When commerce meets culture: what Wai262 might mean for brands using Maori words and images

We regularly see reports in the media about brands using Maori language or images in a way that’s offensive to Maori. There was the ka mate haka on the tea towels, the ta moko designs on the faces of models posing for a French magazine, the sale of the MAORI personalised plate on TradeMe, to name but a few. 

In 1990, a group of six Maori filed a claim with the Waitangi Tribunal on behalf of themselves and their iwi concerning the place of Maori culture, identity and traditional knowledge in New Zealand’s laws, and in government policies and practices. It fell within the scope of the inquiry to investigate trademark and patent laws, which, as they currently stand, allow anyone to commercialise Maori artistic and cultural works without iwi or hapu acknowledgement or consent.

The Wai262 report, released in July, gave several recommendations for the reform of intellectual property laws and the creation of a new commission responsible for ensuring Maori interests are acknowledged and recognised when aspects of Maori culture are used. It also recommended the commission deal with any objections to the use of Maori words and images if their use is offensive or derogatory, or if a third party is using them in its commercial activities without approval or consent.

The Waitangi Tribunal’s recommendations aren’t binding on the government, but they certainly provide food for thought. We talked to Lynell Tuffery Huria, senior associate at AJ Park, about what Wai262 might mean for the commercial use of Maori words and images.

What were the main concerns of the original group who filed the claim in 1990?

That Maori words and images were being used as brands. When they were being used, they were being used inappropriately or in an offensive way, so they were breaching Maori values that underpin the culture. What the claimants were seeking was a framework that enabled them to stop those things from happening – to stop people from using Maori words in an inappropriate way or in an offensive way, because at that time they couldn’t do anything about it.

What obligations does the Crown have under the Treaty of Waitangi to protect against the offensive use of Maori words and images?

The report says because the Crown agreed to protect taonga, it has an obligation to protect this relationship Maori had with their language, and the use of their language. The Maori culture is a taonga of the Maori people, so under the Treaty the Crown had the obligation to protect that culture. By allowing third parties to misuse Maori words and Maori images, [the Crown]had not protected that culture and not protected that relationship that Maori had with their culture, so they had breached the Treaty.

The Waitangi Tribunal report makes a distinction between taonga works and taonga-derived works – what’s the difference?

A waiata is something that’s derived from Maori culture or Maori knowledge, but to be a taonga work it needs to invoke some sort of ancestral connection. The example used in the report is the ka mate haka. Everyone knows that that haka was written by Te Rauparaha from Ngati Toa – it has that ancestral connection, so it can become or be recognised as a taonga work.

However, Taonga-derived works are derived from matauranga Maori, so they have a Maori aspect about them, but they don’t have any sort of ancestral connection. The example they use in the report is the Air New Zealand koru logo. Air New Zealand got that specifically designed for them by an individual – it was independently designed to be their logo so it was not something that had or invoked any sort of ancestral connection.

What are the potential implications of the report’s recommendations?

I think the main implication is that if you are intending to use any sort of Maori word or Maori logo, then you need to make sure it’s not going to cause any offense to any Maori. People need to be more aware that what they might be doing could cause offense and to seek some advice. There are plenty of organisations out there that you can go to and get advice about the use of Maori images and words, there’s Te Puni Kokiri, the Maori Language Commission and even Te Papa.

If you are really keen to use a Maori word or image, it would be in your best interests to get that independently designed, get something that is designed specifically for you rather than trying to borrow something from that invokes some sort of ancestral connection.

I think in the end it just means all of New Zealand will become much more culturally aware, and not just in relation to Maori, we borrow things from every kind of culture. As far as the branding goes, I think most New Zealanders are very careful when they do use Maori words and images.

Originally published in Idealog #36, page 64


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