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OLD MEDICINE – STILL FEELING THE EFFECTS?
Brendan Brown QC1
Introduction
Question: what do the 2003 Australia New Zealand Therapeutic Products
Agreement, a nineteenth century French Catholic nun and early twentieth century
legislation to suppress tohungas have in common? Answer: old medicine.
Although “old medicine” is the short title of this paper, its focus is not confined to
medicine simply in its historical context. A theme which I wish to explore is the
implications for the present day, and indeed for the future, of so-called old medicine.
Consequently in this paper I will first touch upon some of the significant features of
the early history of medicine in New Zealand and then explore the impact which
some of that history is presently having in a New Zealand context and indeed
beyond. The issue has recently been the subject of urgent consideration in the
context of a major Waitangi Tribunal claim – of which more later.
Rongoa Maori
To some people New Zealand evokes an image of millions of sheep and a somewhat
lesser number of All Black rugby players. Lesser known is New Zealand’s remarkable
biodiversity – including many indigenous species of flora2 (not to mention fauna – of
which the kiwi is undoubtedly the best known). Indeed 80% of New Zealand’s trees,
ferns and flowering plants are endemic.
It is well recognised that the indigenous people of New Zealand, the Maori,
accumulated a vast body of knowledge about the trees and plants of New Zealand. It
is also believed that Maori were highly skilled in using herbs in conjunction with
spiritual healing3. Certainly there are publications of a large number of herbal
remedies which appear to pre-date the arrival of Europeans. The word “rongoa” is
the Maori word for medicinal flora4.
But medicine has always been intimately associated with religion amongst most
races – and the Maori were no exception. In matters of sickness and death there
were sacred rituals, an essential element of which was the tohunga.
The word tohunga is often translated as a Maori medical expert. But the tohunga
were much more than that. They were the mediators between Maori and the atua5 of
the spirit world. Disease being attributed to supernatural intervention, the prospects
of cure depended very substantially on the effectiveness of the tohunga’s karakia6.
The Maori language7 prior to colonisation was an oral language, not a written one.
Hence the written record of the use of rongoa Maori owes much to the early
ethnographers and more recent ethno-botanists. An example of such a written
record, albeit a controversial one in the context of the Waitangi Tribunal claim
discussed below, is Maori Healing and Herbal by Murdoch Riley, also described as
the New Zealand Ethnobotanical Sourcebook8.
This substantial volume is in two parts. The first part surveys Maori health from the
time prior to European contact up to the present day and discusses individual
ailments. The second part catalogues some two hundred trees and plants with
associated claimed or reported remedies for a wide variety of afflictions including
kidney and bladder problems, stomach disorders, respiratory difficulties, abscesses,
skin disorders, wounds and burns, fractures and insect bites.
In fact some flora seemed to have so many applications that there may have been
potential for confusion. For example the titoki tree: in addition to its medicinal
applications it was also said that when a woman was seen eating the berries of the
titoki tree9, it was a sign that she sought a lover10.
The remedies for each plant entry are listed in chronological order. Riley explains in
the Introduction that chronological order was chosen because it highlights two
“flowerings” of written information about herbs, roughly 1880-1910 and 1930-1950.
The list of sources contain many of the famous early New Zealand names: Cook,
Heaphy, Goldie, Elsdon Best and Aubert to name just a few. It is the last of those
who warrants particular mention in an “old medicine” context.
Suzanne Aubert (Mother Mary Joseph Aubert)
Any discussion of old New Zealand medicine would not be complete without mention
of the arrival in 1860 at the age of 25 of the French missionary, Suzanne Aubert11.
This remarkable woman, who set up the home-grown Catholic order the
Congregation of the Daughters of Our Lady of Compassion (today known as the
Sisters of Compassion), is being promoted as New Zealand’s first official saint12.
Some conception of her full life13 can be gained from Jessie Munro’s biography “The
Story of Suzanne Aubert”14 and from the same author’s rongoa essay15.
The late nineteenth century was a time when there was not the same degree of
regulation of medical or pharmacy practice in New Zealand as there is today and
advertisements regularly appeared in newspapers of that period promoting patented
medicines.
Drawing on her strong French tradition of herbal medicines, Suzanne Aubert studied
the indigenous plants and the native herbal remedies and during the first of the two
time periods identified by Murdoch Riley she proceeded to develop her own very
popular herbal medicines. As Munro observes, her medicines were unusual on two
counts. First they were free. Secondly they were made locally and used Maori
medicinal ingredients along with European (Pakeha) chemistry and wine.
