This isn’t the only finding of the Tribunal. I’m pleased about that. During my time at University I did a research paper and came to the same conclusion in a much shorter time.
The Tribunal found that Maori are obliged to act as kaitiaki (cultural guardians) towards “taonga species” of flora and fauna within their tribal areas. “Taonga species” in turn are flora and fauna that are significant to the culture or identity of Maori tribes.
A species can be a “taonga species” because:
- there is a body of inherited knowledge (matauranga Maori) relating to them
- they are related to the Maori tribe by whakapapa (genealogy)
- the tribe is obliged to act as their kaitiaki (cultural guardians)
All parties accepted that the patent system does not support kaitiaki relationships nor matauranga Maori. There are two main reasons.
1. Kaitiaki can’t acquire patent rights
An invention involving traditional knowledge fails the novelty test under patent law. It is not possible for kaitiaki to protect traditional knowledge under the patent system.
Patent law requires one or more defined inventors. Inventors are not easy to identify where traditional knowledge is involved. This point is not mentioned in the WAI 262 report but is an observation I made in my earlier paper.
There are also different expectations here. Maori would like perpetual protection for kaitiaki relationships and traditional knowledge. This is not possible under a patent system that provides time-limited protection.
2. Exploitation possible by third parties
Kaitiaki cannot prevent others from acquiring patent rights over inventions derived from taonga species. Much of this traditional knowledge is freely available in the public domain. Others are free to use it in their search for exploitable species.