Introduction
In 1991, six iwi (tribes) filed the Wai 262 claim with the Waitangi Tribunal, a permanent commission of inquiry into Crown breaches of the Treaty of Waitangi.Footnote 1 They contended that the Crown had denied Māori the full exercise of tino rangatiratanga (self-determination)Footnote 2 over a range of taonga (culturally valuable objects), including mātauranga Māori (traditional Māori knowledge) and other traditional cultural expressions, as guaranteed by te Tiriti o Waitangi.Footnote 3 They maintained that tino rangatiratanga entitled them to decision-making authority and control over taonga, among other rights.Footnote 4 They alleged that the Crown failed to ensure Māori tino rangatiratanga within the intellectual property system.Footnote 5 They contended that the system neither prevented the misuse of taonga nor enabled kaitiaki (guardians) to benefit commercially from their cultural creations.Footnote 6
The Tribunal released its report on the claim in 2011, exposing significant failings of Aotearoa New Zealand’s intellectual property law in protecting mātauranga Māori and taonga. It recommended various reforms to recognize Māori authority and provide effective legal mechanisms to protect taonga.Footnote 7
One taonga central to the claim was the haka (ceremonial dance) Ka Mate, composed in the 1820s by Te Rauparaha, a rangatira (chief) of Ngāti Toa (a tribal group located in the southern North Island and northern South Island). Fleeing battle,Footnote 8 Te Rauparaha hid in the kumara pit of a chief named Te Wharerangi. Te Wharerangi’s wife straddled the pit, saving his life, because the act of placing a woman’s genitals above the head of a rangatira was unthinkable. Emerging, he performed the haka.Footnote 9 Ngāti Toa are the kaitiaki of Ka Mate by virtue of their lineage, with an obligation to safeguard its mauri (life force) and the mātauranga it embodies.Footnote 10 In the Wai 262 claim, they expressed concerns about the misuse and commercial exploitation of the haka and sought legal protections to prevent such harms.Footnote 11
The New Zealand Government has responded with Te Pae Tawhiti, a whole-of-government work program to respond to the claim.Footnote 12 As part of Te Pae Tawhiti, the Government has funded Māori experts to develop an Indigenous-based response independently.Footnote 13 They have indicated an intention to produce sui generis legislation to protect taonga Māori.Footnote 14
This article uses Ka Mate as a case study to evaluate the Taonga Record Framework developed by Tiaki Taonga, a Māori-led initiative aiming to bring understanding and te iwi Māori engagement to taonga and mātauranga protection.Footnote 15 The initiative envisions the Framework becoming the legislative regime initially sought through the Wai 262 claim.Footnote 16 This article argues that the Framework is a viable, tikanga Māori-based (Māori customary law) model for responding to the Wai 262 claim and preventing further harm to taonga. It proceeds in four substantive parts. First, it outlines Te Pae Tawhiti and the review of the Haka Ka Mate Attribution Act 2014 (HKMAA). Second, it uses Ka Mate to demonstrate how delays in the Crown’s response risk harming the mauri of taonga and kaitiaki relationships with them. Third, it makes recommendations for reform: completing the statutory review of the HKMAA and developing a tikanga-based sui generis framework to protect mātauranga Māori and taonga. Finally, it presents the Taonga Record Framework as a culturally grounded and legally viable model for protecting taonga under Te Pae Tawhiti.
The Tribunal’s report and the work program to respond to it
On 2 July 2011, the Waitangi Tribunal released its report on the Wai 262 claim.Footnote 17 It found that the Government had failed to protect mātauranga Māori adequately and, therefore, failed to meet its obligations under te Tiriti to guarantee Māori tino rangatiratanga. The guarantee of tino rangatiratanga necessitated a legal framework that delivered a reasonable measure of kaitiaki control over mātauranga Māori and taonga.Footnote 18
The Tribunal then made two substantive recommendations. For its recommendations, the report classified taonga into three categories: mātauranga Māori; taonga works (works that are entirely expressions of mātauranga Māori); and taonga-derived works (works that derive their inspiration from mātauranga Māori or taonga).Footnote 19 The Tribunal’s first proposal was a general objection mechanism prohibiting derogatory or offensive public use of all three categories. For the first two categories, it also recommended a mechanism for kaitiaki to prevent commercial exploitation, even of works in the public domain,Footnote 20 unless consultation or appropriate consent has occurred.Footnote 21 The Tribunal believed this power should be retrospective, allowing Māori “to prevent offensive or derogatory treatment even in existing published works or current registered trade marks.”Footnote 22
Second, the Tribunal recommended establishing an expert commission with adjudicative, facilitative, and administrative functions. The commission would take over the current role of the Māori Trade Marks Advisory Committee,Footnote 23 which advises the Commissioner of Patents, Trade Marks, Designs and Plant Variety Rights on whether trade mark applications are likely to be offensive to Māori.Footnote 24 Adjudicative functions would include hearing complaints, categorizing works, and identifying kaitiaki. Facilitative functions would consist of developing best-practice guidelines. Administrative functions would include education and maintaining a register of kaitiaki of particular taonga works and mātauranga Māori, formalizing the recognition of these relationships and allowing users to acknowledge them.Footnote 25
Following the report, the Government made little progress. In 2019, Hon Nanaia Mahuta, Minister for Māori Development, announced Te Pae Tawhiti, a whole-of-government work program to respond to the Wai 262 claim.Footnote 26 Te Pae Tawhiti initially used a three-sphere model of Crown, Māori, and joint engagement. The Crown sphere included two tiers addressing three broad kete (baskets) of issues: mātauranga Māori and taonga works, mātauranga Māori and taonga species, and international issues affecting both. The Māori sphere was left to be defined by Māori.Footnote 27
In 2022, Te Pae Tawhiti was restructured into a levers model, organized around system, domestic, and international levers. Under this model, Māori and the Crown would partner to progress 19 focus areas.Footnote 28 The levers model reworked the earlier kete into more targeted workstreamsFootnote 29 intended to “more clearly give effect to the aspirations of” the Wai 262 claimants.Footnote 30
Despite these structural reforms, Te Pae Tawhiti has yet to respond meaningfully to the Wai 262 claim.Footnote 31 Significant gaps remain, and taonga and mātauranga Māori lack sufficient legal protection.