By 1890 Suzanne Aubert had decided to market her medicines (which she called
rongoa) to fund the Maori mission at Jerusalem on the Whanganui river. She
contracted with the company Kempthorne and Prosser which enthusiastically
publicised in the newspapers such of her medicines as Karana, Marupa, Paramo and
Natanata.
So successful were these medicines that, unbeknown to Aubert, Kempthorne and
Prosser resorted to diluting some of her extracts in an endeavour to meet demand.
Unfortunately the fact of dilution resulted in some of the bottles fermenting which led
to complaints about some of the products. Litigation ensued and that and other
factors appear to have led to Suzanne Aubert turning away from patent medicines.
The recipes for her remedies, nine of which were commercialised, were known only
to Suzanne Aubert and it is believed that she destroyed her records in about 1897
when she stopped production. However bottles of some four remedies survived for a
century and in June 2000 an agreement was signed16 to enable their contents to be
investigated.
When the project was announced it was said17 that the objective was not to
commercialise the remedies and that the agreement prohibited that from happening.
The main aim was to return knowledge to Maori although other commercial
developments could flow on from the research.
However the fact is that remedies described as “Suzanne Aubert formulas” are
currently being advertised for sale on the internet18.
The Tohunga Suppression Act 1907
Possibly influential in Suzanne Aubert’s decision to cease her involvement with
herbal remedies was the increasing hostility of the Government, including Maori
members of Parliament19, to some of the practices of the tohungas involving both
traditional and not-so-traditional healing.
Such activities considered objectionable included the supply of whisky, the blowing of
cigarette smoke in the eyes and particularly the immersion in cold water of people
suffering from tuberculosis which proved fatal in some instances.
In 1907 the Tohunga Suppression Act20 was passed. It was supposedly aimed at
those who attempted to mislead Maori by purporting to possess supernatural powers
in the treatment of disease although as Professor David Williams21 has said22 there
were a number of diverse policy threads which came together to restrict and then
legally suppress tohunga activities.
As Williams says, although Western-educated Maori concerned about health issues
did not necessarily agree with the root and branch extermination of all Maori cultural
practices and religious customs sought by some settler leaders, they were united in
seeking to suppress the “charlatans” and “clairvoyants” who preyed upon the
superstitions, as they saw it, of ordinary Maori.
In that vein the Preamble to the statute read:
“Whereas designing persons, commonly known as tohungas, practise on the
superstition and credulity of the Maori people by pretending to possess
supernatural powers in the treatment and cure of disease, the foretelling of
future events, and otherwise, and thereby induce the Maoris to neglect their
proper occupations and gather into meetings where their substance is
consumed and their minds are unsettled, to the injury of themselves and to
the evil example of the Maori people generally”
The Act made it an offence punishable by a fine or imprisonment in relation to:
“Every person who gathers Maoris around him by practising on their
superstition or credulity, or who misleads or attempts to mislead any Maori by
professing or pretending to possess supernatural powers in the treatment or
cure of any disease, or in the foretelling of future events, or otherwise ..”
However there was the particular protection in section 2(2) that no prosecution could
be commenced without the consent of the Native Minister.
The Act had limited direct effect. There appear to have been only about ten
convictions in the 55 years until the statute’s repeal in 1962. However although it
appears clear that a person would not commit an offence who cured by herbs,
massage etc, provided he or she did not profess to have supernatural powers,
nevertheless some historians and many Maori contend that the legislation had a
wider and less quantifiable effect. Professor Mason Durie has written that23:
“..[the Act] forced Maori healers underground and, although their skills were
not entirely lost, the transmission of their methodologies faltered. For
succeeding generations the significance of rongoa (traditional Maori
treatments) and karakia (rituals such as prayer) were not only scarcely
appreciated, but often regarded with scorn, even after the Act’s repeal in
1962.”
The implications of this wider and less quantifiable effect have recently been debated
in a contemporary context in hearings before the Waitangi Tribunal.
The Treaty of Waitangi and the Waitangi Tribunal
New Zealand’s colonisation dates from the 1830’s with the appointment of a British
Resident in New Zealand under the guidance of the Governor of New South Wales.
For a variety of reasons, not the least of which was a desire by the British to secure
their interest in New Zealand before other foreign powers, particularly the French,
became established there, in 1840 the British Crown entered into a treaty with the
Maori which is known as the Treaty of Waitangi24.
