post-COVID19, and the current GI consultation issues raised during consultation on Te Pae Tawhiti New Zealand into a world-leading regime, consistent with process is an opportunity to influence how those negotiations Te Tiriti o Waitangi and the principles of Te Tiriti, is based advance while also achieving key outcomes for Māori. e) Increased research and development funding on Māori on Te Tiriti partnership model, enhances the partnership And these outcomes ought to be consistent with WAI 262 driven research and development relationship envisaged in Te Tiriti, and enhances Māori and Te Pae Tawhiti - the 2019 Te Puni Kokiri Targeted

INDEX Māori Interests and Geographic Indicators 51 f) Incorporation of Māori values, kawa, tikanga, and e. adjudicate on any conflicts arising around any use mātauranga within the science and research discipline, of Indigenous flora and fauna, mātauranga Māori, along with the promotion and normalisation of such in cultural knowledge and property research generally for all students f. review the Treaty of Waitangi exception clause in g) The promotion and assistance of effective cross- FTAs as recommended by the Waitangi Tribunal cultural collaboration between scientists, researchers in its upcoming reports on the WAI 2522 and WAI and iwi organisations in accordance with Māori 2523 claims values while ensuring collaboration frameworks are g. implement the Strategy for Engagement with Māori subject to appropriate access and protection of Māori on International Treaties as set out in the 2001 intellectual property as well as equitable benefit sharing Cabinet Paper and the International Treaty Making arrangements Guide 2018 h) Establishing a Māori advisor on science and research h. implement the recommendations in the 2019 ethics committees to address Māori issues and provide Report of the Trade for All Advisory Board. guidance and support Given the comprehensive nature of the work programme, the i) The creation of a New Zealand bioprospecting and Government will also need to work with Māori to ensure our access and benefit sharing policy in line with the Nagoya constitutional and legal framework can support this work Protocol and Bonn Guidelines programme. j) Development of a new data protection management regime (similar to GDPR and aligned with the Nagoya Finally, the planning, structure, outputs, ongoing Protocol) to provide assurance to data subjects of management and implementation of this work programme transparency and accountability as well as enabling should be co-designed with Māori, in accordance with Māori to assume kaitiaki roles in relation to that data the principles of Te Tiriti o Waitangi, where Māori are fully resourced for Māori-to-Māori and Māori-to-Crown k) The establishment of a body to: consultation on the work programme. a. audit the tangible and intangible assets Māori own or might own in the future; and what third party rights might apply b. audit the tangible and intangible assets held by the Crown that should or might be owned by Māori in the future; and what third party rights might apply c. establish a register of tangible and intangible assets including identifying kaitiaki d. establish best practice protocols for the use of Indigenous flora and fauna, mātauranga Māori, cultural knowledge and property in New Zealand, including access and benefit arrangements, science, research and bioprospecting

INDEX Māori Interests and Geographic Indicators 52 Appendix 1 – Response to the Discussion Paper on EU-NZ Free Trade Agreement Negotiations: Protection of Geographical Indications in New Zealand

Based on the report, the following responses to the Discussion Paper on EU-NZ Free Trade Agreement Negotiations: Protection of Geographical Indications in New Zealand are set out below.

INDEX Māori Interests and Geographic Indicators 53 In addition to any responses made in relation to any other question Geographic Indications (GIs) are an additional tool to protect Māori rights, responsibilities in this paper, what issues arise under the Treaty of Waitangi in and interests in products derived from Indigenous flora and fauna, mātauranga Māori (Māori 1. traditional knowledge), cultural knowledge and property. relation the EU’s proposals on GI’s? Consequently, Māori can achieve some benefits and protections through the registration of GIs A number of issues arise under the Treaty of Waitangi in relation to the EU’s proposal on GIs and temporarily until the current New Zealand intellectual property regime is reformed to better this consultation paper. protect Māori interests.

The principles of the Treaty of Waitangi inform application of Te Tiriti in New Zealand today, Ideally, the Government should have resolved the outstanding challenges around Māori cultural and require the Crown to consult its Treaty partner, to actively protect and take positive steps to and intellectual property rights including eh aspirations planned in Te Pae Tawhiti – The 2019 ensure that Māori interests are protected, and to ensure the needs of Māori are provided for, to Te Puni Kokiri Targeted Engagement Report – before consulting on the GI regime. However, ensure that Māori participate in the process, and ensure that Māori benefit from the regime. we also understand that the Government views the current free trade negotiations with the European Union (EU) as a priority to enable New Zealand to recover post-COVID19. Aotearoa/New Zealand has always been a trading nation. Given our relative size in the world economy, the New Zealand approach has focussed on securing larger markets and lower tariffs for The New Zealand-EU (NZ-EU) free trade negotiations will continue, and this consultation our operators and producers. This approach has come at a cost, because our trading partners have process is an opportunity to influence how those negotiations advance while also achieving key imposed their intellectual property frameworks on Aotearoa/New Zealand. outcomes for Māori that are consistent with WAI 262 and Te Pae Tawhiti.

