Manu's Memos

Bringing the First Laws of Aotearoa into Nature-Dependent Business (which is all businesses!)

---

Aotearoa is witnessing the emergence of a new kind of institutions – legal entities established to help protect particular taonga species, uphold the authority of their kaitiaki, guide research and commercial development, and ensure that tangible benefits flow back to taonga and supporting natural ecosystems.

The Mānuka Charitable Trust, Kānuka Charitable Trust, Wairuakohu Charitable Trust, and Ngā Rauropi o Aotearoa Charitable Trust have developed sequentially over the last five years in response to practical problems. Researchers and companies increasingly want access to indigenous plants, fungi, microorganisms, genetic information and mātauranga Māori, yet Aotearoa still lacks a comprehensive access and benefit-sharing regime. There is no dedicated bioprospecting legislation, comprehensive national permitting system or consistent process through which multiple iwi and hapū can exercise overlapping rights and responsibilities for widely distributed species.

The taonga trusts attempt to fill part of this institutional vacuum. Their significance extends beyond biodiscovery, offering a bridge between tikanga Māori, the international Rights of Nature movement, and business trends encouraging companies to recognise their dependencies on Nature, become regenerative and contribute to ecological restoration.

Their most important proposition is that a taonga should not enter commerce merely as a biological input, nor just for the benefit of human stakeholders. A taonga has whakapapa, mauri, mana and wairua. It exists within ecological, human and metaphysical relationships that generate authority, responsibilities and limits. Commercial activity should therefore be organised around the integrity and intergenerational wellbeing of the taonga, rather than treating ecological restoration and benefit-sharing as optional additions after value has been extracted for other stakeholders.

Tikanga as the first law

While physical, ecological and biological processes and limits can be considered the first laws of Aotearoa, evolving of hundreds of millions of years, in Ellis v R, the Supreme Court unanimously confirmed that tikanga has been, and will continue to be, recognised in the development of the common law where relevant. Tikanga also forms part of New Zealand law through legislation and regulation and may be relevant to the exercise of legal discretions. A majority of justices accepted that tikanga was the first law of Aotearoa and cautioned courts against impairing its operation as a system of law in its own right. 

Any analysis of legal entities established to represent the interests of taonga must therefore begin with the legal status of tikanga.

This has important implications for the language used to describe taonga. It would be misleading to say that a taonga has no legal status simply because Parliament has not declared it to be a legal person. That conclusion would recognise only the categories of Crown law and overlook tikanga as an independent source of law and authority.

According to tikanga, a taonga may be understood as an ancestor, atua or living relative of humans and other organisms, possessing mauri and mana. Its relationships with people, other taonga, whenua and ecosystems generate reciprocal responsibilities. The relevant question is therefore not simply whether the taonga holds a Western-style bundle of legal rights. It is what status the taonga possesses according to the tikanga of the relevant iwi and hapū, what authority and obligations follow from that status, and how the institutions of Crown law and commerce should recognise them.

Legal personality nevertheless remains a useful Crown-law mechanism. Parliament has expressly declared Te Urewera to be a legal entity and Te Awa Tupua to be a legal person, each possessing the rights, powers, duties and liabilities of a legal person. Those statutes provide formal mechanisms through which representatives act on behalf of those entities. So there is precedent in Aotearoa for the interests of Nature to be recognised in legal entities – by both Treaty partners, the Crown and hapū/iwi. 

No comparable legislation presently declares kānuka, mānuka, wairuakohu or indigenous fungi, berries or microrganisms collectively to be legal persons. This does not deprive them of standing under tikanga. It does mean that they may not independently own property, enter contracts or commence proceedings in their own names under Crown law. Taonga trusts provide some of these practical capacities through an incorporated human institution.

The trusts should consequently be understood as interfaces between legal orders. They do not create the mana or mauri of a taonga, nor are they the source or exercise of kaitiaki authority. They provide vehicles through which pre-existing tikanga relationships and responsibilities can operate within charities law, intellectual-property systems, research agreements and commercial transactions.

Putting the taonga at the centre

The emerging governance architecture places taonga at the centre of decision-making. Governance, research and commercial activity flow outward from the integrity of the taonga. In the words of the iwi/hapū-facing model, the taonga is “not an input”; it is the ancestor and relational anchor.

This differs fundamentally from conventional corporate sustainability. Businesses commonly describe Nature as “natural capital,” identify ecosystem services on which they depend, and assess environmental risks that could affect financial performance. These practices can improve decision-making, but they remain largely company-centred. Nature matters because its decline creates operational, regulatory, financial or reputational risk.

A taonga-centred model reverses the direction of analysis by asking what research, conservation or commercial activity means for the taonga’s mauri, ecological relationships and future options. The research, conservation or business effort is one participant in a continuing relationship, not the primary entity around which all other interests revolve.

