3.
section 3.12 |
Analysis of
submissions from
Interested Persons
appendix 2
Outcomes of Consultation: Submissions
from Interested Persons
Section contents
3.
Analysis of submissions from Interested
Persons
28
3.12 Responsibilities under the Treaty of Waitangi
204
Introduction
204
Key themes
204
Mäori terms
205
Submissions from Mäori organisations
205
Role of the Treaty of Waitangi
205
The Crown's duties under the Treaty
206
Tikanga principles and genetic modification
207
Protection of traditional knowledge
209
Economic benefits
209
Submissions from other Interested Persons
210
Role of the Treaty of Waitangi
210
The Crown's duties under the Treaty
211
Tikanga principles
213
Participation in economic benefits
214
Health benefits
215
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3.12 Responsibilities under
the Treaty of Waitangi
Introduction
Warrant item (g) invited representation on and investigation into:
the Crown's responsibilities under the Treaty of Waitangi in relation to genetic
modification, genetically modified organisms, and products
Responses to this item ranged from no commentary to full commentary.
Of the 107 Interested Persons, 31 made substantive comments in their submissions,
23 made cursory comments and 53 made no comment or stated that they took no
position. In percentage terms, 50% of the submissions did not address this item.
On the other hand, around 30% of the submissions (31 submitters) provided
detailed commentary.
In terms of type of submitter, the majority of substantive comments came from
industry or consumer associations and networks (16 submitters). Three Crown
agencies, three private-sector companies, and six (of seven) Maori organisations
also provided substantive comments, as did two religious groups.
This section deals first with the seven submissions from Maori organisations, and
then the 48 submissions from non-Maori sources. Some of the submissions in
this latter category drew on commentary from Maori witnesses.
Two preliminary points emerged from the submissions:
*
For some submitters with concerns about genetic modification, the very
Commission itself and its processes were a breach of the Treaty of Waitangi.
*
In some submissions it appeared that the concepts of Treaty obligations (ie,
as specified in the Warrant item) and Maori cultural issues were merged.
Key themes
Overall, the key themes in both Maori and non-Maori submissions included:
*
role of the Treaty of Waitangi
*
the Crown's duties under the Treaty
*
tikanga principles and genetic modification
*
participation in economic benefits.
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In addition, the following topics attracted considerable comment, particularly in
the Maori submissions, but are dealt with in detail in other sections of this report:
*
protection of traditional ownership and knowledge of native flora and
fauna
*
international developments involving indigenous peoples and genetic
modification issues
*
changes to the regulatory framework.
Maori terms
Note that a glossary of the Maori terms used in this report is provided in the
"Glossaries" section of this volume.
Submissions from Maori organisations
There were seven submissions from Maori organisations as Interested Persons, all
of them containing reference to the Treaty of Waitangi. The organisations included
two national representative bodies (New Zealand Maori Council and New Zealand
Maori Congress), a national body representing Maori landowning authorities,
Trust Boards and Runanga (Federation of Maori Authorities (FoMA)), claimants to
the Waitangi Tribunal with an interest in intellectual property rights (WAI 262
claimants, Ngati Wai, Ngati Kuri, Te Rarawa), two tribal organisations (Te
Runanga o Ngai Tahu and Muaupoko Co-operative Society) and an organisation
representing views of a group of Maori women (Nga Wahine Tiaki o te Ao).
The comments ranged from the statement by Muaupoko Co-operative Society
[IP57] that it would provide oral submissions on "partnership provisions and
development - Treaty of Waitangi" to detailed commentary from New Zealand
Maori Congress [IP103] on how the Crown should deal with proposals involving
genetic modification techniques.
Role of the Treaty of Waitangi
Submitters identified the responsibilities of the Crown under the Treaty as a major
issue. Views ranged from those who saw the obligation to honour the Treaty as an
essential first step to those who saw a case-by-case consultation with Maori on
genetic modification proposals as acceptable. Thus, some stated that constitutional
change to honour the Treaty was required before anything else; others were
prepared to consider a system of assessing genetic modification proposals
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providing Maori participated in the assessment and decision-making processes.