It is well accepted the intellectual property system is inconsistent with and adversely impacts on If the Government moves forward with the NZ-EU free trade negotiations and introduces an EU Māori rights, responsibilities, and interests (including kaitiaki relationships), because it requires: compliant GI regime, then the Government needs to ensure that the agreement recognises and protects Māori rights, responsibilities and interests in Indigenous flora and fauna, mātauranga a) an identifiable owner Māori, cultural knowledge and property. To these ends, extending the GI regime to include food b) limited period of protection products and ensuring the GI regime acknowledges the status of te reo Māori as a taonga are c) commercial exploitation to maintain rights. necessary minimum requirements

In contrast, Māori interests are generally: The Government, moreover, needs to support Māori to engage fully with the anticipated new GI regime by ensuring they have sufficient time and financial resources to identify, develop, a) held on behalf of the community establish, protect and enforce their own GI rights and responsibilities. To these ends, and b) enduring funding will be required for internal and external Māori-to-Māori consultation, to support c) maintained even without any need for commercial exploitation. Māori to address any industry conflicts that may arise from any retrospective and ongoing misuse and misappropriation of intellectual property, and for Māori-to-Crown consultation. It is time for New Zealand to review its traditional position as importing its intellectual property The Government also needs to continue with and assent to the work programme anticipated framework and transform the intellectual property regime for Aotearoa/New Zealand into a in Te Pae Tawhiti, that includes adopting new and innovative strategies to prevent the ongoing world-leading regime, consistent with Te Tiriti o Waitangi and the principles of Te Tiriti, is based erosion of Māori rights, responsibilities and interests in Indigenous flora and fauna, mātauranga on Te Tiriti partnership model, enhances the partnership relationship envisaged in Te Tiriti, and Māori, cultural knowledge and property given that traditional intellectual property legislative enhances Māori interests in Indigenous flora and fauna, mātauranga Māori (Māori traditional frameworks in trade agreements fail to adequately recognise and protect those interests. knowledge), cultural knowledge, and cultural property. To achieve these outcomes, the work programme must include: The 2011 WAI 262 Ko Aotearoa Tēnei Report noted that aspects of Māori interests can be protected under New Zealand’s current intellectual property system. For example, words/names a) an immediate assurance and ongoing active preservation of Māori interests guaranteed can be protected as trade marks; images/logos as rade marks and/or copyright works; new and/ under Te Tiriti o Waitangi in the NZ-EU FTA negotiations or novel designs as registered designs; and new inventions derived from traditional knowledge as patents.

INDEX Māori Interests and Geographic Indicators 54 b) a comprehensive review of the current New Zealand intellectual property regime to develop g. implement the Strategy for Engagement with Māori on International Treaties as set out a bespoke regime that gives effect to Māori intellectual property interests guaranteed under in the 2001 Cabinet Paper and the International Treaty Making Guide 2018 Te Tiriti o Waitangi h. implement the recommendations in the 2019 Report of the Trade for All Advisory c) ongoing technical and financial support to assist Māori to identify, develop, establish, Board. protect, and enforce GI interests that comply with the EU GI framework Given the comprehensive nature of the work programme, the Government will also need to d) Implementation of the recommendations in the 2011 WAI 262 Ko Aotearoa Tēnei Report work with Māori to ensure our constitutional and legal framework can support this work and addressing the issues raised during consultation on Te Pae Tawhiti programme. e) Increased research and development funding on Māori driven research and development Finally, the planning, structure, outputs, ongoing management and implementation of this f) Incorporation of Māori values, kawa, tikanga, and mātauranga within the science and work programme should be co-designed with Māori, in accordance with the principles of Te research discipline, along with the promotion and normalisation of such in research Tiriti o Waitangi, where Māori are fully resourced for Māori-to-Māori and Māori-to-Crown generally for all students consultation on the work programme. g) The promotion and assistance of effective cross-cultural collaboration between scientists, researchers and iwi organisations in accordance with Māori values while ensuring collaboration frameworks are subject to appropriate access and protection of Māori What do you think the impacts on New Zealand producers and intellectual property as well as equitable benefit sharing arrangements 2 consumers (including any costs and benefits) might be if we h) Establishing a Māori advisor on science and research ethics committees to address Māori implement a registration regime for foodstuff GIs? For example: issues and provide guidance and support Are there examples of names or other indications associated with i) The creation of a New Zealand bioprospecting and access and benefit sharing policy in line with the Nagoya Protocol and Bonn Guidelines foodstuffs that are not adequately protected by New Zealand’s existing law and would benefit from a GI registration regime? j) Development of a new data protection management regime (similar to GDPR and aligned with the Nagoya Protocol) to provide assurance to data subjects of transparency and The New Zealand honey industry is already faced with a situation where one of its own taonga accountability as well as enabling Māori to assume kaitiaki roles in relation to that data species, mānuka honey, is being commercially challenged outside of NZ. k) The establishment of a body to: If nothing is done to protect taonga species, such as MĀNUKA, then these challenges can only be a. audit the tangible and intangible assets Māori own or might own in the future; and expected to occur more frequently in the future. what third party rights might apply b. audit the tangible and intangible assets held by the Crown that should or might be Lack of protection for commercial opportunities in relation to taonga species could have a owned by Māori in the future; and what third party rights might apply seriously adverse impact on New Zealand’s ability to develop and export new and innovative products overseas. c. establish a register of tangible and intangible assets including identifying kaitiaki d. establish best practice protocols for the use of Indigenous flora and fauna, mātauranga What are the differences between wine and spirits GI and foodstuff GIs Māori, cultural knowledge and property in New Zealand, including access and benefit that could justify wine and spirit GIs having a registration regime and arrangements, science, research and bioprospecting foodstuff GIs not having one e. adjudicate on any conflicts arising around any use of Indigenous flora and fauna, mātauranga Māori, cultural knowledge and property There are no differences that justify wine and spirit GIs having a registration regime and f. review the Treaty of Waitangi exception clause in FTAs as recommended by the foodstuff GIs not having one. The benefits of GIs apply equally to both. The potentially more Waitangi Tribunal in its upcoming reports on the WAI 2522 and WAI 2523 claims involved process specification for food would if anything make registration for foodstuffs more appropriate.

