Katene Rahui: Patents Bill — First ReadingText is incorporated into the Bound VolumeKatene Rahui: Patents Bill — First Reading[Sitting date: 05 May 2009. Volume:654;Page:2883. Text is incorporated into the Bound Volume.]RAHUI KATENE (Māori Party—Te Tai Tonga):There is a comment made by the late Professor Sir Hugh Kāwharu that I want to share at the very first reading of this Patents Bill to ensure that the context for our position on patents is firmly established. At the Waitangi Tribunal hearing in May 2002 Professor Kāwharu referred to the significance of the Wai 262 claim saying: “In my opinion the present claim has had no equal in terms of significance to Maori since the Te Reo Maori claim in 1985. Such a statement is not made lightly.… The Wai 262 claim takes another step forward from that auspicious claim in 1985. It focuses on that simple phrase in the second article of the Māori version of Te Tiriti o Waitangi—Te tino rangatiratanga o o ratou taonga katoa. It talks of a way of life a world view a culture an identity. Denial by the Crown partner of these matters is the cause of historical and contemporary Treaty breaches.” What more is there to say? The protection of our cultural and natural resources and the preservation of our traditional knowledge are imperative for our future. It was because of this significance that Wai 262 was initiated to make evident the guarantee of tino rangatiratanga over all taonga that was promised in article 2 of Te Tiriti o Waitangi.Now here is the challenge. While Wai 262 is still before the Waitangi Tribunal it simply makes no sense—indeed it is nonsense—to be considering legislative proposals that cut to the very heart of that claim. This bill contains provisions that supposedly are to address Māori concerns about the granting of patents for inventions derived from indigenous plants and animals or from Māori traditional knowledge. It establishes a Māori advisory committee to advise the Commissioner of the Patent Office on whether an invention claimed in a patent application is derived from Māori traditional knowledge or from indigenous plants or animals. Having done so the Commissioner must consider the committee’s advice on whether the commercial exploitation of that invention is likely to be contrary to Māori values. I want to make it quite clear that the fact that some Māori may choose to use patents in the pursuit of their research or commercial endeavours does not mean that the patents system is a tool of any great protection for our taonga. Patents by their very nature are monopolistic. They exclude others from use and they are expensive to obtain. When applied to physical natural life forms traditional food crops medicines and knowledge patents can suddenly accord individuals legal rights as inventors and owners while the indigenous world view is ignored.In the closing submissions to Wai 262 from Ngati Puri Te Arawa and Ngāti Wai the claimants of Te Tai Tokerau were unanimous in their view that patenting is not an appropriate mechanism to protect our mātauranga specifically in relation to the biological and genetic resources of taonga species. What was even more revealing from the submissions was the outright commercial corporate greed that has been associated with the misuse of patents. They described the fact that patents derived from traditional knowledge of plants and medicines generated tens of billions of dollars in revenue for major international pharmaceutical and agrichemical companies. Companies like Monsanto and GlaxoSmithKline reap tens of billions of dollars from the traditional knowledge and resources of indigenous peoples. In 1990 it was estimated that the sum of US$45 billion was derived directly from traditional knowledge. If I think back to around that time when I was a tutor in this subject the figure that I pull out coming back to indigenous peoples to pay for that knowledge was about 0.001 percent of that total amount.This is big business big bucks and big risks. This is complex stuff and it is not helping our people. The issues that tangata whenua have with patenting are the very issues that drove Saana Murray from Ngāti Kurī Dell Wīhongi from Te Rarawa Te Witi McMath from Ngāti Wai Tama Poata from Ngāti Porou Katarina Rīmene from Ngāti Kahungunu and my father John Hippolite from Ngāti Kōata to the Waitangi Tribunal in the first place. It will certainly not be the Māori Party that sells them short on the visions and aspirations they took on our behalf for the recognition and protection of our cultural and intellectual property rights in relation to indigenous flora and fauna.It is expected that the Waitangi Tribunal will recommend the implementation of what are known as sui generis systems in order to protect Māori knowledge and indigenous flora and fauna. “Sui generis” literally means “of its own kind”—unique. It conveys a new way of doing things. In the case of patents it would be about providing adequate protection for traditional knowledge because the current frameworks are woefully inadequate. We all know that new measures are needed. Patents have been widely used to exploit indigenous knowledge and our peoples. They are a tool of commerce—a means of establishing exclusive property rights. But we want to get it right. There is no point rushing something through for the sake of this bill when waiting in the wings is a robust opportunity for the development of new mechanisms to enable ongoing protection of our knowledge and indigenous resources.This bill puts forward the Māori advisory committee as a sui generis measure. There is obviously something about National and Māori advisory committees—first Auckland now patents. Well the jury is out as to whether the concept of a Māori advisory committee is the best means by which to protect the exercise of tino rangatiratanga and kaitiakitanga over our taonga. The crux of the matter is that all the best evidence tells us that the tribunal hearing of the Wai 262 claim will recommend the development of new mechanisms intrinsically different from the patent regime which will enable ongoing protection and could possibly mean new legislation. A more innovative response is needed for the problem of patents. With all the developments out of Wai 262 and at global levels with the World Intellectual Property Organization we should be coming up with more proactive solutions than this bill.The Mātaatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples has made it very clear that indigenous peoples are willing to share their knowledge as long as their fundamental rights to define and control their knowledge are respected. Indigenous peoples are not anti-science or anti-development. All we are calling for is that the integrity of life and cultural knowledge is respected. Although we recognise that traditional knowledge and use—including of course the medicinal use of indigenous flora—can bring about economic benefit for indigenous peoples the fact is that patenting as a process is seen by our people as just another means of stealing the ownership away from the original peoples. Patenting is aligned with private economic rights whereas our rights as recognised in Wai 262 are collectively based and in line with our obligations and respect for natural resources.This Patents Bill even with its Māori advisory committee is at best only a partial answer dealing with the complex implications of the recognition of traditional rights and mātauranga Māori. There are new ways and approaches that we could look to. The Trade Marks Act 2002 is an interesting case in point. Alongside the measures of trademark law there is a new sui generis measure that enables the Commissioner of Trade Marks to refuse to register a trademark if it is offensive to Māori. So it can be done.We are influenced by the expert advice of those who paved the way to remind the nation that the Crown has an obligation to protect Māori knowledge and indigenous flora and fauna. We defer to their wisdom and we therefore recommend in the strongest terms that this bill should be deferred until the response to Wai 262 is in front of us all. We do not support this bill.