Nga Wahine Tiaki o te Ao [IP64] described Crown processes, including the
Commission, as operating in breach of the Treaty. This submitter indicated that
the New Zealand Government must move towards constitutional change to
honour the Treaty, and that, until this took place, all activities in relation to genetic
modification should cease.
For New Zealand Maori Council [IP105], the "key element" in the attitude of
Maori to genetics was Article the Second (Article 2) of the Treaty, which gives
Maori exclusive rights to their taonga.
Te Runanga o Ngai Tahu [IP41] saw the Treaty of Waitangi, and its provisions, as
a fundamental cornerstone to any consideration of genetic modification in New
Zealand.
Maori Congress [IP103] affirmed the Treaty and stated:
Te Tiriti o Waitangi is the only starting point for any recommendations concerning the
possible move to permitting genetic modification in Aotearoa/New Zealand.
Te Tiriti o Waitangi as the Magna Carta remains within our country as a duly constituted
agreement between two sovereign nations to advance the future of two peoples.
WAI 262 claimants [IP89] regarded the Treaty as the "only reason the Crown is
entitled to assert any form of governance in this country", and added that it must
be accorded primary attention by the Commission.
The Crown's duties under the Treaty
Maori Congress [IP103] referred to the following specific duties of the Crown
under the Treaty:
*
a duty of active protection of Maori interests to the fullest extent practicable
*
a duty to consult Maori
*
a duty of equity and redress.
A common element in the submissions was the Crown's failure to meet its
obligation to acknowledge Maori rangatiratanga, particularly over Maori
resources. The Congress also saw the "lack of equity in terms of allocation of
research funding" as a breach of the Treaty.
Te Runanga o Ngai Tahu [IP41], representing Ngai Tahu whanui, also commented
on the Crown's responsibility for active protection of Maori interests in "their use
and management and relationship with the forests, lands, freshwater, and marine
resources". In Te Runanga's view, if the Crown allowed genetic modification
without respecting and "actively protecting" Maori interests it would be failing
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to fulfil its obligations as expressed in Article 2 of the Treaty.
Some submitters noted that an aspect of the duty to consult is the question of
informing the community about the topic that is the subject of the consultation.
Federation of Maori Authorities (FoMA) [IP69] referred to "the low level of
understanding" among the general public of issues surrounding genetic
modification, but added that this was especially so among Maori and saw this as
"an inadequacy that needs to be urgently addressed".
Te Runanga o Ngai Tahu [IP41] stated that time should have been taken for
public education on issues surrounding genetic modification and that "resources
should have been made available for iwi to inform themselves on the issues and to
come together to korero on the issue and form a considered opinion". Te
Runanga saw the fact that only seven Maori-related groups had obtained
Interested Person status as testimony to the deficiency of the education process to
date. Maori Congress [IP103] referred to the urgent need for a nationally focused
education campaign with a view to honouring Treaty obligations.
FoMA [IP69] summarised the Crown's responsibilities under the Treaty as:
*
providing for Maori participation in any regulatory body
*
providing education for Maori on biotechnology issues
*
protecting traditional knowledge of flora and fauna
*
recognising the cultural and spiritual relationship between Maori and the
land and taonga.
Tikanga principles and genetic modification
The submissions from Maori organisations indicated that the rules of behaviour
embodied in tikanga were central to any consideration of genetic modification.
There was a range of views about the impact of tikanga, from those who saw it as
a complete bar to genetic modification in New Zealand to those who considered
that genetic modification could be accommodated provided there was recognition
of the cultural and spiritual relationship between Maori, the land and ancestral
taonga.
All the Maori submissions referred to tikanga, and some specifically referred to
the Maori world view (te taiao) as their framework for assessing genetic
modification. Commentary on tikanga was presented in some submissions as an
expression of rangatiratanga. Te Runanga o Ngai Tahu [IP41] indicated that legal
recognition of rangatiratanga was crucial to allow other tikanga principles
(kaitiakitanga) to be put into effect. For Maori Congress [IP103], rangatiratanga
denoted the mana (or authority) "not only to possess what is yours but to control
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and to manage it in accordance with your own ethical and moral behaviour".