INDEX Māori Interests and Geographic Indicators 55 What costs would a foodstuff GI registration regime impose on foodstuff What are the anticipated impacts (including costs and benefits) of producers and consumers? 3 only refusing to protect a plant variety or animal breed names as The costs of a GI registration regime would not impose any costs on foodstuff producers unless GIs where consumers are likely to be misled as to the true origin of the they are engaged in the GI registration regime. product?

GI regimes that meet the registration requirements are developed over time. New Zealand is Protecting the consumer from misleading information is one of the fundamental principles not experienced in developing GI registration regimes or developing GI registration regimes behind the GI system and consequently applies broadly. compliant with the EU process. Therefore, there will be some costs for NZ producers, who wish to engage with the GI registration process, in establishing GI regimes that meet the EU requirements, including identification, development, monitoring, and administrative costs. Other than any risk of consumers being misled about the origin of a product, are there other concerns about the use of plant variety and To meet its Te Tiriti requirements, the Government should provide technical and financial animal breed names as GIs? What are they? assistance to Māori producers, to help identify, develop, monitor, administer, and enforce GI rights that comply with the EU GI framework. We think there is a risk that consumers will be misled if a GI is also a plant variety right or animal breed name, but this risk could be mitigated if the legislation is framed in a way that If a GI regime of free registration is established in NZ (as per the EU’s proposal), then the ensures a GI can be refused or removed if it is misleading or deceptive in use. total costs of the GI regime will fall on NZ, and most likely, NZ producers. We consider this is unreasonable and untenable given the infancy of the GI regime in NZ.

Evidence from other GI regimes around the world indicate a ‘price premium’ for GI products of What are the anticipated impacts (including costs and benefits) between 1.25 and 4 times the price of non-GI products. Evidence also suggests that consumers of preventing homonymous GIs from being protected? Should are prepared to pay the premium for reasons of quality, traceability, security and as a gesture of 4 support for local and rural producers. The price premium enables producers to maintain smaller conditions for homonymous GIs be ‘mutually decided or determined by scale production and avoid the inherent shortcuts of mass production. the New Zealand Registrar? Why?

The costs of the regime could be covered by the extra revenue available to NZ producers at some We are of the view there may be instances where homonymous GIs may be needed, particularly point in the future, but this is not possible from the outset. when we consider the Pacific origins of the Māori language. However, at all times the protection of te reo Māori as a taonga must be paramount and recognised in any GI regime adopted in Ideally, the costs of the regime should be covered by overseas producers, who have benefited Aotearoa/New Zealand. from the ‘price premium’ for some time. Registration on a cost recovery basis would seem reasonable in this situation. This issue could be dealt with by including a requirement that homonymous GIs are possible, but only in special circumstances that justify the coexistence, and there is no likelihood of deception We expect this could result in a requirement that NZ producers pay for registration costs in the or confusion in the marketplace, and that there is no culturally inappropriate use of te reo Māori. EU, a cost that could prohibit entry into the GI regime in EU. Given the above risks to NZ producers, granting free registration to GIs in New Zealand may be the option that is likely to have the least negative impact on NZ producers who wish to engage with the GI registration regime.

It would be worthwhile the Government carrying a full cost-benefit analysis of the GI framework, as this would better inform the discussion on this point

INDEX Māori Interests and Geographic Indicators 56 If New Zealand was to agree to protect EU GIs under the FTA, how Under what circumstances should a prior existing trade mark 5 should the costs of maintaining IPONZ’s functions and services 7 registration be able to prevent the subsequent protection and related to protecting those GIs be recovered and from whom? registration of a GI?

The costs for maintaining an EU compliant GI regime are difficult to estimate at the outset. Sections 14-18 of the Geographical Indications (Wines and Spirits) Registration Act 2006 deals with the circumstances when there is a clash between trade mark rights and GIs. These If a regime of free registration is established in NZ (as per the EU’s proposal), then the total provisions establish a good balance between these rights, which allow for the trade mark or costs of the GI regime will fall on NZ, and most likely, NZ producers. We consider this is the GI to take priority, and in some cases, coexistence depending on the fact situation. The unreasonable and untenable given the infancy of the GI regime in NZ. legislation currently has significant flexibility that allows for different situations to arise, and which are appropriate in a New Zealand context. Evidence from other GI regimes around the world indicate a ‘price premium’ for GI products of between 1.25 and 4 times the price of non-GI products. Evidence also suggests that consumers are prepared to pay the premium for reasons of quality, traceability, security and as a gesture of support for local and rural producers. The price premium enables producers to maintain Under what circumstances should a prior existing unregistered trade smaller scale production and avoid the inherent shortcuts of mass production. 8 mark right (established by use) prevent protection being given to a GI? The costs of the regime could be covered by the extra revenue available to NZ producers at Sections 14-18 of the Geographical Indications (Wines and Spirits) Registration Act 2006 deals some point in the future, but this is not possible from the outset. with the circumstances when there is a clash between trade mark rights and GIs, including prior existing unregistered trade mark rights. These provisions establish a good balance between these Ideally, the costs of the regime should be covered by overseas producers, who have benefited rights, which allow for the trade mark or the GI to take priority, and in some cases, coexistence from the ‘price premium’ for some time. Registration on a cost recovery basis would seem depending on the fact situation. The legislation currently has significant flexibility that allows for reasonable in this situation. different situations to arise, and which are appropriate in a New Zealand context.

