Are our laws enough to protect rongoā Māori from cultural appropriation?

Phil is the founder of herbal medicine producers Phytomed and Kiwiherb, which supply native and non-native plant material for either commercial or domestic use. Naturopaths, medical herbalists and rongoā Māori (Māori medicine and traditional treatments) practitioners in Aotearoa use the brands’ herbal extracts to treat patients.

Given he is Pākehā using native plant material – a taonga (cultural property, treasure) – for commercial gain, Phil’s business activities could be seen by some as cultural appropriation. However, Phil’s honouring of tikanga (rules, customs, lore) and kawa (protocols, practice) within his life and mahi, alongside his work with Māori communities, align him with cultural appreciation.

In the context of a product or brand, cultural appreciation means an alignment of values, collaboration and practice with, and a genuine recognition of, Māori culture. Put another way, these brands are appropriately representing culture.

“I think there is a responsibility, in Aotearoa, on all businesses, to respect and try and incorporate kaitiakitanga (guardianship, the sacred relationship between humans and the natural world) into their mahi and long-term plans,” said Phil.

In contrast to Phil’s approach is cultural appropriation – the inappropriate and unacknowledged adoption of an element, or elements, of a culture or cultural identity.

But how is taonga, including rongoā Māori, legally protected to prevent cultural appropriation?

Protecting cultural property

Lynell Tuffery Huria is recognised as the first Māori patent attorney. As a leading expert on Māori and indigenous intellectual property and trademark protection, Huria hopes to develop new ways of protecting Māori cultural heritage.

Traditionally, Māori have their own legal system which incorporates tikanga and kawa to protect and regulate the use of taonga. Tikanga is often described by Māori as what we do, and kawa is how we do it. This approach has worked for generations.

Now, Huria thinks all New Zealanders must play a role in protecting Māori cultural heritage.

“If we don't protect [Māori culture], and we don't look after it, then we're going to lose it,” Huria said. “It is a big part of our country, we see and hear Māori culture everywhere. For example, it is sung at the start of our national anthem, which is performed before every international game we play. It is a big part of who we are as a nation.”

Huria believes our intellectual property laws need to change to appropriately protect Māori culture and taonga – like rongoā Māori.

“When you take from a culture that has been suppressed for generations, extract aspects to create something new, monopolise those aspects, and make profits, without consent, acknowledgement, attribution, or sharing those profits, then that’s appropriation.”

The only governmental input concerning Māori cultural protection within intellectual property law, at present, is provided by the Māori Trade Marks Advisory Committee and the Māori Patents Advisory Committee – both of which (as their names suggest) only have an advisory role, with no legal enforcement powers.

Could trademarks ensure appropriate use of taonga?

A recent trademark application has highlighted the issue of how best to protect taonga from cultural appropriation and misuse.

Mānuka is a kupu Māori (Māori word) and te reo Māori is a taonga that must be protected. Yet when Aotearoa’s Manuka Honey Appellation Society recently applied for a certification trademark for the label “MANUKA HONEY” (without a macron) it was declined by the Intellectual Property Office of New Zealand.

Had the application been approved, only those associated with the society would be allowed to market and sell mānuka honey under that name in New Zealand.

However, an Australian collective of honey producers opposed the application, claiming that MANUKA HONEY is not distinctive – a necessary trait to register a trademark – because the same trees exist in Australia and these trees produce the same honey. A certification mark was also rejected because it could potentially deceive people into thinking Mānuka honey only came from New Zealand or was superior to other kinds.

Dr Karaitiana Taiuru, a member of the Māori Trade Marks Advisory Committee, is an expert on Māori sovereignty, tikanga Māori and governance. He believes there could be some form of certified trademark awarded to cultural products that are appropriately produced.

“We've got the ‘New Zealand made’ logo, which, I think, most people recognise. [What] if we had the alternative? A culturally safe [...] label that, you know, said ‘yep, this is culturally safe, it's made by Māori [and] goes back to the Māori communities,’ [that would] be awesome,” he told Consumer.

However, Huria doesn’t believe this protection would be sufficient when applied to cultural property. This practice enables protection of aspects of taonga and mātauranga (knowledge) but does not recognise their holistic nature, or the need for Aotearoa New Zealand, as a nation, to protect them, and the relationships with kaitiaki, for future generations.

Huria referred to the Wai 262 decision “Ko Aotearoa Tēnei”, which held that New Zealand’s law should make room for relationships between kaitiaki (guardians) and their taonga to flourish as a matter of national interest.

“It’s not just about protecting and keeping Māori culture nice and safe and only used on marae, but how we can do things differently for the unique culture of Aotearoa New Zealand, which is not found anywhere else in the world, to ensure it is available for future generations to enjoy,” Huria said.

Huria believes there needs to be a fundamental shift to secure our culture for future generations. She told Consumer that if Aotearoa wants to take protecting cultural heritage seriously, legal changes are required.

