Human Rights Commission

Bioprospecting Working Group

Purpose

The government has been reviewing issues around access to New Zealand’s biological resources, the associated knowledge and how to share the benefits arising from their use. Government is also engaged in negotiations internationally on access and benefit-sharing for genetic resources under the Convention on Biological Diversity (CBD). The outcomes of those negotiations will provide for a range of domestic options.

Background

This case study principally involves the Ministry of Economic Development (MED) and Māori invited to participate in this stage of their work. The broad aim is that the Crown, tāngata whenua and other stakeholders will work together to develop policies that will meet all interests. This case study relates to Phase Two of the work t and focuses on Working Group 4 (WG 4), one of four groups appointed to look at bioprospecting issues.

Phase One of this work involved a series of regional seminars and hui based on a discussion document released in 2007. Phase Two focuses on these issues:

• WG 1 is looking at New Zealand’s approach to negotiations on an international regime under the Convention on Biological Diversity
• WG 2 is looking at enhancing opportunities offered by bioprospecting
• WG 3 is looking at intellectual property rights and innovation
• WG 4 is providing guidance and advice on possible design elements of a bioprospecting framework, including permit systems and options for regulating inappropriate activity. It will also advise on possible strategies for implementing Phase Three of the work, taking policy options beyond the working groups for broad engagement.

At the same time, the Waitangi Tribunal is nearing the completion of considering the indigenous flora, fauna and mātauranga Māori (Wai 262) claim and many iwi are settling claims for resources that impact on the bioprospecting work.

Roles

WG 4 comprises one member from each of Te Puni Kōkiri (TPK) and MED, representatives from science and research organisations; biotechnology organisations; environmental groups; local government and technical experts as required. Tāngata whenua participation has been invited from iwi and/or Māori organisations or individuals. These tāngata whenua members bring cultural capital, extensive networks and deep knowledge of their communities to the working group. They provide advice that will influence definitions and systems for permitting bioprospecting/biodiscovery work to be carried out and to provide advice on policy developments and strategies to engage iwi and hapū in the third phase of the work.

“Our tuupuna gained a consciousness of this phenomenon (bioprospecting) and determined this as the first potential for the first seeds of growth for all things in existence that belong to Ranginui and Papatuanuku. They sought to acquire a consciousness of this potential, through waananga (analysing) and acknowledging this potential where they were able to order the origins of life in sequence or layers as the word ‘Whakapapa’ suggests. [Bioprospecting] is about our tuupuna acquiring, analysing and acknowledging that potential or phenomenon that creates Ranginui and Papatuanuku.” – Mohi Apou, Ngaa Raauru kaumaatua.

Crown officials led by MED and supported by TPK facilitate discussion, provide resources and technical information and develop policy. They provide secretariat services to the working groups and regular reports to a parent working group and the government bioprospecting committee.

What happens

A commonly asked question is “Why should the government intervene?” The reasons include:

• Lack of certainty over the process for accessing NZ’s biological resources
• Lack of certainty as to who should share in the benefits resulting from biodiscovery activities
• Lack of certainty over the process for using traditional knowledge (TK) associated with NZ’s biological resources
• Wai 262: Treaty-related rights in NZ’s biological resources
• Convention on Biological Diversity obligations. NZ has obligations under the CBD regarding the setting up of a system for access and benefits sharing (ABS) in relation to the use of traditional knowledge and genetic resources.

All working group members provide specific technical and/or policy expertise rather than representing particular interests or interest groups. Participants agree to participate without prejudice to the policy outcome and are required to act in good faith and on a “no surprises” basis. There are no formal agreements.

The working group meets regularly. Typically the group reflects on what has been discussed at previous meetings and in the other working groups, receives presentations from technical experts and then considers the issues raised. A question asked across all working groups is how the government will ensure greater iwi involvement in bioprospecting policy development.

WG4 is also considering whether the word “bioprospecting” with its connotations of commercial purposes is the best term to use. There is a movement towards using the term “biodiscovery” instead which has a broader meaning, including the examination of biological resources (e.g. plants, animals and micro-organisms) for characteristics that may have wider application and/or commercial value.

A barrier for tāngata whenua participation in this work is the lack of information about bioprospecting. Information that is available is not considered accessible by whānau, hapū and iwi. It is too bulky and technical. There are people with specialist knowledge in the areas affected by bioprospecting, as evidence presented to the Wai 262 claim demonstrates. However, the tāngata whenua champions of this issue are few and far between and are generally busy working in their businesses with little time to work on the issues.

Declaration on the Rights of Indigenous Peoples

Bioprospecting relates to the right of indigenous peoples to their culture and intellectual property. Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples states that

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 those rights.”

What is working well

Discussions are open and time is taken to develop the technical information to make it accessible for all participants. The working group explores and explains tāngata whenua interests in the issue, the Treaty is given respect in deliberations, mātauranga Māori and traditional knowledge are respected and everyone is concerned about “getting it right”.

The relationships between the agencies and tāngata whenua involved in this work are evolving. What is happening falls short of a partnership but is at a level of engagement that is better than other notions of “consultation”.

Looking ahead

Part of this phase of the work is to set up the engagement plan with tāngata whenua for the next phase. It is an opportunity to give effect to the Treaty relationship between the Crown and Rangatira. WG 4 aims for the next phase to be more substantial than previous consultations.

The language being used by officials indicates a preference for “engagement” rather than “consultation.”

Documentation

Reports and notes from all working groups are available on the MED website.

Last updated 15 July 2009