Consequences of the failure to address harms
Ka Mate demonstrates the harms arising from inadequate intellectual property protection for taonga. Its popularity has made it particularly vulnerable to misappropriations and misuse. Susy Frankel notes that it is often called “the haka” because of its close association with the All Blacks, thereby eclipsing its origins.Footnote 32 This visibility has left Ka Mate as the “most maligned, the most abused of all haka”Footnote 33 yet the most “beloved, exploited, misunderstood and ‘world famous’ New Zealand composition ever written.”Footnote 34 The Waitangi Tribunal itself drew on Ka Mate as a central example of the failings of the current intellectual property system.Footnote 35
This part uses the haka Ka Mate as a case study to show how delays in the Government’s response to the Wai 262 claim have harmed both the mauri of taonga and the kaitiaki relationships that sustain them. First, it illustrates the extent of the misuse and misappropriation of Ka Mate from the mid-1990s to the present. It shows that misuse and misappropriation have continued despite the release of the Wai 262 report and the entry into force of the HKMAA. Second, it examines the resulting harms, arguing that Crown inaction has enabled these misuses to persist and risks further harm in the future.
Misuses and misappropriations
Historically, Ka Mate has been repeatedly misappropriated or used commercially without Ngāti Toa’s consent. This section demonstrates the extent of the misuses and misappropriations of Ka MateFootnote 36 from around the mid-1990s until statutory intervention.
Beginning in 1997, members of the Spice Girls performed “two joke versions of the Haka” after being taught it by “two tipsy New Zealanders” in Bali, Indonesia.Footnote 37 In 2006, William Lawson produced an advertisement featuring a performance of Ka Mate set against a group of Scots lifting their kilts. This advertisement won awards in France and Belgium.Footnote 38 Later that year, a Fiat advertisement featuring Ka Mate was screened inappropriately and offensively in Italy despite warnings from New Zealand diplomats.Footnote 39 Isabella Tekaumārua Wilson raises several issues with this advertisement. The company failed to consult Māori and rejected any advice they received.Footnote 40 Māori also did not receive compensation despite the commercial use.Footnote 41 The humorous tone of the advertisement contradicted the use of the haka, and its performance by women – against protocol – who also failed to recite the correct words or perform the correct actions, showed “total disrespect” for the haka and the history behind it.Footnote 42
In 2007, the Bakery Industry Association of New Zealand released a video of gingerbread men doing the haka that “some people feel [sic] borders on being culturally insensitive.”Footnote 43 Wilson notes the concern that this advertisement was an entirely domestic product, and that its producers should have been aware of Māori culture.Footnote 44
In 2008, Ka Mate appeared in the US rugby film Forever Strong without consultation or recognition of Ngāti Toa.Footnote 45 Finally, in 2010, a Japanese TV commercial for Coke Zero featured actors dressed as All Blacks performing Ka Mate alongside Japanese dancing girls. The advertising agency approached Ngāti Toa through the New Zealand Embassy in Tokyo, which told them they needed to talk to Ngāti Toa first before using Ka Mate. The agency “declined to engage when they saw [Ngāti Toa] were serious about protecting it.”Footnote 46
The extent of these misuses and misappropriations prompted Ngāti Toa to explore ways in which to protect the taonga. They failed to do so through existing legal means, with the New Zealand Intellectual Property Office rejecting the trade mark “Ka Mate” on the grounds of its widespread recognition as a national symbol.Footnote 47 Therefore, as part of their negotiations to settle historical Treaty of Waitangi claims, Ngāti Toa sought “to settle on a way of protecting the integrity of Ka Mate and the values underlying it.”Footnote 48
Statutory response: The Haka Ka Mate Attribution Act 2014
As part of the resulting Deed of Settlement signed in 2012 between the Crown and Ngāti Toa, the Crown agreed to pass the HKMAA, making the haka Ka Mate one of only two taonga expressly protected by statute.Footnote 49 The Crown acknowledged Ngāti Toa’s enduring connection to Ka Mate and its significance as taonga and recognized Ngāti Toa’s perpetual role as kaitiaki.Footnote 50 The HKMAA requires attribution of Te Rauparaha and Ngāti Toa whenever the words or actions of Ka Mate, in whole or in part, are used in a commercial publication, public communication, or publicly shown film.Footnote 51 Attribution must be clear and prominent, bringing Te Rauparaha’s identity as the composer and as a chief of Ngāti Toa to the audience’s attention.Footnote 52 This requirement does not apply to educational, critical, review, reporting, or noncommercial uses.Footnote 53 If Ka Mate is not appropriately attributed, Ngāti Toa may seek a court declaration of noncompliance, an order to comply, and an award of costs.Footnote 54
The Deed of Settlement does not preclude Ngāti Toa from benefiting from the Government’s response to the Wai 262 claim nor predetermine the response.Footnote 55 Section 12 of the HKMAA requires the Ministry of Business, Innovation and Employment (MBIE) to review the HKMAA after five years. Barbara Sullivan and Lynell Tuffery-Huria note that this provision “suggests that the government anticipates introducing legislation that could provide more generic and broader rights to owners of Maori intellectual property.”Footnote 56 Similarly, the Wai 262 report recommends greater protection for Ka Mate, as a taonga, than the HKMAA currently provides.Footnote 57 The Minister for Māori Development recognized this relationship when noting that upcoming Te Pae Tawhiti workstreams would need to address the HKMAA’s mandatory review.Footnote 58 The HKMAA review initially fell within “Kete 1,”Footnote 59 and now falls under the domestic lever.Footnote 60
Ongoing misuses and misappropriations
Despite these developments, offensive and nonconsensual commercial uses of Ka Mate have continued.
In 2015, Rugby World Cup sponsor Heineken ran a promotional video displaying amateur performances of Ka Mate.Footnote 61 Wilson notes that this advertisement uses a humorous tone and an incorrect performance against tikanga (correct procedure; custom).Footnote 62 She also observes that Māori men featured in the advertisement could be misappropriating or disrespecting the haka.Footnote 63 Also during the Rugby World Cup, British clothing company Jacomo ran a “Hakarena” campaign that combined the Macarena song with Ka Mate.Footnote 64 Later that year, an article described how the Arizona Wildcats, an American football team, had performed Ka Mate before their matches for several years.Footnote 65
In 2019, the Netflix program Club de Cuervos featured a poor rendition of Ka Mate, which “[reinforced] stereotypes about Māori.”Footnote 66 That same year, artist Dick Frizzell printed the lyrics to Ka Mate on his new t-shirt line. Radio New Zealand reported that Ngāti Toa did not permit this nor waive the right of attribution. Ngāti Toa noted the importance of the Government’s response to the Wai 262 report in raising issues with the commercialization of the haka. Dick Frizzell later removed the initial images of the design from Facebook.Footnote 67
In 2020, British healthcare staff performed a modified version of Ka Mate, which was “absolutely offensive and degrading.”Footnote 68 Denise Wilson writes that despite the nurses’ positive intentions, they “got it wrong.”Footnote 69 Later that year, a US television show was criticized for “cultural appropriation” of Ka Mate when a cast member taught a couple how to dance the haka.Footnote 70
In 2021, anti-vaccine protesters performed Ka Mate at protests across the country despite Ngāti Toa’s condemnation.Footnote 71 Finally, in 2023, surrounding the Women’s Rugby World Cup, which partially took place in Aotearoa New Zealand, there were two notable instances of misappropriation. First, a video published on one of the Dutch women’s football team’s social media accounts showed a player mimicking a haka (that appeared to be Ka Mate). The team denied the claim but deleted the video.Footnote 72 Second, Spain’s women’s football team formally apologized to Māori for appearing to mock what seemed to be Ka Mate.Footnote 73
Despite the Wai 262 report and the HKMAA, misuses and misappropriations of Ka Mate have persisted.
