When the Contract Takes More Than It Should: What HR Professionals Need to Know About Mātauranga Māori and Intellectual Property

I am taking a break this week. Which, if you know anything about how a late diagnosed AuDHD brain operates, means I am still sitting here writing to you, because apparently this is what rest looks like for me. No fifteen-point framework. No structured deep dive. Just one thing I want to put in front of you before I go and build an Animal Crossing island with my kid.

That one thing is this: I recently had a peer-reviewed research paper published in the New Zealand Journal of Employment Relations. The topic is intellectual property clauses in employment contracts and the protection of Mātauranga Māori. I know how that sounds. I also know that if you work in HR, lead a team, or manage people in Aotearoa New Zealand, this is one of the most practically important things you will read this year.

The research shows that the standard employment contracts most New Zealand organisations use right now, including the ones your HR team almost certainly drafted from a template, may be capturing Māori cultural knowledge in a way that is inconsistent with tikanga Māori, inconsistent with Te Tiriti o Waitangi obligations, and increasingly inconsistent with how New Zealand courts are thinking about Indigenous law.

What Is Mātauranga Māori and Why Does It Matter in an Employment Context

Mātauranga Māori refers to the cumulative body of knowledge, wisdom, values, and practices developed by Māori over generations. It is grounded in whakapapa and te ao Māori, encompassing ways of knowing, being, and relating to the world, including environmental knowledge, social systems, language, tikanga Māori, and spiritual understandings. Critically, it is not static. It continues to evolve while remaining anchored in Māori worldviews and lived experience.

What makes Mātauranga Māori particularly significant in an employment context is its relational and collective nature. This knowledge does not belong to individuals. It is held by communities, transmitted through whakapapa, and governed by tikanga Māori, the body of Māori customary law that has operated as the first law of Aotearoa since long before European settlement. Individuals who carry this knowledge are kaitiaki, guardians, not owners. They hold authority over it on behalf of their iwi and hapū, not as a personal asset they can transfer to a third party.

Standard employment contracts, however, are built on an entirely different framework. They assume that knowledge is an individual asset. That it can be created, owned, and transferred by one person. That what an employee produces in the course of their work belongs, by default, to the employer.

When those two frameworks collide in the same employment relationship, Māori employees are placed at genuine legal and cultural risk.

Individuals who carry Mātauranga Māori are kaitiaki, guardians, not owners. They hold authority on behalf of their iwi and hapū, not as a personal asset they can transfer to a third party.

The Problem with Standard Intellectual Property Clauses

My research examined intellectual property clauses from six real New Zealand employment contracts, drawn from banking, tertiary education, construction, professional services, FMCG, and healthcare. Despite operating in entirely different sectors, every single one contained a clause asserting employer ownership over intellectual property created during the course of employment. None of them distinguished meaningfully between work-specific outputs and personal, pre-existing, or culturally derived knowledge.

Some of the language was striking in its breadth. One clause from a tertiary education institution stated that all work produced by the employee, including work material created at any time during the period of their employment, whether or not during normal working hours, would be the sole and exclusive property of the employer. The employee was also required to waive all moral rights in respect of that work.

Another, from a top-tier professional services firm, asserted that all intellectual property conceived, created, or discovered by the employee, either solely or jointly with others, during the course of employment or otherwise in connection with employment or the business of the company, would belong to and be the absolute property of the company in all territories throughout the world.

These are not unusual clauses. They are the standard. They have been drafted this way for decades, based on Western legal concepts of individual authorship and employer ownership that trace back to the Copyright Act 1994 and the work-for-hire doctrine embedded within it. Section 21 of that Act grants employers first ownership of copyright for works created by employees in the course of their employment, unless otherwise agreed.

The problem is not that these clauses exist. The problem is that they were never designed to account for knowledge that is collectively held, culturally governed, and not capable of individual assignment. Applied to Māori employees, particularly those in advisory, cultural, or leadership roles, they create a mechanism through which Mātauranga Māori can be captured by an organisation without consent, without recognition, and without any benefit flowing back to the iwi or hapū from whom that knowledge originates.

