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Human Rights and the Treaty of Waitangi
Ministry of Economic Development – Bioprospecting Taumata
The Ministry of Economic Development (MED) is keen to ensure Tangata Whenua are fully engaged in working with government to develop policy options for a bioprospecting framework that will include permit systems and options for regulating appropriate activity. A key purpose of the Taumata, and this case study, is to give effect to the Treaty of Waitangi to ensure the policies are sustainable.
Government has been reviewing issues around access to New Zealand’s biological resources and associated knowledge, and sharing benefits from their use. New Zealand is also engaged in negotiations internationally on access and benefit sharing for genetic resources under the Convention of Biological Diversity. The Waitangi Tribunal is nearing the completion of the WAI 262 claim (Indigenous Flora and Fauna, and Cultural Intellectual Property Claim) and many Iwi are settling claims for resources that impact on their biological estate. The Taumata is using the term “biodiscovery” rather than “bioprospecting” to define its work.
The working definition for the Taumata is:
‘Biodiscovery (Bioprospecting) involves the collection and analysis of biological resources for the purposes of knowledge-building, discovery and innovation aimed at identification of characteristics that may have wider application and/or commercial value’
Phase one of this work involved a series of regional seminars and hui based on a document released in July 2007. Phase two involved 4 working groups which ran until June 2009 and provided advice and guidance on possible design elements.
The third phase involves the work of a Taumata appointed from the 4 Working Groups. Members of the Taumata include Tangata whenua, representatives from scientific organisations, commercial users and suppliers and Government agencies. Members acknowledge a relationship between Tangata Whenua and New Zealand’s biological estate. The Taumata has an independent chair, Rauru Kirikiri.
The Taumata collective responsibility includes:
- Providing advice on domestic bioprospecting policy development including standards for access to biological resources, access to traditional knowledge associated with biological resources, and the sharing of benefits resulting from that access
- Inputting to New Zealand’s position on an international bioprospecting policy on Access and Benefit Sharing (ABS) as required
- Raising awareness of bioprospecting issues within their organisations and communities
- Conducting work on an “as needs” basis.
- Assisting MED to engage with Tangata Whenua and give effect to Treaty rights and responsibilities
The main focus of this case study is on the latter responsibility
The Crown (article one) is represented by a number of agencies including MED, Te Puni Kokiri, Department of Conservation, Ministry of Fisheries and the Ministry of Foreign Affairs and Trade. They facilitate discussion, provide resources and technical information and develop policy. They also provide secretariat services to the Taumata and regular reports to the government bioprospecting committee.
Tangata Whenua interests (article two) are represented in a number of ways. Some have been nominated by their iwi and all are aware of the need to represent Tangata Whenua interests in this forum. They come from Rūnanga, research organisations, business, Government agencies and universities.
Citizenship interests (article three) are represented by researchers, scientists and users and suppliers of products from discoveries made through bioprospecting. Their interests are both commercial and non-commercial.
No formal agreements exist between the groups.
The Taumata met in October, December (2009) and February and June (2010). Minutes of Taumata meetings are posted on the MED website.
Typically when the Taumata meets there is a review of the previous meeting, an update of what is happening internationally (MFaT) and domestically and then a focus on what has been identified as an issue for the Taumata to work through. “The Treaty and Bioprospecting” is one of the issues the Taumata has identified which needs work.
This topic was advanced at the December meeting with a presentation by Dayle Takitimu (Te Whanau a Apanui). Dayle’s presentation gave good background to the issues and focused on the rights and responsibilities of the Crown and Tangata Whenua. Some of the key messages included in Dayle’s presentation were:
- The Treaty is the source of Crown rights to govern in New Zealand.
- The proposed framework is an attempt to reconcile the positions of iwi/hapū and the Crown in a manner consistent with the Treaty relationship. It is premised on three categories of rights and entitlements – those contained in; Article I (in favour of the Crown);Article II (in favour of hapū); and Article III (citizenship rights)
- It places that right to govern within a context which affirms for hapū pre-existing rights, entitlements and obligations.
- The customary rights and entitlements recognised in Article II are recognised as guaranteeing to iwi/ hapū in their full and undisturbed possession “for as long as they wish to retain them”.
- The ‘biodiversity estate’ must be read as part of those protected rights and entitlements.
- Utilising the Treaty to inform policy development and underpin a policy framework should not be seen as a threat but as an opportunity to work out how to better balance the rights and interests of the Crown, and its constituents, and iwi and hapū as the indigenous inhabitants of Aotearoa
- The development of a Biodiversity policy provides an opportunity for the development and modelling of a Treaty based framework.
- The Treaty of Waitangi provides for the relationship between hapū and the Crown.
- The key issue for the Crown is to recognise the ongoing and enduring mana of hapū over their indigenous biological estate.
What has the Taumata agreed to as a basis for moving forward?
- The above presentation enabled all Taumata members to engage in the implementation of a policy framework informed by the Treaty. It will also enhance government policy development, the development of ethical tikanga frameworks, improved communication, relationships and building trust.
- There is a commitment to move from “consultation” to “engagement” between the parities to achieve sustainable outcomes and especially to strengthen Crown: Tangata Whenua relationships.
- Mātauranga Māori is valued by members of the Taumata. There is respect for the fact that Māori as kaitiaki cared for and utilised the indigenous biological estate well before the Treaty was signed. In addition there is a desire to ensure Te Reo Māori is used for key concepts in the toolkit that is being developed.
- Further and more widespread engagement with iwi Māori is seen as being a priority,
The Taumata has identified a number of challenges which include:
- The lack of consistent Treaty policy across agencies
- Poor understanding of indigenous rights and responsibilities in government
- Uncertainty about WAI 262 findings
- Traditional vs. contemporary uses of the biological estate
- International vs. domestic issues
- Easy public accessibility to the biological estate
- Making a permit system work
Declaration on the Rights of Indigenous Peoples
The Declaration on the Rights of Indigenous Peoples establishes a set of international standards to be pursued in a spirit of partnership and mutual respect by States and Indigenous Peoples. The recent support for the Declaration by government increases the authority of indigenous rights in New Zealand. Bioprospecting impacts on a number of articles including:
Article 19: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting or implementing legislative or administrative measures that may affect them.”
Article 31: Cultural heritage and traditional knowledge: “1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions. 2.In conjunction with indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights.”
Other relevant articles include:
24: Medicinal resources
25: Spiritual relationship with land and resources
26 and 32: Lands and resources
The following are comments made by various members of the Taumata
“Phase three needs to be comprehensive and have good engagement models.”
“If Iwi are not consulted prior to policy decisions they could potentially be in opposition to the government policy.”
“For Māori there is a whakapapa implication when dealing with genetic resources or genetics in general. Māori track their whakapapa back through time and can relate to rivers, forest species and all surrounding elements. Spiritual beings are at the core of who Māori are. Mixing of species though genetics, taking genetic resources or cloning can cause huge interference with Māori processes. Often the crown and government departments cannot see the Māori perspective and talk a different language concerning genetics and genetic resources.”
“Māori have their own management regime and the crown attempts to accommodate this at times but it doesn’t always fit. It was noted the government departments talk a different language and often cannot see the Māori perspective.”