Harms to the mauri and kaitiaki relationship with the taonga
Such misuses and misappropriations cause direct harm to the mauri of Ka Mate, the “spark of life” that all things have, including taonga.Footnote 74 Mauri plays a central role in the kaitiaki relationship, which can be defined in terms of the responsibility to protect and guard the mauri of the relevant objects.Footnote 75 The obligations of kaitiaki of taonga works are to protect the mauri of taonga as it exists in them.Footnote 76 The mauri of a taonga is only extinguished when the taonga “decays back into the earth, indicating that the mauri has departed.”Footnote 77
As a taonga work that is a direct expression of mātauranga Māori, Ka Mate has mauri and “lives.”Footnote 78 This connection is strengthened through Ngāti Toa’s ancestral ties to the work because an ancestral link is “one of the only ways to indicate mauri.”Footnote 79 The mauri of cultural expressions is “preserved through accurate reproduction.”Footnote 80 Emily James notes that works that are offensive or derogatory to taonga harm mauri “because they perpetuate and normalise offensive or derogatory uses of the taonga which diminishes its mauri over time.”Footnote 81 Therefore, these misuses and misappropriations of Ka Mate harm its mauri by inaccurately and offensively reproducing the haka and normalizing its offensive and derogatory use.
These misuses and misappropriations also undermine the kaitiaki relationship, which is “the method of” protecting the mauri of taonga Footnote 82 by exercising kaitiakitanga (guardianship).Footnote 83 Kaitiaki have a role as “benefactor and beneficiary.”Footnote 84 In all contexts, kaitiaki have essential responsibilities to safeguard the whakapapa and kōrero of the work from misuse.Footnote 85 Traditionally, kaumātua (elders) and their whānau (extended family group) uphold these responsibilities.Footnote 86 However, kaitiaki are also entitled to benefit from “the cultural and spiritual sustenance the taonga works provide their communities” and, where appropriate and in keeping with mātauranga Māori, economic benefits as well.Footnote 87 A kaitiaki relationship “therefore acknowledges the need for Māori to retain exclusive guardianship over taonga.”Footnote 88
These misuses and misappropriations thus harm the relationship by failing to consult with or obtain the consent of kaitiaki. James contends this “fails to recognise the significance of this relationship or that it exists at all.”Footnote 89 Because these uses are outside the control of kaitiaki and they lose the potential benefit from using their taonga, their kaitiaki relationship is harmed.
Recommendations for reform
This part makes two recommendations for strengthening the Government’s Wai 262 response. First, it argues that further harm to Ka Mate could be prevented by completing the review of the HKMAA. Second, it argues that more effective and durable protection for Ka Mate and other taonga requires the development of a tikanga-based sui generis framework to protect mātauranga Māori and taonga. Implementing these recommendations would further the Crown’s compliance with its obligations with respect to mātauranga Māori and taonga under te Tiriti o Waitangi.
Implementation would also help Aotearoa New Zealand comply with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which requires that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.”Footnote 90 The status of the UNDRIP in Aotearoa New Zealand’s law is contested. Many view it as merely aspirational soft law,Footnote 91 while others recognize it as “binding as repetition of human rights included in binding instruments” and further “that several provisions have reached the threshold of customary international law.”Footnote 92 Even accepting the latter proposition, however, the UNDRIP would not create enforceable rights in domestic law.Footnote 93 The argument that the Government should implement these recommendations to comply with the UNDRIP instead proceeds on the basis that New Zealand should uphold its agreed treaty obligations, including the Government’s 2014 commitment to “take concrete measures to ensure the implementation and promotion” of the UNDRIP.Footnote 94
Review and amendment of the Haka Ka Mate Attribution Act 2014
The HKMAA came into force on 23 April 2014,Footnote 95 making the mandatory review due from 23 April 2019. However, the review began late and has since drifted further behind schedule. In September 2021, MBIE reiterated the Government’s commitment to a review, but there is little evidence of progress. In 2024, MBIE found no information about the review’s status.Footnote 96 While the HKMAA does not prescribe a completion date, the prolonged delay signals a lack of governmental urgency and leaves Ka Mate and other taonga vulnerable to ongoing insufficient protection.
The status and scope of the HKMAA review remain unclear. However, what is clear is that the HKMAA’s attribution requirement has been insufficient to protect Ka Mate. As the preceding timeline demonstrates, misuses and misappropriations have continued since the HKMAA came into force.
Therefore, without a broader response to the Wai 262 claim, the review should recommend amending the HKMAA to provide more effective protection. Amendments proposed by Yasmin Helena Olsen offer a practical interim solution. Olsen suggests inserting two new sections:Footnote 97
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(1) Section 9A, which includes a right to object to the use of Ka Mate; and
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(2) Section 9B, which mandates consultation for parties wishing to use Ka Mate.
Olsen also proposes rewriting section 11 to expand the remedies available. These changes would align the HKMAA more closely with the Waitangi Tribunal’s recommendations by granting Ngāti Toa greater control over Ka Mate, allowing them to fulfil their obligations as kaitiaki and protect its mauri.