The Wairuakohu Charitable Trust principles make this especially clear. They prioritise the protection and enhancement of, firstly, the species; secondly, the ecosystems that support it; thirdly, kaitiaki groups with rights and responsibilities for it; and fourthly, the wider public. Ngā Rauropi o Aotearoa Charitable Trust similarly exists to protect, restore and enhance taonga and their ecosystems, support kaitiakitanga, prevent misuse and enable ethical research and innovation.

This hierarchy is important. In ordinary sustainability programmes, ecological benefits are often justified by public or shareholder benefit. Under more Nature-centred models, like these taonga trusts, the species and ecosystem have interests that precede, and in many cases supersede, the interests of businesses and other human beneficiaries.

The definition of taonga is also expansive. Depending on the trust, it may encompass the organism, regional variants, genetic material, biochemical constituents, derivatives, genomic data, digital sequence information, associated mātauranga and ecological relationships. Protecting the taonga therefore requires more than conserving specimens in the wild. It may require governance of databases, patents, trade secrets, artificial-intelligence applications, product branding and the cultural narratives attached to commercial goods.

Taonga trusts also recognise that the world has been changed irrevocably by human activities and no habitats and ecosystems on Earth exist in a world beyond the impacts of climate change and biodiversity loss as a result of human endeavours. For this reason they recognise the need to channel financial resources and human effort into the protection of taonga and restoration of Nature, without mechanisms that direct resources to these ends, the quantity and quality of species, habitats and biodiversity will continue to decline. So the taonga trusts are not just advocates or placeholders to provide a voice for those non-human stakeholders in research commerce and conservation, they can also be conduits and shareholders in commercial structures to support the flow of capital and resources back to Nature. 

Authority remains with kaitiaki

A recurring concern is whether a small group of self-appointed trustees can legitimately speak for taonga distributed across many rohe. The stronger deeds answer this by distinguishing the trust from the kaitiaki.

The Wairuakohu deed states that the trust is not the kaitiaki of Wairuakohu. It is an advocacy entity intended to protect the taonga in partnership with customary owners and kaitiaki. Ngā Rauropi similarly declares that the trust is not the kaitiaki and that authority derives from legitimate ‘Kaitiaki Collectives’ (hapū, iwi and Māori with mana whenua or mana moana associated with particular areas and ecosystems).

Ngā Rauropi o Aotearoa Charitable Trust deed establishes a register of mandated hapū and iwi bodies holding customary rights and responsibilities for taonga or their supporting ecosystems. Recognition of one collective does not exclude others. Registered collectives vote on trustee appointments and removals and on significant decisions, including intellectual property transfers, research and commercial access frameworks, amendments to the deed and winding up. This model makes kaitiaki collectives part of the constitutional decision-making structure in a democratic system designed to provide equal power to all groups with rights and responsibilities associated with taonga found in their territories.

The trusts nevertheless differ. Some retain conventional arrangements under which existing trustees appoint successors and exercise broad discretion after consultation. Others are moving toward elected or mandated kaitiaki representation. These differences reflect an unresolved question: is a taonga trust principally an independent environmental charity, an industry-development body to ensure ethical utilisation, an advocate supporting kaitiaki and Nature finance, or an entity controlled by kaitiaki collectives for the coordinated exercise of shared rights and responsibilities of kaitiaki?  

The answer affects its legitimacy, especially when commercial permissions and benefit-sharing arrangements could affect groups not yet participating in the trust.

From consultation to continuing representation

Taonga trusts can move Nature from being an external stakeholder to an enduring participant in innovation. A trust can remain involved throughout the research and commercialisation lifecycle rather than being consulted once at the beginning of a project.

Its functions may include setting access conditions, approving sensitive research, holding certification marks, protecting names, licensing intellectual property, receiving royalties, monitoring ecological impacts and challenging misappropriation. It can also preserve institutional memory when researchers, businesses and government policies change.

The proposed dual-responsibility model separates commercial execution from guardian authority. A company or other operating entity manages investment, product development and market activity. A kaitiaki council or taonga-governance body protects mauri, cultural integrity and intergenerational interests.

Escalation to the guardian body would occur where decisions have consequences beyond an individual project or rohe. Examples include publishing a species reference genome, making a species-wide patent claim, establishing global branding, exceeding ecological harvesting thresholds or maintaining trade secrets that could restrict future rangatiratanga.

This structure can benefit investors as well as kaitiaki. Clearly defined authority, escalation triggers and consent processes reduce uncertainty. The model does not require trustees or kaitiaki representatives to run the business. It requires commercial actors to operate within a legitimate constitutional framework.

Intellectual property and future rangatiratanga

The proposed research agreements challenge the assumption that traditional knowledge and genetic resources become ordinary institutional intellectual property when they enter a laboratory.

