On April 22 2014 the Haka Ka Mate Attribution Bill became law. The act is the first piece of legislation in New Zealand to arise out of settlement negotiations providing quasi-IP protection to a taonga (treasure) of an iwi (tribe). This update explains the meaning of the legislation, what the right of attribution includes and when it does not apply.
The act gives effect to provisions in the deed of settlement between Ngati Toa Rangatira (an iwi) and the crown. The deed of settlement required the crown to recognise that Ngati Toa Rangatira holds a right of attribution in relation to the Ka Mate haka – the traditional Maori dance made famous worldwide by the All Blacks, New Zealand's national rugby union team.
The deed required the crown to acknowledge the significance of the Ka Mate haka as:
- a taonga of Ngati Toa Rangatira; and
- an integral part of the history, culture and identity of Ngati Toa Rangatira.
The crown must also acknowledge the statements (as set out in the schedule of the act) made by Ngati Toa Rangatira relating to:
- Te Rauparaha, the composer of the Ka Mate haka;
- the composition of the Ka Mate haka;
- the association of Ngati Toa Rangatira with Ka Mate and its role as kaitiaki (guardian) of Ka Mate; and
- the values of Ngati Toa Rangatira concerning the use and performance of the Ka Mate haka.
The act provides for a right of attribution over Ka Mate, including the words, actions and choreography of the haka. This protection applies regardless of whether the haka is used in full or in part.
The act grants Ngati Toa Rangatira a right of attribution. The right of attribution applies only to:
- any publication of Ka Mate for commercial purposes;
- any communication of Ka Mate to the public; and
- any film that features Ka Mate and is shown in public or issued to the public.
The right of attribution requires a statement that Te Rauparaha was the composer of Ka Mate and a chief of Ngati Toa Rangatira. The statement must be "clear and reasonably prominent" and used in a way that is likely to bring the attribution to the attention of the viewer or listener. The exact form of the statement in any instance will be a matter of judgement, depending on the nature of the use of Ka Mate.
The right of attribution does not apply to:
- performances of Ka Mate, including by a kapa haka group;
- use for educational purposes;
- works made for the purpose of criticism, review or news reporting; and
- communications of the above that are not for commercial purposes.
Therefore, the act does not prevent performances by kapa haka groups, school groups, sports teams or groups of high-spirited Kiwi abroad. It also in no way interferes with the use of Ka Mate by the All Blacks, as Ngati Toa Rangatira and the New Zealand Rugby Union have an agreement to allow the performance of the haka, which reinforces the mutual respect that both parties have for the work.
It is unclear how much of Ka Mate needs to be used before the user is obliged to attribute. Given that enforcement of the act rests with Ngati Toa Rangatira, it can be expected that a phrase or part of the choreography must be recognisable as being from Ka Mate before Ngati Toa Rangatira will consider it worthwhile to take action.
It is possible to enter into a written agreement with Ngati Toa Rangatira, changing or removing the obligations under the act.
Should a question of interpretation of the act arise before a court, the act provides guidance on the approach that the court should take. The act records that Parliament's intention is that the act be interpreted in a manner that best furthers the agreements reached by the deed of settlement. Therefore, a court will be required to look to the deed and interpret the act in light of that agreement.
For further information on this topic please contact Lynell Tuffery Huria or Laura Carter at AJ Park by telephone (+64 4 473 8278), fax (+64 4 472 3358) or email (firstname.lastname@example.org or email@example.com). The AJ Park website can be accessed at www.ajpark.com.