Governance Systems for Access to and Use of Indigenous Knowledge and Culture: A New Zealand Perspective

Abstract

The Nagoya Protocol (‘Protocol’) aims to provide guidance to member Parties on the appropriate legal environment for ‘bioprospecting’ (defined in the Convention on Biological Diversity, to which the Protocol is an extension agreement, as ‘the exploration of biodiversity for commercially valuable genetic and biochemical resources’). As such, the Protocol is an important step forward for indigenous communities, who have long complained of the gaps in most non-indigenous legal systems that deny them legal recourse, including compensation, for the unauthorised access to and use of their traditional knowledge and culture by third parties. For example Western intellectual property laws – upon which many indigenous peoples have focused in their search for appropriate legal standing and governance for their traditional knowledge and culture – do not acknowledge collective ownerships, are founded upon the concept of a public domain, and generally require novelty or originality as a prerequisite for protection. However, although the Protocol diverges from the intellectual property regime; instead mandating a governance system that requires prior informed consent from indigenous communities for access to genetic resources and traditional knowledge and the establishment of measures for fair and equitable sharing of the benefits arising from the use of those resources, New Zealand has not yet ratified the Protocol.

Should the New Zealand government ratify and enact the legal framework required by the Protocol, it will be cognisant of the need to comply with relevant domestic laws, to address the potential impacts on all sectors of the community, and to consider criticisms levelled at other governance systems relevant to Māori. With these complexities in mind, the paper will explain the implications of the 2011 WAI 262 Report, which provides recommendations for the domestic governance of genetic and biological resources as well as traditional knowledge and culture; it will describe and critique the governance system under the Protected Objects Act 1975, and it will explore community submissions to the Proposed National Policy Statement on Indigenous Biodiversity.

Keywords: Nagoya, indigenous genetic and biological resources, New Zealand

JEL Classification: K10, K32, K33