Patents, PVRs and Pragmatism: Giving Effect to Wai

AuthorSeamus Woods
PositionThis paper was prepared in 2012 as part of the LLB(Hons) programme at the University of Canterbury
S W*
I. I
In July 2011, the Waitangi Tribunal released its hig hly anticipated response
to the Wai 262 claim in a report entitled Ko Aotearoa Tēnei.1 Despite humble
beginnings, the cla im came to encompass a wide range of issues relating to
the interaction between Māori and the Crown in New Z ealand, including the
areas of intellectual property (“IP”), resource management, the conservation
estate, te reo Māori (language) and Māori health.
is paper focusses on the IP aspects of Wai 262. Specically, it
concentrates on the recommendations proposed in relation to patents and
plant variety rights (“PVR s”); while issues of course remain in the a reas of
copyright and trademarks,2 the divide between Māori concerns and Western
IP rights is most acutely felt in the former elds.
e claimants’ objections to the current regime were twofold, relating to
the inappropriate exploitation of Māori IP by non-Māori and to the inability
of Māori to exploit their IP themselves.3 Indigenous IP is an area that has
received signicant attention internationally in the context of protecting t he
so-ca lled tra ditional knowledge (“TK”) of indigenous peoples, where the
focus tends to be on the conicting worldviews governing such k nowledge
and Western IP. is issue squarely presented itself for consideration in Wai
262. ere, much is made of the fact that to talk of “Māori IP” oversimplie s
the complex spiritual connections between Māori TK (“mātauranga Māori”)
and the Māori way of life.
With that in mind, this dissertation evaluates the recommendations
made in Wai 262 through a pragmatic lens, asking whether, to what extent
and how eectively New Zeala nd could implement the Waitangi Tribunal’s
suggestions in light of its international obligations and existing IP system.
It leaves behind the well-trodden debate over whether mātauranga Māori is
* is paper was pre pared in 2012 as part of the LLB(Hons) progra mme at the University of
Canterbury. I am gr ateful to my supervi sor, Professor Jeremy Finn, for his valu able comments
and assista nce throughout the c onstruction of this d issertation, as wel l as for his sugges tion of
the title. I would a lso like to thank t he anonymous reviewer for his or her he lpful comments.
1 Waitan gi Tribunal Ko Aotearoa Tēnei: A R eport into Claims Conce rning New Zealand Law a nd
Policy Aect ing Māori Culture and Identi ty: Te Taumata Tuarua (Wai 262, 2011) [Wai 262].
2 See for ex ample Te Rūnanga o Toa Rangatira Inc v Prokiwi Ltd [2012] NZIPOTM 14.
3 Wai 262, above n 1, at 191; see also at 65 and 178-180; Information Sheet: Treaty of Waitangi
Claim Wai 262 (Ministry of Ec onomic Development, February 20 07).
98 Canterbury Law R eview [Vol 19, 2014]
deserving of unique protection by assumin g merit in the claims of TK-holders
and that a political wil l to enact change exists. Instead, this paper mea sures
the specic recommendations against the hurdles they are likely to face.
Part II of the paper describes the issues ra ised in the Wai 262 claim and the
recommendations made by the Waitangi Tribunal in response. Subsequently,
Part III considers the compatibility of the recommendations with New
Zealand’s international obligations, with reference to the Agreement on
Trade-Related Aspects of Intellectual Property R ights (“TRIPS”), the
International Convention of the Union for the Protection of New Varieties of
Plants (“UPOV”) and New Zeala nd’s trade agreements. is part concludes
that there is in fact a good degree of latitude available to legislators.
e principal part of the thesis, Part I V, triages the recommendations
along a scale of diculty of implementation. It tracks up this scale by
starting with t he changes that would be the lea st problematic to introduce
and moving towards those that would pose signicant challenges.  is novel
approach allows valuable insights to be made into what forces are driving
the scale of diculty in the rst place. e investigation nds that many of
the recommendations have been crafted with t he IP system in mind, and
therefore do less violence to the system as some perhaps suspect.
Following this, and in keeping with t he hierarchy of diculty, Part V
addresses the notable absence in Wai 262 of what literature on this topic
calls “positive protections” like compulsory benet-sharing arra ngements or
perpetual rights t hat might enable Māori to commercially benet from their
TK themselves.