We expect this could result in a requirement that NZ producers pay for registration costs in the EU, a cost that could prohibit entry into the GI regime in EU. What would be the anticipated costs and benefits for producers 9 meeting each of the elements of the EU specific product It would be worthwhile the Government carrying a full cost-benefit analysis of the GI specifications in order a use a GI? framework, as this would better inform the discussion on this point. Imposing strict product specifications on NZ operators and producers, before they could use a GI, would introduce a significant additional cost to NZ operators and producers. If an application for registration of a trade mark conflicts with an But these product specifications will help NZ operators and producers, including Māori, to 6 EU GI protected under the FTA, what should be the relevant date for establish and enforce appropriate mechanisms to stop the misuse and misappropriation of determining whether such a trade mark should be refused registration or Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. For invalidated because of the existence of a protected GI and why? example, mānuka honey is misused and misappropriated by non NZ operators and producers, and this misuse and misappropriation is adversely affecting NZ operators and producers. We do not think it would be appropriate for GI rights to have retrospective effect and impact on trade mark rights already registered. We consider there is no risk that an overseas operator or producer would be able to meet the product specifications of a New Zealand GI as they will not be able to meet the geographical Therefore, GI rights should only commence from the submission date or entry into force of the requirements. FTA.

INDEX Māori Interests and Geographic Indicators 57 What, if any, systems of production control (beyond what What are the costs and benefits of GIs being protected against 10 is currently required in New Zealand) should a producer be 12 commercial use that exploits the reputation of the GI? ? required to submit to before a GI can be used on the products of that Aside from the commercial and financial risks of a third party exploiting the reputation of a GI, we producer and why? Who should set them, and how and why? also need to be conscious of the cultural risks that this commercial use may give rise to.

The levels of production control would depend on the product. There may also be other health One of the concerns for Māori is the misuse and misappropriation of Indigenous flora and and safety and regulatory criteria that apply in certain markets, before the product can be put into fauna, mātauranga Māori, cultural knowledge, and cultural property without consent or another market. authority of Māori.

We have access to details of the requirements, regulatory framework, scope of protection If NZ allows the continued commercial use of GIs, without consent or authority of Māori, (including generics and reciprocity), application process, costs and responsible authorities for GIs that exploits the reputation of the GI based on Indigenous flora and fauna, mātauranga Māori, in 160 countries so we can present more details if necessary. cultural knowledge, and cultural property, then NZ will perpetuate the continued misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and If New Zealand agreed to provide for the registration of foodstuff cultural property. 11 GIs, what standard of protection should apply to those GIs and The New Zealand framework needs to prohibit the commercial use of a registered GI in a way that why? For example, should the standard of protection be: seeks to exploit the reputation of the GI, without consent or authority of Māori. This prohibition will help to stem the misuse and misappropriation of Indigenous flora and fauna, mātauranga • the minimum standard prescribed under Article 22 of the TRIPS Māori, cultural knowledge, and cultural property. Agreement; At all times the protection of te reo Māori as a taonga must be paramount and recognised in • equivalent to the current standard of protection for wine and any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally spirits GIs under the Geographical Indications (Wine and Spirits) inappropriate use of te reo Māori. As an additional step, the protections granted to overseas operators and producers should not automatically extend to the Māori translation of any non- Registration Act 2006; Māori word. • the standard proposed by the EU; or • a different standard and, if so, what is that standard? Should the use of a GI to identify an ingredient be considered to The higher the criteria, the more valid and enforceable the rights for New Zealand operators and 13 “exploit the reputation” of that GI? Why or why not? What are the producers, including rights of Māori operators and producers, in the EU and beyond. Minimum anticipated costs and benefits of such an approach? criteria would be a short-term response and inconsistent with Māori objectives. See 12. One of the concerns for Māori is the misuse and misappropriation of Indigenous flora and At all times the protection of te reo Māori as a taonga must be paramount and recognised in fauna, mātauranga Māori, cultural knowledge, and cultural property, without consent or authority any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally of Māori. inappropriate use of te reo Māori. As an additional step, the protections granted to overseas operators and producers should not automatically extend to the Māori translation of any non-Māori word. If NZ allows the use of GIs to identify an ingredient and exploits the reputation of the GI, without consent or authority of Māori, then NZ will perpetuate the continued misuse and What are the anticipated costs and benefits of each of the above options? misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and It would be worthwhile the Government carrying a full cost-benefit analysis of these options, as cultural property. this would better inform the discussion on this point.

INDEX Māori Interests and Geographic Indicators 58 The New Zealand framework needs to prohibit the use of GIs to identify an ingredient and What are the anticipated costs and benefits of protecting GIs purports to exploit the reputation of the GI, without consent or authority of Māori. This against “misuse, imitation or evocation”? prohibition will help to stem the misuse and misappropriation of Indigenous flora and fauna, 15 mātauranga Māori, cultural knowledge, and cultural property. At no time should third parties be able to misuse, imitate, or evoke a GI. At all times the protection of te reo Māori as a taonga must be paramount and recognised in As mentioned above, one of the concerns for Māori is the misuse and misappropriation of any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property, inappropriate use of te reo Māori. As an additional step, the protections granted to overseas without consent or authority of Māori. operators and producers should not automatically extend to the Māori translation of any non- Māori word. If NZ allows the use of these GIs on products that misuse, imitate, or evoke the GI, without consent or authority of Māori, then NZ will perpetuate the continual misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and If GIs are protected against use that exploits the reputation cultural property. of that GI, under what circumstances should that protection 14 The New Zealand framework needs to prohibit the use of GIs on products that misuse, imitate, prevent use of the GI on products that are not comparable to the or evoke the GI, without consent or authority of Māori. This prohibition will help to stem products covered by that GI? the misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. At no time should the GIs be used on products that are not protected by the GI. At all times the protection of te reo Māori as a taonga must be paramount and recognised in As mentioned above, one of the concerns for Māori is the misuse and misappropriation of any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property, inappropriate use of te reo Māori. As an additional step, the protections granted to overseas without consent or authority of Māori. operators and producers should not automatically extend to the Māori translation of any non- Māori word. If NZ allow the use of these GIs on products that are not protected by the GI, without consent or authority of Māori, then NZ will perpetuate the continual misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. Are there any circumstances in which GI protection should The New Zealand framework needs to prohibit the use of GIs on products that are not protected 16 apply in relation to non-commercial use of a GI? What are the by the GI, without consent or authority of Māori. This prohibition will help to stem the misuse anticipated costs and benefits of protection applying in that way? and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. As mentioned above, one of the concerns for Māori is the misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. At all times the protection of te reo Māori as a taonga must be paramount and recognised in any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally If the non-commercial use is culturally offensive, constitutes a misuse or misappropriation, or inappropriate use of te reo Māori. As an additional step, the protections granted to overseas impacts on the reputation and disclosure of mātauranga Māori, then maintaining the ability to operators and producers should not automatically extend to the Māori translation of any non- stop that misuse and misappropriation for Māori would be beneficial. Māori word. Non-commercial use could be a mitigating factor that is considered in the award of damages and costs.

