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.
1 Brendan Brown is a New Zealand Queen’s Counsel whose particular practice interests include intellectual property law and Treaty of Waitangi issues. He was senior counsel for the Crown in the Wai 262 claim to the Waitangi Tribunal and a counsel assisting the New Zealand Royal Commission on Genetic Modification.
2 Coloured photographs of and interesting information about several species of New Zealand native flora and fauna can be seen on the Department of Conservation website www.doc.govt.nz.
3 There is also a theory that the Maori experimented with medicines in the nineteenth century only after seeing how the European relied on them for medical care.
4 Eg in Whaiora – Maori Health Development, Mason Durie. Rongoa is also translated as “remedy” and “medicine”: Maori Healing and Herbal, Murdoch Riley; and as “traditional healing”: Mauri Ora – The Dynamics of Maori Health, Mason Durie.
5 Supernatural beings.
6 Incantations or prayers.
7 Te reo Maori.
8 Viking Sevenseas N.Z. Ltd. First published in 1994 with a third printing in 2003.
9 Alectryon excelsus: also spelt titongi
10 Murdoch Riley page 463.
11 She is included in the Dictionary of New Zealand Biography: see www.dnzb.govt.nz
12 The process known as the Cause has commenced with the object of making her a canonised saint of the Catholic Church.
13 She died in 1926 aged 91.
14 Auckland University Press/Bridget Williams Books. It received the Montana book Award of the year in 1997: see www.bookcouncil.org.nz.
15 Available at www.compassion.org.nz/publication/rongoa.
16 Between Ngati Ruaka, Ngati Kotahi, Industrial Research Ltd and The Mother Aubert Home of Compassion Trust Board.
17 www.compassion.org.nz/news/print.php.
18 See www.purecurenz.com where there are photographs of “Self Heal Karana”, “Self Heal Marupa” and others with labels featuring a photograph of Suzanne Aubert.
19 The legislation had the support of the Young Maori Party whose leaders included Dr Peter Buck (also known as Te Rangihiroa), Maui Pomare and Apirana Ngata.
20 1907, No 18; 7 Edw. VII
21 An expert witness in the Wai 262 Waitangi Tribunal claim.
22 Crown policy affecting Maori knowledge systems and cultural practices - Document #K3 page 186. See www.waitangi-tribunal.govt.nz/doclibrary/public/wai262.
23 Whaiora – Maori Health Development page 45.
24 So named because over 40 chiefs signed the Maori text at Waitangi in the Bay of Islands on 6 February 1840. Similar gatherings were held in other parts of the country in the following months.
25 It is not a single large sheet of paper but a group of nine documents, seven on paper and two on parchment.
26 Both texts can be read at www.nzhistory.net.nz. Images of the Treaty can be seen at www.archives.govt.nz.
27 Which was accepted by the Crown for the purposes of the very significant case New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA)
28 So named because it was claim number 262 filed with the Tribunal.
29 There was a cessation of hearings for a period of some four years during which the Tribunal attempted to settle a statement of issues and the former presiding officer, Judge Richard Kearney, died.
30 Document #2.279 page 3
31 Document #R6(g)
32 Document #K3 page 250
33 Defined as a medicine (not being or containing a prescription medicine or a restricted medicine or a pharmacy-only medicine) consisting of any substance produced by subjecting a plant to drying, crushing or any other similar process or a mixture of 2 or more such substances or a mixture comprising 1 or more such substances with water or ethyl alcohol or any inert substance.
34 Document #2.414, 3 October 2006
35 See www.anztpa.org.nz.
36 The National Business Review, 24 August 2007,
Copyright 2007. Greek Legal and Medical Conference