In this article we review:
- the potential value of the Haka Ka Mate Attribution to other iwi
- whether the Act will lead to more protection for other forms of traditional knowledge, and
- whether Treaty settlement negotiations are the appropriate forum for intellectual property legislation to be developed.
What is the potential value of the Haka Ka Mate Attribution Act to other iwi?
It is to be hoped that legislative acknowledgment in this way may increase awareness of iwi rights in traditional or customary knowledge, and lead to more entities considering whether their use of this knowledge is appropriate for their own commercial gain.
The government's willingness to provide recognition and protection for the haka in this way also provides some hope to iwi that the government is prepared to work with them in providing for some form of traditional knowledge intellectual property (IP) protection.
Will the Act lead to more protection for other forms of traditional knowledge?
The fact that this protection has been extended as a one-off instance for Ka Mate, rather than as any form of institutional change, may signal that while the government is prepared to make exceptions for IP as culturally significant as Ka Mate (to the majority of NZers that is, not to the owners), no more generally available protection is considered appropriate or necessary.
It is also significant that this recognition was obtained by Ngāti Toa Rangatira in the course of its Treaty of Waitangi settlement negotiations. Not all groups with traditional knowledge that would like protection have the benefit of being involved in active negotiations with the Crown. It is also to be expected that Ngāti Toa Rangatira negotiated the best possible outcome it could in relation to Ka Mate. Therefore, while the rights granted to Ngāti Toa Rangatira in relation to Ka Mate may seem toothless, it is an indication that the Crown was not prepared to give any more concrete protection to Ka Mate.
Should IP legislation arise out of Treaty settlement negotiations?
Being the first piece of 'intellectual property' legislation to arise out of Treaty settlement negotiations, the question has to be asked whether Treaty settlements are the appropriate forum for IP legislation to develop.
Legislation developed through the settlement process is subject to as much scrutiny as other pieces of legislation.
Given the slow process of the WAI 262 claim (filed in 1991-reported in 2011) and the lack of any substantive response from the government since then, it is perhaps important for Māori to have the opportunity to advance these types of legislation in another forum.
While developing ad hoc pieces of legislation is not ideal, until a better solution is put forward, this process is the best option for Māori, and we may see similar pieces of legislation in the future.