INDEX Māori Interests and Geographic Indicators 59 Are there any circumstances in which GI protection should apply At all times the protection of te reo Māori as a taonga must be paramount and recognised in in relation to goods that are not comparable to the goods covered any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally 17 inappropriate use of te reo Māori. As an additional step, the protections granted to overseas by that GI? What are the anticipated costs and benefits of protection operators and producers should not automatically extend to the Māori translation of any non- applying in that way? Māori word.

At no time should the GIs be used on products that are not protected by the GI. What are the anticipated costs and benefits of the TRIPS plus As mentioned above, one of the concerns for Māori is the misuse and misappropriation of 19 protections for wine and spirits GIs and/or the TRIPS plus Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. protections proposed by the EU also applying to foodstuff GIs?

If NZ allows the use of GIs on products that are not protected by the GI, then NZ will perpetuate By incorporating the TRIPS plus protections in our GI laws, NZ will enable Māori to stop the the continual misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, continual misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural cultural knowledge, and cultural property. knowledge, and cultural property.

At all times the protection of te reo Māori as a taonga must be paramount and recognised in NZ’s GI framework needs to enable Māori to stop any misuse and misappropriation of Indigenous any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally flora and fauna, mātauranga Māori, cultural knowledge, and cultural property, including any inappropriate use of te reo Māori. As an additional step, the protections granted to overseas offensive, misleading, deceptive, or confusing use. operators and producers should not automatically extend to the Māori translation of any non- At all times the protection of te reo Māori as a taonga must be paramount and recognised in Māori word. any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally inappropriate use of te reo Māori. As an additional step, the protections granted to overseas operators and producers should not automatically extend to the Māori translation of any non-Māori word. What are the anticipated costs and benefits of extending the protection described in TRIPS in relation to wine and spirits to 18 What other uses of a GI, if any, should be protected and what are also apply if the GI is: the anticipated costs and benefits of providing that protection? • transcribed or transliterated; 20 • accompanied by the term “method”, “as produced in”, “flavour” or The GI framework provides protection for aspects of Māori rights and interests in Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. “like”; or But as stated in the WAI 262 report, these protections fall short of recognising kaitiaki • used to identify an ingredient? relationships in Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property as protected as taonga under Te Tiriti o Waitangi. For the reasons discussed above, one of the concerns for Māori is the misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. At all times the protection of te reo Māori as a taonga must be paramount and recognised in any GI regime adopted in Aotearoa/New Zealand, including ensuring that there is no culturally If NZ allows the use of GIs in the above examples, then NZ could perpetuate the continual misuse inappropriate use of te reo Māori. As an additional step, the protections granted to overseas operators and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and and producers should not automatically extend to the Māori translation of any non-Māori word. cultural property. Alongside any proposed GI regime, the Government also needs to introduce legislation that NZ’s GI framework needs to enable Māori to stop any misuse and misappropriation of Indigenous recognising Māori rights and interests rights as guaranteed under Te Tiriti o Waitangi, including flora and fauna, mātauranga Māori, cultural knowledge, and cultural property, including any implementing the recommendations in WAI 262 report, the proposals and work programme in Te offensive, misleading, deceptive, or confusing use. Pae Tawhiti, and the recommendations in the Trade for All Advisory Board report.

INDEX Māori Interests and Geographic Indicators 60 Can you provide any evidence (anecdotal or otherwise) of What are the anticipated costs and benefits of extending the 21 registered GIs being misused in New Zealand and, if so, of any 25 existing trade mark and copyright border protection measures action taken to address that misuse? to also apply to GIs?

We are not aware of any registered GIs in New Zealand, successfully taking action to address any Extending the existing trade mark and copyright border protection measures to also apply misuse. to GIs would be another step to help alleviate the burden on Māori to stop the misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and However, CHAMPAGNE is a well-recognised GI in New Zealand, and this reputation was upheld cultural property. in the NZ courts

What, if anything, is particular, or peculiar, to the protection What are the anticipated costs and benefits of New Zealand 22 of GIs that means providing civil judicial procedures would be 26 protecting EU GIs under the FTA where the relevant goods are insufficient or otherwise inadequate for protecting them? not being exported to or traded in New Zealand?

