Analysis of Waitangi Tribunal Report on WAI 262
Dr. Wallace Bain
On 3 October the Waitangi Tribunal released a further interim report on ANZTPA. It was an application for certain urgent interim recommendations. It did relate to the Crown proposal to introduce legislation to create a Trans-Tasman Therapeutic Products Authority in New Zealand (ANZTPA). The argument revolved around the proposal to regulate the practice of dispensing Maori medicine or rongoa Maori and that this was without adequate consultation. It is beyond the scope of this report to analyse that judgement and in the end it turned on very narrow criteria relating to the applicable principles to grant urgent recommendations.
However, in the course of considering those matters, the Waitangi Tribunal made very significant observations in terms of the whole process that has gone on.
Firstly the Crown have now acknowledged and advanced that the current exemption under the Medicines Act 1981 for rongoa practitioners would continue and they had obtained agreement from both Ministers in Australia and New Zealand that this current Medicines Act regulatory exemption would continue in respect of small-scale dispensing of rongoa. Relying on that some of the claimants withdrew.
The Tribunal noted that the ANZTPA proposals would necessarily include rongoa Maori and that the new regime would represent an entirely new approach to the regulation of medicines in New Zealand and that it would, to some extent, affect some of the aspects of production, dispensing, and sale of rongoa Maori where this is larger than domestic scale.
Whilst noting there was insufficient time to consider the proposed regime in any real depth, the Tribunal did refer repeatedly to the fact that the Crown had reiterated on a number of occasions in the hearing that the exemption was to continue under the new regime and that this exemption had the effect of excluding from both the current and the proposed new regime home-based or small-scale rongoa dispensing and treatment. However the Tribunal then recognized that the new ANZTPA regulatory regime would in the future catch Maori retailing rongoa products as dietary supplements which are not now caught. The Tribunal noted also the extensive evidence they had heard from commercial operators about the additional costs that would be imposed by the new regulatory regime.
The Tribunal also confirmed that the interest claimed by Maori under the Treaty of Waitangi was legitimate and well within the guarantee of tino rangatiratanga contained in Article 2 of the Treaty of Waitangi.
The Tribunal went on to note that the exemption for rongoa Maori products was ad hoc and it did not discharge the Crown's Treaty obligations to rongoa producers and practitioners. This, to some extent, would be determined by the details of the regime. The Tribunal was particularly struck by the number of non-Maori commercial operators in the area of herbal remedies who were unanimous in their view that traditional Maori medicine is likely to be the next big thing in therapeutic developments in New Zealand. Those same witnesses were equally unanimous that Maori ought to have a significant stake in that development.
In looking at a way through the process and the Crown's inherent right to bring in legislation, the Tribunal noted that there remained a significant area for dialogue and agreement between the parties provided each approached the dialogue in good faith, with an open mind, and willingness to compromise. That is comply with existing legal requirements re consultation. They pointed out that it was imperative that there be a proper process of consultation and that it be directed at a proper exemption for Maori practices, proper parameters for the regulation of commercial rongoa products and services and comprehensive Maori involvement in the process.
Most importantly, the Tribunal noted the legal obligations of good faith on either side. They pointed to the Crown's efforts so far to establish dialogue as being disappointing and that from a claimant perspective it invited the conclusion that the consultation process is little more than procedural damage control. They reiterated the principles established in law that the engagement must be genuine, open-minded and aimed at solving the problem rather than going through the motions.
However the Tribunal decision, with respect, does seem to have focussed too much on the harmonization with Australian aspects and not addressed the fundamental point that it is Maori who are the Treaty partners with the Crown, not the Australians. The argument was that the ANZTPA proposed legislation in effect introduced sharing with Australia in respect to the Crown's obligations to Maori as its Treaty partner. Australia of course have no Treaty obligations to Maori.
Having recognized categorically that Maori had a legitimate interest by virtue of the guarantee of tino rangatiratanga in Article 2 of the Treaty of Waitangi, the Tribunal does not appear to have addressed the protection of those interests and how the Crown can adequately discharge those Treaty obligations to Maori-which would not involve Australians.
Regards,
Dr. Wallace Bain
Ph.D., LL.B(Hons), DipPharm, M.P.S., Coroner.
Principal,
Lamb Bain Laubscher
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