National | Rongoā

‘Crown has no place in regulating rongoā’ says expert

Rongoā Māori practitioner Donna Kerridge says the Crown has “overstepped the mark” in trying to regulate rongoā Māori in the draft of the Therapeutic Products Bill.

“Without fail, Māori will take a Waitangi Tribunal claim under urgency if this bill progresses in its current form. The Crown has no place in regulating the practice of rongoā Maori. Not one part of it.”

The Therapeutic Products Bill (TBP) is intended to replace the Medicines Act 1981 and the Dietary Supplements Regulations 1985 to regulate therapeutic products, such as medicines, medical devices, natural health products and their ingredients.

Kerridge is the spokesperson for the governance body for rongoā Māori, Te Kāhui Rongoā. She has more than 20 years of experience as a rongoā practitioner and registered allied health professional. For the past decade, the Crown has consulted her about the proposed natural health product legislation in Aotearoa.

“The really sad thing is that there is absolutely no evidence in this bill that they've heard a single word we've said to them over the past 10 years," she says.

“They failed to protect rongoā Māori in this Bill, but even worse, they set to assume control over it something they have no place or even expertise in.”

Crown 'overstepped mark'

In her submissions to the Crown opposing the Bill, Kerridge has offered recommendations for the bill to “recognise Māori rights to tino rangatiratanga over their taonga as guaranteed in Article 2 of Te Tiriti o Waitangi” and for "nothing in the bill to apply to rongoā Māori".

“The Crown's overstepped its mark, it doesn't have authority to regulate our taonga. Article two prevents them from being able to do that.”

Rongoā Māori practitioner Donna Kerridge. Source: File

Rongoā doesn't fit a western legislative framework

Kerridge says the bill “cherrypicks aspects of rongoā Māori to fit a western legislative framework. Intended or unintended, this bill in its current form assumes Crown control over Māori forms of healing.”

She says rongoā Māori is not a natural health product and cannot be reduced to a product that is determined by its physical ingredients. As well as herbal remedies, rongoā can also include karakia, wānanga, exercise, playing the puoro to calm a person, wairua and other physical practices like mirimiri and romiromi (massage).

“It's very, very different from our notions of Western medicine. Ours is a more interconnected approach and it's managed quite adequately over the centuries through tikanga and kawa.”

Bill intends to regulate ingredients

While rongoā is not mentioned explicitly in the bill, the legislation does intend to regulate natural health products through a permitted ingredients list that will include some animal and plant materials used in rongoā.

“What we do is tried and true over centuries and for somebody else to come in and go, ‘No, no, no, you need to swap that ingredient out, we don't like it. You need to put this one in,’ that puts me at risk and it puts people that I might share that with at risk," Kerridge says.

“Practitioners will stop practising. Costs will go up because we've got a whole set of hoops to jump through that we wouldn't have had to jump through before.”

Kerridge believes the bill is similar to the Tohunga Māori Suppression Act 1907, which outlawed traditional practices from 1907-1962. It wasn’t very effective, with only nine convictions obtained under the act.

“The Tohunga Suppression Act was designed to stop people from saying they could do things that they couldn't; prophesying if you like. And for us as Māori, our connection to wairua informs a lot of our practice,” Kerridge says.

The Quackery Prevention Act 1908 followed, stopping rongoā practitioners from making any unproven scientifically therapeutic claims. Those two acts were repealed and the Medicines Act 1981 replaced them.

“Under The Medicines Act Māori are not allowed to apply things to the eyes. Māori not allowed to say as used by my tūpuna even if it's true. We are not allowed to name a diagnosable condition. I can't say we're going make this together and it's going help your eczema or you can use it on your eczema.”

Kerridge says a lot of what is drafted in the TBP is good and it is “due for an overhaul”.

“But as the law stands today, Māori and the practice of rongoā Māori is severely at risk. It will outlaw our practice as it’s practised today and that's not okay.”

Debbie Ngarewa-Packer. Source: File

Te Pāti Māori co-leader Debbie Ngarewa-Packer was one of the few MPs to sound the alarm after the first reading of the bill was passed. She is also a member of the health select committee overlooking the process of the bill.

“If Māori rights under Te Tiriti were being acknowledged and reflected in this process, then engagement with tangata whenua could have and should have occurred before the bill was introduced to Parliament and this would be treated with Treaty-based protections in the Bill,” Ngarewa-Packer said during her speech at the first reading of the bill.

Associate Health Minister Peeni Henare is leading a workstream within government to consider how rongoā might be protected in legislation. However, the workstream was announced, arguably late, in November 2022 when the TPB has been in the making for the past 10 years. Even he admits the consultation process with Māori during the making of the TPB has had its faults.

