Jackson calls for 'fundamental mind-shift' on Treaty consultation

By Kelvin McDonald

Despite pressure to meet international obligations and competing interests locally, the government maintains it will consult genuinely with Māori over plant rights.

This comes despite Māori concerns that their interests may be side-lined when push comes to shove.

Commerce and Consumer Affairs Minister Kris Faafoi has signalled the need to develop an intellectual property system that is fit for purpose for New Zealand.  

In step with this, he has announced government plans to start public consultation over the law, which regulates intellectual property protection over new plant varieties.

Faafoi also released a disclosure of origin discussion paper.  The document asks whether New Zealand should require patent applicants to provide information on the origin of genetic resources or traditional knowledge used in their inventions.

While some delegates at the inaugural Māori intellectual, cultural and property rights conference, Ngā Taonga Tuku Iho, in Nelson are not entirely sold on the existing structure in which Māori are not accorded the status deserving of a Treaty partner, it was emphasised that it is important for Māori to participate in the discussions.

“Whilst the structure may not be ideal, we currently have that structure, and it’s important for us to participate…and make submissions on those documents,” Aroha Mead, a member of the conference organising committee, told delegates.

For his part, Faafoi wants to assure Māori of the positive intent with which the government is approaching consultation, recognising the delays in follow through since the Tribunal’s report on WAI-262.

“We wanted to, acknowledging some of the frustration about how long it’s taken here, make sure that the spirit in which the consultation is going to happen is genuine.”

The government has a difficult balancing act to perform, which does not necessarily lend itself to Māori interests prevailing.  Alongside Māori, it has international obligations under CPTPP and the competing interests of rights holders, farmers, growers, consumers and wider New Zealand.

Maōri intellectual property expert Moana Jackson has reservations whether Māori can have faith in the process.

This follows on the back off a delegate’s conference comment that the Māori experience of consultation can sometimes resemble “consult, insult, assault.”

“The Treaty relationship doesn’t talk about consultation.  Treaty parties don’t consult- they negotiate, they reach agreement and as long as the Crown is wedded to the idea ‘oh, we’re fulfilling our Treaty obligations if we consult with Māori' then they’re beginning again from the wrong place.”

“One doesn’t go to the other and say ‘this is what we’re going to do, what do you think?’ and then, as often happens in the consultation process, then ignores what our people say anyways,” he says.

Jackson believes a complete reset of approach is required.

"So, that’s one of those fundamental mind-shifts that has to happen and I’m not sure that the government has got there yet.  It still believes it has that superior right to make the final decision."