The text of the Treaty25, which is comparatively brief, has both English and Maori
versions26. Article 2 contains
the Crown’s guarantee to Maori which in the English
version states:
“Her Majesty the Queen of England confirms and guarantees to the Chiefs
and Tribes of New Zealand and to the respective families and individuals
thereof the full exclusive and undisturbed possession of their Lands and
Estates Forests Fisheries and other properties which they may collectively or
individually possess so long as it is their wish and desire to retain the same in
their possession ..”
A modern English translation of the Maori text by the late Professor Sir Hugh
Kawharu27 reads:
“The Queen of England agrees to protect the chiefs, the subtribes and all the
people of New Zealand in the unqualified exercise of their chieftainship over
their lands, villages and all their treasures ..”
The word “treasures” is a translation of the Maori word “taonga” in the Maori text: “o
ratou wenua o ratou kainga me o ratou taonga katoa”.
In 1975 the Treaty of Waitangi Act was passed. It established the Waitangi Tribunal
as a commission of inquiry to consider claims by Maori against the Crown regarding
breaches of principles of the Treaty and to make recommendations to the Crown
concerning such breaches. In 1985 the Tribunal’s jurisdictionwas extended to cover
all Crown acts and omissions dating back to 1840.
The Wai 262 claim to the Waitangi Tribunal
The Wai 262 claim28 was lodged by a number of Maori tribes in 1991. Urgency was
sought in 1994 and granted in 1995. Hearings began in 1997 and finally concluded
with the claimant and Crown closing addresses over a two week period in June
200729.
It is not easy to encapsulate in a few words the ambit and potential implications of the
claim. The Tribunal itself has commented that the Wai 262 claims are extraordinarily
challenging in their breadth, volume, novelty and conceptual underpinnings30.
It is sometimes described as the indigenous flora and fauna claim or (invoking the
words of the Maori text of the Treaty) “the claim to flora and fauna me o ratou taonga
katoa” or the Maori intellectual property claim. In evidence Professor Durie31
suggested that it was “the Maori world claim” and several witnesses articulated its
basis as being “Maori control over things Maori”.
Broadly speaking however the claim can be seen as asserting two main categories of
rights: (1) rights in respect of indigenous flora and fauna protected by the guarantees
in Article 2 of the Treaty including development rights: (2) rights in respect of
matauranga Maori (being the accumulated body of Maori traditional and cultural
knowledge) as taonga protected by the Article 2 guarantees.
Hence, in addition to questions concerning the control and authority over indigenous
flora itself, living or not, and particularly with an eye to genetic modification and
bioprospecting issues, a very important dimension of the claim concerns the
protection and control of Maori traditional and cultural knowledge.
On both counts the issue of rongoa Maori was a significant subset of the claim.
Ownership of, control over and access to the indigenous flora itself were significant in
terms of the ongoing availability of rongoa Maori. Preservation of and control over the
knowledge of rongoa Maori were similarly pressed as a vital component of the claim.
In the context of the latter issue, the Crown was criticised for not taking steps to
protect such knowledge. At the same time the Crown was also criticised for
permitting such knowledge to fall into the hands of, and to be used and
commercialised by, non-Maori.
Publications such as Murdoch Riley’s Ethnobotanical Sourcebook highlighted the
dichotomy. The book is praised by some for its contribution to the maintenance of
traditional knowledge. But it is also criticised as being a vehicle for the dissemination
of valuable medicinal knowledge to the European.
The Tohunga Suppression Act was relied upon by the Wai 262 claimants as having
had a serious impact on Maori cultural knowledge systems. As Professor Williams
deposed32:
“Traditional cultural knowledge must have passed away with the death of
many cultural custodians who feared to hand on wisdom they had received
from their ancestors. It will not be possible for the Tribunal to document fully
the nature or extent of knowledge lost for this reason. What is undeniable is
that if custodians of an oral culture do not transmit their knowledge, then the
knowledge is lost forever. The repeal of the tohunga suppression laws in
1962, and the more recent toleration or even acceptance of tohunga as
alternative healthcare providers, cannot revive knowledge that has already
been lost irretrievably. With some aspects of Maori cultural knowledge, as
with many endangered species of flora and fauna – ‘extinction is forever’.”
