Wai 262 - The Making of International Instruments

The final substantive chapter of the Waitangi Tribunal’s report, Ko Aotearoa Tenei, addresses the concerns raised by the claimants in relation to the international agreements and non-binding instruments that the New Zealand government enters into with other states.  The Tribunal devotes a chapter of this report to these matters because “the range of international instruments now reaches into the lives of all New Zealanders and can change, reduce, or enhance their most basic rights.  Māori interests in traditional knowledge, culture, economic development, and the environment, to name a few, are all affected”.  The Tribunal considers how the guarantees of the Treaty of Waitangi might act to protect Māori interests in this context and what practical mechanisms might ensure such protection.

The Tribunal examines three important international instruments as brief case studies:

• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) – ‘a landmark international acknowledgement that indigenous collectives as well as individuals have rights to self-determination and in respect of their culture, identity, language, employment, health, education, and other matters.’  The claimants argued that consultation with Māori had been limited, especially considering the significance of this instrument in relation to a broad range of Māori interests.  The last consultation that was referred to in Crown evidence took place in 2003 and the claimants contended that was neither representative nor effective consultation.

• Convention on Biological Diversity (CBD, 1992) – ‘a legally binding agreement for the protection of all forms of biodiversity (that is, ecosystems, species, and genetic resources) in the common interests of all humankind.’  There appears to have been significant consultation of Māori leading up to the signing of the CBD, however, the claimants submitted that Māori had been excluded from the important ongoing international work programme of the CBD.  The Crown argued that genuine attempts had been made to consult with Māori in relation to this ongoing work, but acknowledged that had not always been successful and noted that its engagement strategy only applied to binding agreements (rather than non-binding guidelines developed through ongoing CBD processes).

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994) – an agreement that ‘sets international minimum standards for the protection of [Intellectual Property] and provides the framework for New Zealand’s domestic [Intellectual Property] law.’ The claimants raised concerns about the lack of consultation in relation to both the international negotiation of the TRIPS agreement and its implementation through domestic law.  The Crown noted that there had been some engagement with Māori in regards to the domestic legislation.  Māori provided submissions to the select committee considering the legislation and there was further consultation with Māori in relation to subsequent intellectual property law reforms.

The Tribunal notes that these three brief examples suggest some basic flaws in the Crown’s approach to engaging Māori in relation to international instruments.  Each of these instruments profoundly affects Māori interests in some way and yet consultation with Māori was uneven and, for one reason or another, it was often ineffective.  Problems with the Crown’s approach to engagement with Māori have arisen because the Crown:

• does not always engage with Māori if an instrument is non-binding;
• sometimes engages at the end (when laws are being passed) not from the beginning; and
• sometimes does not engage at all even when the Māori interest is important.

The Tribunal suggests that the Crown’s approach will continue to be uneven and ineffective if it continues in the same vein and notes that the Treaty entitles Māori interests to a reasonable degree of protection.  In particular, the Treaty confirms:

that it is for Māori to say what their interests are and to articulate how they might be protected – in this case, in the making, amendment, or implementation of international instruments.  That is what the guarantee of tino rangatiratanga requires.  It is for the Crown to inform Māori as to upcoming developments in the international arena, and how it might affect their interests.  Māori must then inform the Crown as to whether and how they see their interests as being affected and protected.

As with other chapters in this report, the Tribunal suggests here that the type of engagement required by the Crown in order to be Treaty compliant will vary from case to case, to be determined by the Māori interests that are affected.  Significantly, the Tribunal envisages that there may be some instances “when the Māori interest is so overwhelming, and other interests by comparison so narrow or limited, that the Crown should contemplate delegation of its role as New Zealand’s ‘one voice’ in international affairs”.

Wai 262 - Rongoā Māori

The claims in the Wai 262 inquiry also raised a number of distinctive issues relating to traditional Māori medicine and healing, that is, rongoā Māori.  Chapter seven of the Waitangi Tribunal’s report addresses these issues.  In particular, the Tribunal considers the potential benefits of rongoā Māori (‘What Rongoā Has to Offer’) and the ways in which the Crown has supported, and the extent to which it has undermined, rongoā Māori. 