Sui generis protection framework
While amending the HKMAA could strengthen protection for Ka Mate, it would not extend to other taonga. A more comprehensive and durable solution requires the Crown to develop a tikanga-based sui generis framework to protect mātauranga Māori and taonga. As part of Te Pae Tawhiti, the New Zealand Government has given Te Taumata Whakapūmau, a group composed of descendants of the original Wai 262 claimants and their iwi,Footnote 98 the discretion to develop a sui generis framework for the protection of mātauranga Māori and taonga.Footnote 99 Te Puni Kōkiri, the Ministry of Māori Development, “is closely working with Te Taumata Whakapūmau … to ensure the integrity of” Te Pae Tawhiti.Footnote 100
A sui generis framework aims to provide for “long-term structural change” in how rights to taonga are protected.Footnote 101 Without sui generis rights, conflicts between kaitiaki and third parties remain weighted in favor of legally recognized intellectual property rights.Footnote 102 For instance, Ka Mate does not benefit from intellectual property protection (barring the limited right of attribution found in the HKMAA) because it “is a work that is in the public domain.”Footnote 103
Sui generis protection would fill this gap by affording protection to mātauranga Māori and taonga in their own right.Footnote 104 It would also address the shortcomings of intellectual property protections that do apply.Footnote 105 For example, copyright cannot protect most taonga because of their intergenerational transmission, intangible nature, and collective authorship.Footnote 106 In any case, protection only lasts for 50 years.Footnote 107 Any copyright protection protects only the expression of a work, not the underlying knowledge it conveys.Footnote 108 Consequently, even haka such as Kapa O Pango, composed for the All Blacks and whose copyright is held by composer Derek Lardelli, still faces misuse and misappropriation.Footnote 109 Trade marks have similar failings. Trade marks are even more limited and can only protect graphical signs that distinguish goods or services.Footnote 110 For instance, there are existing trade marks on a series of images of “KA MATE KA ORA,” but these only protect some aspects of the haka.Footnote 111
This protection would also fill the gap left by international instruments.Footnote 112 Currently, no international instrument fully protects mātauranga Māori and taonga. For instance, the Nagoya Protocol to the Convention on Biological Diversity establishes a system of access and benefit sharing for “traditional knowledge associated with genetic resources that is held by indigenous and local communities.”Footnote 113 However, it does not provide meaningful protection for any plant species, and Aotearoa New Zealand is not party to the convention in any event.Footnote 114 Similarly, in 2024, the member states of the World Intellectual Property Organization adopted the Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. The Treaty establishes a mandatory disclosure requirement for patents that are “based on” genetic resources or traditional knowledge, with sanctions for nondisclosure.Footnote 115 Aotearoa New Zealand has not signed the Treaty, and it is yet to come into force. Nonetheless, it would have only limited application, guaranteeing only “appropriate, effective and proportionate legal, administrative, and/or policy measures” where a patent application that is “based on” traditional knowledge fails to disclose this information. It does not apply to patents filed before the treaty enters into force, nor does it allow the alteration of conferred patent rights despite a failure to disclose.Footnote 116 In addition, the Treaty would not provide any protection for the many taonga, such as Ka Mate, that are unlikely to be used as a basis for patents.
In contrast, although the UNDRIP in principle guarantees rights to Māori traditional knowledge and cultural expressions, it is not self-executing. It requires the Government of Aotearoa New Zealand to implement its obligations effectively. As noted, although some argue that portions of the UNDRIP may have binding force as customary international law, in Aotearoa New Zealand, customary international law plays a limited role, creating only a presumption of statutory consistency.Footnote 117 Assuming relevant provisions of the UNDRIP do reach this threshold, they could not create new rights nor alter the statutory framework governing intellectual property rights. Critically, if Aotearoa New Zealand implements an effective model for the protection of traditional knowledge and cultural expressions, it could positively influence ongoing negotiations at the World Intellectual Property Organization to finalize an international legal framework to that end,Footnote 118 or contribute to the evolution of customary international law on Indigenous intellectual property.
A sui generis framework is the means that Te Taumata Whakapūmau, as representatives of the Wai 262 claimants, are advocating as an effective response to the issues raised by the claim. It may be contended that such a framework remains problematic, as it will ultimately be administered by the Crown, which is itself responsible for breaches of te Tiriti o Waitangi that led to the claim. However, as Jayden Houghton writes:Footnote 119
[i]t may also sometimes be appropriate for the Crown to be involved directly in regulating mātauranga Māori and taonga, such as in circumstances where rights and interests under tikanga Māori need to be balanced against private property rights.
Considering this proposition, sui generis protection can play two critical roles. First, in the near term, before there is constitutional transformation necessary to facilitate the full exercise of tino rangatiratanga with respect to taonga, a sui generis framework – if it provides Māori with real control over taonga – enables progression toward greater tino rangatiratanga within Aotearoa New Zealand’s current constitutional paradigm. Second, even in a future with constitutional transformation, there will still be disputes over taonga that engage aspects of state law. In this context, “the Treaty partners may decide that the Crown should not be wholly barred from regulating taonga and can have a limited role,”Footnote 120 given its expertise and capacity with respect to state legal traditions. A sui generis framework could play an essential role in resolving disputes that are governed by state law.
Therefore, at least in the short term, a sui generis framework would provide kaitiaki with legal mechanisms to adequately protect their taonga. This approach aligns with the Waitangi Tribunal’s recommendations and subsequent proposals. For instance, Eru Kapa-Kingi proposes models grounded in whakaaro Māori (Māori ways of thinking), such as mechanisms to prevent cultural misappropriation or a new system for regulating and protecting knowledge grounded in tikanga Māori.Footnote 121 Houghton has described how a dispute resolution and adjudication mechanism could facilitate the resolution of disputes over the use of mātauranga Māori and taonga.Footnote 122 However, its design raises complex issues, including when disputes should be directed to adjudication or recognition processes, and whether decisions should establish precedent and be appealable.Footnote 123
The Taonga Record Framework
A sui generis framework may take several forms. As Jessica Lai notes, “simply stating Aotearoa New Zealand needs a sui generis system will have little meaning until detail is provided as to what that system might look like.”Footnote 124 Similarly, Fleur Te Aho criticizes the Waitangi Tribunal’s recommendations for “not creat[ing] a truly sui generis system … in accordance with tikanga Māori, or radically re[thinking] New Zealand’s intellectual property law.”Footnote 125
Regardless of its form, any decision-maker resolving disputes about taonga will require a principled framework to guide their decisions. Tiaki Taonga ’s Taonga Record Framework provides one such model. This part contends that the Taonga Record Framework is a culturally grounded and legally viable model for protecting taonga as part of a tikanga-based sui generis framework to protect mātauranga Māori and taonga.
The Framework
Tiaki Taonga is a government-funded initiative driven by Taumata Whakapūmau. Tiaki Taonga established Kahu Aronui, a group of experts “focussed on creating practical solutions and legislative frameworks to protect taonga and mātauranga.”Footnote 126 One of Kahu Aronui’s immediate workstreams was to “[d]evelop a Taonga Framework that will inform Sui Generis Legislation for the protection of Taonga Māori, including traditional cultural expressions.”Footnote 127
In 2023, Tiaki Taonga released the draft Taonga Record Framework for discussion.Footnote 128 The Framework is similar to frameworks for discussion submitted to the Waitangi Tribunal by Te Tai Tokerau claimants with closing submissions.Footnote 129 These similarities demonstrate that the claim kaupapa (purpose, proposal) or the ideas developed by the claimants are often crucial for longer-term responses to Waitangi Tribunal inquiries rather than the reports themselves.Footnote 130 It proposes a tikanga-basedFootnote 131 approach to sui generis protection of taonga, to be activated whenever taonga or mātauranga Māori are used.Footnote 132 Complementary tools, including codes of conduct, contractual provisions, research guidelines, and educational material would support the Framework.Footnote 133
The Framework lays out seven steps for determining the appropriate protections for taonga:Footnote 134
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(1) Is the object a taonga, and if so, what category does it fall into?