The Crown responded that the 1907 legislation was an appropriate response in the
environment of that time and one which had the support of Maori politicians. It argued
that there was no evidence of adverse effect and pointed to the current legislative
exemptions which allow for the continued practice of rongoa.
In that connection the Medicines Act 1981 provides that any person may
manufacture, pack and label, or sell or supply any herbal remedy33:
“.. for administration to a particular person after being requested by or on
behalf of that person to use his own judgment as to the treatment required”:
section 28(1);
“ .. if the remedy is or is to be sold or supplied (a) under a designation that
specifies only the plant from which it is made and the process to which the
plant has been subjected during the production of the remedy, and does not
apply any other name to the remedy and (b) without any recommendation
(whether by means of a labelled container or package or a leaflet or in any
other way) as to the use of the remedy”: section 28(2).
Practitioners of rongoa Maori respond that such legislative exemptions are
inadequate for a variety of reasons including that, as soon as a claim is made that
rongoa might cure a particular illness, then the benefit of the exemption is lost and
the practitioner is then constrained by a body of regulations.
The Wai 262 claimants also contend that a patient-specific exemption fails to provide
for Maori the right of development and the capacity to develop commercial
applications of rongoa Maori. It is in this context that difficulties have arisen with the
implementation in New Zealand of the joint Australian and New Zealand therapeutic
products regulatory regime.
The Australia New Zealand Therapeutic Products Agreement (“ANZTPA”)
As its name implies this agreement signed in December 2003 was intended to bring
about a common regulatory regime in respect of therapeutic products to be
implemented in each country by specific legislation. The New Zealand legislation was
proposed to be introduced to Parliament in October 2006.
That impending event prompted the Wai 262 claimants to seek urgent interim
findings from the Waitangi Tribunal concerning the ANZTPA arrangements. They
argued that there was a Treaty right to deal with rongoa Maori as Maori wished and
that it was wrong in principle and practice for people who were not practitioners of
rongoa Maori and who were external to the Maori world to impose rules on rongoa
practitioners.
The Crown responded that the current exemption for medicines made by individual
practitioners for an individual patient – known as extemporaneous compounding –
would continue to apply and that that would have the effect of excluding from the
regime home-based or small-scale rongoa dispensing and treatment.
However the Tribunal questioned whether the status quo would be maintained. In its
Further Interim Report on ANZTPA34 it said:
“What is less clear is the extent to which the retail sale of rongoa products
and services will now be caught within the ANZTPA regulatory regime when
under the Medicines Act they were not caught because they made no
therapeutic claim. That distinction between dietary supplement and medicine
is now to be removed. It appears at least possible (though there was little
evidence on the point) that Maori retailing rongoa products as dietary
supplement are not caught now, but will be in the future under the new
regime.”
The Tribunal was particularly struck by the number of non-Maori commercial
operators in the area of herbal medicines who were unanimous in their view that
traditional Maori medicine is likely to be the “next big thing” in therapeutic
developments in New Zealand.
The Tribunal said:
“We are, or should be, past the stage where Maori are mere consultees in a
law making process carried out by non-Maori officials and politicians at least
when it comes to a subject as significant to Maori as rongoa Maori. We
include within the ambit of this phrase not just the traditional patient by patient
dispensing of rongoa but also commercial development of it – whatever the
scale of that development.”
The Tribunal recommended a consultation process and offered to facilitate it. In due
course a number of meetings were convened between claimants and the Ministry of
Health.
Postscript
however on 16 July 2007 came the announcement that the ANZTPA project was to be
postponed. In a news release35 it was announced that the New Zealand Government
did not have the numbers in Parliament to put in place a sensible, acceptable
compromise that would satisfy all parties at that time and that the two Governments
had agreed that suspending negotiations on the joint authority was a sensible course
of action.
The implications for New Zealand local and nutraceutical manufacturers have
become apparent with the news that the Australian Therapeutic Goods
Administration, which previously relied on Medsafe assessments when companies
applied for certificates of Good Manufacturing Practice, has toughened up on
accepting decisions from its New Zealand counterpart. It is said36 that the previous
favourable stance has changed “since plans to introduce a transtasman regulator hit
a political standstill in New Zealand”.
Nutraceutical manufacturers that export to Australia are understood to be particularly
affected for the reason that, because complementary medicines are not regulated to
medicine-standard in New Zealand, the Therapeutic Goods Administration will not
accept Medsafe acting on its behalf in that respect at all.
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