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Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge
Get PDFThe effective protection of indigenous traditional knowledge from misappropriation is a fundamental challenge faced by the intellectual property system. A substantial aspect of this challenge is how the intellectual property regime can practically utilise or incorporate indigenous customary law as a means of protection against misappropriation, when there is an inherent tension between the former and the latter. Any international legal instrument intended to protect against misappropriation of indigenous traditional knowledge will have to contend with this tension: a definition of misappropriation ought to encourage use of local indigenous customary law, but it also must be practically applicable within the confines of the intellectual property system. Consequently, this article considers the challenge in two parts. The first part requires ascertainment of a potential international legal definition of misappropriation that will uphold and maintain indigenous customary law, in the context of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft articles. To ensure the definition effectively affirms indigenous customary law, it will be based on three key "approaches" to indigenous custom. The second part entails application of the definition to the domestic context, namely through the case studies of New Zealand and Australia, and a subsequent critique of the difficulties of application, to illustrate the challenge of incorporating indigenous customary law within the intellectual property system. This article concludes that the risks inherent in an aspirational definition of misappropriation which may have some challenges in application are outweighed by the potential of normalising and encouraging indigenous customary law as the foundational basis for truly effective protection of traditional knowledge against misappropriation
Child protection, capitalism and the settler state: rethinking the social contract
No full textThe year 2019 represented a watershed moment for Aotearoa New Zealand’s child welfare system, as a public spotlight was shone on systemic ethnic inequities during ongoing legislative changes aimed at centering Te Tiriti o Waitangi and whänau, hapü, and iwi considerations in policy and practice. In the midst of this dialogue, Victoria University of Wellington’s School of Government hosted the “Children, Families, and the State”– a seminar series focused on the historical, current, and future role of the state in the lives of families and children. The seminars, and the discussion it generated, was due to the calls to action from speakers across the system, including leadership at Oranga Tamariki, within the family court, non-profit providers, commissioners and advocates, and academics.
The four brief essays in this edition of Policy Quarterly capture viewpoints from several of the seminar speakers. Despite their different perspectives, common threads unite them. A greater recognition of the structural causes of the historical and current patterns of ethnic inequities in child welfare system contact, a commitment to whänau, hapü, and iwi-centred policy, practice, and partnership, the authors argue, are vital for a more just and empowering system.
Here, Ian Hyslop highlights the ways in which New Zealand’s history of racism and colonialism has shaped the child welfare system today, and how a radical redistribution of power to whānau and iwi can help restore the social protection of children.
 
Globalisation in the Time of Coronavirus: or One Hundred Years of Solitude for New Zealand?
Get PDFThis article considers the effects that the Covid-19 pandemic may have on those aspects of international commerce and trade that are most relevant to New Zealand’s economic future. It covers changes to international political economy and the likely impacts of the huge international policy response. Businesses are starting to trade differently, people no longer cross borders so freely, there is changed use of technology, there are challenges for the financial sector, and governments are taking on new roles and issuing huge amounts of debt. Bilateral trade tensions are becoming more acute. People are going to have to live through disruption and pay for this pandemic
A Socialist Compass for Aotearoa: Envisioning Māori Socialism
Get PDFIn this article, I argue that both tino rangatiratanga and socialism lie at the heart of emancipatory politics in Aotearoa New Zealand. For Māori, the economy has always been a dynamic site of interaction with the state and corporate bodies, and today the Māori economy is celebrated by some as a space where tino rangatiratanga can be realised. For the most part, though, the capitalist economy has been a site of exploitation for Māori. Given the inextricable relations between capitalism and colonialism, I present the case for Māori socialism as an emancipatory response to both. To do so, I employ Erik Olin Wright’s socialist compass, a conceptual tool that points to a variety of economic pathways towards socialism. But there is a major problem with Wright’s compass: it only has three points (state power, economic power, and social power). I extend Wright’s vision for socialism by completing the compass, adding to it a much needed fourth point: tino rangatiratanga. The resulting ‘Aotearoa socialist compass’ can be used to orient us towards Māori socialism—a socialist economy in which tino rangatiratanga is realised.
 
Age of the Void
Get PDFReview of Marco Revelli, The New Populism. A detailed account of the erosion of the liberal centre and the spread of populism across the United States, United Kingdom, and continental Europe.
 
