STRAIT to the future
8th Asia-Pacific Specials, Health and Law Librarians Conference
Indigenous intellectual and cultural property rights
Spencer Lilley
Massey University College of Education
Bibliography
Appendix 1 | Appendix 2 | Bibliography
Treaty of Waitangi 1840
[Translation of the Maori text of the Treaty, by Prof. Sir Hugh Kawharu]
Victoria, the Queen of England, in her concern to protect the chiefs and the subtribes of New Zealand and in her desire to preserve their chieftainship and their lands to them and to maintain peace and good order considers it just to appoint an administrator one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen's Government being established over all parts of this land and (adjoining) islands and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Maori and European living in a state of lawlessness. So the Queen has appointed "me, William Hobson a Captain" in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.
The first
The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land.
The second
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.
The third
For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.
[signed] William Hobson Consul and Lieut. Governor
So we, the Chiefs of the Confederation of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus.
Was done at Waitangi on the sixth of February in the year of our Lord 1840.
The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples
First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, Whakatane 12-18 June 1983 Aotearoa New Zealand. In recognition that 1993 is the United Nations International Year for the World's Indigenous Peoples: The Nine Tribes of Mataatua in the Bay of Plenty region of Aotearoa New Zealand convened the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, (12-18 June 1993, Whakatane).
Over 150 delegates from fourteen countries attended, including indigenous representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA and Aotearoa.
The Conference met over six days to consider a range of significant issues, including; the value of indigenous knowledge, biodiversity and biotechnology, customary environmental management, arts, music, language and other physical and spiritual cultural forms. On the final day, the following Declaration was passed by the Plenary.
Preamble
Recognising that 1993 is the United Nations International Year for the World's Indigenous Peoples:
Reaffirming the undertaking of United Nations Member States to:
"Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices." - United Nations Conference on Environmental Development: UNCED Agenda 21 (26.4b)
Noting the Working Principles that emerged from the United Nations Technical Conference on Indigenous Peoples and the Environment in Santiago, Chile from 18-22 May 1992 (E/CN.4/Sub.2/1992/31)
Endorsing the recommendations on Culture and Science from the World Conference on Indigenous Peoples on Territory, Environment and Development, Kari-Oca, Brazil, 25-30 May 1992.
We:
Declare that Indigenous Peoples of the world have the right to self determination, and in exercising that right must be recognised as the exclusive owners of their culture and intellectual property;
Acknowledge that Indigenous Peoples have a commonality of experiences relating to the exploitation of their cultural and intellectual property;
Affirm that the knowledge of the Indigenous Peoples of the world is of benefit to all humanity;
Recognise that Indigenous Peoples are capable of managing their traditional knowledge themselves, but are willing to offer it to all humanity provided their fundamental rights to define and control this knowledge are protected by the international community;
Insist that the first beneficiaries of indigenous knowledge (culture and intellectual property rights) must be the direct indigenous descendants of such knowledge;
Declare that all forms of discrimination and exploitation of Indigenous Peoples, indigenous knowledge and indigenous cultural and intellectual property rights must cease.
1. Recommendations to Indigenous Peoples
In the development of policies and practices, Indigenous Peoples should:
1.1 Define for themselves their own intellectual and cultural property.
1.2 Note that existing protection mechanisms are insufficient for the protection of Indigenous Peoples' Intellectual and Cultural Property Rights.
1.3 Develop a code of ethics which external users must observe when recording (visual, audio, written) their traditional and customary knowledge.
1.4 Prioritise the establishment of indigenous education, research and training centres to promote their knowledge of customary environmental and cultural practices.
1.5 Reacquire traditional indigenous lands for the purpose of promoting customary agricultural production.
1.6 Develop and maintain their traditional practices and sanctions for the protection, preservation and revitalisation of their traditional intellectual and cultural properties.
1.7 Assess existing legislation with respect to the protection of antiquities.
1.8 Establish an appropriate body with appropriate mechanisms to:
- preserve and monitor the commercialism or otherwise of indigenous cultural properties in the public domain
- generally advise and encourage indigenous peoples to take steps to protect their cultural heritage
- allow a mandatory consultative process with respect to any new legislation affecting Indigenous Peoples Cultural and Intellectual Property Rights.