“There hasn't been a firm commitment to working with rongoā practitioners, or those in the rongoā space to be able to come to a good place or a safe place for rongoā Maori in identifying that it's important that we do that work.”

Henare says officials within the workstream are analysing the TPB to identify any gaps and opportunities to protect rongoā Māori, assure whānau safety, and ensure access to the export market for practitioners.

“What we don't want is people saying that rongoā Māori will do something, but it doesn't. And then what that brings into question is whether or not rongoā Maori is actually rongoā Māori. And so what we're trying to do is protect, the consumer, the practitioner," Henare says.

“A lot of our whānau are looking to commercialise and to export rongoā Māori and to do that, there has to be a legal framework to allow that to happen safely.”

Associate Health Minister Peeni Henare is leading a workstream within the government to consider how rongoā might be protected in legislation. Source: File

Statistics show rongoā is safe

But any suggestion that rongoā might somehow be unsafe isn’t backed up by the official statistics.

A 2021 Medsafe report found no evidence that rongoā products posed a risk. In it, only 19 out of 3,581 suspected adverse reactions were associated to complementary and alternative medicines (CAMs) which include natural health products. Out of the 19, none were attributed to rongoā Māori.

Out of the 12,600 rongoā Māori sessions funded by ACC up to March 2023, no sessions reported a single adverse reaction to rongoā.

“And yet we allow other things that present far greater risk to proceed. But we are trying to control rongoā Maori. The bill is racist in that it doesn't consider Māori ways of knowing and understanding the world and health, what it means to be healthy and well,” Kerridge says.

Ambiguity around trade agreements

Professor Emeritus Jane Kelsey has worked on law and policy, including Te Tiriti, for decades. She’s also concerned about the bill and what “has been happening behind the scenes in the international space.”

Her concerns date back to 2006 when there were moves to create a joint Australia New Zealand Therapeutical Products Authority (ANZTPA) under the Closer Economic Relations trade agreement.

“That would've meant that rongoā was regulated in this trans-Tasman western zone in denial of rangatiratanga and kaitiakitanga,” Kelsey says.

The Waitangi Tribunal held an urgent hearing into the proposed NAZTPA. Even though both countries’ ministers agreed to exclude rongoā Māori, the tribunal warned trade agreements negotiated without Māori and that do not retain Māori control pose a future risk to rongoā as a taonga, Kelsey says. The ANZTPA was abandoned for political reasons.

“Fast forward to this Therapeutic Products Bill, when we've tried to find if there was something similar happening behind the scenes here, the Official Information Act requests I made to find that out, came back with all of that advice redacted.

“We've been asking questions, trying to work out if there are some international trade rules that explain the mess of this bill and we are still in the dark. That breeds some suspicion that in fact, something is going on that we are not being told about.”

Kerridge thinks export doesn’t have a place in the bill and is concerned that it is in there only to “protect private interests”.

“I don't know what's in our international trade agreements because they're all secret but I would hate to think that any of this is being driven by commitments made in international trade agreements because our health and well-being in our country should not be driven by the needs of our partners", Kerridge says.

“They should be driven by the people of Aotearoa and I can't see any benefit to the people of Aotearoa in wrapping therapeutic products up in export requirements.”

Professor Emeritus Jane Kelsey. Source: File

The government has “screwed up”

Kelsey says the government has “screwed up really badly” in the process of creating the bill.

"The Waitangi Tribunal in Wai 262 was really clear in chapter seven Ko Aotearoa tēnei that this is a space for rangatiratanga and kaitiakitanga. This is not a space where there should be Pākehā regulators coming in from a western mindset," says Kelsey.

“You can't imagine that policymakers dealing with the same issues 15 years later don't know any of that. So either it's been a bad political decision to go ahead with it or it's been just incompetence. Whichever it is, they need to fix it.”

Even though the bill is fast approaching a second reading, there is a last dash effort to try and accommodate Māori interests.

The health committee chair Dr Tracey McLellan asked Kelsey to draft some clauses that could be included in a new draft of the bill to protect rongoā Maori.

“I did that, sent it back in, excluding rongoā Maori, effective protections for rongoā Māori and appointed Maori designed body to oversee the processes. I haven't heard anything since.”

Māori should be making the decisions

Kerridge agrees that Māori should be making the decisions, not the Crown.

“We need to stick to our mana motuhake. Every iwi and hapū has its own way of managing, of working with and of accessing rongoā Māori and I think we need to reinforce their tino rangatiratanga to do so. Trying to make us all into one pot so that we are easier to manage is not the answer.”

Public submissions to the bill have closed. Recommendations from Te Aka Whai Ora, the Māori Health Authority, and the health select committee are being consolidated by the Ministry of Health. Their recommendations will go back to cabinet for approval and form the second reading of the bill in Parliament.