Tikanga principles are the source of the Maori value system, and govern the
Maori approach to managing environmental issues. It was a major concern for
submitters that these principles would be disregarded in dealing with genetic
modification issues.
Nga Wahine Tiaki o te Ao [IP64] expressed the view that "Aotearoa is Maori
land", and that any organism grown in New Zealand would be subject to tikanga
Maori, which provided a collective basis from which to care properly for the
environment and distribute resources. WAI 262 claimants [IP89] said that a central
part of the claimants' case to the Waitangi Tribunal was the lack of recognition of
Maori values and practices relating to genetic modification. The submission
advocated that genetic modification be opposed "until tikanga Maori forms the
basis of decision making of these issues" and that there should be no consent to
technologies which further disrupted Maori and the Maori world view. Nga
Wahine Tiaki o te Ao stated that based on ancestral traditions there should be no
genetic modification in Aotearoa.
Tikanga principles
Submitters referred to the following concepts in their discussions of tikanga:
*
whakapapa
*
kaitiakitanga
*
mauri
*
mana
*
atua
*
ira tangata (the human element of life).
Whakapapa was generally described as the link between peoples and, in turn, other
species. Kaitiakitanga was described by Te Runanga o Ngai Tahu [IP41] as the
exercise of guardianship by the tangata whenua of an area in accordance with
tikanga Maori.
For Te Runanga o Ngai Tahu, the concepts of whakapapa and katiakitanga meant
that humans were an integrated part of the natural order and had as much an
obligation towards the earth and that upon it as they had towards parents, siblings
and other members of the whanau. Te Runanga indicated that the Maori world
view was that humans were part of nature, in contrast to the Judaeo-Christian view
that "people are created in God's image".
WAI 262 claimants [IP89] noted that acknowledging the spiritual dimension of the
universe and respecting the mauri of everything was fundamental to Maori.
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Anxiety about the effect of genetic modification arose for submitters because
using genetic modification was seen by most as `playing God', with consequent
implications for the exercise of responsibilities in accordance with tikanga. Te
Runanga o Ngai Tahu [IP41] expressed abhorrence for those involved with
genetic modification and saw it as an interference with the "blueprint of life".
Moreover, Te Runanga considered the risk to Ngai Tahu spiritual and cultural
beliefs and mental health far outweighed any possible benefits, for instance
"supposed" health benefits.
Nga Wahine Tiaki o te Ao [IP64] stated the following:
It is within the main principles of mauri, mana and w'akapapa that Maori raise their
absolute disagreement regarding genetic engineering and modification. If these principles
are damaged or tampered with in any way, thus upsetting the holistic world balance, so
too will be the mauri, mana and w'akapapa of Maori and following generations.
The results would be to place the natural order of life itself under threat (WAI 262
claimants [IP89]). In addition, failure to meet kaitiaki obligations would diminish
mana and thereby weaken safeguards against harm for individuals.
Some submitters stated that the mixing of human genes with those of other species
was unacceptable (eg, Maori Congress [IP103]), or acceptable only in exceptional
circumstances (FOMA [IP69]), but that overall a regulatory framework
incorporating protections for tangata whenua could be considered.
Protection of traditional knowledge
Specific concerns about issues of patenting indigenous flora and fauna and the
failure of the current legal system to provide protection for traditional knowledge
and ownership of flora and fauna are dealt with in more detail in comment on
Warrant item (f) (see "Intellectual property issues").
More generally, WAI 262 claimants [IP89] noted that the matauranga (or
knowledge of living things, especially of native flora and fauna) accumulated by
Maori is held by the whanau and hapu, which have kaitiaki responsibilities for
that knowledge.
Maori Congress [IP103] observed that the Treaty of Waitangi "affirms" the
rights of Maori as tangata whenua and their relationship with flora and fauna.
Economic benefits
Economic issues, including benefits, are dealt with elsewhere in this document,
including in discussion on strategy (see "Strategic outcomes") and on Warrant
item (j) (iii) on areas of public interest (see "Areas of public interest: economic
matters"). However, in this commentary on Maori submissions on Treaty of
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Waitangi issues, some submissions referred to Maori rights over the Maori
genome and control of any developments based on it. Maori Congress [IP103]
stated that rights to the genome included the capacity to receive benefits from its
use and advance.