The civil judicial procedures available do not help Māori to stop the misuse and misappropriation The main benefit is reciprocity, because New Zealand will be able to protect is GIs under the of Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property. FTA, even where those goods are not being exported to or traded in New Zealand. Consequently, additional solutions and additional protections are needed, such as implementation of the recommendations in WAI 262 report, the proposals and work programme in Te Pae Tawhiti, Also, part of an overall Māori IP strategy will be to prepare a pathway for Māori enterprise and the recommendations in the Trade for All Advisory Board report. so (subject to proof of use requirement) reciprocal recognition for potential exports could be important. If the Government was to provide enforcement of GIs by 23 administrative action, how should the Government’s costs for such action be recovered, and from whom? Should the Government In what circumstances should the protection given to EU GIs have any discretion in deciding when, and against whom, it should take 27 under the FTA be cancelled and why? action? If so, why and in what circumstance? Any GI that misused or misappropriated Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural property should be cancelled, although the proposed process (including Administrative actions taken by the Government would help to alleviate some of the burden on opposition) for ‘qualifying’ marks would probably render it unlikely that such a mark would Māori to stop the misuse and misappropriation of Indigenous flora and fauna, mātauranga Māori, ‘qualify’. cultural knowledge, and cultural property. Administrative actions by a body such as the Commerce Commission would make sense. In Australia, the ACCC has acted against misusers of aboriginal This situation could be avoided if the Māori trade mark advisory board have a stronger mandate artworks, and a similar approach could be adopted in New Zealand. in the legislation.

Can you provide examples of GI infringing goods being imported, Granting better protection and recognition of Māori rights and interests within this framework will only meet some of the Crown’s obligations under Te Tiriti and UNDRIP. 24 exported or in-transit through New Zealand border, the volume of those goods and what right holders have done in response?

We are not aware of any goods that infringe GIs being imported, exported, or in-transit through the New Zealand borders.

INDEX Māori Interests and Geographic Indicators 61 What would be the benefits and costs arising from the FTA In addition to any potential cost, benefits, risks or other 28 providing an alternative procedure for GIs to be given 30 perspectives raised in response to earlier questions, what other protection in New Zealand and the EU? costs, benefits and risks for Māori could arise from changing New Zealand’s GI framework as proposed by the EU? The procedure outlined in the EU Proposal is consistent with the standard EU’s FTAs and is rigorous. It is difficult to quantify any benefit of ‘reinventing the wheel’ (devising, negotiating As discussed, one of the benefits to Māori is that a GI framework helps to protect aspects of and establishing an alternative procedure) and the related delays would be detrimental to Māori Māori rights and interests in Indigenous flora and fauna, mātauranga Māori, cultural knowledge, interests already subject to slow bureaucratic processes. and cultural property.

If the Government moves forward with the New Zealand – EU free trade negotiations, and Ideally, the Government should have resolved the outstanding challenges around Māori cultural introduces an EU compliant GI regime, then the Government needs to ensure the agreement and intellectual property rights including the aspirations planned in Te Pae Tawhiti – The 2019 recognises and maintains Māori rights and interests in Indigenous flora and fauna, mātauranga Te Puni Kokiri Targeted Engagement Report – before consulting on the GI regime. However, Māori, cultural knowledge, and cultural property. we also understand that the Government views the current free trade negotiations with the European Union (EU) as a priority to enable New Zealand to recover post-COVID19. The Government also needs to support Māori so that they are able to engage fully with the new GI regime. To achieve this, the Government needs to ensure that Māori have time and are The New Zealand-EU (NZ-EU) free trade negotiations will continue, and this consultation financially resourced to identify, develop, establish, protect, and enforce their own GI rights, process is an opportunity to influence how those negotiations advance while also achieving key including funding for internal and external Māori-to-Māori consultation, funding to support outcomes for Māori that are consistent with WAI 262 and Te Pae Tawhiti. Māori to address any industry conflicts that arise from any retrospective and ongoing misuse and misappropriation, and funding for Māori-to-Crown consultation. If the Government moves forward with the NZ-EU free trade negotiations and introduces an EU compliant GI regime, then the Government needs to ensure that the agreement recognises and The Government also needs to continue the work programme anticipated in Te Pae Tawhiti, protects Māori rights, responsibilities and interests in Indigenous flora and fauna, mātauranga including introducing new and innovative strategies to stop the erosion of Māori rights and Māori, cultural knowledge and property. If the Government does not meet these requirements, interests in Indigenous flora and fauna, mātauranga Māori, cultural knowledge, and cultural then there is a risk the EU GI regime will repeat past mistakes and constitute a breach of Te Tiriti property, through the Government’s continued accession to the traditional intellectual property o Waitangi. legislative frameworks in trade agreements, because those frameworks fail to adequately recognise and protect Māori rights and interests. To these ends, extending the GI regime to include food products and ensuring the GI regime acknowledges the status of te reo Māori as a taonga are necessary minimum requirements.

If the FTA was to provide a such a process: What steps should The Government, moreover, needs to support Māori to engage fully with the anticipated new GI regime by ensuring they have sufficient time and financial resources to identify, develop, 29 the process follow and why? Who should make determinations establish, protect and enforce their own GI rights and responsibilities. To these ends, and on whether new names should be protected as GIs in New Zealand funding will be required for internal and external Māori-to-Māori consultation, to support and the EU? How should the process intersect with existing domestic Māori to address any industry conflicts that may arise from any retrospective and ongoing misuse and misappropriation of intellectual property, and for Māori-to-Crown consultation. processes and normal domestic requirements for such processes? The Government also needs to continue with and assent to the work programme anticipated Not applicable – see Question 28. in Te Pae Tawhiti, that includes adopting new and innovative strategies to prevent the ongoing erosion of Māori rights, responsibilities and interests in Indigenous flora and fauna, mātauranga Māori, cultural knowledge and property given that traditional intellectual property legislative frameworks in trade agreements fail to adequately recognise and protect those interests.