Lastly, Part VI extracts the conceptual thread running throug h the
diculty sca le, observing that t he more alien the measures are to IP law (and
the harder they are to implement), the more eective they appear to be at
achieving the interests of Māori. is paper concludes that, if the protection
of mātauranga Māori is to be ta ken seriously, some fundamental changes to
IP law must be made, and that the Tribunal’s recommendations are a good
place to start.
II. W : I R  R  M
e worldwide plight of indigenous groups in the IP/TK arena has been
well documented, and is commonly illustrated by reference to the ca se of the
San people of S outhern Afr ica.4 Since their nomadic days, the San have known
of the appetite-suppressing qualities of the native Hoodia cactus, something
that caught the eye of researchers for its potential as an anti-obesity drug.
Unfortunately, the development and subsequent commercialisation of the
drug by pharmaceutica l company Pzer, under the auspices of IP protection,
4 See for example Janew a OseiTutu “A Sui Generis Regime for Traditiona l Knowledge: the
Cultural Div ide in Intellect ual Propert y Law” (2011) 15 Marq Intell Prop L Rev 147 at
166-167; Victoria Tauli-Corpuz Biodiversit y, Traditional Knowl edge and Rights of Indigenous
Peoples PFII/20 05/WS.TK/5 (2005) at 21.
Patents, PVRs and Pr agmatism: Giving Eect to Wai 262 99
failed to provide any benets to the San people until they eventua lly managed
to secure royalty payments after years of protest.5 While this story enjoys
something of a happy ending, it is emblematic of the plunder of indigenous
TK, usually at t he hands of Western corporations, without a backow of
benets, a phenomenon commonly referred to as “biopiracy”.6 Other popular
examples of this include the turmeric and neem plants of India.7 Closer to
home, too, the Waitangi Tribunal recounts an ex ample of a patent application
that sought to protect the manufacture of insect repellent using oil extracted
from kiwi. Having had their initial application rejected by the Intellectual
Property Oce of New Zeala nd (“IPONZ”) on morality grounds, the
applicants re-submitted their bid for a patent without any reference to the
native bird.8 Again, although each of these examples resulted in varying
degrees of success from an indigenous perspective, they illustrate that the
exploitation of TK is a live problem and, crucially, that New Zealand is not
immune to the issue. Indeed, the United Nations has estimated that over
70 per cent of the world’s clinically useful plant-derived drugs “came to the
attention of pharmaceutical companies because of their use in traditional
systems of medicine”.9
It should come as no surprise, then, that Wai 262 included a claim that
New Zealand ’s IP laws are currently failing to protect mātaura nga Māori as
a taonga (cultural “treasure”), as was g uaranteed to Māori under art 2 of the
Treaty of Waitangi 1840 (“Treaty”). Principally, the Māori claimants asserted
that New Zeala nd’s IP regime neither actively prevents third parties from
exploiting mātauranga Māori for their own end s, nor permits Māori to benet
from their TK should they wish to do so.10 Claimants a lso railed against
their inability to control certain “taonga species” of particular signicance to
various iwi, such as the manuk a tree and the tuatara.11
5 Stephen Mu nzer “Territory, Plants, and Land-Us e Rights Among the S an of Southern Afric a:
A Case Study in Re gional Biodiver sity, Traditional Knowledg e, and Intellect ual Propert y”
(2009) 17 Wm & Mary Bill Rts J 831 at 848- 851.
6 See generally Pollya nna Folkins “Ha s the Lab Coat B ecome the Modern Day Eye Patch ?
warting Biopi racy of Indigenou s Resources by Mo difyin g International Patent ing
Systems” (2003) 13 Transnat’l L & Conte mp Probs 339; Javier Garcia “Fig hting Biopiracy:
e Legislat ive Protection of Traditional Knowled ge” (2007) 18 Berkeley La Raz a LJ 5.
7 See for ex ample Shubha Ghosh “Traditional Knowle dge, Patents and the New Mercant ilism
(Part II)” (2003) 85 J Pat & Trademark O So c’y 885 at 898 and 910.
8 Wai 262, above n 1, at 229 (endnote 467).
9 United Nations Depar tment of Economic and Social A airs State of the World’s Indi genous
Peoples ST/ES A/328 (2009) a t 69.
10 Wai 262, above n 1, at 191; see also at 65 and 178-180; and Ministr y of Economic
Development, above n 3.
11 Wai 262, above n 1, at 128-131 and 134-136 respectively.

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