Protecting Taonga: The Cultural Heritage of the New Zealand Maori

International Journal of Cultural Property

Volumn 8, Issue 1, 1999, Pages 108-132

  Paterson, Robert K ^a  

^a UNIVERSITY OF BRITISH COLUMBIA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85011480177     PISSN: 09407391     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0940739199770633     Document Type: Article

References (101)

1. P. Bellwood, The Polynesians: Prehistory of an Island People 7 (Thames and Hudson Ltd., London 1998).
2. It is beyond the scope of this paper to discuss New Zealand intellectual property laws in any detail. There are a number of New Zealand statutes dealing with the topic, including the Trade Marks Act, 1953
3. the Patents Act, 1953
4. the Designs Act, 1953
5. the Plant Variety Rights Act, 1987
6. the Copyright Act, 1994
7. the Layout Designs Act, 1994
8. the Geographical Indications Act, 1994. One part of the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June 1993, U.N. Doc. E/CN-4/Sub.2/AC-4/1993/ CRP-5, urged recognition and protection of indigenous claims concerning indigenous flora and fauna used for traditional weaving, healing, and ceremonies, and intellectual property in general, and there is now a claim before the Waitangi Tribunal that covers cultural and intellectual property relating to indigenous flora and fauna. (WAI 262).
9. See P. D. Thrush, Indigenous Flora and Fauna of New Zealand, Waitangi Tribunal Research Series 1995/1 (Wellington, 1995). The New Zealand government has recently become concerned about reconciling broad economic and specific Maori concerns in connection with the registration of trademarks involving Maori words and symbols.
10. To this end a Maori Trade Marks Focus Group (assisted by the New Zealand Ministry of Commerce) has produced a background paper to form a basis for discussion of the issue of Maori and trade marks: Maori and Trade Marks: A Discussion Paper (Maori Trade Marks Focus Group, Ministry of Commerce, Wellington 1997). Amongst the issues of Maori concern are the protection and development of Maori words, symbols, sounds, or smells used for trademark purposes; access and use of Maori words, symbols, sounds, or smells; and tribal rights to such Maori property and consideration of tribal rights in the trademark process and legislation
11. See A. Sullivan, Nga Paiaka O Te Maoritanga (The Roots of Maori Culture), in Te Maori: Maori Art from New Zealand Collections 37 (S. M. Mead ed., New York, 1984)
12. J. Belich, Making Peoples: A History of the New Zealanders 13–36 (Auckland, 1996).
13. See P. G. McHugh, The Lawyer's Concept of Sovereignty, the Treaty of Waitangi, and a Legal History for New Zealand, in Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts (W Renwick ed., Wellington 1991).
14. See K. J. Scott, The New Zealand Constitution (Oxford 1962)
15. P. A. Joseph, Constitutional and Administrative Law in New Zealand (1993).
16. See Mead, Constitutional and Administrative Law in New Zealand.
17. See Taonga Maori Conference: New Zealand 18–27 November 1990 (Wellington).
18. See K. A. Webster, The Armytage Collection of Maori Jade (London 1948) (foreword).
19. See A. Tamarapa, Museum Kaitiaki: Maori Perspectives on the Presentation and Management of Maori Treasures and Relationships with Museums, in Curatorship: Indigenous Perspectives in Post-Colonial Societies: Proceedings of a Symposium held May 16–18, 1994, University of Victoria, British Columbia 160 (1996).
20. See Te Heuheu Tukino v. Aotea District Maori Land Board [1941] N.Z.L.R. 590, at 596 (J.C.)
21. New Zealand Maori Council v. Attorney-General [1994] 1 N.Z.L.R. 513, at 515 (J.C.).
22. For an excellent discussion of the history of the Treaty, see C. Orange, The Treaty of Waitangi (Wellington 1987)