Stepping Out of Bounds: The Over-Prosecution of Recreational Athletes in Light of DFSNZ v XYZ
Get PDFDFSNZ v XYZ presents a worrying precedent for anti-doping law. That case arose after New Zealand's anti-doping enforcement body, Drug Free Sport New Zealand (DFSNZ), expanded its jurisdiction over recreational athletes. It did so by internal administrative decision and without notice. This action was upheld in DFSNZ v XYZ by a majority of the Sports Tribunal resulting in an unsuspecting recreational golfer being banned for one year. The decision upheld DFSNZ's extension of onerous obligations and invasive testing powers designed for elite athletes to the large proportion of ordinary New Zealanders who partake in recreational sport. This article critiques the XYZ decision on two bases: (a) DFSNZ's illegitimate expansion of its jurisdiction to recreational athletes by mere administrative policy change; and (b) the pitfalls of extending a regime designed for elite athletes to recreational athletes. The World Anti-Doping Agency (WADA) has developed a new World Anti-Doping Code which will come into force in January 2021. The 2021 Code creates a new two-tiered system which treats "athletes" and "recreational athletes" differently. This article analyses the new Code and critiques its shortcomings with regards to defining the Code's jurisdiction and ensuring a proportionate response to doping in recreational sport. WADA's new code is a step in the right direction but fails to go far enough to align with the participation, health and education objectives of recreational sport
Kia Tāwharautia Te Mātauranga Māori: Decolonising the Intellectual Property Regime in Aotearoa New Zealand
Get PDFThis article explores ways to decolonise aspects of the intellectual property system in Aotearoa New Zealand, primarily in respect of trade marks. It considers the seminal Wai 262 report of the Waitangi Tribunal and builds upon its findings and recommendations, while also offering new ideas of legal reform for protecting mātauranga Māori (Māori knowledge and expertise) from undue exploitation. This article also measures those ideas against the objectives and principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as well as other internationally recognised rights. Essentially, this article maintains that for any mechanism to be effective in recognising and upholding the tino rangatiratanga (unqualified self-determination) of Māori over their own mātauranga, that mechanism must be founded upon the principles of tikanga Māori (Māori laws and customs), which is a notion crystallised within the Treaty of Waitangi/Te Tiriti o Waitangi. It must also find its own meaningful place in the law of New Zealand that surrounds us today. It is only in this way that the extractive and thereby oppressive binds of the western intellectual property regime can be unpicked and put aside and the tapu (high status and associated sanctity) of mātauranga can be upheld. These words are also an honouring of those who spent countless hours on the Wai 262 report. It is hoped this article gives new and much needed life to the issue of protecting mātauranga Māori, which is still as relevant today as it was then. Kei aku rangatira, kei aku tapaeru, kei aku whakaruakākā, tēnei e ngākau whakaiti nei (an acknowledgement of all those who took part in Wai 262)
Reflections on Collaborative Ethnography and Decolonization in Latin America, Aotearoa, and Beyond
Get PDFAs the ongoing legacies of colonialism are challenged, scholars and activists are increasingly carrying out collaborative research to respond to the asymmetrical privileges built into Western science by partnering with communities and explicitly orienting their research towards communities’ political aims. In this article, we trace the ways this shift intersects with other important trends in ethnographic research, especially attention to the politics of knowledge and decolonization. We discuss how collaborative research in Latin America is shaped by the context and political agendas of those involved to show what is produced. While in some circumstances collaboration can serve to level the colonial playing field by making Indigenous knowledge and practices visible, in other situations it can reinforce constructed dichotomies between Indigenous and Western knowledge and practices. As it increasingly the norm for government agencies, academic institutions, and non-governmental organizations to promote participatory methods to further their own agendas, we suggest that collaboration can be the site of governance as well as liberation. By bringing the dilemmas in our different research projects on Indigenous politics in Bolivia into dialogue with critical engagements from Indigenous scholars in Aotearoa and decolonial thinkers globally, we urge careful analysis of the multiple and changing standpoints of our collaborators in order not to re-construct essentialized notions of Indigeneity. Ultimately, we see the need to acknowledge the tight spaces of negotiation that we all find ourselves drawn into when we undertake collaborative endeavours.  
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