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(2) Who has the relationship with the taonga?
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(3) What is the nature of the relationship?
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(4) What does the relationship require in terms of authority and influence?
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(5) What obligations of kaitiakitanga are engaged by the proposed use?
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(6) What other interests must be taken into account?
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(7) What mechanisms might be employed to achieve the obligations of kaitiakitanga?
Implementation and administration
It is not yet clear what the Framework’s exact role would be under an eventual legislative framework to respond to the Wai 262 claim, which remains for Māori and the Crown to decide. However, it appears most likely that the Framework would be the process by which a decision maker resolves disputes regarding the use of mātauranga Māori and taonga, similar to the Waitangi Tribunal’s recommendations or Houghton’s proposal discussed earlier.Footnote 135 The Framework provides a holistic, tikanga-aligned methodology that a dispute resolution and adjudication mechanism could adopt to facilitate the resolution of disputes. Steps one through three establish jurisdiction and standing to bring a claim. Steps four to six assess the scope of the kaitiaki relationship and any competing interests. Step seven empowers the decision maker to select mechanisms that best protect the taonga and the integrity of the kaitiaki relationship.
At this stage of development, many practicalities of the Framework’s operation also remain unclear. For instance, beyond the Framework being implemented through legislation, it is unclear who would administer it and what decision maker would apply the Framework and its steps.
Although the Framework could be governed fully by Māori, which would best enable tino rangatiratanga with respect to taonga, this option is unlikely for two reasons. First, as the Framework would be implemented within Aotearoa New Zealand’s current constitutional setting, it recognizes that disputes would engage state law rights and rely on state law remedies. As noted earlier, this reality could justify some degree of Crown engagement. Second, Māori governance has become a divisive political issue, and, as such, it is unlikely that a government would establish a fully Māori-governed entity with the potential to exercise decision-making authority over intellectual property issues.
More likely, the Framework would be administered through a co-governance entity. In Aotearoa New Zealand, co-governance refers to formalized arrangements for shared decision making by bodies that enable Māori and the Crown to share decision-making in line with te Tiriti o Waitangi.Footnote 136 These arrangements are grounded in the idea that co-governance can “provide limited space for rangatiratanga and the right to self-determination.”Footnote 137 If the Framework’s decision makers were appointed in such a way, the Framework could enable limited tino rangatiratanga in respect of taonga before constitutional transformation occurs.
There are two potential models for appointing decision makers, based on the models of existing co-governance entities. The first model is for a co-governance entity to appoint decision makers, either an individual or a panel, based on their skills or competencies. These decision makers would then independently apply the Framework and its steps to disputes, potentially with some degree of oversight from the co-governance body. This model reflects the now-repealed Water Services Entities Act 2022, which established water services entities, each governed by an independent, skills-based board.Footnote 138 Above these boards sat regional representation groups composed of an equal number of territorial authority and mana whenua (those with authority over land or territory) representatives.Footnote 139 This model could ensure that any decision maker has sufficient expertise in the relevant areas needed to make decisions using the Framework. Although this model arguably does less to enable tino rangatiratanga, given that decision makers may not be Māori or tikanga experts, the entity may still be required to account for certain factors in appointing decision makers. For instance, individual members or decision makers could be required to have knowledge of mātauranga Māori or tikanga Māori, as members of the Māori Trade Marks Advisory Committee or Māori Plant Varieties Committee are.Footnote 140 Alternatively, the decision-making panel as a whole could be required to collectively have certain competencies, like the now-disestablished Te Aka Whai Ora (Māori Health Authority), whose board had to collectively have knowledge, experience, and expertise in te Tiriti o Waitangi, tikanga Māori, mātauranga Māori, and Māori health.Footnote 141 Such requirements could ensure that the decision maker makes decisions in a way that is considerate of rangatiratanga. In any event, the fact that a co-governance entity has made those appointments indicates that a degree of rangatiratanga has been exercised, regardless of the specific appointments.
The second model would have the Framework applied by a decision-making panel that is itself a co-governance body. In other words, it would have a panel or committee of decision makers equally representing Māori and the Crown, “ensur[ing] that diverse and sometimes competing interests are recognised, respected and considered in decision-making.”Footnote 142 There are numerous examples of this model. Te Urewera Board, which governs Te Urewera (a former national park now declared a legal entity),Footnote 143 is composed of six members appointed by iwi trustees and three members appointed by the Minister of Conservation.Footnote 144 Similarly, the Waikato River Authority, which sets the strategic direction and allocates funds for the restoration of the Waikato River,Footnote 145 consists of 10 members, half of whom are appointed by iwi with recognized interests in the river.Footnote 146 Te Pou Tupua, a two-person body representing Te Awa Tupua, a river declared a legal person,Footnote 147 comprises one Crown appointee and one iwi appointee.Footnote 148 Te Pou Tupua is supported by co-governed strategy and advisory groups.Footnote 149 Tūpuna Maunga Authority, a statutory authority administering maunga (mountains) in Tāmaki Makaurau Auckland,Footnote 150 comprises an equal number of Auckland Council and mana whenua representatives.Footnote 151 This model could potentially more directly enable tino rangatiratanga, with Māori making up at least half of those making the actual decisions.
Of these options, a co-governed adjudicative panel appears most consistent with tikanga Māori and institutional legitimacy under current constitutional conditions. However, it will be for Māori and the Crown to decide during process of implementing the Framework. Regardless of the exact model chosen, the decision maker would need the capacity to address the complex issues that disputes over taonga can raise. For instance, the decision maker applying the Framework would deal with the localized nature of tikanga. Many “tikanga concepts, processes and procedures vary between hapū and iwi.”Footnote 152 Therefore, any decision maker may not be able to apply generalized concepts and would need to ensure they understand the nature and requirements of the kaitiaki relationship for each iwi or hapū under their respective tikanga.
Application to Ka Mate
To illustrate how the Framework could prevent harm to the taonga, this section imagines how a decision maker would apply the proposed framework to two hypothetical offensive or commercial uses of Ka Mate:
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(1) A company wishes to use Ka Mate to advertise its new product without Ngāti Toa’s consent or consultation.
