Mana Tuturu: Maori Treasures and Intellectual Property Rights
Auckland University Press, $44.99,
Barry Barclay (Ngati Apa, Pakeha) has been making films for more than 40 years, and is arguably this country’s leading documentary maker. In Mana Tuturu, he is developing and building on ideas in his first book, Our Own Image (1990), which explored “the role of indigenous communicators working within a majority culture”. Fifteen years later, he’s looking at the best means to protect the intellectual and spiritual treasures held by Maori and other indigenous peoples.
Barclay likens himself to the kea, “seeking out bright objects of fact or expression wherever I spotted them.” At times, the small gems are at risk of not hanging together as a coherent whole, but a reference to hui is revealing:
One way to think of this book is as hui …. The crucial thing about hui is that you should be present … right through. That way you will have truly been part of the age-old community process that makes hui such a powerful instrument.
It was only on finishing this book that the overall thrust became clear: a passionate argument for the recognition of Maori law, as opposed to trying to accommodate Maori law within another legal system. In making this argument, Barclay is striking out against views expressed by Maori as well as Pakeha.
Any discussion of protection of Maori intellectual property invariably involves the long-running Waitangi Tribunal claim Wai 262, concerning Maori taonga, including indigenous flora and fauna. Interestingly, Wai 262 isn’t mentioned until eight pages before the end of Mana Tuturu. This is because this claim, together with other attempts to recognise indigenous treasures, are (according to Barclay) founded on a mistaken confidence that some legal accommodation is possible between common law and indigenous customary law. The preceding 260 pages outline why he believes this is the case.
The book begins with a scene-setting chapter posing the question: what if Captain Cook had carried camera equipment on the Endeavour when he arrived in New Zealand in 1769? It’s an approach reminiscent of Barclay’s film The Feathers of Peace (2001), where a film crew recorded the experiences of Moriori as Maori arrived on the Chatham Islands. In Mana Tuturu, the film device is used to make us consider what the status of Cook’s film footage might be, both in 1769 and in our own time, if it were to be shown as part of a documentary film in London. In this second fictional scenario, protests from the descendants of iwi filmed by Cook would have no effect.
Barclay then proceeds, with reference to his own career and examples from New Zealand and overseas, to outline why existing mechanisms designed to protect intellectual property (such as patents and copyright) are inadequate and inappropriate means of protecting indigenous treasures. For example, even if items like the footage shot as part of the groundbreaking Tangata Whenua television series (directed by Barclay) were within the ambit of copyright, this would only last for a finite period, and not amount to the inter-generational protection he promised interviewees.
As an example of an alternative model, he offers the Taonga Maori Deposit Agreement used by the New Zealand Film Archive, which Barclay helped draft. The agreement includes the phrase “mana tuturu” (literally, “prerogative” or “what’s right”) embodying the notion of Maori spiritual guardianship, and provides a mechanism for the guardianship of material held by the archive but with reference to the depositor, named kaitiaki or guardians, and their descendants.
Looking beyond the film world, Barclay cites examples, like the ownership of Hawai’ian Queen Lili’uokalani’s songs by foreigners in New York, and the inability of Maori moko artists to control the use of images of their work in a German-language book, as instances of hurt suffered by indigenous peoples when their treasures are used without their permission: “It’s about more than losing your treasures; it’s about losing your traditional processes for protecting and sharing those treasures.”
Barclay then examines the Western law for sources of guidance or remedy for such hurt, and finds it wanting. Instead, he proposes we look to Maori customary law, or tikanga (literally “nga tika” or “right things”):
We have in this country a rich Indigenous legal tradition. It is neither extinct nor in all ways extinguished. It is genuine law. It is being used by Maori and, at times, by Maori and non-Maori working together as one body. It is a living law, alive and lively, able to change and grow.
Observing that New Zealand already accommodates many different types of law, Barclay wonders whether this could also encompass customary law. He looks overseas and finds this is the case in 55 countries, and that “[f]ifty-six per cent of the world’s population lives in countries that have found it useful to retain local customary law as part of their legal landscape.” Different definitions of law are then examined, and what could be a dry legal discussion is enlivened by examples such as the infamous Trans-Tasman underarm bowling incident of 1981.
Barclay concludes as he began, with another (filmic) fictional scenario, placing the facts of a celebrated 1937 Australian case concerning the rights of a race-course owner when a neighbouring landowner built a tower overlooking the course, into a Maori setting of the same time. The purpose is to illustrate how Maori customary law might work in practice.
This and other examples suggest that it may be the process rather than the outcome that’s valuable. Which is an appropriate metaphor for this book, as anyone looking for neat and tidy conclusions will be disappointed. But the journey and the time spent in this hui are richly rewarding, providing valuable insights into the ways Maori and Pakeha relate to each other. Could tikanga Maori already be colonising New Zealand’s modern legal system, or at least be a complementary element? Barclay, an optimistic idealist, seems to think so: “In some matters at least, tikanga becomes, little by little, part of the country as a whole, part of the way we do things here, and I feel proud when I see this happening.”
Paul Diamond is a Wellington broadcaster and reviewer.