INDEX Māori Interests and Geographic Indicators 62 The Government also needs to: g. implement the Strategy for Engagement with Māori on International Treaties as set out in the 2001 Cabinet Paper and the International Treaty Making Guide 2018 a) Implement of the recommendations in the 2011 WAI 262 Ko Aotearoa Tēnei Report and h. implement the recommendations in the 2019 Report of the Trade for All Advisory addressing the issues raised during consultation on Te Pae Tawhiti Board. b) Increase research and development funding on Māori driven research and development c) Incorporate of Māori values, kawa, tikanga, and mātauranga within the science and research Given the comprehensive nature of the work programme, the Government will also need to discipline, along with the promotion and normalisation of such in research generally for all work with Māori to ensure our constitutional and legal framework can support this work students programme. d) Promote and assist of effective cross-cultural collaboration between scientists, researchers and The planning, structure, outputs, ongoing management and implementation of this work iwi organisations in accordance with Māori values while ensuring collaboration frameworks programme must be co-designed with Māori, in accordance with the principles of Te Tiriti o are subject to appropriate access and protection of Māori intellectual property as well as Waitangi, and ensure that Māori are sufficiently resourced for Māori-to-Māori consultation and equitable benefit sharing arrangements Māori-to-Crown consultation. e) Establish a Māori advisor on science and research ethics committees to address Māori issues and provide guidance and support f) Create a New Zealand bioprospecting and access and benefit sharing policy in line with the Nagoya Protocol and Bonn Guidelines g) Develop of a new data protection management regime (similar to GDPR and aligned with the Nagoya Protocol) to provide assurance to data subjects of transparency and accountability as well as enabling Māori to assume kaitiaki roles in relation to that data h) Establish a body to: a. audit the tangible and intangible assets Māori own or might own in the future; and what third party rights might apply b. audit the tangible and intangible assets held by the Crown that should or might be owned by Māori in the future; and what third party rights might apply c. establish a register of tangible and intangible assets including identifying kaitiaki d. establish best practice protocols for the use of Indigenous flora and fauna, mātauranga Māori, cultural knowledge and property in New Zealand, including access and benefit arrangements, science, research and bioprospecting e. adjudicate on any conflicts arising around any use of Indigenous flora and fauna, mātauranga Māori, cultural knowledge and property f. review the Treaty of Waitangi exception clause in FTAs as recommended by the Waitangi Tribunal in its upcoming reports on the WAI 2522 and WAI 2523 claims

INDEX Māori Interests and Geographic Indicators 63 i See https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm. ii For a detailed review of the history of WTO, visit https://www.wto.org/english/thewto_e/history_e/history_e.htm iii For more information on the role of WTO, see https://www.wto.org/english/thewto_e/thewto_e.htm. iv A copy of the Mataatua declaration can be found here https://www.wipo.int/tk/en/databases/creative_heritage/Indigenous/link0002.html. v A copy of UNDRIP is available at https://www.un.org/development/desa/Indigenouspeoples/declaration-on-the-rights-of-Indigenous-peoples.html. vi The text of the ICH convention can be found here https://ich.unesco.org/en/convention. vii For more information on WIPO, visit https://www.wipo.int/about-wipo/en/. vii For more information on IGC, visit https://www.wipo.int/tk/en/igc/. ix More information on the CBD is available at https://www.cbd.int/. x The protocol is available https://www.cbd.int/abs/. xi The Bonn Guidelines are available at https://www.cbd.int/doc/publications/cbd-bonn-gdls-en.pdf. xii See also https://www.iponz.govt.nz/about-iponz/history-of-ip-in-new-zealand/. xiii See Section 226 of the Patents Act 2013. xiv For more details on the review and consultation, see https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/disclosure-of-origin-requirements-in-the-patents-regime/. xv More information on the origins of this amendment can be found here https://www.iponz.govt.nz/about-ip/trade-marks/practice-guidelines/current/Māori-advisory-committee-and-Māori-trade-marks/. xvi See Section 178 of the Trade Marks Act 2002. xvii For more details on the review and consultation, see https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/plant-variety-rights/plant-variety-rights-act-review/. xviii See Section 39A of the Geographical Indications (Wines and Spirits) Act 2006. xix For more details on the review and consultation, see https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/copyright/review-of-the-copyright-act-1994/. xx See Section 230 of the Crimes Act 1961. xxi For New Zealand’s current trade policy, see https://www.mfat.govt.nz/en/trade/nz-trade-policy/#what. xxii See https://www.tpk.govt.nz/en/whakamahia/un-declaration-on-the-rights-of-Indigenous-peoples. xxiii Obtained from the OCED Business Innovation Statistics and Indicators Report – January 2020, which is available here http://www.oecd.org/sti/inno-stats.htm. xxiv Waitangi Tribunal, Ko Aotearoa Tēnei (WAI 262 Waitangi Tribunal 2011) (Ko Aotearoa Tēnei), Te Taumata Tuatahi provides a detailed analysis at pg 1-17. The full report is available here https://waitangitribunal.govt.nz/news/ko-aotearoa-tenei-report- on-the-wai-262-claim-released/. xxv Ko Aotearoa Tēnei, Te Taumata Tuarua, pg 604. xxvi A picture of the Declaration and translation can be found here at https://archives.govt.nz/discover-our-stories/the-declaration-of-independence-of-new-zealand. xxvii Waitangi Tribunal, He Whakaputanga me te Tiriti – The Declaration and the Treaty – The report on Stage 1 of the Te Paparahi o te Raki Inquiry (WAI 1040 Waitangi Tribunal 2014). The full report is available here https://waitangitribunal.govt.nz/news/ report-on-stage-1-of-the-te-paparahi-o-te-raki-inquiry-released-2/. xxviii A copy of Te Tiriti o Waitangi can be found here https://archives.govt.nz/discover-our-stories/the-treaty-of-waitangi. xxix This interpretation is limited to Articles 1, 2, and 3. See https://waitangitribunal.govt.nz/treaty-of-waitangi/meaning-of-the-treaty/. xxx Kawharu, H (ed.) Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 317. xxxi Report Findings of the Waitangi Tribunal. Relating to Te Reo Māori (WAI-11) 29 April 1986) para. 4.2.4; 4.2.8. xxxii Ngāi Tahu Māori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA). Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122. xxxiii Joseph R, The Government of Themselves: Case Law, Policy and Section 71, Constitution Act 1852, (Te Matahauariki Institute Monograph Series, University of Waikato Press, 2002) at 19-21. xxxiv Colenso, W The Authentic and Genuine History of the Signing of the Treaty of Waitangi (Capper Press, reprint, 1890) at 31-32. xxxv An analysis of the principles is found in He Tirohanga O Kawa Ki Te Tiriti O Waitangi: A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal, which is available here https://waitangitribunal.govt.nz/treaty-of-waitangi/principles-of-the-treaty/. xxxvi See https://www.tpk.govt.nz/en/a-matou-kaupapa/wai-262-te-pae-tawhiti. xxxvii See https://www.tpk.govt.nz/en/a-matou-mohiotanga/crownMāori-relations/wai-262-te-pae-tawhiti-targeted-engagement-report.