Mātauranga and genetic resources sourced from kaitiaki communities are expressly excluded from researchers’ background intellectual property. They remain subject to tikanga, community protocols and kaitiaki decision-making. Free, prior and informed consent should be obtained before research begins, with permitted uses and benefit-sharing arrangements documented in writing.

The proposed terms prohibit uses beyond those authorised, prevent onward transfer without consent, preserve customary and non-commercial use and recognise Māori data sovereignty. Intellectual property derived from traditional knowledge or genetic resources may vest in kaitiaki communities, while researchers receive limited licences for agreed academic purposes.

These provisions seek to protect future rangatiratanga. A patent should be limited to a defined application rather than capturing the species itself. Trade secrets should be reviewed periodically and provide access pathways for legitimate kaitiaki. Branding should acknowledge its rohe and Indigenous source without erasing the relationships of other iwi. Databases should preserve provenance, observe culturally appropriate restrictions and provide mechanisms for correction or removal.

This is a form of intergenerational stewardship: present commercialisation must not eliminate the ability of future kaitiaki to use, study, protect or make decisions about the taonga.

Reciprocity and regenerative business

The trusts also give practical meaning to the idea that nature-dependent businesses should contribute back to Nature. Benefit-sharing is not limited to monetary payments to communities. It can include habitat restoration, propagation, ecological monitoring, research capability, employment, technology transfer, data repatriation, co-authorship and support for future generations.

The emerging kānuka sector provides a useful example. The Hikurangi Bioactives partnership model has allocated broadly comparable profit shares to investors, communities of origin and activities intended to benefit the taonga. The Kānuka Charitable Trust has also worked on certification, industry standards and landowner engagement.

The important feature is structural reciprocity. Benefits for the taonga are built into the commercial arrangement rather than donated after profits have been distributed. Ecological contribution can be connected to licences, royalties, commercial milestones and monitoring obligations.

A genuinely regenerative business relationship would therefore require more than an annual restoration grant. It would ask whether the species and its habitat are demonstrably healthier because commercialisation occurred; whether kaitiaki retain meaningful authority; whether local capability has grown; and whether the commercial model leaves more options for mokopuna rather than fewer.

A federated network

Species-specific institutions have advantages. They can develop deep relationships, ecological knowledge and specialised commercial standards. But an uncontrolled proliferation of trusts also presents risks. The strategic analysis anticipates potentially dozens of trusts, creating duplication for iwi and hapū that may have responsibilities for many species.

Independent trusts may develop inconsistent standards or compete for recognition and resources. Researchers and companies might approach the entity offering the easiest terms. One weak agreement could establish an unfavourable precedent, while overlapping claims could undermine confidence in the whole system.

The preferred response is not necessarily a single centralised authority. A federated Taonga Trust Network could preserve species-specific autonomy while sharing legal, policy, technical and data infrastructure. Kaitiaki collectives would retain authority for their relationships with particular taonga; each trust would manage its operations; and the network would coordinate common standards, government engagement and collective learning.

Te Pūnaha Taonga is proposed as digital infrastructure supporting kaitiaki registration, enquiries, deliberation, consent, provenance and benefit-sharing. Properly governed, it could make a distributed system navigable without transferring authority away from iwi and hapū.

An emerging, not completed, model

Taonga trusts remain experimental. Their ecological principles are not always binding. Their representational legitimacy varies. Trustees must operate within charitable law, while some trusts simultaneously pursue environmental protection, Māori development and industry growth. Those purposes will not always align.

There is also no comprehensive statutory system recognising the trusts’ authority. They cannot solve the wider absence of biodiscovery legislation, patent disclosure requirements, access and benefit-sharing standards or a competent national authority.

Nor should a trust be mistaken for the taonga itself. A Crown-law vehicle can gradually displace the tikanga relationships it was created to serve. Clear kaitiaki control, accountability, transparent decision-making and limits on trustees’ mandates are essential.

Despite these limitations, taonga trusts represent a significant institutional development. They demonstrate how tikanga – the first law of Aotearoa – might shape the governance of contemporary science and business without being reduced to consultation or cultural advice.

Their contribution to the Rights of Nature movement may not lie primarily in declaring every species a legal person. It lies in showing how the status and interests of taonga can be represented continuously in the institutions that make decisions about research, investment and commerce.

For business, the implication is equally important. Recognising dependence on Nature should mean more than measuring risk. A nature-dependent enterprise may need to enter a continuing relationship with entities authorised to represent the taonga and its kaitiaki, accept limits on appropriation, share authority and benefits, and demonstrate positive ecological outcomes.

In that model, Nature is no longer merely an input, an externality or a beneficiary. The taonga becomes an enduring participant in the commercial relationship – and business becomes accountable to a legal and relational order that existed long before the company did.

—