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(2) A local sports team performs Ka Mate without permission before their matches, but does so incorrectly and in an offensive manner.Footnote 153
For simplicity, these examples take place within Aotearoa New Zealand.Footnote 154
Step 1: Taonga and categorization
Step 1 asks, first, whether the object is a taonga; second, whether Te Tiriti o Waitangi / the Treaty of Waitangi speaks to it; and third, what category it relates to out of the following: Indigenous flora or fauna, genetic biological resources of Indigenous flora or fauna, mātauranga, and taonga works as an expression of mātauranga.Footnote 155
The first inquiry is relatively straightforward for Ka Mate, as it is a taonga of Ngāti Toa and an expression of mātauranga, a fact recognized by the HKMAA.Footnote 156
The second inquiry can be satisfied because Ka Mate is a taonga work protected by article 2 of te Tiriti o Waitangi.Footnote 157
For the third inquiry, it is also apparent that Ka Mate is a taonga work expressing mātauranga. The haka Ka Mate is a taonga work that draws “upon the body of knowledge and values Ngati Toa Rangatira refers to as ‘matauranga Maori’.”Footnote 158 The relevant mātauranga is Ka Mate’s “cultural context, how it is to be performed, the story and history and relationships expressed within the haka.”Footnote 159 However, this third inquiry will not always be straightforward and may require closer analysis to determine whether the work is a taonga or a taonga-derived work.
Step 2: Relationship with the taonga
Step 2 questions who has the relationship with the taonga and lays out five potential classes of people who may have a relationship: individual(s), whānau, hapū (subtribe), iwi, or te iwi Māori (the Māori people). In this case, the iwi Ngāti Toa and hapū Ngāti Kimihia have the relationship with Ka Mate.Footnote 160
Who has the relationship with the object and, in turn, who should benefit from this relationship will not always be clear. As under the Plant Variety Rights Act 2022,Footnote 161 the decision maker would likely require those seeking protection for their taonga works and associated mātauranga to establish their role as kaitiaki. As part of this assessment, the decision maker would have to consider the nature of the kaitiaki relationship under the party or parties’ tikanga.
Step 3: Nature of the relationship
Step 3 inquires into the nature of the relationship with the taonga, particularly concerning whakapapa (genealogy; descent), mātauranga or association, and use or development. Again, the requirements and nature of these relationships will need to be considered in light of the relevant tikanga.
Ngāti Toa’s relationship covers all three facets. First, Ngāti Toa has a whakapapa relationship with Ka Mate, a taonga because it has whakapapa and connects them to their ancestors. It “brings the tupuna Te Rauparaha to life” and tells an essential story in their iwi history.Footnote 162 Second, Ngāti Toa have a mātauranga relationship with Ka Mate because of their kaitiaki relationship. They have a kaitiaki obligation to Ka Mate because of the mātauranga “that sits beneath it,”Footnote 163 telling the story of Te Rauparaha and his deeds.Footnote 164 Third, Ngāti Toa have a relationship of use and development with Ka Mate because of the same kaitiaki relationship, which means they seek to ensure the “appropriate use of the haka.”Footnote 165 The haka “gains cumulative significance with each performance” and “[h]as been used as a tribal symbol for generations” and in national rugby since the early twentieth century.Footnote 166
Step 4: Requirements of the relationship
Step 4 considers what this relationship requires in terms of authority and influence, particularly referencing the “spectrum of rights and responsibilities of te tino rangatiratanga.”Footnote 167 The form lays out four potential categories of authority and influence a relationship may require: consultation, advisory, co-management, and devolution or authority. Generally speaking, “[t]he stronger the association with the taonga, the greater the control and influence to be exercised by the kaitiaki.”Footnote 168
However, these requirements will vary by the specific relationship and relevant tikanga. The Waitangi Tribunal discussed the requirements of Ngāti Toa’s relationship with Ka Mate in the Wai 262 report. According to the Tribunal, Ngāti Toa’s kaitiaki relationship requires:Footnote 169
[protecting] the integrity of Ka Mate, as well as the values that underlie it … [ensuring] that in circumstances where Ka Mate is performed respectfully and with the consent of his iwi, Ngāti Toa receives at least some of the commercial benefits that might flow from that use.
The strength of Ngāti Kimihia’s relationship with the haka “requires decision making authority as to its use.”Footnote 170 The kaitiaki relationship thus requires consultation, advisory, and authority rights as necessary in each class of misuse and misappropriation to ensure respectful and consensual performance.
The first case, where Ka Mate is used commercially, will likely require authority rights to allow Ngāti Toa to control that use and, if they consent and elect to continue it, derive the resulting commercial benefit. This responsibility can sit with Ngāti Toa, which is nationally associated with the haka and can advise Ngāti Kimihia on appropriate steps.Footnote 171
Given its noncommercial and less public context, the second case is more likely to require advisory rights to ensure it is done correctly if the team continues using Ka Mate. However, there will need to be sufficient consequences for failing to respect Ngāti Toa’s advisory rights, or they may need to be supported by authority rights to ensure that if the team does not listen, Ngāti Toa can exercise their role as kaitiaki and stop the use.
Step 5: Harm to taonga and kaitiaki obligations
Step 5 analyzes what is being done to the taonga and what the obligations of kaitiakitanga require for its protection. The form outlines three potential obligations that kaitiakitanga may require: preserving or retaining, protecting (from inappropriate use) or using according to values or tikanga, and promotion or development.
Both cases see Ka Mate used without Ngāti Toa’s consent, harming the haka’s mauri and Ngāti Toa’s kaitiaki relationship. The harm to mauri in the first case comes from the derogatory commercial use. When used commercially, the haka must be used:Footnote 172
in a manner which acknowledges the kaitiaki status, protects the mauri of the taonga, used with the prior informed consent of the kaitiaki, depicted in a manner which is consistent with the way in which the haka should be performed, accurate depiction of actions and of words of the haka.
In the second case, the harm comes from the incorrect and offensive performance of the haka. In both cases, the kaitiaki relationship is harmed by Ngāti Toa’s lack of control over the haka’s usage. In light of this, kaitiakitanga in the first case primarily requires protecting the haka from nonconsensual commercial use. Where there is to be a commercial use, there should be “negotiation as to benefit sharing from [the] product, and the retention of [the] ability of kaitiaki to licence the use of [the] haka in other contexts.”Footnote 173 In contrast, the second is more likely to ensure that the use follows Ngāti Toa’s tikanga.
Step 6: Competing interests
Step 6 represents what could be the most contentious part of the inquiry and examines the other interests the decision maker needs to consider. The Tribunal stressed this step in the outline of its proposed sui generis system.Footnote 174 The Framework outlines seven other interests the decision maker should consider: sustainability, other kaitiaki interests, impact on the taonga, existing private property rights, stakeholder interest, international obligations, and fiscal or resourcing.
