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.

Thursday, December 24, 2009

Year 170: Whanganui/Wanganui and the importance of place names

For the next part of my assessment of the current state of the Treaty relationship, I thought I’d touch on a couple of issues relating to the Minister of Land Information’s decision that the official geographic name for the city of Wanganui will be the alternatives ‘Whanganui' or ‘Wanganui'.  As with the tino rangatiratanga flag issue, this issue has bubbled along for a good part of the year until the Minister’s announcement last week.  Andrew Geddis, has blogged on the way that this has been sold as simply allowing an alternative spelling, when of course, in practice, if central government is using ‘Whanganui’, that will quickly become the recognised and accepted spelling.  Personally, I agree with the New Zealand Geographic Board that ‘Whanganui’, as the correct spelling of the name used by the original inhabitants, ought to be the official name.  But, I’d like to take a step back for a moment to consider the importance of naming places within colonial and Māori legal cultures.

In both legal cultures, naming places is part of an assertion of rights and authority.  The traditional Māori system of rights in relation to land and natural resources recognised a number of different bases upon which those rights could be based.  But it seems clear that the strongest evidence of these rights came from continuous occupation, use, and maintenance of connection with the land.  The naming of particular sites was one way in which connections with the land were demonstrated.  Indeed, if a group of people were forced off the land for some reason, then stories associated with the land, previously established waahi tapu (sacred sites), and place names became even more important as indicators of links with the land that had been maintained over generations.  

The naming, or probably more accurately, the ‘re-naming’ of places is also a central part of the colonization process, not only in Aotearoa, but in many countries throughout the world.  Giselle Byrnes’ book, Boundary Markers, illustrates this point by examining the role that surveyors played in the colonization of New Zealand and how giving British names to local places was part of the process of marking, transforming, and settling the land.  As Byrnes notes in Boundary Markers, British place names were deployed as ‘deliberate and provocative statements of power’.  Although ‘Wanganui’ isn’t exactly a British place name, it certainly isn’t the name Māori gave that place.  Historically, the assertion of the settler name in preference to the Māori name can, I think, be viewed in the same way - that is, as a deliberate statement of power.

So, perhaps it is little wonder that the spelling of Whanganui has been so hotly debated.  And little wonder too, that the Government has tried to have a bob each way by opting for the recognition of two alternative spellings.  Acknowledging the correct spelling of Whanganui is a step in the right direction.  Though one might have hoped that, in the 170th year of the Treaty relationship, we, as a country, would be able to confront more confidently the colonial mindset that demands an incorrect spelling also be used.

Tuesday, December 22, 2009

Year 170: Tino Rangatiratanga and the Flag

As I mentioned in my first post, one recent announcement that has got people thinking about Waitangi Day, if not the Treaty of Waitangi directly, is the Government’s announcement that a national Māori flag will fly from Auckland Harbour Bridge, Premier House and other significant sites on Waitangi Day.  So, I thought this would be as good a place as any to start my assessment of the health of the Treaty relationship in its 170th year.

People might recall that it was actually just prior to Waitangi Day last year that this issue appeared in the media.  Transit New Zealand had refused to allow the flag most people know as the ‘tino rangatiratanga flag’ (though I note that Hone Harawira doesn't see it this way) to fly from the Auckland Harbour Bridge on Waitangi Day.  This looked like it was shaping up to be a test of the relationship between the National Government and the Māori Party until the Prime Minister effectively put off making a decision by saying he didn’t mind a Māori flag flying, so long as there was some agreement amongst Māori as to which flag it should be.  Māori Party co-leader and, at that time, freshly-minted Minister of Māori Affairs, Pita Sharples set the consultation process in motion, which eventually led to the decision that the tino rangatiratanga flag would be the one to fly at official sites on Waitangi Day.

Now, you can probably argue about whether the process represents a healthy Treaty relationship or actually quite the reverse.  Was this the Crown engaging and listening to Māori on a significant issue of national concern? Or was it a calculated diversion to distract Te Puni Kōkiri, the Māori Party, and Māoridom at large, while the Government got on with progressing a generally not very Māori-friendly agenda?

Whatever your view about the process, it is the substantive outcome that I would like to address here.  In particular, I’d like to consider the concept of tino rangatiratanga that this flag symbolizes.

As many people will be aware, ‘tino rangatiratanga’ is a key concept in the Treaty of Waitangi.  The Treaty guaranteed that the Māori signatories would retain their tino rangatiratanga.  The term is based on the word ‘rangatira’ (chief) and so with the suffix ‘tanga’ and the intensifier ‘tino’, is often translated as ‘chieftainship’ or ‘self-determination’.  In the context of applying the principles of the Treaty, a number of Waitangi Tribunal reports have discussed the meaning of this concept. The Tribunal has noted the close connection between ‘mana’ and ‘tino rangatiratanga’ and seen tino rangatiratanga as an equivalent to international concepts of aboriginal autonomy or self-government.  In the context of the Treaty, of course, the guarantee of tino rangatiratanga is qualified by the right to govern granted to the Crown (‘kawanatanga’) in Article 1 of the Treaty - just as that right to govern is qualified by the guarantee of tino rangatiratanga.  But, even in that qualified sense, the Waitangi Tribunal, in its report on Te Whanau o Waipareira, found:

The principle of rangatiratanga appears to be simply that Māori are guaranteed control of their own tikanga, including their social and political institutions and processes and, to the extent practicable and reasonable, they should fix their own policy and manage their own programmes.

Now, if this official recognition of the tino rangatiratanga flag is a symbol of the Government’s willingness to begin to recognise the substantive content of the guarantee of tino rangatiratanga, that would certainly be something to be applauded.  But, I have yet to see any commitment to follow through, to provide for Māori self-government and autonomy, even in the qualified sense described by the Waitangi Tribunal.  If there is no substance behind the symbolism, then it must be considered an empty gesture.  And then we all, Māori and Pākehā alike, really will have to ask ourselves whether that consultation over the flag was worth all the time and money after all.

Saturday, December 19, 2009

Year 170: 365 days in the life of the Treaty relationship

With the recent announcement that the Māori flag will be flown at some official sites on Waitangi Day, it seems that attention is turning toward 6 February and the commemoration of the signing of the Treaty of Waitangi a little earlier than usual.

Each year, those commemorations remind us of the agreement between Māori rangatira and the British Crown which established the formal relationship on which our nation could be built. It seems appropriate to me that 6 February should also be an opportunity, not only to recall the foundation of that relationship, but also to take stock of how well that relationship has been nurtured during the 365 days since the nation last focused on Waitangi.

During the last year we have seen a number of high profile issues which have had significant Treaty dimensions - the question of whether or not there should be separate Māori representation on Auckland’s new supercity council, whether it ought to be Whanganui or Wanganui, finding a national Māori flag to fly on Waitangi Day, the review of the Foreshore and Seabed Act, the Māori Television bid for broadcasting rights to the Rugby World Cup, the measures in the amended Emmissions Trading Scheme which aim to address settled Treaty claims. And then of course there was that email from Hone Harawira. Some of these issues clearly have more significant implications for our law, government, and public life than others, but each tells us something about the health of the Treaty relationship in its 170th year. Between now and Waitangi Day 2010, I'll post on each of these issues and examine them in light of the Treaty of Waitangi, its provisions, and the relationship it established.