FoMA [IP69] noted that Maori authorities would benefit from genetic
modification advances through improved productivity, product quality and,
potentially, the development of new products. The possibility was that Maori in
general would benefit from a position of greater economic self-sufficiency.
Submissions from other Interested Persons
Submissions from non-Maori organisations included, in some instances,
comments from witnesses identified as Maori. For example, Carter Holt Harvey/
Fletcher Challenge Forests [IP17], University of Auckland [IP16] and Royal
Society of New Zealand [IP77b (social sciences)] included or referred to
commentary from Maori witnesses. The commentary on the Treaty in such
submissions was often more detailed than in submissions with no apparent,
direct, Maori input.
As with the submissions from Maori organisations, the following themes emerged:
*
role of the Treaty of Waitangi
*
the Crown's duties under the Treaty
*
tikanga principles
*
participation in economic benefits.
In addition, there was comment on health benefits for Maori.
Role of the Treaty of Waitangi
Views on the role of the Treaty varied. Some submitters thought the Crown's role
under the Treaty in this area was unclear. Others saw the Treaty as providing a
"context", a "framework" or a "living document" with the views of the Treaty
partners carrying equal weight (eg, Green Party of Aotearoa/New Zealand
[IP83]). A few submitters took the view that it was premature for the Commission
to address this item while there were legal proceedings still outstanding at the time
of submission, for instance the WAI 262 Indigenous Flora and Fauna Claim or the
appeal to the High Court against a decision of the Environmental Risk
Management Authority (ERMA) on insertion of a human gene into cattle (New
Zealand Life Sciences Network [IP24], Pacific Institute of Resource Management
[IP84]).
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New Zealand Wool Board [IP30] considered that the extent of the Crown's
obligations under the Treaty was uncertain. From a "pragmatic point of view", the
Board felt that it was vital for the Crown to act in good faith, on behalf of all New
Zealanders, to help to secure national benefits from genetic modification. The
Board was concerned that years might be spent attempting to incorporate the
Treaty into a regulatory framework. It considered that this would be "self-
defeating": "By the time we came up with a solution, others would have won the
game."
Some submitters seemed to approach the Treaty as a specifically Maori issue.
Life Sciences Network [IP24] commented that the "extent to which the Treaty of
Waitangi grants Maori special rights other than for native flora and fauna is still
unclear". New Zealand Dairy Board [IP67] suggested that, in taking into account
Treaty principles, the "cultural beliefs of Maori" needed to be examined.
On the other hand, Hamilton City Council [IP20] expected that Government
would consult Maori to determine if there were Treaty responsibilities relating to
genetic modification. Interchurch Commission on Genetic Engineering [IP49]
expressed support for a bicultural framework, and recognised the importance of
the Treaty as a partnership. For AgResearch [IP13], the Treaty provided a
"context" for its relationship with Maori.
The Crown's duties under the Treaty
Submissions from non-Maori sources referred to the following Crown duties
under the Treaty:
*
active protection
*
acting in good faith
*
consultation
*
reasonableness
*
mutual cooperation and trust
*
obligations to promote wellbeing and health.
For Carter Holt Harvey/Fletcher Challenge Forests [IP17], the Crown's Treaty
responsibilities were sufficiently "recorded" in the Hazardous Substances and
New Organisms Act 1996 (HSNO Act). The Act required ERMA to take into
account the principles of the Treaty, and the relationship of Maori with "their
culture" and taonga.
ERMA itself [IP76] referred to a duty of "active protection", as well as to principles
of consultation and acting in good faith. It saw the latter as well provided for in its
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processes. On "active protection", ERMA believed that the principle should not
be applied so as to be inconsistent with the government's right to govern under the
Treaty.
Other submissions referred to duties or principles of reasonableness, mutual
cooperation and trust, and to obligations to promote wellbeing and health. One
submission in particular (Friends of the Earth (New Zealand) [IP78] in an
accompanying witness brief) contained an extensive outline of principles developed
from case law and Waitangi Tribunal reports. This submitter saw the concepts of
sovereignty and governance as also relevant to genetic modification. Safe Food
Campaign [IP86] summed up the relevant Crown responsibilities as meaning
"relating issues about GM back to the principles of partnership, protection and
participation".
