In this article, we explain:
- the Crown's acknowledgement of the relationship Ngāti Toa Rangatira has with Ka Mate and what it means
- the potential for offensive or derogatory use
- what the acknowledgements mean
- if consent or payment is required to use Ka Mate, and
- what action can be taken if someone fails to comply with the Act.
What is the value of the Act to Ngāti Toa Rangatira?
The section of the Act that is likely to be of most value to Ngāti Toa Rangatira is the section that provides for the Crown's acknowledgment of the relationship Ngāti Toa Rangatira has with Ka Mate.
The Act sets out that the Crown acknowledges the significance of Ka Mate as a taonga of Ngāti Toa Rangatira, and as an integral part of the history, culture, and identity of Ngāti Toa Rangatira. The Crown also acknowledges the statements made by Ngāti Toa Rangatira relating to:
- Te Rauparaha, the composer of Ka Mate
- Ngāti Toa Rangatira's role as the kaitiaki of Ka Mate
- Ngāti Toa Rangatira's values relating to the use and performance of Ka Mate.
An important point is the Crown does not acknowledge these factors themselves, only the statements made by Ngāti Toa Rangatira. This slight difference in wording is likely to have an impact on the interpretation of these acknowledgements at a later date. However, the Crown does recognise that Ngāti Toa Rangatira holds the right of attribution of Ka Mate.
Potential for offensive or derogatory use
The Act does not give Ngāti Toa Rangatira any ability to authorise use of Ka Mate, or to prevent use in any way (provided it is attributed where necessary). Therefore, a major flaw in the Act from Ngāti Toa's point of view must be the failure to give it the ability to prevent offensive or derogatory use. Traders, provided they attribute the haka, will still be entitled to use the words of Ka Mate on tea towels, and in other offensive ways.
It should potentially be of concern to Ngāti Toa Rangatira that these offensive uses will now feature the names of Te Rauparaha and Ngāti Toa, perhaps implying some level of endorsement from Ngāti Toa.
There is a provision for a review of the Act in five years' time. This may provide Ngāti Toa Rangatira with the opportunity to seek a stronger level of protection at that time. However, any leverage they had during the settlement negotiations may be lost at that point.
What do the acknowledgements mean?
The acknowledgements by the Crown do not in themselves grant any specific enforceable and legal rights against a third party. But these acknowledgements in the Act are no doubt of significant cultural importance to Ngāti Toa Rangatira.
The deed of settlement states that nothing in the deed or the subsequent legislation will affect any other current or future intellectual property rights Ngāti Toa Rangatira may have in Ka Mate, or to prevent Ngāti Toa Rangatira from benefiting from the Crown's response to future Waitangi Tribunal recommendations.
It is possible these acknowledgements will place Ngāti Toa Rangatira in a stronger position when the government finalises and implements its response to the recommendations in the WAI 262 decision.
Will Ngāti Toa Rangatira get paid when people use (and attribute) Ka Mate?
No, the Act does not entitle Ngāti Toa Rangatira to require any person to pay for the ability use Ka Mate. It does not even require users to obtain consent before using Ka Mate.
The Act does not entitle Ngāti Toa Rangatira to charge, levy or accept any form of royalties, compensation, or damages in respect of any use of Ka Mate.
Failure to comply with right of attribution
Should a commercial user of Ka Mate fail to comply with the right of attribution, then representatives of Ngāti Toa Rangatira can enforce the right of attribution in the courts.
It can do so by taking an action through the courts for a declaratory judgment, stating that the user of Ka Mate must comply with the Act.
Ngāti Toa Rangatira will not obtain any other remedy for a failure to attribute. Ngāti Toa Rangatira can obtain costs if it is successful in its court action. However, costs awards do not cover a party's actual costs in New Zealand. Therefore, if Ngāti Toa Rangatira wishes to obtain a declaratory judgement in respect of a failure to properly attribute Ka Mate, it will in effect be out of pocket for doing so.
Given this, it is likely that Ngāti Toa Rangatira will be very selective in when it chooses to bring an action for a failure to attribute.