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Indigenous Knowledge Down Under

September 16, 2019

We come from a land down under where at least at one point in time, “women glow and men plunder”.  This has left the indigenous peoples of Australia and New Zealand with serious concerns about the way intellectual property laws protect indigenous knowledge.

 

The 1980s Men at Work song “Down Under” has had its intellectual property woes.  Men at Work were sued some 20 years later by the composer of the famous Australian folk song “Kookaburra sits in the Old Gum Tree” for copyright and lost.

 

Both the Australian and New Zealand governments have simultaneously but independently recently announced reviews of intellectual property laws for the better protection, management and use of indigenous knowledge.

 

Both countries have been through a consultation process.

 

Australia

 

The Australian consultation looked at control, protection, recognition and respect of stories, dance, languages, symbols, crafts, cosmology, medicinal and environmental knowledge.

 

Following the consultation, the Australian government has committed to developing communication material to increase awareness and understanding about the use and misappropriation of indigenous knowledge.

 

Further work includes updating its intellectual property guide for indigenous businesses.

 

A further work plan is being developed based on the issues identified in the consultation.

 

New Zealand

 

The consultation in New Zealand flows from a Treaty of Waitangi (a treaty signed in 1840 between the Crown and Maori) claim known as WAI 262.  The claim focused on current existing laws, policies and practices in including indigenous flora and fauna, biodiversity, traditional medicines, genetics and Maori symbols and designs.

 

The Waitangi Tribunal issued its recommendations 2011.  Recommendations were extensive and included changing laws, policies and practices relating to intellectual property, indigenous flora and fauna, resource management, conservation, the Māori language, arts and culture, heritage, science, education, health, and the making of international instruments.

 

One of the key themes identified in the Waitangi Tribunal report was to establish genuine partnerships between Crown and Maori.  The recommendations have languished somewhat since 2011, probably because the WAI 262 claim was one of the largest and most complex claims made under the Treaty of Waitangi and had the involvement of over 20 government departments.  However the New Zealand government has now announced what is called a whole of government approach to the claim.

 

Initial discussions with Māori technical experts, various Māori advisory boards, national Māori bodies and subject specialists are scheduled for September and October 2019.

 

It is important that Australia and New Zealand address the unique issues that arise for indigenous people within the intellectual property context and both reviews are timely and overdue.

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