Monday, December 28, 2009

The Radio Spectrum and the Treaty of Waitangi

A couple of weeks ago, the Dominion Post reported that a claim has been lodged with the Waitangi Tribunal in relation to a portion of the radio spectrum that will be released by the government following the closure of analogue television and the switch to digital TV sometime after 2013.  Treaty claims relating to contemporary matters seem to be more controversial than claims which relate to historical breaches of Treaty principles.  In the case of valuable resources such as the radio spectrum, the controversy tends to focus on the fact that these resources now have applications that could not have been in the minds of any of the signatories to the Treaty in 1840.  For example, over on the Labour MPs blog, Red Alert, Trevor Mallard has a brief post about this claim.  Mr. Mallard says that the radio spectrum is not an asset that attracts rights for Maori from the Treaty of Waitangi and that the whole claim is specious.  However, a closer examination of the issue suggests otherwise.

The basic issue at the heart of the claim is not new.  Indeed, Mr. Mallard’s post notes that he addressed the question of Treaty of Waitangi rights relating to the radio spectrum in 2000 when he was acting Minister of Communication.  The issue of Treaty rights associated with the radio spectrum had been the subject of a Waitangi Tribunal inquiry the previous year.  The Tribunal issued an interim report in March 1999 and a final report on the matter in June 1999.  Ultimately, the Tribunal found that there were Treaty rights associated with the radio spectrum. 

Admittedly, the Tribunal panel was divided in the way they conceptualised the applicable Treaty rights.  The majority of the Tribunal relied heavily on a previous report relating to the allocation of radio frequencies.  After considering evidence and submissions from claimants and the Crown, the majority found that the existence of the radio spectrum was known to Māori in 1840 and that it should be considered a taonga.  The majority’s reasoning was that, even though the way in which the radio spectrum is used today is vastly different from anything that people in 1840 could have envisaged, the Treaty includes the right to develop resources and apply them in different ways as technology and circumstances change.  The majority also found that the partnership that was established by the Treaty of Waitangi requires that Māori share in the benefits of the country’s resources.  Furthermore, the Crown also has particular obligations to Māori in relation to the management of the radio spectrum because of the spectrum’s potential use in protecting and promoting the Māori language.  The majority concluded:

if the Crown’s obligations under the Treaty principles relating to partnership, rangatiratanga, fiduciary duty, active protection, mutual benefit, and development are to be effectively fulfilled for the language and culture of Maori, as well as for their social and economic wellbeing, it will be necessary for the Crown to facilitate the fuller involvement of Maori in the telecommunications industry through the ownership and management of spectrum frequencies. 

One Tribunal member did not agree with these findings and he wrote a minority report.  He did not agree that the spectrum was a taonga that fell within the protection of the Treaty.  However, the minority report still found that the principles of the Treaty are relevant to the management of the radio spectrum and that the government had breached those principles, stating, in quite clear language:

This claim relates to communication.

Communication is the life force of language and culture.

I accept that the Crown is continuing an aggravated breach of the Treaty in relation to te reo Maori and culture.

It is fitting and right that the remedy is in some way provided from the communication field.

For completeness, I should note that the minority report then went on to indicate that remedying the breach of Treaty principles did not necessarily require recognition of Māori ownership of any part of the spectrum.  But that does not affect the fact that Treaty rights are relevant to the management of the spectrum.

Now, I haven’t seen the actual statement of claim that has been submitted recently, so I just am relying on the description of the claim in news reports at this stage.  But even so, given the Tribunal’s previous analysis, it seems that, far from being specious, there would be solid grounds to make a claim about the Crown's actions in relation to the management of the radio spectrum.  In any case, the Waitangi Tribunal has already provided us with a considered view of the range of ways the principles of the Treaty of Waitangi could be relevant to the management and regulation of the radio spectrum. I would encourage anyone who is interested in this issue to take a look at the Tribunal’s reports.