The Tribunal notes that rongoā Māori is based on Māori conceptions of health and well-being, and the Māori public health system revolved around the concepts of tapu and noa.  Maori traditional healing operated within that framework.  The Tribunal refers to the work of eminent Maori health specialist, Professor Mason Durie and suggests that there are five main categories of traditional Maori healing:

1. ritenga and karakia - rituals and incantations
2. rākau rongoā – plant medicines (though today ‘rongoā’ is used in a more general sense, it can be used to refer to this specific form of healing)
3. mirimiri – a form of massage
4. water – used in cleansing rituals and other treatments
5. minor surgical procedures – such as blood-letting to relieve swelling

Note that the traditional Māori view of health and healing was that it comprised both physical and spiritual dimensions.  As the Tribunal says:

In the holistic Māori view of health, outward manifestations of sickness reflect broader environmental, family or spiritual problems.  Rākau rongoā are not considered effective on their own.  Indeed the most important form of treatment by tohunga was and remains spiritual.

The traditional healing practices of the tohunga were, however, not able to effectively protect against the waves of foreign diseases colonial Māori communities encountered. “In the face of this crisis, the tohunga’s status diminished.  Community adherence to tapu around the sick and the dead – which would have helped check the spread of disease – accordingly slackened.  Some tohunga at the turn of the century also resorted to confused methods that had no basis in tradition.”  In an effort to address cases of medical misapplication or fraud, the Government granted the Māori councils the power to regulate the activities of local tohunga.  Calls continued for tohunga to be banned altogether, and, after the emergence of Rua Kenana’s prophetic movement seemed to tip the balance in 1906, the Tohunga Suppression Act was passed the following year.

The Tohunga Suppression Act 1907 essentially defined three offenses:

• gathering Māori around one by practicing on their superstition or credulity;
• misleading or attempting to mislead any Māori by professing or pretending to possess supernatural powers in the treatment or cure of disease; and
• misleading or attempting to mislead any Māori by professing or pretending to possess supernatural powers in the foretelling of future events.

The Tribunal is scathing of the Act and the motives underlying it:

Rather than being a genuine attempt to deal with the problems affecting Māori at the time, the Act was an expression of an underlying mind-set that was fundamentally hostile to mātauranga Māori.  The Act’s very title sent an aggressive and provocative message about the Government’s view of Māori beliefs.  Far from tackling charlatans or dangerous practices, the legislation imposed an effective ban on traditional Māori healing overall.  Thus, in our view, the Act was not only unjustified but also racist, in that it defined a core component of Māori culture as wrong and in need of ‘suppression.

The Act failed to suppress tohunga completely.  There were relatively few convictions under the Act and at the time of the Act’s repeal in 1962 there were still tohunga openly practicing.  It did, however, have the effect of driving the practice underground.  Although, in recent years, rongoā has received recognition and support from government, its relatively late engagement with government (compared with other forms of previously suppressed mātauranga, such as te reo Māori), is, suggests the Tribunal, a legacy of this legislation.

Importantly, the Tribunal notes that rongoā could play an important part in addressing the current crisis in Māori health.  The Tribunal reasons:

• the medicinal properties of rākau rongoā are considerable;
• Māori ideas about the role of te taha wairua (the spiritual dimension) in health remains fundamental;
• expanding rongoā services may draw more Māori into the primary health care system;
• the available evidence suggests growing Māori demand for rongoā services.

The Tribunal commends the Crown for funding rongoā services but notes that the Crown’s support for rongoā has been characterised by delays and even regressive steps such as the curtailing of funding for rākau rongoā. The Tribunal suggests that this can only be because the Crown is not convinced of the efficacy of rongoā or that the scepticism reflected in the Tohunga Suppression Act is still limiting the role of rongoā within the public health framework because the Government is afraid of being accused of political correctness.

The Tribunal therefore recommended that the Crown take the following actions “as a matter of urgency”:

• Recognise that rongoā Māori has significant potential as a weapon in the fight to improve Māori health.
• Incentivise the health system to expand rongoā services.
• Adequately support Te Paepae Matua (the national body that supports and represents tohunga) to play the quality control role that the Crown should not and cannot play itself.
• Begin to gather some hard data about the extent of current Māori use of services and the likely ongoing extent of demand.

Significant issues relating to Māori health and healing were raised in the context of the Wai 262 inquiry.  As this chapter demonstrates, many of those issues were quite specific to rongoā, or played out in a particular way in relation to this field of mātauranga Māori.  Yet, this chapter also reflects the broader concerns raised by the claimants in this inquiry – that is, how to ensure mātauranga Māori is fully recognised, that it is supported, and that it is controlled, managed, used, and protected by those who are the kaitiaki.