A duty to consult was upheld by most submissions that commented on the Crown's
duties under the Treaty. Some submitters outlined the processes they adopted to
consult Maori (AgResearch [IP13], Carter Holt Harvey/Fletcher Challenge
Forests [IP17]). In an accompanying witness brief, Carter Holt Harvey/Fletcher
Challenge Forests described a process of identifying tangata whenua, consulting,
and ultimately relying on ERMA for decisions. New Zealand Transgenic Animal
Researchers [IP45], adopting views expressed in a witness brief on behalf of
University of Auckland [IP16], noted that it was important that the Commission
process consult those Maori who might be adversely affected by loss of genetic
modification methodologies and therapies.
Some submitters believed the duty to consult conferred on Maori a "special
right" to consultation on genetic modification issues relating to native flora and
fauna (but not to imported species). Sciences Network [IP24] took this view,
saying that the right was in return for the right of governance to be exercised by
the Crown. For Association of Crown Research Institutes (ACRI) [IP22], Article
2 of the Treaty implicitly recognised Maori responsibilities to protect native flora
and fauna. However, the Association went on to say in relation to Article the third
(Article 3) of the Treaty:
In a pluralistic society, the core spiritual values arise from societal debate and consensus.
Maori concerns of this nature have the right to be expressed through their rights as
citizens, but there is no greater right for Maori in this respect than any other citizen
group. "Some citizens are not more equal than others."
Other submitters were concerned that views expressed through consultation
should actually be heard. Interchurch Commission [IP49] stated that:
The Crown has a responsibility to give real expression to treaty principles through
establishing a new process whereby Maori views in relation to genetic modification,
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genetically modified organisms and products can be treated with greater respect than has
thus far been the case. ... The extent to which Maori spiritual concerns in relation to GE
are genuinely heard will indicate the depth of our commitment as a nation, to the Treaty
upon which our nation is founded.
Safe Food Campaign [IP86] stressed the need for consultation that did not merely
ignore Maori perspectives once they were gathered and did not "marginalise"
Maori views. Reference was made to New Zealand's signing of the General
Agreement on Tariffs and Trade (GATT) and the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement) without consultation
with Maori. This was seen as contrary to the Treaty.
For Wool Board [IP30], Meat New Zealand [IP31] and Meat Industry Association
of New Zealand (MIA) [IP32], the Crown's obligation was to act on behalf of all
New Zealanders to secure national benefits.
Tikanga principles
Some submissions made comments about specified principles of tikanga, notably
kaitiakitanga and whakapapa.
Others spoke of Maori spiritual beliefs. Interchurch Commission [IP49] saw
Maori as guardians of indigenous spirituality and stated that the Treaty "enables
us all to adopt a more holistic approach to issues of genetic modification".
AgResearch [IP13] referred to ERMA's conclusion that there was no practical
mechanism to avoid the effects of genetic modification research on spiritual beliefs
unless the work was carried out offshore, and commented that this was "neither
desirable nor practical". By way of a solution, Wool Board [IP30] suggested the
same "utilitarian ethical framework" used to consider values and ethics of genetic
modification be used for Treaty issues. Royal Society [IP77a (biological sciences)]
noted Maori concern about cultural traditions including whakapapa and
matauranga Maori, and referred to "no-go zones" for genetic experimentation in
relation to matters such as the transfer of genes between species.
Organic Product Exporters Group [IP53] referred to the compatibility of
kaitiakitanga and organic forms of production. ACRI [IP22] saw biodiversity
responsibilities as overlapping with kaitiakitanga, which was defined by Life
Sciences Network [IP24] as "stewardship". Kaitiakitanga was further described by
Life Sciences Network as a "right of citizenship". The Network observed that
katiakitanga could have more than one interpretation, and that the relevant status
of tikanga principles was debated amongst Maori.
