Te Whare Wānanga o Waitaha | University of Canterbury (UC) legal anthropologist Dr David Jefferson is researching the Plant Variety Rights Act 2022 and other legal frameworks, focusing on the impacts and potential for iwi- and hapū-owned native plant nurseries to protect taonga plants and mātauranga Māori.
He teaches Environmental Law, Land Law and Intellectual Property and has previously worked in other countries looking at the protection of indigenous knowledge systems - in New Zealand known as 'mātauranga Māori'.
"As of early 2024 new protections for taonga species and mātauranga Māori that were created in 2022 have not yet been implemented, so many questions remain about how these changes will function in practice," he says. "One of these legal developments, the Plant Variety Rights Act 2022, may eventually provide useful tools for iwi- and hapū-owned initiatives that commercialise native plant-based products in accordance with tikanga Māori."
Over the past year Dr Jefferson has visited six iwi-owned or marae-affiliated plant nurseries in five different parts of the country, with additional fieldwork planned at two additional sites. His project has further scope to include other Māori-owned nurseries and native plant enterprises.
"There are revegetation efforts underway all over the country, along riverbanks, on mountain slopes, coastal hills, and waterways located on agricultural land," he says.
"These efforts are laudable, but they are not always, or maybe even often, led by mana whenua, so there are ongoing Treaty [of Waitangi] issues around who decides what species to plant and where, from where to source seeds, and generally how to manage the whenua."
He says there are also vast differences between iwi and hapū in relation to resourcing, such that in some areas, mana whenua have significant input into and control over biodiversity restoration efforts, while in others, mana whenua are effectively excluded.
"Plant variety rights are a form of intellectual property, similar to patents. If a new plant variety distinct from others is created, then a Plant Variety Right can be applied for. For example, a plant breeder may develop a new variety of a native plant such as harakeke and seek to protect it with plant variety rights. Under the new Plant Variety Rights Act, the breeder would need to demonstrate that obtaining exclusive rights to this new variety of harakeke, a native plant, would not have adverse effects on kaitiaki relationships with that species."
Adverse effects could include the potential that the new variety could hybridise with native varieties and affect ecosystems, or that the commercialisation of the new variety by non-Māori businesses could gain an unfair competitive advantage over Māori-owned native plant enterprises.
"In the field work I've been doing so far with Māori-owned native plant nurseries, to the extent that people even know about the Plant Variety Rights Act, they don't really think it's that significant because they're not really interested in protection for their varieties. They are generally not concerned with claiming property rights for taonga," Dr Jefferson says.
"Western science views plants and other biodiversity 'resources' as potentially commercial. For Māori, there's whakapapa in these taonga. There's also recognition that taonga plants naturally range across tribal boundaries. Tangata whenua I've spoken to do not think that any one iwi should have exclusive rights to taonga plants.
"People familiar with environmental and intellectual property law policy suggest some sort of separate framework for the protection of taonga plants and mātauranga Māori that would be based on Treaty principles of partnership."
Dr Jefferson's research will likely be published early next year.
Background:
Since the early 1990s, when the "Flora and Fauna" (Wai 262) claim was lodged before the Waitangi Tribunal, the question of who owns native biodiversity has been debated. When it evaluated this claim, the Tribunal concluded that Māori do not have property rights in taonga plants, but they do have special rights as kaitiaki, which the law should recognise. The Plant Variety Rights Act is the first major legal reform to implement the recommendations that the Waitangi Tribunal made in response to the Flora and Fauna claim.
