Plant Variety Rights Bill

I’m very pleased to open proceedings on the Plant Variety Rights Bill. I do want to thank, at the outset, the Economic Development, Science and Innovation Committee for their consideration of the bill, and, of course, all those who submitted. The committee itself made a number of, I think, useful improvements to the bill after listening to the submitters, and the bill is stronger for it. I also want to specifically acknowledge the industry stakeholders, the Māori organisations, and the individuals who provided their time and expertise to help develop this legislation. I’m quite convinced that the opportunity for many plant puns lies ahead of us in this debate today. As I look at members opposite, I can see the talent there.

I want to make some introductory comments to this part.

Hon Member: We’ll stop sowing seeds on this soon.

Hon Dr DAVID CLARK: They’re sowing the seeds of—yeah, I concede. The bill governs an area of intellectual property law referred to as “plant variety rights” or “PVRs”, which give an exclusive right to exploit a plant variety they have developed in order to earn a commercial return from their investment—

Simeon Brown: Grow up!

Hon Dr DAVID CLARK: —breeding it; leaf it out! The bill fulfils our obligations in relation to PVRs under both the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, so it is an important step in meeting the terms of obligation for that trade agreement, and also meets our obligations related to the Treaty of Waitangi.

It strengthens plant breeders’ rights by aligning the PVR regime with the current international standard for PVR protection, known as UPOV-91—and for those watching at home, UPOV is the International Convention for the Protection of New Varieties of Plants. It provides protection for kaitiaki relationships with taonga species and mātauranga Māori, as recommended in the Waitangi Tribunal’s Wai 262 report. And the bill will promote innovation in our plant breeding industry, and so support economic growth in critical areas of our economy, such as horticulture and the arable and pastoral crops that underpin farming in New Zealand.

Specifically to Part 1, Part 1 sets out the purposes of the bill, the definitions, and the transitional provisions. In response to issues raised by submitters, the select committee made two significant changes to Part 1 of the bill, and so I just want to address each of them in turn. The first is around the Treaty clause. Māori submitters raised concerns around how the Crown’s Treaty obligations were referred to in the original purpose clause, arguing that the phrasing appeared to limit the Crown’s obligations to protect kaitiaki relationships. These provisions were examined by a cross-agency group, including the Ministry of Business, Innovation and Employment, Te Puni Kōkiri, Te Arawhiti, the Crown Law Office, and the Parliamentary Counsel Office. The new purpose clause 3(b) is a straightforward statement of what the bill does, without implying that, in general, this is all the Crown’s Treaty obligations amount to. A new Treaty clause in 3A then sets out how the bill recognises and respects the Crown’s Treaty obligation.

Hon Member: Well done; that was a hard road to hoe!

Hon Dr DAVID CLARK: They’re still barking at me from across the way!

The other main change in Part 1 is the definition of “essentially derived variety”, referred to as an “EDV”. This is a new concept introduced by UPOV-91. If a new variety is essentially derived from an initial variety, then the rights holders of that initial variety also have rights over the EDV and they will come between them to some kind of agreement as to how those rights can be exploited. The definition in the introduction version was, arguably, quite narrow in an attempt to provide more clarity to what is a somewhat ambiguous definition in UPOV-91. Ultimately where the select committee landed in response to submitters was that, actually, it was better to leave the UPOV-91 as it was, as our trading partners have done. So the select committee made that change to the bill.

Finally on this part, under the transitional provisions, any PVR grants made or applications filed before the relevant provisions of the new legislation commence will be considered under the current legislation, the Plant Variety Rights Act 1987. Given that grants were made on this basis, with contracts then drawn up based on those provisions, it is only fair that those provisions are maintained after the new legislation commences. Otherwise, an action that was not an infringement prior to the commencement of the new legislation could suddenly become so, and that doesn’t seem right.

So, in closing, this bill brings Aotearoa in line with the international community, cultivates innovation in plant breeding, and supports economic growth, while protecting our taonga plant species and mātauranga Māori. I don’t share concerns held by other members about issues such as the term of a PVR, but I do welcome constructive debate on these topics. Thank you, Madam Chair.