These clauses were never designed to account for knowledge that is collectively held, culturally governed, and not capable of individual assignment.

A Scenario Every HR Professional Should Sit With

Consider a senior Māori advisor at a government agency. They are exceptional at their job. They bring something their organisation genuinely cannot manufacture: decades of relationships built through their community, knowledge passed down through their whakapapa, and a deep understanding of tikanga Māori that shapes every piece of work they touch.

During their employment, they develop a policy framework that incorporates tikanga Māori principles and draws on Mātauranga Māori shared with them through lived experience and community roles held outside the workplace. The framework is innovative, widely praised, and later adopted across multiple agencies.

Their employment agreement contains the standard intellectual property clause. Anything created as part of their job or in the employer’s time belongs to the employer, immediately, with an obligation to disclose and assign ownership.

Under the operation of that clause, the organisation asserts ownership over the framework in its entirety, including the underlying concepts, the cultural logic, and the knowledge that was collectively held by their iwi long before that employee ever signed a contract.

The iwi receives no recognition. No ability to influence how the framework is used or commercialised. No benefit-sharing. What was intended as culturally grounded public service becomes, through contractual default, an act of institutional appropriation.

And the part that stayed with me longest when writing this paper: nobody in that scenario did anything wrong in the conventional sense. The employer did not set out to take anything. The employee did not realise what they were signing. It happened because a standard form contract, designed without Indigenous knowledge systems in mind, was applied in a context it was never built for.

That is not a defence. That is a design failure. And in 2025, it is one that HR professionals have both the knowledge and the responsibility to address.

The Legal Landscape Is Shifting

This is not simply an ethical argument. The legal ground beneath standard employment contracting practices is moving, and organisations that are not paying attention risk being on the wrong side of where the law is heading.

In 2022, the New Zealand Supreme Court heard Ellis v R and confirmed that tikanga Māori is not merely a cultural consideration but a source of law that can inform and shape the common law of New Zealand. Tikanga Māori existed as a system of law prior to colonisation and continues to have legal significance within New Zealand’s constitutional framework. This was not a peripheral ruling. It was a direct statement from the highest court in the country about the legal status of Māori customary law.

Article 2 of Te Tiriti o Waitangi guarantees Māori tino rangatiratanga over their taonga, a concept that extends well beyond physical property to include knowledge, cultural practices, and intellectual creations. The Waitangi Tribunal’s 2011 Wai 262 report found explicitly that New Zealand’s intellectual property regime fails to protect Māori rights over Mātauranga Māori, and called for significant legislative reform.

The Fair Trading Amendment Act 2021 introduced new protections against unconscionable conduct in contract negotiations, with factors including relative bargaining power, good faith, and undue pressure all directly relevant to the employment context. Where Māori employees face pressure to accept broad intellectual property clauses that capture cultural knowledge without consultation or consent, these provisions may increasingly be engaged.

Organisations that act now, before they are required to by litigation or legislation, are in a significantly stronger position than those that wait.

The Literacy and Power Imbalance Problem

There is a further dimension to this that HR professionals need to understand, and it concerns the conditions under which employment contracts are actually signed.

Research from Stats NZ indicates that approximately 40 per cent of New Zealand adults score below the literacy threshold considered necessary to engage meaningfully with complex legal documents such as employment agreements. International research demonstrates that most people do not read standard contracts in full, and even when they do, frequently misunderstand their legal effect.

For Māori employees, these comprehension barriers operate alongside existing power imbalances and cultural considerations. The expectation that an employee will identify, interpret, and challenge an overreaching intellectual property clause assumes not only legal literacy but also institutional safety. Research by Tan and colleagues, published in 2024 in New Zealand Sociology, documented how systemic racism and historical inequities in the workplace limit the ability of Māori employees to negotiate fair contract terms. Māori workers who raise concerns about contractual provisions face professional and cultural risk that their non-Māori colleagues typically do not.