The first two competing interests do not require consideration in either case, as there are no sustainability considerations or competing kaitiaki interests.
The third consideration – the impact on the taonga – will largely depend on its use. In the first case of commercial use, the use primarily impacts “the interests of kaitiaki.”Footnote 175 In the second case of offensive use, the issue is the haka being used in a “derogatory or offensive manner.”Footnote 176
The fourth consideration raises existing private property rights. Given that Ka Mate is a work in the public domain, these rights may pose an issue for commercial use. The decision maker would need to weigh the costs of protecting the haka. For instance, the Waitangi Tribunal favored balancing these interests by allowing existing commercial rights and public domain works, while prospectively applying its recommendations.Footnote 177
The fifth consideration raises no legal stakeholder interests. However, because of its longstanding use in rugby, New Zealand Rugby may have an interest that should be considered.Footnote 178
The sixth consideration relates to international obligations. These include the minimum standard under the Agreement on Trade-Related Aspects of Intellectual Property Rights. Still, this agreement “has not foreclosed the Crown’s ability to ‘provide mechanisms to protect Maori traditional knowledge from misuse and misappropriation within the [intellectual property] regime’.”Footnote 179 Similarly, the World Intellectual Property Organization Intergovernmental Committee and the UNDRIP recognize Indigenous rights in intellectual property.Footnote 180 Therefore, international obligations are unlikely to preclude any protections.
The seventh consideration is fiscal and resourcing. While not a clear issue in either example, it may present a problem if the kaitiaki bringing the claim lacks resources. In such a case, the Crown is arguably responsible for ensuring sufficient Māori financial resourcing.Footnote 181 Alternatively, the issue may arise if the user of the taonga – such as the sports team – struggles to respond to any legal action within the Framework.
Step 7: Protection mechanisms
At this point, the decision maker could determine which mechanisms are necessary for kaitiaki to protect the taonga from the relevant misuse or misappropriation. Step 7 describes several mechanisms proposed by the Tribunal, as well as additional mechanisms, including sui generis, creation of property rights, protocols or codes of conduct, databases or registers, management plans, or other mechanisms. Given that the sui generis mechanism is the dispute resolution and adjudication mechanism’s ability to adjudicate, implement the Framework, and deploy the necessary mechanism, the other mechanisms are the potential options for the decision maker to apply.
First, in some cases, creating bespoke property rights may be necessary to ensure that kaitiaki have tino rangatiratanga over their taonga. As seen in the example of Ka Mate, taonga generally do not benefit from rights under the existing intellectual property regime, underscoring the need for a sui generis form of protection. However, perspectives on what “property rights” in taonga should mean are divided. The Waitangi Tribunal noted in its report on the Wai 262 claim that property evokes Western legal understandings “that the owner exclusively controls the use of the respective property by excluding others from using it,” in contrast to “the principle of kaitiakitanga, which tikanga Māori bestows on kaitiaki who have rights and obligations in respect of taonga works and/or the underlying mātauranga.”Footnote 182 Under this view, it may be sufficient for kaitiaki to have their obligations recognized in the use of taonga, or the grant of limited, conditional intellectual property-like rights for taonga works. Kaitiaki could bring a claim to the Framework to assert such control rights in a taonga, regardless of its protection under the current intellectual property system. The decision maker could, for example, grant a right of attribution similar to that held by Ngāti Toa under the HKMAA. Although this right has not been effective in protecting Ka Mate, there may be other cases where such a right could be appropriate and effective. Such rights could allow use “conditional on recognition and exercise of the cultural and heritage right”Footnote 183 and may, in some cases, provide kaitiaki with a sufficient right in their taonga to prevent harms to the mauri of their taonga and the kaitiaki relationship.
Such rights would create “positive” intellectual property protections for taonga, in contrast to the existing, broadly “negative” rights that prevent the registration of culturally offensive trade marks.Footnote 184 Currently, the Trade Marks Act 2002 requires that the Commissioner of Patents, Trade Marks, Designs and Plant Variety Rights “must not register as a trade mark or part of a trade mark any matter … the use or registration of which would, in the opinion of the Commissioner, be likely to offend a significant section of the community, including Māori.”Footnote 185 Meanwhile, the Plant Variety Rights Act 2022 requires that the Commissioner for Plant Variety Rights must not grant a plant variety right that “will or could have adverse effects on 1 or more kaitiaki relationships with the plant variety.”Footnote 186 Unlike these pieces of legislation, which prevent non-kaitiaki from registering state law intellectual property rights in taonga, this mechanism would allow kaitiaki to preemptively assert control and prevent misuses and misappropriations rather than avoiding registrations of rights.
However, in certain cases, control rights would not go far enough to address the perceived shortcomings of the Wai 262 report recommendations and provide sufficient protection for taonga. Fleur Te Aho contends that the Tribunal’s rejection of ownership based on its interpretation of kaitiakitanga represents “a diluted understanding of tino rangatiratanga and control” and that granting “control” without ownership is contradictory.Footnote 187 To ensure the greatest degree of tino rangatiratanga in respect of taonga, and prevent harm, the decision-maker could grant kaitiaki full sui generis rights of ownership in taonga with the ability to exclude others from using them, which may be “the best contemporary means for protecting the kaitiaki relationship with these taonga and for ensuring that, where appropriate, kaitiaki were able to develop and benefit economically from it.”Footnote 188 A challenge for the decision maker deciding whether to grant such rights will be to weigh the competing rights and interests identified in step 6, which may in some cases justify control rights rather than full ownership rights.
Second, protocols and codes of conduct reflect the facilitative function that the Tribunal proposed. Codes of conduct have key strengths in approaching issues of appropriation of traditional knowledge through their ability to “design and redefine the values base upon which the discussion and negotiation fora are premised – a significant step towards creating ethical space.”Footnote 189
They represent “a ‘soft-law’ approach” that “can help bring about change in areas where legislative intervention may be considered too excessive.”Footnote 190 More specifically, they are educative tools and nonlegal voluntary forms of protection,Footnote 191 which “can include principles and methodologies” that are “useful where external parties wish to research, access, use, exchange and/or manage information concerning Matauranga.”Footnote 192
Several codes of ethics could serve as models for this. For instance, the ASA Code may serve as a model for regulating offensive conduct.Footnote 193 The ASA drafts and enforces the code, which provides that:Footnote 194
Advertisements must not contain anything that is indecent, or exploitative, or degrading, or likely to cause harm, or serious or widespread offence, or give rise to hostility, contempt, abuse or ridicule.
However, the offence threshold is a high standard,Footnote 195 which would likely be lowered for any taonga-focused code of conduct.