1.9 Establish international indigenous information centres and networks.
1.10 Convene a Second International Conference (Hui) on the Cultural and Intellectual Property Rights of Indigenous Peoples to be hosted by the Co-ordinating Body for the Indigenous Peoples Organisations of the Amazon Basin (COICA).
2. Recommendations to States, National and International Agencies
In the development of policies and practices, States, National and International Agencies must:
2.1 Recognise that indigenous peoples are the guardians of their customary knowledge and have the right to protect and control dissemination of that knowledge.
2.2 Recognise that indigenous peoples also have the right to create new knowledge based on cultural traditions.
2.3 Note that existing protection mechanisms are insufficient for the protection of Indigenous Peoples Cultural and Intellectual Property Rights.
2.4 Accept that the cultural and intellectual property rights of Indigenous Peoples are vested with those who created them.
2.5 Develop in full co-operation with Indigenous Peoples an additional cultural and intellectual property rights regime incorporating the following: collective (as well as individual) ownership and origin retroactive coverage of historical as well as contemporary works protection against debasement of culturally significant items co-operative rather than competitive framework first beneficiaries to be the direct descendants of the traditional guardians of thatknowledge multi-generational coverage span.
Biodiversity and customary environmental management
2.6 Indigenous flora and fauna is inextricably bound to the territories of indigenous communities and any property right claims must recognise their traditional guardianship.
2.7 Commercialisation of any traditional plants and medicines of Indigenous Peoples, must be managed by the Indigenous Peoples who have inherited such knowledge.
2.8 A moratorium on any further commercialisation of indigenous medicinal plants and human genetic materials must be declared until indigenous communities have developed appropriate protection mechanisms.
2.9 Companies, institutions both governmental and private must not undertake experiments or commercialisation of any biogenetic resources without the consent of the appropriate indigenous peoples.
2.10 Prioritise settlement of any outstanding land and natural resources claims of indigenous peoples for the purpose of promoting customary, agricultural and marine production.
2.11 Ensure current scientific environmental research is strengthened by increasing the involvement of indigenous communities and of customary environmental knowledge.
Cultural Objects
2.12 All human remains and burial objects of Indigenous Peoples held by museums and other institutions must be returned to their traditional areas in a culturally appropriate manner.
2.13 Museums and other institutions must provide, to the country and Indigenous Peoples concerned, an inventory of any indigenous cultural objects still held in their possession.
2.14 Indigenous cultural objects held in museums and other institutions must be offered back to their traditional owners.
3. Recommendations to the United Nations
In respect for the rights of Indigenous Peoples, the United Nations should:
3.1 Ensure the process of participation of Indigenous Peoples in United Nations fora is strengthened so their views are fairly represented.
3.2 Incorporate the Mataatua Declaration in its entirety in the United Nations Study on Cultural and Intellectual Property of Indigenous Peoples.
3.3 Monitor and take action against any States whose persistent policies and activities damage the cultural and intellectual property rights of Indigenous Peoples.
3.4 Ensure that indigenous peoples actively contribute to the way in which indigenous cultures are incorporated into the 1995 United Nations International Year of Culture.
3.5 Call for an immediate halt to the on-going 'Human Genome Diversity Project' (HUGO) until its moral, ethical, socio-economic, physical and political implications have been thoroughly discussed, understood and approved by Indigenous Peoples.
4. Conclusion
4.1 The United Nations, International and National Agencies and States must provide additional funding to indigenous communities in order to implement these recommendations.
Brush, S. and Stabinsky, D. (eds.)(1995). Valuing local knowledge: indigenous people and intellectual property rights. Washington, D.C.: Island Press.
Greaves, T (ed.) (1994). Intellectual property rights for indigenous peoples: a sourcebook Oklahoma City, OK.: Society for Applied Anthropology.
Mead, A. (1994). Nga tikanga, nga taonga: cultural and intellectual property: the rights of indigenous peoples. Auckland: University of Auckland Research Unit for Maori Education.
Posey, D and Dutfield, G. (1996). Beyond intellectual property. Ottawa: International Development Research Centre.
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