The formal availability of a consent mechanism does not equate to substantive fairness. An employee who signs a contract they cannot fully interpret, under conditions where questioning its terms carries real professional risk, has not freely consented to the intellectual property provisions within it. HR professionals who understand this dynamic have both an ethical and a practical obligation to address it at the point of contract design, not after the fact.

What Better Looks Like: Practical Steps for HR Professionals

Meaningful reform does not require waiting for legislation. Organisations can act now, within existing legal structures, to significantly reduce the risk of inadvertently capturing Mātauranga Māori through standard intellectual property clauses.

Review and revise your intellectual property clauses

Start by reading your current employment contract template and asking a simple question: does this clause distinguish between work-specific outputs and personal, pre-existing, or culturally derived knowledge? If the answer is no, the clause needs revision. Proportionate, role-specific intellectual property clauses that explicitly exclude personal and cultural knowledge are both legally defensible and practically workable. Blanket claims on everything an employee produces during the period of their employment are not.

My research proposes a three-part draft clause as a starting point. The first element is a standard default: work created as part of defined duties and during agreed hours belongs to the employer. The second is an explicit exclusion: nothing in the agreement transfers ownership of Mātauranga Māori, tikanga Māori, or cultural knowledge held collectively by iwi or hapū, merely because an employee draws on it in their work. The third is a mandatory separate process: any use of Indigenous knowledge in connection with the organisation’s activities must be governed by a separate written agreement based on informed consent, with provisions for attribution and equitable benefit-sharing.

Co-design contracts with Māori input

Employment contracts that reflect tikanga Māori require Māori input to get right. This means engaging iwi representatives and Māori legal experts in the design process as genuine co-design partners, not as a consultation exercise. The Employment Relations Act 2000 requires parties to be active and constructive in establishing and maintaining employment relationships. Co-designed contracts that reflect tikanga Māori concepts such as whanaungatanga and mana are more consistent with those good faith obligations than standard form documents drafted without any reference to the cultural context in which they operate.

Address power imbalances directly

Organisations should provide access to independent legal advice or culturally competent advisors for employees during contract negotiations, particularly where cultural knowledge may be implicated. This responsibility should sit with the organisation, not with individual Māori employees who are already navigating significant structural disadvantage. Ensuring intellectual property clauses are explained in plain language at the point of signing, with explicit acknowledgment of what they do and do not cover, is also sound practice.

Establish benefit-sharing mechanisms

Where Mātauranga Māori is used in connection with organisational activities, benefit-sharing arrangements should be treated as standard practice rather than exceptional accommodation. This may include financial compensation, co-ownership arrangements, attribution, or community investment. The Haka Ka Mate Attribution Act 2014 provides a useful domestic model: it does not grant exclusive ownership but recognises collective custodianship and requires attribution when the haka is used commercially.

Build ongoing cultural competency

Contractual and policy reform is insufficient without the organisational capability to apply those principles in practice. HR professionals, managers, and senior leaders need ongoing cultural competency development that goes beyond a one-day workshop. Understanding Mātauranga Māori, tikanga Māori, and the limits of Western intellectual property frameworks is foundational to operating with integrity in Aotearoa New Zealand.

The Bigger Picture

This is not only a Māori issue, though it is most acutely a Māori issue in this context. Employees from other Indigenous and collectivist knowledge traditions face similar risks wherever employment contracts assume that all knowledge used in the course of work is individually owned and freely transferable. The principles at stake, collective custodianship, informed consent, benefit-sharing, and culturally appropriate contracting, are relevant to any organisation that takes its obligations seriously.

The Wai 262 report called for the development of a sui generis legal framework specifically designed to protect Mātauranga Māori, one that would sit alongside existing copyright and patent law and provide clearer guidance for employment contracting. That framework does not yet exist. Until it does, the responsibility falls to HR professionals and organisational leaders to fill the gap.

The organisations that will look back on this period well are the ones that did not wait to be told. They looked at their standard employment contracts, asked whether they were fit for the context in which they operated, and made changes because it was the right thing to do.

That is what good HR looks like. And it turns out, that is also what good law looks like.