Oliver Sutherland is the last living author of the bold and celebrated Wai262 claim, for which Moana Jackson was a visionary and tenacious champion. Here he looks back on Jackson's far-reaching contribution to the constitution and legal framework of Aotearoa.
In late 1989, in the Wellington office of his Māori Legal Service, lawyer Moana Jackson and a small group of Māori and scientist activists met to discuss the granting by the Crown to the nursery industry of rights to particular varieties of native plants.
The kōrero soon expanded to statutory Crown control of all native species including animal wildlife, and how that control might be challenged and returned to Māori. The meeting came soon after a Commonwealth Science Council hui on ethnobotany held at Rēhua Marae (Christchurch 1988), at which the extent to which the Crown had taken control of the management of native species was fully exposed.
Moana proposed a claim to the Waitangi Tribunal over all native plants and animals, on behalf of all iwi, a claim which became the celebrated WAI262 claim. Together with the original claimants - Saana Murray, Del Wihongi, John Hippolite, Witi McMath, Tama Poata and Kataraina Rimene - Moana chose to frame it as a claim of te tino rangatiratanga o te iwi Māori, Māori ownership and control over the entire biodiversity of Aotearoa. He went on to include the mātauranga, the traditional knowledge, the intellectual property, associated with all those species.
As he worked on the claim, Moana and claimant Del Wihongi took the issue onto the world stage discussing the concepts behind WAI262 at an indigenous Intellectual Property Conference in New York in 1990. Soon after that, Del, who had earlier travelled to Japan to retrieve nine varieties of early kumara given to a research institute by the New Zealand government, highlighted the claim at a World Indigenous Peace Conference in Oregon. Before long, the protection of biological resources, traditional knowledge and traditional cultural expressions were addressed by the World Intellectual Property Organisation, WIPO, leading to the Convention on Biodiversity.
WAI262 was was bold, audacious even, and certainly contentious. Moana’s preamble was uncompromising. It was, he wrote, "A claim relating to the Protection, Conservation, Management, Treatment, Propagation, Sale, Dispersal, Utilisation and Restriction on the use of and transmission of the knowledge of New Zealand Indigenous Flora and Fauna and the genetic resource contained therein".
Prior to this, all claims to the Tribunal had been brought by individual hapū and iwi regarding specific grievances, often over land. WAI262 was quite different; it posed a challenge to everyone once they came to comprehend its sweepingly wide embrace: the ownership of all species by all iwi.
For some time the claimants were on their own. National Māori organisations and most iwi, including the claimants’ own, focused as they were on their own claims, were reluctant to support WAI262. Moreover, Moana and the claimants were, at the time, well-known as activists somewhat ahead of mainstream Māori opinion. Saana Murray and Del Wihongi, particularly, addressed hui after hui around the country initially generating little support. Later, though, others joined the claim, broadening it to include Te Reo Māori, Rongoā Māori, Taonga Works and the Making of International Instruments.
Finally lodged in 1991, the claim was not reported on by the Tribunal until 2011, by which time the original Presiding Officer, two Tribunal members, four of the lawyers and all of the claimants other than Saana Murray had passed on. When it finally appeared, the Tribunal’s report, Ko Aotearoa Tēnei, authored by Presiding Officer Justice J.V. Williams, was as much of a tour de force as was Moana’s original claim, although it did not deliver on Moana’s claim of tino rangatitatanga over native species.
The Tribunal did, however, find that a co-management partnership between iwi and the Crown "should be the default approach to conservation management … [though] … there will be times when kaitiaki are entitled to greater degrees of control over environmental taonga’. The Crown, the report said, "is obliged by the Treaty of Waitangi to protect kaitiaki interests".
Others will recall and extoll Moana Jackson’s major contribution to the constitution and legal framework of Aotearoa. For my part, I highlight WAI262 as profoundly significant, a brilliantly-crafted and far-reaching part of his legacy. As the only person left, now, who played a part with Moana in conceiving WAI262, I applaud his vision and tenacity. It was an honour to work alongside him.
E te rangatira, e taku hoa Moana, moe mai, moe mai, e moe.