On tikanga generally and whakapapa in particular, Parliamentary Commissioner
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for the Environment [IP70] referred to experience with Maori consultation on
possum control measures, and recommended that the issues and concerns expressed
there be explored as part of a strategic response to genetic modification. The
Commissioner noted that "the need to protect whakapapa, its tapu and its
integrity, was fundamental to the unanimous rejection of genetic modification of
native plant species as a way of delivering a biocontrol to possums".
There was a divergence of views about the extent of the Crown's responsibilities
in relation to whakapapa. Life Sciences Network [IP24] saw Government's
obligation to provide for the economic and social wellbeing of Maori as
predominating over an obligation "which may or may not exist" concerning the
impacts on a "claimed" whakapapa relationship with plants and animals. On the
other hand, Pacific Institute of Resource Management [IP84] commented that
the Crown was under an obligation to respect the intellectual and property rights
that flowed from the Treaty, and to pay attention to mauri and whakapapa. In a
similar vein, Friends of the Earth [IP78] in an accompanying witness brief saw
Maori rights to preserve their taonga, including whakapapa and mana, as a "high
priority".
Physicians and Scientists for Responsible Genetics New Zealand [IP107] stated
that:
... the Crown has a duty to do much more than simply consult with Maori on these issues
in the manner we have observed to date. In particular we wish to see force given to Maori
concerns of Mauri, Wairua and Whakapapa as a duty of partnership under the Treaty.
Participation in economic benefits
Several submissions identified economic and development issues as a major Treaty
component. Life Sciences Network [IP24] stated that the Treaty was intended to
enhance Maori development and should be read in that context. ACRI [IP22] was
optimistic that, "with a stronger economic base", more Maori would cautiously
embrace new genetic modification opportunities. Submissions from the primary
production sector stressed Maori involvement in that sector and the economic
benefits for all - Maori and non-Maori - that could flow from the adoption of
genetic modification techniques in the primary production sector.
Meat New Zealand [IP31] expressly stated that:
Key to the Crown's Treaty obligations is the need to promote economic opportunity for all
New Zealand citizens, including Maori.
For Meat New Zealand, this followed from Article the first (Article 1) of the
Treaty, which required the Crown to promote the wellbeing of all people and, in
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particular, to "seek enhanced economic prosperity at all levels". It was said that
this should not be at the expense of the environment or any "interest group". The
submission went on to observe that many Maori believed that the potential
economic benefits of genetic modification were considerable enough to warrant
their use, and noted that many Maori worked in biologically based production
sectors that would benefit from application of the new gene technology. New
Zealand Game Industry Board [IP33] expressed similar views.
MIA [IP32] stated that it was a large employer and significant contributor to the
economy and thus to the wellbeing of all New Zealanders, including tangata
whenua. The Association commented that it could only maintain this if it had
access to the technology required:
Providing for the flexibility that we believe is required with gene technology will assist
the Crown in meeting those aspects of its Treaty responsibilities that rely on a strong
economy.
Wool Board [IP30] was concerned about delays in adopting new technologies, and
suggested that "waiting around" and not being involved in such technologies,
including genetic modification, was "tantamount to giving away everyone's
birthright".
Health benefits
A particular theme of some submissions concerned medical research and benefits
for Maori. Transgenic Animal Users [IP45] commented that there must be a
balance between Maori rights under the Treaty with "the integral part that GM
animals play in modern medical research".
In an accompanying witness brief, University of Auckland [IP16] stated that the
Treaty guaranteed Maori retention of their taonga including health, while also
guaranteeing the "ordinary" rights of New Zealand citizens. The witness brief
went on to observe that diseases such as diabetes and hepatitis B were of major
concern for Maori and stated that:
Therapy of these diseases is currently underpinned by genetic modification, genetically
modified organisms and their products. Loss of these methods and techniques would result
in a significant down grading of medical care for Maori, thereby preventing the Crown
from carrying out its responsibilities under the Treaty.
Haemophilia Foundation of New Zealand [IP48] recorded that there was a 50%
greater incidence of haemophilia amongst Maori than amongst Pakeha, and that
the therapy for this was underpinned by genetic typing. Similarly the Foundation
saw any loss of genetic modification techniques in this area as affecting the
Crown's responsibilities under the Treaty.