Presentation for the International Federation of Reproduction Rights Organisations

1. Role of the Crown and Indigenous Peoples in Protecting and Managing Traditional KnowledgeErica Gregory Presentation for the International Federation of Reproduction Rights Organisations Auckland, New Zealand 3 November 2006

2. Introduction • What is traditional knowledge (TK)? • Thoughts on the role of indigenous people • Thoughts on the role of the Crown • Why is MED considering TK issues? • MED work to date • The IP/TK work programme • What are other government agencies doing? • Concluding thoughts

3. What is Traditional Knowledge (TK)? • No one definition – broadly can be considered distinctive knowledge, traditionally associated with a certain community and/or people. • May refer to TK in relation to science, agriculture, medicine, biodiversity, cultural expressions, elements of languages etc • Tradition-based (not necessarily old), evolving and generational • Māori may relate more to the term mātauranga Māori

4. Role of Indigenous Peoples • Guardians or kaitiaki of TK • Nurture and train others to ensure the transmission of TK • Continue to build on the existing body of knowledge • Set parameters for the on-going creation, maintenance and use of TK

5. Role of the Crown • Needs to consider the environment and policies within which TK is created, maintained and used, and any underlying problems • Develop policies that focus on enabling the creative potential of TK to contribute to Māori development, recognising the benefit to New Zealand as a whole • At the international level – act on the basis that international rules must allow adequate flexibility to develop domestic policy, which includes maintaining flexibility for the government to respond to WAI 262 and its TOW obligations

6. IP and Māori Development Policy – why get involved in TK? • MED, DOC and TPK, MCH and DPMC are instructing departments in the Wai 262 claim • All current IP laws and treaties (esp. WTO TRIPs) • Process for development of IP laws • Negotiation of international instruments • Other TOW claims re IP • International processes developing mechanisms for the protection of TK or considering TK issues (WIPO, CBD, WTO TRIPS Council, UNESCO, UNCTAD,ILO, WHO, APEC and others) • Economic potential of TK for TK holders and NZ as a whole

7. MED Work to date • Consultation with Māori re IP law reform process • 1990: proposed IP Law Reform Bill on hold pending consideration of concerns about Māori “cultural and intellectual property” • 1994: 4 national hui – Māori concerns re proposed changes to Trade Marks and Patents Acts • Māori Trade Marks Focus Group • Patenting of Life Forms Focus Group

8. MED Work to date (2) • 1995-97: Māori Trade Marks and Patenting of Life form focus groups produce discussion documents and make recommendations (complemented by Ministry publications) • 1997: 8 consultation hui re Māori and trade marks • 1999: policy recommendations to Cab. including focus group rec. re establishment of “consultative group” • 1999: 4 hui, 2 workshops, re patenting of life forms

9. MED Work to date (3) • 2002: Trade Marks Act passed, includes absolute ground to refuse registration of offensive marks, and Māori Advisory Committee • 2002: Discussion document re boundaries of patentability – Māori and patenting of biotech inventions • 2003: policy recs re Māori consultative committee, patenting of humans expressly prohibited • Changes to patents and trade mark legislation only “stop gap” measures, sui generis measures may be required • 2001-2006: participation in WIPO Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (scope for domestic work)

10. The IP/TK work programme • Aims to address two problems: • Protection against the inappropriate grant of IPRs over TK subject matter to third parties (misappropriation and misuse of TK) • Limited capacity of IPRs to protect TK (preservation and commercial imperatives of TK holders) • IP system can only address part of this problem • Modifications to existing IPRs possible • New sui generis IP-type rights possible • Non-IP solutions are also necessary

11. 3 stage IP/TK work programme • Objective: development of range of innovative, cross-cultural and multi-disciplinary solutions • Stage one: capacity building, engagement, awareness and information sharing • A bottom-up approach – discussion documents don’t work without preparation and engagement – kanohi ki te kanohi (face to face) discussions essential • Stage two: problem definition • Stage three: consultation on options • Policy recommendations

12. Protection and management of TK beyond IP Protection of TK can include: • Preservation (safeguarding against loss or dissipation of TK and the environmental factors that gave rise to it) • Safeguarding against inappropriate or unauthorised use by others • Can have social, cultural, economic and environmental objectives • A range of possible solutions from different policy perspectives

13. TK and other NZ government agencies • Mātauranga Māori Programme (Dept of Conservation - includes the Mātauranga Kura Taio Fund under the Biodiversity strategy • New Zealand Qualifications Authority – a dedicated Māori qualifications framework recognising indigenous knowledge • Bioprospecting policy development (also MED) • Biotechnology Strategy (Min of Research Science & Technology) sets out a vision and direction for the development of biotechnology in NZ and identifies a need to foster and draw on Māori biological knowledge and innovative capacity.

14. TK and other NZ government agencies (2) • Foundation for Research Science and Technology has a Māori Knowledge and Development output class. Its Strategic Portfolio Outline for Māori Development supports enhanced Māori management of natural, cultural and historical resources and maintenance of mātauranga "Māori” and “mechanisms for the protection of cultural property and management of intellectual property”. • Ministry of Culture and Heritage - repatriation policy for Māori ancestral remains/kōiwi tāngata Māori and a review of the Antiquities Act • Creative New Zealand - Tohunga Tauira Programme and Toi Iho trademark • National Library – has developed a set of principles relating to the preservation of intellectual and cultural property.

15. Conclusion • Mātauranga Māori or Māori Traditional Knowledge belongs to Māori • Māori have a role in nurturing and growing TK • The Crown has a role in fostering opportunities to enable the creative potential of TK to provide cultural, social, economic and environmental benefits for Māori, recognising the potential benefits for New Zealand society as a whole • Important that the Crown and Māori work together to maximise the potential benefits for all

16. For more information www.med.govt.nz Or contact: traditional.knowledge@med.govt.nz