Tuesday, July 5, 2011

Wai 262 - kaitiakitanga - some thoughts

Reading the fact sheets associated with the Wai 262 report has been great but also raised some questions for me. It isn't my job to microexamine the report and point out flaws but on the other hand I can't let somehing go when I think it needs said. The term kaitiakitanga is used and given some activation through the recommendations, but how can the role be fulfilled if the power and authority of the role isn’t there. I am taking the report as a starting point for discussion which I think is in the spirit of he report.

Kaitiakitanga is a term that has no equivalent English meaning. It encompasses conservation in the western sense of protection and guardianship but also is measured by the strength of the mauri of the area, demonstrated by the abundance and variety of the resources available.

Kaitiakitanga means interaction and exemplifies the Māori world view where everything is connected because of whakapapa to Rangi and Papa. This holistic view realises that we are part of the environment, we are nature too and this is in contrast to the dominant current worldview where we are the ‘other’, alien and distant from nature.

There is no such concept as ‘own’ in regards to resources – it is ‘right to use’, within the Māori worldview. That ‘right to use’ is tempered with communal thinking and social structure based on tapu and mana, whakapapa and tikanga.

Exercising kaitiakitanga is exercising mana and it reflects the mana of the people and their leaders. Rangatira couldn’t lead without having the people supporting them and they reflected the mana of their people. The traditional attributes of leaders included the ability to fulfil kaitiakitanga responsibilities. These could only be fulfilled with the power and ability of mana derived from the Gods, ancestors, the whenua, the people and personal actions. This is a circular relationship where each part supports and strengthens the other parts.

The key is that there was absolute authority - derived and supported by mana. You cannot fulfil the responsibilities of kaitiakitanga without having the authority and power over those responsibilities.

The Wai 262 report says anumber of things on kaitiakitanga. My views are just my own – others will disagree with me.
The interests of kaitiaki in their taonga are entitled to protection, but that does not mean that kaitiaki are entitled to a veto over uses of IP in taonga works in all cases. Rather, kaitiaki interests must be fairly and transparently balanced alongside other interests, such as (a) the interests of those who own IP rights, such as authors or film-makers whose work may depict taonga works or related knowledge, or business owners whose trade marks are based on taonga works, and (b) the interests of the wider community in the information and artistic and cultural works available in the public domain.
If you do not have the authority and power to enact kaitiaki responsibilities then you cannot fulfil your duties – you don’t have the power to.
‘Taonga species’ is a term the Tribunal has used to refer to species of flora and fauna that are significant to the culture or identity of Māori iwi or hapū. The exercise of kaitiaki responsibilities towards those species is a fundamental aspect of Māori culture, and kaitiaki relationships are important sources of identity.
The Treaty allows the Crown to put in place laws and policies relating to research into and commercialisation of the genetic and biological resources in flora and fauna. This includes IP laws, and laws controlling aspects of the research process such as bioprospecting and genetic modification. But in doing so the Crown must to the greatest extent practicable protect the authority of iwi and hapū in relation to their taonga species, so that they can fulfil their obligations as kaitiaki.
How can it be ‘significant to the culture or identity of Māori’ and ‘kaitiakitanga is a fundamental aspect of being Māori’, and then expect Māori to filfil their obligations when the Crown has control and power over those very things that are considered taonga?
The Treaty entitles kaitiaki relationships with taonga species to a reasonable degree of protection. It also entitles Māori to a reasonable degree of control over traditional knowledge relating to taonga species and how that knowledge is used. But it does not entitle kaitiaki to ownership of taonga species, and nor does it mean that kaitiaki are entitled to a veto over uses of IP in those species in all cases.
Rather, kaitiaki interests must be fairly and transparently balanced alongside other interests. Those include the interests of those who conduct research and hold IP rights, the public interest in research and development, and of course the interests of the species themselves.
Reasonable what the hell is that word! I absolutely disagree with their conclusion – it does entitle Māori ownership and a veto over uses of IP in all cases.

How can this report imply that Māori kaitiakitanga wouldn’t naturally include considerations of all aspects including research and the taonga species.
The Treaty entitles kaitiaki to fulfil their obligations to protect and care for taonga in the environment. But, while Māori interests and kaitiaki relationships are important, this does not mean that iwi and hapū should have a generally applicable veto. In a modern resource management context, other interests should also be considered, including the health of the environment, and the interests of property owners, resource users, those affected by resource use, and the wider community.
I ask again why wouldn’t Māori kaitiakaitanga also include aspects of the health of the environment, owner rights, resource users and the wider community?
Relationships with the environment are fundamental to Māori culture. Every iwi and hapū sees itself as related through whakapapa to the landforms, waterways, flora, fauna and other parts of the environment within their tribal areas. These parts of the environment are taonga, for which iwi and hapū are obliged to act as kaitiaki. They have inherited knowledge relating to these taonga, explaining their whakapapa relationship and their kaitiaki obligations. Kaitiakitanga is a form of law, controlling relationships between people and the environment.
How can this be reconciled, when the power and authority to enact and perform the duties and responsibilities of the kaitiakitanga role, are not there. The role cannot be fulfilled because the Crown has power and authority over the role.

The report is significant because it is setting the agenda for Crown/Māori relationships and their vision is one of partnership. But partnership must be real if it is to have any meaning. I think Māori have had enough of tokenism, we want real change and equality and that means self determination. I am sure that that can be structured to keep everyone relatively happy. It is entirely correct that Māori should be recognised as kaitiaki of their taonga and given rights and protection to enable them to fulfil their duties, based upon the Māori world view.

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