INDEX Māori Interests and Geographic Indicators 64 xxxviii Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain and Sweden xxxix Please see: https://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluation/sustainability-impact-assessments/index_en.htm. xl Section B, Sub-Section 1 Copyright and Art. X.6 xli Section B, Section 2, Sub-Section 3, Art. X.25 xlii Section B, Sub-Section 6 Undisclosed Information (Art. 43(1)) xliii Pseudonimisation under the GDPR is defined as the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person. xliv Although no longer a member of the EU, the UK Data Protection Act 2018 closely resembles the GDPR and relies on many of its terms by reference. xlv As they appear in the New Zealand Privacy Bill, currently before the Committee of the whole House having passed its Second Reading on 7th August 2019. xlvi The text of the Regulation is available at : https://gdpr-info.eu/. xlvii Not an ‘opt out’ as was common practice, but an ‘opt in’. xlviii Consent cannot be implied or hidden in small print, or subject to any other term, for example, performance of a contract xlix A simplified, illustrative template can be found at : https://gdpr.eu/wp-content/uploads/2019/03/dpia-template-v1.pdf l Nagoya Protocol, Art 6(2) ‘Access to Genetic Resources’, states that the prior informed consent or approval and involvement of Indigenous and local communities for access to genetic resources where they have the established right to grant access to such resources. li Nagoya Protocol Art. 7 ‘Access to Traditional Knowledge Associated with Genetic Resources’: provides that traditional knowledge associated with genetic resources held by Indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these Indigenous and local communities, and that mutually agreed terms have been established. lii Please see https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2019. liii Please see: https://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluation/sustainability-impact-assessments/index_en.htm liv Registered EU GIs are accessible at : https://ec.europa.eu/info/food-farming-fisheries/food-safety-and-quality/certification/quality-labels/geographical-indications-register The database also lists GIs from non-EU countries registered in the EU (for example ‘Napa Valley’ of USA for wine (PDO), ‘Vale dos Vinhedos’ of Brazil for wine (PDO), ‘’ from Peru for spirits (GI) as well as products of cork, wicker, wool, skutched flax, leather fur and feather as well as non-EU owners. lv Under Regulation (EU) No 1151/2012 (Art. 13) and similar provisions in the other Regulations. lvi ‘Infringement of Protected Geographical Indications for Wine, Spirits, Agricultural Products and Foodstuffs in the European Union’, EUIPO. lvii Much of Māori flora and fauna is already documented in the Landcare Research CRI database and is available to the public for ‘free’ access and use. Please see : https://www.landcareresearch.co.nz/resources. lviii US5401504 ‘Use of turmeric in wound healing’ lix For further information please see: http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng. lx Ref. the 2001 ‘International Treaty on for Food and Agriculture’ (ITPGRFA) that includes benefit sharing with the origin of genetic resources (the EU is a signatory, New Zealand is not) and the 2014 ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization’ (Nagoya Protocol) 2014 (most of the EU member states are signatories, New Zealand is not)). lxi Various free, practical resources are available to help with TK audit processes, for example ‘Documenting Traditional Knowledge – A Tool Kit’ (published by WIPO in 2017) available at: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1049.pdf. lxii Please see https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2019.pdf pg 105 lxiii Please note, data reflect a combination of rights under sui generis systems, trade mark registration systems, other national legal instruments, and regional systems as well as international agreements and it can be difficult to differentiate between GIs, Collective Marks and Certification Marks. lxiv Please see: https://www.iponz.govt.nz/about-ip/geographical-indications/register/?sort=alphabet.

INDEX Māori Interests and Geographic Indicators 65 Noku te whenua, kei a au te korero Noku te whenua, ko au te Rangatira! Dr Apirana Tuahae Mahuika (Ngati Porou)

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INDEX Māori Interests and Geographic Indicators 66