"If you want to use aspects of [a culture], you need to go and ask and get consent, and if you don't get consent, don't use it.”

Until something changes, Huria thinks we’re stuck in the middle ground, limited by our intellectual property laws. She identifies the public domain – an intellectual property concept – as being part of the problem.

Essentially, the public domain means that all creative work that is not legally recognised by intellectual property law is free for anyone to use. In Huria’s view, the legal framing of the public domain indirectly approves cultural appropriation, as the views of indigenous peoples worldwide, including Māori, are not considered as part of the frameworks.

Chair of the Māori Patents Advisory Committee and member of the Māori Trade Marks Advisory Committee, Dr Pare Keiha, told Consumer that while intellectual property law does not always identify and protect against cultural appropriation, the strength of the “court of public opinion” shouldn't be underestimated – i.e., social media. He thinks social media pressure is capable of correcting appropriations, where necessary, and has the benefit that it can reach beyond the shores of Aotearoa.

How can you tell appropriation from appreciation?

Until changes are made to the law, how can you tell whether products that incorporate taonga – including rongoā Māori – are doing so appropriately or not?

On a recent visit to a health and beauty store in Auckland, I came across a number of products, like serums and moisturisers, that included taonga traditionally used in rongoā, such as mānuka, kawakawa and horopito.

Now, not all natural health products made from indigenous plants are rongoā Māori, as to practise rongoā Māori you must embrace the tikanga and kawa that regulates this traditional approach to healing. However, the connection to whenua, and the use of indigenous plants and their reo Māori names does directly relate to Māori and their taonga.

Consumer asked some rongoā practitioners on a Facebook forum whether they were concerned about rongoā ingredients being used in commercial products in this way. Members of the group told us that, so long as it’s about healing, they do not see a problem with the production and sale of rongoā rākau (plant medicine) by non-Māori.

One supporter of rongoā told us, “If the intention is to heal with aroha and not greed, then where’s the harm in that?”

A rongoā practitioner similarly said, “Maa te wairua i ārahi te huarahi ki mua.” This generally translates to, “It is wairua (spirit) that leads the way forward”, which in this context meant that, if a person lacks the necessary spirit, then their rongoā rākau will not be effective.

Another supporter told Consumer that there's more to rongoā than just going into the ngāhere (bush, forest) to take the rongoā out. There's also tikanga that needs to be followed, which many Pākehā know nothing about.

There were mixed opinions among the people we spoke to about buying rongoā rākau from a store as opposed to directly from a rongoā practitioner, although ultimately people agreed it doesn't matter at the end of the day. Several supporters felt there was much to be celebrated about rongoā Māori being in the public eye.

One supporter said, “I would rather support and encourage the smaller homemade whānau trying to help their households, and I tautoko [support] their willingness to.”

Another supporter agreed, “We have our own people making money from it, but not on a large scale like Pākehā businesses do, or even big pharma for that matter.”

One group member told us that they sometimes buy the products they use from a store, and sometimes harvest and create their own.

"Buying or selling the rongoā provides a service for those who are unable to gather themselves [and] those who do gather and make, do so at a cost.”

Another practitioner and supporters also noted the costs involved in rongoā Māori, stating that providers should make a small pūtea (sum of money) for their mahi. While traditionally rongoā was gifted, a different economy requires different trade.

One rongoā Māori practitioner told us they’re privileged as Māori to have a space to deliver what their tīpuna (ancestors) would have. They value that they can connect with their whakapapa and whenua in this way, and feel privileged to awhi (embrace) and help all people rebalance and feel better.

Understanding what cultural appreciation looks like

Acknowledging and respecting Māori cultural practices, like rongoā Māori, is essential for the appropriate use of taonga, including indigenous plants. Cultural appreciation looks like listening to, embracing and learning these practices, and the tikanga and kawa behind them.

If you’re interested in learning more, there are groups and communities – physical and online – where you can practise and learn about cultural appreciation, through demonstrating respect, giving and listening in return.

What is the tribunal saying?

In 2011, the Waitangi Tribunal made several recommendations in its report responding to the WAI 262 claim, which was pushing for tino rangatiratanga (Māori sovereignty) over all taonga.

Notably, the tribunal recommended changes to the Crown’s laws, policies and practices relating to intellectual property. The objective of the recommendations was to establish genuine partnership, wherein Māori interests are balanced with Pākehā.

An example of the tribunal’s recommendations being actioned arose in June of this year, when rongoā Māori was excluded from the Therapeutic Products Bill, placing it outside the regulatory regime for commercial export and wholesale of therapeutic products.

This exclusion from the bill was a huge win for rongoā Māori practitioners, as the practice is already regulated by Māori through tikanga and kawa. This means practitioners and clients can continue to work together to nurture and heal, without added costs (permits) or outside regulation by those not involved in rongoā Māori.