Thank you, Madam Chair. It was quite difficult to try and pay attention to the debate with all the to-ing and fro-ing with all the references to plants and—

Hon Member: It’ll grow on you.

MELISSA LEE: Yes. I guess those kinds of jokes have set root in this Chamber. Thank you, Minister, for the setting of what this bill is actually all about. I think it is really important to explain that the plant variety rights are a form of intellectual property rights, providing plant breeders with exclusive rights relating to reproductive material, such as seeds or cuttings of the variety in concern. I think, when you actually consider the fact, as the Minister has actually said, this is to bring New Zealand up to the International Union for the Protection of New Varieties of Plants 91 (UPOV-91). The current Plant Variety Rights Act is aligned with an earlier version of UPOV convention, which is UPOV-78. So we need to actually grow with the times and come up with a way that we can actually either, how would you say, accede to the UPOV. I don’t quite know how to pronounce that, is it “You-pov” or “Ooh-pov”? UPOV-91. National supports moving to a new plant variety rights regime that will give effect to UPOV-91 and strengthen protection for plant breeders.

I guess with the committee stages, we have to actually go clause by clause. In Part 1, I have specific questions to the Minister. In Part 1, Subpart 1, at clause 3, paragraph (b), it actually talks about how it protects the kaitiaki relationship with taonga species and mātauranga Māori in the plant variety rights system. And if you actually look at Part 1, Subpart 2, the interpretation of some of that, and if you go to where it actually talks about the kaitiaki relationship, it says “in relation to a plant species, means the relationship that any particular iwi, hapū, individual of Māori descent or Māori entity has, or Māori in general have, as guardian, trustee, or caretaker of—(a) an indigenous plant species; or (b) a non-indigenous plant species of significance”. So I’m trying to actually find out exactly what those species are. Is there actually a list of the kaitiaki relationships that a particular indigenous plant species or non-indigenous plant species have that are actually of significance to the Māori for this particular kaitiaki relationship that this part actually talks about?

One of the reasons I actually ask that question is because in my own culture, we have specific things that actually have special meaning. For example, what Māori call kūmara, in Korean we call goguma. Goguma is a sweet potato that actually nourished the people during the war. That was the only means of food that people actually had in Korea. Sweet potato was boiled up and people actually used it as a meal when they did not have the grains. And the leaves and the stalk of the leaves are, even now, to this day, dried and used as a side dish. So it is actually very special to the Korean people. So, I’m thinking, is kūmara, which is the same thing as goguma, sweet potato—does it actually have the kaitiaki relationship or the rights in this particular legislation? I would really appreciate if there are others that the Minister thinks that he should highlight to the Chamber on this particular aspect of the bill.

Obviously, that’s the part where we would discuss exactly which ones are in as a separate part of the bill. But I shall endeavour to get the member as best a list as I can as the debate progresses. It’s something I’m aware was covered fairly extensively at the select committee.

Thank you, Madam Chair. Oh, sorry, I’ll take this off. [Removes mask] Thank you, Madam Chair. Look, just referring to Part 1, we have Supplementary Order Paper 193, which my colleague Andrew Bayly has tabled, and he’s suggesting that we have an insertion in clause 5, which is for “Plant Variety Intellectual Property Review Tribunal or tribunal means a tribunal established under section 127B(a)”. I wonder if Minister Clark could address whether or not the Government is going to be supporting that, to give some clarity to this. This is actually a very important bill, in terms of the work that’s going on in science and research, obviously, and innovation. So that we make sure we have a bill that we don’t just have to come back to again next year and correct, we have the time, as a committee of the whole House, to get this right. And I wonder if the Minister could give us an indication of whether or not he’s going to be having his party support that particular amendment and clarification.

The question is that the Minister’s amendment to clause 7 set out on Supplementary Order Paper 155 be agreed to.

The question is that Mark Cameron’s amendments to Part 1 set out on Supplementary Order Paper 186 be agreed to.

The question is that Andrew Bayly’s amendment to Part 1 set out on Supplementary Order Paper 193 be agreed to.