• Whose Law?

last modified January 21, 2016 by strypey


As long as we who are committed to living in the islands of Aotearoa are busy trying to decide how to shoehorn indigenous knowledge into the categories of "intellectual property", we ignore the common law, the law of the commons of these islands, the law of tangata whenua - Tikanga Māori. In her 2004 address for the Bruce Jesson Memorial Lecture, Professor Ani Mikaere said, "I regard tikanga as the first law of Aotearoa. It arrived here with our ancestors and it operated effectively to serve their needs for a thousand years before Päkehä came. It was the only system of law in operation when the first Päkehä began living here amongst us. Had the reaffirmation of Mäori authority in the second article of Te Tiriti o Waitangi been adhered to, the relationship between Päkehä and Mäori would have been regulated by tikanga Mäori throughout our shared history". (20)

Rather than putting indigenous knowledge into the "intellectual property" framework, perhaps we need to think about placing copyright, patent, trademark and other laws regulating the use of information within a framework emerging from tikanga and mātauranga. As a Pākehā, I cannot presume to impose the details of such a framework. I believe it must emerge from an ongoing dialogue with tangata whenua. However, I will draw a few tentative conclusions in response to Professor Mikaere's kōrero:

"When manuhiri [visitors] go into the area of another people, it is understood that the tikanga of the tangata whenua apply... Nor would manuhiri ever assume tangata whenua status in another people’s domain. That is not to say that people from outside an iwi area never took up residence within that iwi’s boundaries: there are precedents that show such arrangements took place, whether on a seasonal basis (for example, for food-gathering purposes) or otherwise. But arrangements of this type were always carefully negotiated, and the consent of the tangata whenua was imperative, as was the fulfilment of any conditions they laid down." 

Negotiating a framework for the mutual sharing of knowledge begins with recognising my cultural status as relative newcomers, seeking to understand the terms of the Treaty that allowed my ancestors to settle here, and honouring its promise to respect the rights of tangata whenua to their resources, including their knowledge.

"The fundamental purpose of Mäori law, as the Waitangi Tribunal has noted, is to maintain appropriate relationships of people to their environment, to their history and to each other."

In relation to information law, patent regimes that encourage the devalutation or even criminalisation of homegrown medicine and traditional healing arts, in favour of the commodification of patentable pharmaceuticals, fail this test. People who can derive first aid materials from their environment and healing skills from their community, and knowledge of both that derives from their history, have a mutual aid relationship to their environment, community and traditions, and a powerful motivation to respect and care for them. A relationship lacking for those whose first healing response is to reach for distantly manufactured commodities.

Mikaere also quotes the Waitangi Tribunal on 'gifts' of land to early pakeha colonists:

"Land allocations to outside individuals. . .were not an alienation of the land but the incorporation of the individuals. A rangatira who allocated land to an individual augmented not the recipient but the community the rangatira represented, for it was the recipient who was the most obliged. The purpose was not to elevate the individual but to build the community."

I see this applying equally to the sharing of mātauranga. Sharing in the benefits of mātauranga incorporates us into the psyche of its kaitiaki, and creates an obligation of utu (reciprocity). This is where the 'Share-Alike' condition of the CC framework may find a place, indicating that these obligations are passed on with the knowledge, and that benefits derived from the sharing of mātauranga must also benefit the kaitiaki who have shared it.