Another example relevant to protecting taonga and mātauranga Māori is the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Code of Ethics for Aboriginal and Torres Strait Islander Research.Footnote 196 The AIATSIS Code recognizes “that Indigenous peoples have the right to control and maintain their culture and heritage, and that means benefiting from research undertaken by, with and about them.”Footnote 197 The code lays out principles to this effect and, while relatively recent and untested, looks to provide much-needed protection.
Third, databases and registers mirror the Tribunal’s proposed administrative function. The central pillar of this administrative function would be the operation of a register of kaitiaki in respect of mātauranga Māori and taonga works.Footnote 198 Their main effect would be to ensure that potential users of taonga could quickly identify and account for any kaitiaki interests and help back up or reinforce kaitiaki claims.Footnote 199 In this way, they function as “defensive protection of traditional knowledge in the context of defeating applications to patent traditional knowledge by parties other than the kaitiaki themselves.”Footnote 200 The public would thus be “on notice as to the process to be followed” should they wish to use the taonga.Footnote 201
Fourth, although the Taonga Record Framework recognizes “management plans” as a potential protection mechanism, they are more relevant to environmental resource management than to protecting mātauranga Māori, taonga works, and taonga-derived works. In its report on the Wai 262 claim, the Waitangi Tribunal recommended enhanced iwi resource management plans under the Resource Management Act 1991,Footnote 202 which “could enable iwi to become integral and positive voices in environmental management.”Footnote 203
Finally, other mechanisms will likely arise on a case-by-case basis where they provide kaitiaki with the necessary rights over their taonga. For instance, where there is a strong kaitiaki relationship with a taonga species,Footnote 204 the decision maker could require that the kaitiaki have a right to “prior and informed consent or approval and involvement of these indigenous and local communities,” reflecting that right adopted in the Nagoya Protocol to the Convention on Biological Diversity (although Aotearoa New Zealand is not a party).Footnote 205
In the first case, given the authority necessary at step 4, Ngāti Toa would likely need some property or control right over Ka Mate to prevent such nonconsensual commercial use and, if granting consent, to benefit from any such consensual use. In the second case, because step 4 requires an advisory right, codes of conduct or guidance will likely be more helpful in ensuring the sports team performs the haka appropriately. However, this right would need to be backed up by sufficient penalty or enforcement mechanisms, or by a property or control right, to prevent use if the club subsequently refused to perform the haka appropriately.
Evaluation
The preceding case study illustrates that the Taonga Record Framework has two key strengths when applied by a decision maker responsible for a dispute resolution and adjudication mechanism.
First, the proposal is “fundamentally Māori” in its process thanks to Tiaki Taonga ’s independent Māori-led design process.Footnote 206 As Olsen notes, sui generis protection of taonga is “the best option” to account for “the unique views of indigenous societies.”Footnote 207 At the same time, while the Tribunal’s recommendations do not “[create] a truly sui generis system for the protection of mātauranga Māori and other taonga in accordance with tikanga Māori,”Footnote 208 the Framework does so effectively. It echoes the Ethical Framework for Resolution that the Tai Tokerau Wai 262 claimants sought.Footnote 209 It provides “a new and separate system of knowledge regulation and protection founded upon tikanga Māori,”Footnote 210 similar to the Tikanga Māori Framework of Protection proposed by Maui Solomon.Footnote 211 Its design by Māori, for Māori, ensures that “indigenous worldviews [sit] at the centre.”Footnote 212 The Framework’s broad scope also ensures that challenges are not limited to offensive useFootnote 213 but can extend to any uses contrary to the wishes of kaitiaki.
Second, it offers a practical methodology for decision makers, filling the current gap in guidance on how a dispute resolution and adjudication mechanism might operate. The Framework’s seven steps provide a structured way to assess taonga, identify the relevant kaitiaki relationships, weigh competing concerns, and select appropriate protection mechanisms. As a representative of Taumata Whakapūmau contends, “the Taonga Framework is urgently needed” to protect taonga.Footnote 214
However, the Framework is untested, and its practical application remains unclear. For example, it leaves the decision maker with considerable discretion. There is no indication of what evidence should be accepted for the Framework.
At step 4, the requirements of the relationship could be contentious. The competing interests relevant at step 6, as well as the extent to which they should affect kaitiaki rights, are also unclear. Likewise, when arriving at step 7, one decision maker’s idea of what is necessary for protection in each case may not be the same as another’s.
The specific mechanisms that can be deployed at step 7 are also not well described at this stage. For instance, the extent to which property rights could be created in taonga is unclear and potentially contentious, particularly where a taonga such as Ka Mate falls within the public domain. Similarly, there is no indication of how any legal mechanisms would be enforced and what penalties or remedies might be levied to enforce them.
While some mechanisms, such as codes of ethics, are “non-legal,” “some form of legal recognition and protection” will be necessary to enforce compliance with the other legal mechanisms.Footnote 215 If remedies are inadequate, the rights could face a similar problem as the right of attribution under the HKMAA does: By the time Ngāti Toa “chooses to take legal action, the damage is done” and because the only monetary remedy is costs, they “may actually lose money by enforcing their rights.”Footnote 216
In addition, care will need to be taken to ensure that the Framework is mandated by all Māori and “can speak for the people.”Footnote 217 While these issues could be resolved by providing more explicit guidance on when the measures should be implemented, further work will likely be needed to develop these and trial the Framework in practice.
Conclusion
This article has argued that the Crown’s prolonged failure to respond to the Wai 262 claim has allowed avoidable harms to taonga to persist. The case study of Ka Mate illustrates that kaitiaki currently have minimal legal recourse to prevent the misuse and misappropriation of their taonga.
Critics have long warned that the absence of Crown action forces Māori to rely on “impractical and unorthodox means” to protect mātauranga Māori.Footnote 218 Te Pae Tawhiti offers a chance to close this legal gap and provide kaitiaki with tools to safeguard the mauri of their taonga and their obligations as kaitiaki. Tiaki Taonga’s Taonga Record Framework provides one viable tikanga-based model for implementing sui generis protections for taonga. However, further work is required to refine how it would operate in practice.
Most importantly, any new protections must respond to the core concerns of the Wai 262 claimants and uphold tino rangatiratanga over mātauranga Māori and taonga. To this end, the Crown must ensure that Māori are equal partners in Te Pae Tawhiti and the design of any sui generis protection framework. In recognition of decades of delay, the Government should also expedite this work so that adequate protections can finally be put in place to prevent further harm to taonga.
Acknowledgments
My thanks to Jayden Houghton for supervising this paper, and supporting its publication. I also thank Leticia, Tian, Gulliver, and Jack for their presence in the Davis Law Library during much of the writing process.
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