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Report of the Waitangi Tribunal on Claims Concerning the Allocation of Radio Frequencies

'Ko to ringa ki nga rakau a te Pakeha'
'Let your hand be armed with the technology of the Pakeha'

In June 1986, the Waitangi Tribunal received a claim from Huirangi Waikerepuru on behalf of Nga Kaiwhakapumau i te Reo which sought to reopen the proceedings that had resulted in the Tribunal's just-released Report on the Te Reo Maori Claim. The claim alleged that the Crown had breached the Treaty by failing to await the Tribunal's recommendations before introducing a Bill on the Maori language to Parliament and that Maoridom's claim for radio frequencies and a television channel and resources were being denied.

The claimants subsequently accepted that the Tribunal had no power to reopen matters that it had already dealt with in its Report on the Te Reo Maori Claim but suggested that, since the Tribunal had not made final recommendations on the broadcasting issues, it could still consider them.

In June 1990, claim Wai 150 was lodged by Sir Graham Latimer on behalf of the New Zealand Maori Council. It sought an urgent interim ruling and recommendation that nothing be done to pursue the spectrum management policy embodied in the Radiocommunications Act 1989 until there had been a negotiated resolution of all the issues raised in the claim and that any title to radio spectrum products created by the Act be subject to a caveat which recognised and protected the Maori interest in radio frequencies.

The claim sought findings that Maori have rangatiratanga over the allocation of radio frequencies and that, in the absence of an agreement with Maori, the sale of frequency management licences under the Radiocommunications Act 1989 would breach the Treaty of Waitangi and be prejudicial to the interests of Maori.

'The existence of radio waves was discovered by Heinrich Hertz in about 1886, and their development was initiated by Guglielmo Marconi at the turn of the century. Neither man was a British subject.
'The resource existed in economic terms before then, and in 1840, even though, like oil, the capacity of land for grazing, or orange roughy, it had zero value until it was discovered and the technologies to use it were developed.
'Whether discovered or not, the chiefs and tribes had absolute chieftainship over all resources, discovered and undiscovered, in New Zealand in 1840, just as a sovereign state makes similar claims in respect of such resources within its own borders. Maori could not be expected to surrender such resources to the discoverer because of the discovery, any more than a modern state would to the Italian Marconi or his descendants.'

Wai 150 statement of claim

At the initial stages of the inquiry, counsel agreed that the Wai 26 claim should be amalgamated with the Wai 150 claim and that the two ought to be dealt with as one. The Tribunal agreed to this course of action.

In mid-July 1990, the claimants filed a request for urgency on the ground that the Crown was planning to seek tenders for 20-year rights to AM and FM radio frequencies in August. Despite formal requests by both the claimants and the chairperson of the Tribunal, the Minister of Communications replied that the Government was not prepared to delay the tendering process, and so the claimants commenced a High Court action seeking a judicial review of the Minister's decision. This action was successful. The Crown appealed to the Court of Appeal, which heard the case in early October and issued its judgment on 1 November. A majority of the five members of that court found that the Minister could not reasonably have decided to proceed with the tender without first awaiting the report of the Waitangi Tribunal, and thereafter the Tribunal's inquiry proceeded under the protection and the urgency of that ruling.

On 5 October 1990, the chairperson directed that Judge Peter Trapski, Bishop Manuhuia Bennett, and Erihana Ryan would constitute the Tribunal to hear the claim, with Judge Trapski presiding. The claims were heard over 10 days in Wellington, at Waiwhetu Marae and the Tribunal's offices, and the Report of the Waitangi Tribunal on Claims concerning the Allocation of Radio Frequencies was released in November 1990.

The Tribunal concluded that the claim was well founded. It recommended that the Crown suspend the radio frequency tender for six months to allow further consultation with iwi to take place; that it make independent technical advisers available to iwi to assess their needs and to ascertain what would be an appropriate allocation of radio frequencies; and that FM frequencies be made available for Maori broadcasting in Auckland and Wellington.

'the broadcasting media, radio and television, play a key role in the maintenance or loss, development or stagnation of language and culture, not only by what they do, but by what they do not do. The virtual absence of Maori language from radio and television has been a potent factor in the decline in the number of fluent speakers of Maori over the last forty years, to the point where its survival is problematic. This must be rectified. …
'the spectrum is a natural resource, enveloping the whole of the earth at the same time. As such it is for the whole of mankind. It cannot be possessed by one person or by one group; it can only be used by them. The available right is the right of access shared with all other members of the human race. The spectrum is a taonga to be shared by the tribes and by all mankind. Neither of the Treaty partners can have monopoly rights to this resource. …
'[This] is not simply a case where Maori can argue prior ownership before the Treaty. Nor can the Crown argue that Maori have no rights to the spectrum other than a general public right, nor a right only in terms of the language. The use of the radio spectrum is so intimately tied up with the use of Maon language and culture, and the protection and development of these things, that the Maori right to access must amount to more than this. Tribal rangatiratanga gives Maon a greater right of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public, and especially when it is being used for the protection of the taonga of the language and the culture.'

The Waitangi Tribunal

 

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