Opinion: The Therapeutic Products Bill before Parliament’s health select committee is a total can of worms. The Government has really messed it up by deciding, for no obvious reason, to reject the advice of Te Aka Whai Ora (the new Māori Health Authority), Te Puni Kokiri and perhaps its own Ministry of Health and to include rongoā Māori (the traditional Māori holistic form of healing) under the new regime.

I prepared a detailed submission on the bill, supported by numerous Official Information Act (OIA) requests that were made under urgency because of the exceptionally short time initially given for submissions. The select committee gave me five minutes to present my original 15-page submission and a supplementary one dealing with the OIA responses (or lack of).

Select committees have become increasingly perfunctory under this Government. In four decades of presenting submissions, I have never been given only five minutes to appear on a substantive matter.

What’s at stake here? If passed, this bill would create a new regime that determines what can be in rongoā Māori, who can make and administer it, who can use rongoā, and how its benefits can be described.

The regime would be administered by an “independent registrar”, who is also a Ministry of Health employee. There is no guaranteed role for Māori in its operation, let alone in key decisions. The law would authorise search and seizure of rongoā ingredients and records, and impose financial penalties for breaches. Those who know their colonial history will hear echoes of the Tohunga Suppression Act 1907, repealed in 1962.  

There has been an understandable outcry from Māori. A resolution opposing the bill was passed unanimously after a panel at Waitangi this year. A petition asking the Crown “to keep its promise to tangata whenua to exercise tino rangatiratanga over their taonga as per Te Tiriti o Waitangi Article 2 1840” drew more than 12,000 signatures. Most of the 16,000-plus submissions to the select committee were opposing the inclusion of rongoā in the Therapeutic Products Bill.

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As a Pākeha academic who has worked on law and policy, including Te Tiriti, for decades I was perplexed by how the Government got into this mess. After trawling through all the policy documents I could secure, I’m still unclear who has decided what, when and why, and whether the debacle reflects incompetence, or whether ministers and officials are covering their backs.

Any official in this area would know the Waitangi Tribunal’s Wai 262 Report He Aotearoa Tenei dedicated a whole chapter to rongoā Māori, a “multidimensional form of care and healing” that is a taonga under te Tiriti.

In 2006, the Wai 262 Tribunal held an urgent hearing into the proposed creation of a joint Australia New Zealand Therapeutical Products Authority (ANZTPA) under the Closer Economic Relations trade agreement. Even though both countries’ ministers agreed to exclude rongoā Māori, the tribunal warned that trade agreements negotiated without Māori and that do not retain Māori control pose a future risk to rongoā as a taonga.

The ANZTPA was abandoned for political reasons. National and Labour governments then promoted stand-alone legislation for natural health products that would have protected rongoā. That was abandoned in 2017. The exposure draft on this Therapeutic Products Bill did not cover rongoā when consulted on in 2018. Yet the bill as introduced in 2022 applies to rongoā – even though rongoā is never mentioned.  

That set me looking through the policy documents to find out why such a u-turn. The explanation seemed to be expediency: to overcome delays and reduce the complexity of having two bills. There was no principled analysis. The Wai 262 report was never mentioned in relation to rongoā until an options paper in 2021. Te Tiriti was largely invisible. Māori were occasionally referred under “population groups”.

In July 2021 Cabinet agreed to revise the bill to “provide for the protection and recognition of rongoā Māori”. Yet that didn’t happen. The bill is silent on rongoā, with two low-level references to the “principles” of te Tiriti/the Treaty.

There is a serious disconnect with the Government’s broader health policy. The commitment to Te Tiriti in Pae Ora (Healthy Futures) Act 2022 included establishing Te Aka Whai Ora (Māori Health Authority). Both Te Aka Whai Ora and Te Puni Kokiri said rongoā should be excluded from the bill and it needed a strong Tiriti provision. That was ignored.

Why? We don’t know. Te Aka Whai Ora was happy for their joint advice with the Ministry of Health to be released under the OIA. The ministry originally said the document would be proactively posted on their website. Then I was told the document would be withheld in its entirety. It seems that was a ministerial decision. As I write, the ministry has sent a correction, saying it should always have said the document would be withheld. It will be released “once the matters contained in it are no longer under active consideration”. So, what is the minister trying to hide while it matters?

A possible explanation is that excluding rongoā would breach New Zealand’s obligations in recent free trade agreements. Policy documents show the Ministry of Foreign Affairs and Trade and the Ministry of Business, Innovation and Employment wanted to address the question. My suspicions were heightened when all the relevant advice was redacted from OIA documents received from them.

There is a potential bright spot. After being given my derisory five minutes to submit, the select committee chair asked me to provide drafting for the exclusion of rongoā Māori from the bill. Whether they will use it remains to be seen. A parallel workstream on rongoā, initiated belatedly when the bill was introduced, has apparently been reported on, but we don’t know what it says. Meanwhile, Māori continue to pile the pressure on ministers, MPs and officials.

The entire process raises broader questions about the quality and drivers of policy decisions, and whether or how arcane and barely understood free trade agreements negotiated in secret might influence those decisions.

It also raises questions about the failure of the OIA to serve its purpose – enabling more effective participation in making law and policy and holding the ministers and officials to account. For Māori, it indicates a renewed politicisation of policy and legislation that subordinates their fundamental rights and responsibilities under Te Tiriti o Waitangi.

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