An Auckland legal scholar is proposing a new tort law to protect against cultural misappropriation.
Cultural misappropriation is the adoption of a culture’s elements in a way that disrespects or misunderstands its purpose in its culture of origin.
University of Auckland legal scholar Jayden Houghton (Rereahu Maniapoto) wants to protect cultures from misappropriation, particularly mātauranga Māori, with a proposed new tort.
Tort law allows for compensation claims when someone hurts a person or their property, but when their case isn’t necessarily based on a crime recognised by the justice system or based on a contract.
Close to a million New Zealanders - 978,246 (19.6%) - identified as Māori in the 2023 census, with 861,576 people (17.3 percent) as Asian, 442,632 people (8.9 percent) as Pacific peoples, and 92,760 people (1.9 percent) as Middle Eastern, Latin American, or African (MELAA).
Issues regarding the appropriation of Māori culture include the likeness of Oriini Kaipara (Tūhoe, Ngāti Awa, Tūwharetoa, Ngāti Rangitihi), which was once again replicated without her knowledge or consent in March this year.
The following day, it was revealed a photograph taken by Te Rawhitiroa Bosch (Ngāpuhi, Ngāti Kahu) of his uncle Patrick Mohi laying a wero at Te Wānanga Mau Taiaha o Mokoia was adapted and edited by The Hope Project.
Bosch told Te Ao Māori News he believed there should be laws against cultural misappropriation.
“To protect our mātauranga, to protect our tauira Māori, our Māori designs, and our taonga tuku iho. These are some of the taonga tuku iho a ngā mātua tūpuna and we’re coming across into different mediums now.
“Our art, our identity, our tuakiri Māori does need to be protected.”
He also said law changes offered half of the solution, with education offering the other half.
“We need to be educated as Māori to be able to spot it when it happens but also to be able to know how to deal with it.”
He believes that even if the proposed tort was implemented into the legal system, people would still continue to steal, but it would be a good start to set it as law.
“I like to say talk quietly and carry a big stick, so you’ve got the stick there, you’ve got the law there if you need it but actually just educating people about [it, saying] ‘this is not the right thing to do’.
“The way that we engaged with that Christian group, The Hope Project, was to educate them.
“The reason I [also] pulled in my media mates and made stories about it and actually put it out there for social media was to educate people that one, this isn’t right and two, if this does happen, cause it will happen again, these are ways we can deal with it to whakaea,” said Bosch.
What will this new tort involve?
The proposed tort has four elements a petitioner (plaintiff) would need to prove the following:
- The defendant appropriated an element of the plaintiff’s appropriable culture.
- The defendant’s appropriation was without the consent of the cultural community.
- The defendant appropriated the plaintiff’s culture for their advantage.
- The appropriation was a misappropriation, a concept which the author defines and explores.
Houghton, the Auckland university legal scholar proposing the tort, wrote that the only way cultural misappropriation could be handled in Aotearoa is through societal pressures.
“This burdens those affected with having to contact the people who appropriated their culture, without any guarantees the appropriators will stop.
“People who are affected can use the media to call out cultural misappropriation, which may uphold the value and importance of the culture, but it may not validate the harm caused by the misappropriation.
“Indigenous peoples, who are perhaps the most affected by cultural misappropriation, do not want to have to sustain this practice.”
Could Aotearoa potentially see it implemented?
Legal Consultant, Maui Solomon (Moriori, Ngāi Tahu), said Māori are used to having their culture stolen.
“There’s no free lunches in today’s world and Māori and Indigenous people all around the world have the right to have their culture and their identity and their traditions respected and protected and not to be ripped off by those who don’t have the mandate or the prior informed consent of the holders of that knowledge, or that culture.
“We’ve seen examples of this many, many times over the last few decades in New Zealand.
“I think that there is a moral and I would even say a constitutional tiriti obligation on New Zealand to do something about it.”
He recalled the New Zealand government signing in support of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2010. It had originally voted against it alongside Canada, the United States of America, and Australia in 2007.
UNDRIP is a legally non-binding document that establishes a universal framework of minimum standards for the survival, dignity, and well-being of the indigenous peoples.
Solomon referenced article 11 of UNDRIP which states:
"States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs."
— UNDRIP
“Nothing’s happened in 14 years, so I just don’t think, they would have an appetite to do anything on [the proposed] tort,” said Solomon.
Te Ao Māori News reached out to Justice Minister Paul Goldsmith, who is also Minister for both the Treaty of Waitangi Negotiations and Arts, Culture and Heritage, on whether Aotearoa needed cultural misappropriation laws.
“While I acknowledge the impact cultural misappropriation can have, the government is currently focused on its Q3 Action Plan, and all other potential work items will have to be considered at a later date,” Goldsmith wrote.
Solomon said the Māori culture has been misappropriated internationally, so if the tort was placed in New Zealand law, other countries would need to agree to it.
“So there’d need to be a mutual recognition of that tort law to protect culture from the overseas jurisdiction.”