23. See State-Owned Enterprises Act, 1986, § 9.
24. New Zealand Maori Council v. Attorney-General [1987] N.Z.L.R. 641 (C.A.).
25. See Treaty of Waitangi (State-Owned Enterprises) Act, 1988.
26. See Te Runanga o Muriwhenua Inc. v. Attorney-General [1990] 2 N.Z.L.R. 641 (C.A.) (fishing rights).
27. Several recent laws incorporate express references to the Treaty of Waitangi: e.g., Resource Management Act, 1991
28. Crown Minerals Act, 1991
29. For cases that suggest no express statutory reference is needed to interpret legislation in light of the Treaty, see Huakina Development Trust v. Waikato Valley Authority [1987] 2 N.Z.L.R. 188 (High Court)
30. Tainui Maori Trust Board v. Attorney-General [1989] 2 N.Z.L.R. 513, (C.A.) per P. Cooke at 529–30, where he says, “It is obvious that, from the point of view of the future of our country, non-Maori have to adjust to an understanding that does not come easily to all: reparation has to be made to the Maori people for past and continuing breaches of the Treaty by which they agreed to yield government. Lip service disclaimers of racial prejudice and acknowledgements that the Treaty has not been honoured cannot be enough.”
31. Treaty of Waitangi Act, 1975, § 6(3) and (4).
32. See Treaty of Waitangi (State-Owned Enterprises) Act, 1988, § 4.
33. See Te Reo Report (1988) (WAI 11).
34. Under the Maori Language Act, 1987, the Maori language may be used in court proceedings (§ 4).
35. The Crown's obligation to protect the Maori language under the Treaty of Waitangi was also recognized by the English Privy Council in New Zealand Maori Council v. Attorney-General [1994] 1 N.Z.L.R. 513
36. See A. Fox, Carved Maori Burial Chests: A Commentary and Catalogue, Bulletin of the Auckland Institute and Museum 13 (1983).
37. The Te Roroa Report (1992) (WAI 38), at 210.
38. In New Zealand Maori Council v. Attorney-General [1987] 1 N.Z.L.R. 641 (C.A.)
39. P. Cooke discusses the word taonga in the Maori version of the Treaty of Waitangi (at 663), as follows: “Taonga, rendered in the [Maori] version as treasures, is represented in the English text as other properties and in Williams [Maori dictionary] as property, anything highly prized. The Waitangi Tribunal has treated the word as embracing the Maori language.”
40. [1998] 1 Canadian Native Law Reporter 14.
41. See K. W. Thomson, Art Galleries and Museums in New Zealand (Wellington 1981).
42. Amongst some of the most significant are the following: the American Museum of Natural History (New York)
43. University of Pennsylvania Museum of Anthropology and Archeology (Philadelphia)
44. Field Museum of Natural History (Chicago)
45. Peabody Essex Museum (Salem, Massachusetts)
46. British Museum (London)
47. University Museum of Archeology and Anthropology (Cambridge)
48. Musée de l'Homme (Paris)
49. Museum für Völkerkunde (Berlin)
50. Museum für Völkerkunde (Vienna)
51. Museo Nazionale di Antropologia et Etnologia di Firenze (Florence)
52. the Musée d'Ethnographie (Geneva)
53. See W. O. Oldman, The Oldman Collection of Polynesian Artifacts, Memoirs of the Polynesian Society 15 (Wellington 1943)
54. Oldman, Skilled Handwork of the Maori: Being the Oldman Collection of Maori Artifacts Illustrated and Described, Memoirs of the Polynesian Society 14 (Wellington 1938).
55. Antiquities Act, 1975, § 2.
56. Id.; these persons are defined in § 2 of the Antiquities Act.
57. [1982] 1 Q.B. 347 (Slaughton J.)
58. [1982] 3 W.L.R. 572 (C.A.)
59. 3 W.L.R. 809 (H.L.). The Ortiz case has been extensively discussed in the legal literature
60. see, e.g., P. J. O'Keefe and L. Prott, Law and the Cultural Heritage, vol. 3, Movement 624–26, 653–55 (London 1989)
61. R. K. Paterson, The Legal Dynamics of Cultural Property Export Controls: Ortiz Revisited, Special Issue, University of British Columbia Law Review 241 (1995).
