Plant Variety Rights Bill

Members, we come now to Part 5. This is the debate on clauses 52 to 68D and Schedule 1A, “Additional provisions that apply to indigenous plant species and non-indigenous plant species of significance”. The question is that Part 5 stand part.

I expect that we will probably run over the time allocated for today, even as I make my comments on Part 5. It is where a lot of substantive material and, I expect, substantive debate will reside, and some of the issues we have traversed already in the committee in passing. The member Andrew Bayly’s Supplementary Order Papers (SOPs) have gone across Part 4 and Part 5 in part, so some of the arguments will be traversed again, and I’m looking forward to the debate.

Part 5 of the bill gives effect to our Treaty of Waitangi obligations in relation to the plant variety rights (PVR) regime. It establishes the Māori Plant Varieties Committee, setting up the appointments process, remuneration, and the committee’s functions. It provides that all PVR applications must have to derive from either an indigenous plant species, or one of a short list of non-indigenous plant species of significance where that material was obtained in New Zealand must first be sent to the committee for consideration. It then sets out the role and function of the committee in relation to these applications, and you can see already that these are some of the things that we’ve already started debating but that probably actually belong in Part 5.

Importantly, it gives the committee a decision-making power in relation to the applications it considers. This is the right thing to do. Just as the commissioner is empowered to make decisions on matters relating to their expertise, so is the Māori Plant Varieties Committee empowered to make decisions on matters relating to their expertise—namely, in Te Ao Māori.

With one significant exception, the select committee did not recommend many amendments to these provisions. That exception is the right of appeal to a decision of the Māori Plant Varieties Committee, and we had begun to discuss that also in the debate on Part 4. The amendments to the right of appeal are discussed in the Government’s SOP 132, which was released on 8 March this year.

The SOP I’m tabling—SOP 132—to address a number of technical issues also amends the definition of “indigenous plant species”. While the introduction version referred to plants that “occur naturally in New Zealand”, an amendment recommended by the select committee changed this to “endemic” in New Zealand, following a comment made by a submitter. This has inadvertently narrowed the definition, as it will exclude those indigenous plants that are also found in other countries, and mānuka is a prime example of that. The SOP reverts the definition back to that in the introduction version of the bill.

Understandably, Part 5 has attracted a considerable amount of comment from both industry stakeholders and Māori. What this part sets out to do is quite new, going further than similar provisions in other intellectual property regimes. Industry stakeholders have generally been concerned about the uncertainties of how this process will play out in practice, and Māori consider that the provisions do not go far enough to protect their taonga. My view is that the bill addresses both of these issues.

Firstly, there will be at least a year following Royal assent before the Māori Plant Varieties Committee starts considering applications, and during that time, the committee will prepare guidance for breeders and kaitiaki. The committee is also required to publicly notify the processes by which it will consider applications, and it can advise breeders as appropriate. I think that will be appreciated by all in the industry—that increased scrutiny that comes with that—and that will give breeders the time and support they need in that to prepare for the new processes.

The policy decisions underlying the bill were also considered in a three-day Waitangi Tribunal hearing in 2019. The tribunal found no breach of the Treaty and, indeed, endorsed those decisions which strengthened the recommendations of the Wai 262 report.

A little on the right of appeal: the Opposition’s SOP 193 sets to replace the provisions for appeal to the Māori Appellate Court with provisions for appeal to a specialist plant variety intellectual property review tribunal. The bill as introduced did not contain a right of appeal—and, again, we’ve traversed this a little bit in the Part 4 debate—to the courts on a decision of the Māori Plant Varieties Committee, though judicial review would always have been available. The intent was to have that committee with its experts in Te Ao Māori as the key decision-makers. However, many submitters were—and, in my view, rightly—concerned that that wasn’t sufficient and that that legislation should provide adequate pathways to challenge a decision when a person’s interests are affected by a statutory decision. Māori submitters who commented on the issue disagreed, supporting the rationale of the introduction version, and I congratulate the select committee on finding a solution to the issue that, hopefully, addresses everybody’s concerns.

So the bill now provides that decisions of the Māori committee be appealable to a higher court and has determined that the most appropriate court is the Māori Appellate Court, and that was the recommendation of the judiciary. I note that this court would have the necessary expertise to consider the kinds of questions that an appeal would seek to determine and that it would be more accessible for Māori, both in terms of tikanga and lower filing fees, than the High Court.

I have more to say, but I think it might wait.

I’m sorry to disturb the Minister, but I do have to report progress on these bills.

Progress to be reported.

House resumed.