For many years, Ngāti Toa Rangatira (“Ngāti Toa”) has been seeking formal recognition as the kaitiaki (guardian) of the haka Ka Mate. Te Rauparaha, a chief of Ngāti Toa, is said to have composed Ka Mate, the haka most commonly used and made famous by the All Blacks.
Yet, no copyright subsists in Ka Mate and Ngāti Toa has not been able to register as a trade mark the words of, or phrases from ,Ka Mate.[1] Ngāti Toa therefore has had no legal standing to deny the use of Ka Mate, or to direct how it is used.
Now, after a year and a half in the works, a Bill that will provide legal recognition and protection for the haka Ka Mate is ready for its final reading. The provisions are likely to affect anyone who uses Ka Mate for commercial purposes and does not have an agreement with Ngāti Toa.
We have previously discussed the deed of settlement between the Crown and Ngāti Toa including its acknowledgements, and cultural and financial redress for Crown breaches of the Treaty of Waitangi.[2] Now, with the Te Tau Ihu Claims Settlement Bill – last week separated into four distinct Bills – we have a good idea of the specific form that redress will take.
The Haka Ka Mate Attribution Bill (“the Bill”)
There are two main aspects to the Bill.
The first is the Crown’s express acknowledgement of the significance of the haka Ka Mate, Te Rauparaha as the composer of Ka Mate, and the role of Ngāti Toa as the kaitiaki (guardian) of Ka Mate.[3] This provision, while toothless, will provide Ka Mate with formal recognition.
The second aspect affords Ngāti Toa a right of attribution for Ka Mate.[4] This will require a clear and reasonably prominent statement of attribution to accompany:
- any publication of Ka Mate for commercial purposes;
- any communication of Ka Mate to the public; and
- any film that includes Ka Mate that is communicated to the public.
That statement of attribution must bring to the viewer or listener’s attention that Te Rauparaha is recognised as the composer of Ka Mate and a chief of Ngāti Toa. A specific attribution statement has not been prescribed given the wide range of ways that Ka Mate can be used – for example, as words or illustrations used goods, as a visual performance, as an aural performance, and so on.
If any person fails to provide appropriate attribution, Ngāti Toa may apply to the Court for a declaratory judgment requiring compliance with the provision.[5] Standard Court costs may also be awarded in Ngāti Toa’s favour, although no additional punishment or remedy is available.
However, statements of attribution are not required for non-commercial use of Ka Mate, including:
- any performance of Ka Mate, including by a kapa haka group;
- anything used for educational purposes;
- anything made for the purpose of criticism, review, or reporting current events.
There are many people currently using the haka Ka Mate for commercial purposes who should be aware of the potential effects of the Bill. Those people should ensure that an appropriate statement of attribution accompanies their use by the time the provisions come into force.
The Ministry of Business, Innovation, and Employment (MBIE) will review the provisions after five years of their commencement to consider whether the interests of Ngāti Toa are sufficiently protected, and that the deed of settlement has therefore been given proper effect.
[1]http://baldwins.com/ka-mate-haka-denied-trade-mark-protection/
[2]http://baldwins.com/tis-life-for-the-haka-ka-mate
[3] Clause 638 Te Tau Ihu Claims Settlement Bill
[4] Clauses 639 – 640 Te Tau Ihu Claims Settlement Bill
[5] Clause 641 Te Tau Ihu Claims Settlement Bill
