Editorial: Tribe has right to protect haka from exploitation

Relevant offers

MOST NEW Zealanders feel a special bond with the haka "Ka Mate". The idea that anybody should own it will strike many as strange and somehow horrible. So the news that "Ka Mate" figures in the Crown's proposed treaty settlement with Ngati Toa has caused heartache and bewilderment.

"Ka Mate" has been the All Blacks haka for more than a century. Small children can perform it fluently without having a clue what its lyrics mean. It runs in the country's blood and ignites deep emotions, even among rugby-haters. It is our only national chant, a unique anthem-and-dance that ties Maori and Pakeha together.

Ngati Toa's claim for some kind of intellectual property right in the haka won't please a lot of Pakeha. John Key insists that the deal won't mean ordinary New Zealanders will have to pay to perform it. Instead, it's about "cultural redress, not about a financial issue". What Ngati Toa really want is the power to prevent the commercial use of the haka, and the prime minister is clearly open to the idea. The ironies here are endless. The All Blacks started using the haka long before rugby turned professional. Now rugby is all about money and the haka has become part of the AB brand. If the New Zealand Rugby Union didn't have this long association with "Ka Mate", who could blame the tribe for charging for its use?

The Ngati Toa claim is one of those difficult cases where traditional tribal practices jostle uncomfortably with western law and protocol. Westerners are likely to lose patience with Maori claims in this area, but they should think again. The Ngati Toa claim fits into that great complex case before the Waitangi Tribunal - the famous Wai 262 - that claims recompense for western use of a wide range of traditional Maori knowledge and culture.

Ngati Toa feel a strong moral bond of ownership with the haka, and tried for years to trademark it. In 2006 the Intellectual Properties Office rejected its claim, although it's noticeable that even in this area of law some concessions have been made to Maori sensitivities. The office can reject a trademark if it is deemed offensive to Maori.

There was a time when many Pakeha would have snorted at this kind of thing. But times and attitudes change. Many Pakeha would be uncomfortable with a Rangatira brand of fertiliser, or a tomato sauce bottle bearing a chief's tattooed head as a logo.

Similarly, copyright law seems to offer no comfort to Ngati Toa. If the Ngati Toa chief TeRauparaha really did compose it in the 1840s, the song would be long out of copyright, which ends 50 years after the composer's death. Some have pointed to the song "Happy Birthday to You", written in 1893, as a possible precedent. You don't have to pay to sing it at home, but if you sing it on film you have to pay money to Warner Brothers, which claims to own the copyright. Some eminent lawyers say the song isn't really under copyright at all: the two sisters who composed it based it on an existing tune.

But the real issue is a moral one.

Ngati Toa's moral claim to "Ka Mate" is a strong one. The haka, according to some, is actually centuries old and the lyrics more extensive than the bit that most of us know now. Perhaps Te Rauparaha's authorship is not quite as clear-cut as the tribe says. But in any case there is a long traditional link between Ngati Toa and the haka, and this should be honoured. What would this mean in practice? The tribe was incensed when the Spice Girls tried to perform it, and when Fiat used a pastiche of it to sell cars. They want to prevent the exploitation of this sacred part of their heritage for financial gain. It seems that the treaty deal might require a law change to give them the right to charge for or prohibit its commercial use.

Because so many New Zealanders feel they already own the haka, they might dislike this. They should think how they would feel if a favourite part of their own heritage was used to sell sausages or cellphones. And if the deal leaves everyone else free to perform this beloved part of our shared culture in the way we always have, can anyone really complain?