Thursday, 6th September, 2012
Protection given to Ka Mate in Deed of Settlement
On Sunday 2 September, the Ngati Toa iwi – composers of the Ka Mate haka – initialled a Deed of Settlement with the Crown, which, amongst other things, provides for recognition and acknowledgement of their connections to the haka Ka Mate.
This comes soon after the failure of the Ngati Toa tribe to secure trade mark registrations for KA MATE, UPANE KAUPANE, WHITI TE RA, and KA ORA, words which form part of the haka Ka Mate ( see the trade mark opposition decision Te Runanga O Toa Rangatira Incorporated v Prokiwi International Limited  NZIPOTM 14, 1 June 2012).
The decision confirmed the existing intellectual property framework is not capable of providing adequate protection for Maori intellectual and cultural property and that the establishment of an alternative framework may be required, such as that proposed in the WAI 262 decision of the Waitangi Tribunal.
The Deed of Settlement requires the Crown to pass legislation that acknowledges the haka Ka Mate is a taonga (treasure) of Ngati Toa, and an integral part of the history, culture and identity of Ngati Toa. The legislation must also acknowledge the composition of Ka Mate by Ngati Toa chief Te Rauparaha, Ngati Toa's cultural, spiritual, historical and traditional association with Ka Mate, Ngati Toa's ongoing role as kaitiaki (guardians) of Ka Mate, and Ngati Toa's values governing the use and performance of Ka Mate.
Right of attribution
The Ka Mate legislation envisioned in the Deed of Settlement also provides for a right of attribution in favour of Ngati Toa.
This right provides that Te Rauparaha be identified clearly and reasonably prominently as both the composer of Ka Mate and a chief of Ngati Toa in any publication of Ka Mate for commercial purposes, any communication of Ka mate to the public, and in any film that features Ka Mate and is shown in public or issued to the public.
This right will not apply to public performances of Ka Mate, use of Ka Mate made for educational purposes, or any work made for the purpose of criticism, review or news reporting.
Should a third party fail to acknowledge Ngati Toa or Te Rauparaah, then representatives of Ngati Toa can enforce the right of attribution in the courts and recover their costs in doing so.
The Ka Mate legislation does not confer on Ngati Toa an entitlement to require any person to obtain consent in advance of any use of Ka Mate, charge, levy or accept any form of royalties, compensation or damages in respect of any use of Ka Mate.
What does it mean?
The Ka Mate legislation would not, in itself, provide Ngati Toa with the ability to stop all culturally offensive or unauthorized commercial use of Ka Mate.
The Deed of Settlement states that nothing in the Deed or envisioned legislation is to affect any other current or future intellectual property rights Ngati Toa may have in Ka Mate, or to prevent Ngati Toa from benefiting from the Crown's response to the Waitangi Tribunal's recommendations. A further aspect of the Deed of Settlement is that it provides for the Ka Mate attribution legislation to be reviewed by the Crown five years after its commencement with a view to considering additional protection of Ka Mate if it is not already provided for by that time in more generic legislation or policy.
Does the deed of settlement suggest here that a more generic piece of legislation or policy providing stronger protection for Maori intellectual and cultural property is envisaged? This more generic legislation or policy may embody the recommendations of the Waitangi Tribunal proposed in the WAI 262 decision.
Implications of the Deed
The Ka Mate legislation envisioned in the settlement agreement is an innovative step and would be unique in New Zealand. However, the legislation does not enable Ngati Toa to stop culturally offensive or unauthorized commercial use of Ka Mate.
This shortcoming could possibly reflect the government's intention to introduce a broader framework that provides such protection. And, if this framework is not introduced in five years, then the government may be required to introduce extra protection for Ka Mate.