‘Tis Life for the haka Ka Mate

On 30 August 2012, the Crown and Ngāti Toa Rangatira initialled a deed of settlement containing various acknowledgements, and cultural and financial redress, for Crown breaches of the Treaty of Waitangi.

Among the redress is specific recognition of Ngāti Toa as kaitiaki (guardians) of the haka Ka Mate, particularly given that their ancestor Te Rauparaha composed the haka. This recognition will be by way of unique legislation not only acknowledging the importance of Ka Mate to guardians Ngāti Toa, but also requiring attribution of Te Rauparaha and Ngāti Toa by any person using the haka commercially.

While the wording of the legislation has yet to be agreed upon, the deed of settlement provides that any commercial use or public communication of Ka Mate is to clearly and reasonably-prominently identify Te Rauparaha as both the composer of Ka Mate and a chief of Ngāti Toa.

The right of attribution does not apply to the use of Ka Mate in public performance (such as by kapa haka groups), for educational purposes, or in any work for the purpose of criticism, review, or news reporting. It also does not require Ngāti Toa’s consent or input to the manner or form of use of Ka Mate, and does not provide for any compensation or damages for any unauthorised (or inappropriate) use.

If a person making commercial use of Ka Mate fails to sufficiently identify Te Rauparaha or Ngāti Toa, representatives of the iwi may enforce the right of attribution in court. The exact form of the legislation is not yet known.

Intellectual property rights lawyer Maui Solomon, also involved in the WAI262 claims, says that Ngāti Toa is pleased with the deal and has achieved what claimants sought from the Waitangi Tribunal so many years ago. It is understood that the Government is still considering what action to take as a result of the Waitangi Tribunal’s recommendations in the WAI262 report, although the report no doubt played an important role in the present settlement.

Earlier this year, attempts to register as a trade mark various phrases of the haka Ka Mate highlighted the unsuitability of Western intellectual property concepts (such as trade mark and copyright) for the protection for Māori taonga. Ngāti Toa had applied to register a range of well-known phrases such as KA MATE (‘tis death) and KA ORA (‘tis life).

Baldwins represented New Zealand souvenir business Prokiwi International Limited in its successful efforts to prevent registration of the phrases of the haka Ka Mate as trade marks. Prokiwi opposed Ngāti Toa’s applications on the basis that the haka Ka Mate is part of New Zealand culture and heritage, and that traders and sports teams should be free to use it without fear of trade mark infringement.

The Assistant Commissioner of Trade Marks upheld the oppositions, with the result that the haka Ka Mate remains in the public domain (Te Runanga O Toa Rangatira Incorporated v Prokiwi International Limited [2012] NZIPOTM 14). The oppositions raised interesting issues about the appropriate way to protect our indigenous and cultural heritage.

It appears that much thought is being given to these issues, with the deed of settlement reflecting the Crown’s willingness to test innovative strategies in the protection of our cultural heritage. The WAI262 report, released earlier this year, confirmed the desirability for the Crown and Māori to work together in balancing cultural interests and taonga with the rights of the New Zealand public.