New treaty addresses intellectual property for genetic resources and traditional knowledge

As a member state of the World Intellectual Property Organisation (Wipo), New Zealand has agreed to a groundbreaking new treaty addressing intellectual property in relation to genetic resources and associated traditional knowledge that could help with the protection of mātauranga Māori. 

Manu Caddie was one of the only Māori outside the New Zealand Government delegation at final negotiations for the treaty in Geneva last month, and worked with the Wipo indigenous caucus. 

“Having the privilege of participating in the indigenous caucus was one of the most profound experiences of my life,” he said. 

“I felt like an impostor, or at least opportunist, coming in at literally the last minute.” 

Caddie (Ngāti Pūkenga, Ngāti Hauā) was invited to join the delegation organised by Forum Drugs Mediterranean (FDM). Its work focuses on people and policies in relation to drugs that have traditional ties with the Mediterranean region, but includes global drug issues along with indigenous rights and traditional knowledge protections. 

The Ruatōrea-based indigenous biotechnology entrepreneur has been following the treaty developments for the past few years as he has been working with genetic resources from taonga species and associated traditional knowledge. 

He has a project called Whakaaetanga Whakapai based with Te Kotahi Research Institute at the University of Waikato, with Associate Professor Maui Hudson (Whakatohea) and Katie Riddle (Rongowhakaata) who are involved in similar global initiatives connected to the Convention on Biological Diversity and genomics data derived from taonga species. 

Caddie was there for the final two weeks of the process in Geneva that started 25 years ago. 

“While the treaty at this stage only covers patents, there is an expectation in the future it will hopefully extend to other forms of the intellectual property system, including trade secrets and digital sequence information (data gathered from the genome of species). 

“This is all very relevant to the work I’ve been involved with for the last 10 years,” he said. 

This relates to numerous projects Caddie has been involved in within Tairāwhiti and around Aotearoa, where he has partnerships with iwi, marae and Māori land trusts. 

With these groups he is doing research and development with native fungi, trees, berries, yeast and mosses to discover compounds that can be used as therapeutic molecules in pharmaceuticals and as extracts for functional food products. 

“So the kaupapa of the treaty and the diplomatic conference are very pertinent to my mahi, both from the perspective of protecting kaitiaki rights and responsibilities relating to taonga species and also from the patent applicant perspective — in our case, perhaps some of the first indigenous peoples to be in control of patents relating to genetic resources,” Caddie said. 

While signing up to this international treaty, Aotearoa has a similar piece of work in the Wai 262 Native Flora and Fauna and Intellectual Property Rights Claim. 

The Wai 262 claim was lodged with the Waitangi Tribunal in October 1991 by Saana Murray-Waitai (Ngāti Kurī), Del Wihongi (Te Rarawa), John Hippolite (Ngāti Koata), Tama Poata (Te-Whānau-o-Ruataupare, Ngāti Porou), Witi McMath (Ngāti Wai) with the assistance of lawyer Moana Jackson (Ngāti Kahungungu). 

Wai 262 sought the protection, conservation, management, treatment, propagation, sale, dispersal, utilisation and restriction on the use of and transmission of the knowledge of New Zealand indigenous flora and fauna and their resources. 

In 2011, The Waitangi Tribunal released its report on the Wai262 claim, recommended wide-ranging reforms to laws and policies affecting Māori culture and identity and called for the Crown-Māori relationship to move beyond grievance to a new era based on partnership. 

“I think it’s really important for Māori to be organised and keep pushing for the Crown to settle the Wai 262 claim, but even more importantly, we need some kind of regulation around biodiscovery,” Caddie said. 

“Many of the countries in the treaty negotiations see the state as owning all the genetic resources within the national borders — that doesn’t sit well with indigenous peoples and local communities (IPLCs), but at present New Zealand is one of the few countries that has no protections against biopiracy.” 

Any company or researcher around the world could take anything they wanted from here and do whatever they wanted with it, he said. 

“Permission is required for taking samples from public lands, but on private property it is totally legal for anyone to take anything with zero concern for the national interest, let alone the rights of mana whenua or the rights of the taonga and ecosystems that have supported the taonga for millions of years. 

“I have to say, the New Zealand Government officials were excellent in their support for these protections — perhaps a bit ironic given we have so little protections domestically, but they did a stellar job advocating for IPLCs to be in control of the genetic resources and associated traditional knowledge. 

“We were very lucky to have them there.” 

Caddie said there needed to be encouragement for the Government to move quickly to ratify the treaty. 

“There will be a lot of support for it globally and it will be a good opportunity to get some sort of regulatory regime in place that is aligned with the 2011 Waitangi Tribunal report on Wai 262.” 

The treaty also offered opportunities for Māori to connect and collaborate with other indigenous peoples like those in Latin America, Southeast Asia and Africa, he said. 

“There is a lot to be learnt from the provisions IPLCs have created in national laws, and while Māori like to think we are leaders in indigenous rights globally, it seems others have been able to create much more innovative legal, ethical and commercial opportunities for their communities in recent years. 

“There is much to learn and much to do. We need to be better organised at the local and national level to contribute and benefit more from these international instruments.” 

This year Wipo will be progressing similar negotiations towards global agreements on the definition and protection of traditional knowledge and cultural expressions. 

“Tairāwhiti has a wealth of both and should ensure we have a good contingent contributing to those discussions.”