62. See Paterson, id. at 248.
63. See J. Keate, A Proposal to Improve the Protection of New Zealand's Movable Cultural Heritage by Means of a Statutory Trust, 23 Victoria University of Wellington Law Review, 97 (1993).
64. 10 International Legal Materials 189 (1971).
65. See 5 International Journal of Cultural Property 155 (1996).
66. International Journal of Cultural Property, § 2.
67. International Journal of Cultural Property, §§ 11 and 12. The Maori Land Court, which has existed for over 100 years, has a specialized jurisdiction over applications concerning the administration of Maori land.
68. See Te Ture Whenua Maori Act 1993
69. Maori Land Act, 1993
70. N. Smith, Maori Land Law (Wellington 1960). The most recent authoritative assessment puts Maori land at 1.3 million hectares.
71. Under the common-law principle of abandonment, newly found objects belong to whoever exercises control over the land on which they are discovered.
72. Antiquities Act, 1975, § 11(5).
73. See Keate, Antiquities Act, at 99–104. The proposals also refer to Moriori cultural property (presumably with reference to the native people of the Chatham Islands).
74. see Keate, Id, at 109–12. It may not be possible under foreign law for iwi to obtain the recognition needed to acquire standing to bring such recovery actions outside New Zealand.
75. Maori Affairs Act, 1993, § 338.
76. A similar power is vested in the Chief Executive, following a recommendation of the Maori Land Court, under the Maori Land Act, 1993
77. see infra, part 6.2
78. The Te Roroa Report, Maori Affairs Act, at 233.
79. Historic Places Act, 1993, § 38.
80. See Historic Places Act section 5, Maori Graves.
81. Resource Management Act, 1991, § 5.
82. Id, at 256–257.
83. Conservation Law Reform Act, 1990, § 17B.
84. For an example of a return of painted panels to a Maori church by the National Museum of New Zealand, see Tamarapa, Conservation Law Reform Act, at 166–167.
85. For the background to this instance of repatriation, see H. M. Mead, The Mataatua Declaration and the Case of the Carved Meeting House Mataatua, Special Issue, University of British Columbia Law Review 69 (1995)
86. S. M. Mead, Maori Art on the World Scene: Essays on Maori Art 217–19 (Wellington 1997).
87. See also N. Allen, Maori Vision and the Imperialist Gaze, in Colonialism and the Object: Empire, Material Culture, and the Museum 144 (T. Barringer and T. Flynn eds. 1998).
88. Allen, id. at 148.
89. Id. at 147.
90. See Grievance Resolution in New Zealand 40 (Background paper containing materials to be used for reference purposes by Deputy Chief Judge Ashley McHugh in an address on the above topic to the Native Title and Trans Tasman Experience Conference at Sydney, Australia, February 24 and 25, 1994).
91. This concept of aboriginal rights mirrors that established by the Supreme Court of Canada in cases interpreting § 35 of that country's Constitution Act, 1982
92. Id., at 42, where it is suggested that New Zealand courts are poised to recognize such a duty irrespective of any statutory basis for doing so.
93. The author supports this claim by citing P. Cooke, In the Te Runanga case, Id.
94. For the background to this policy see R. J. Watt, Museums Can Never Own the Remains of Other People but They Can Care for Them, Special Issue, University of British Columbia Law Review 77 (1995).
95. Id., at 86.
96. Re Estate of Tupuna Maori (unreported) (High Court of New Zealand) (Wellington May 19, 1988)
97. see P. J. O'Keefe, Maoris Claim Head, 1 International Journal of Cultural Property 393 (1992).
98. Williams v. Williams (1882) 20 Ch.D. 659.
99. Id., at 76, Panel Discussion, Issues Facing Curators of Taonga Maori in Overseas Museums.
100. 34 International Legal Materials 541 (1995).
101. Mataatua Declaration, International Legal Materials.