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Cameron, Aidan --- "Joshua Williams Memorial Prize Essay 2013. Maori rights in the 4G radio spectrum: fantasy or the future of Treaty claims?" [2013] OtaLawRw 8; (2013) 12 Otago LR 181

Last Updated: 23 April 2015

^{Joshua Williams Memorial Prize Essay 2013}

Māori Rights in the 4G Radio Spectrum:

^{Fantasy or the Future of Treaty Claims?}

Aidan Cameron* I Introduction

In 2013, the Government planned to auction off management rights in the 700mHz radio spectrum band to telecommunications companies. This spectrum, freed up for use by the digital television switchover, has the potential to provide a fourth-generation network of mobile communications technology, promising faster mobile broadband connections and greater rural coverage than existing networks.¹ The spectrum would be auctioned through the issue of management licences in nine 5mHz blocks under section 42 of the Radiocommunications Act

1989. All three major telecommunications companies, Telecom, Vodafone, and 2degrees, were expected to bid, and the potential Crown revenue was estimated to be between $180-500 million.² Successful bidders will be issued 18-year licences with rights of renewal, giving them the ability to use or lease their spectrum, subject only to the retention of Government ownership and the competition provisions of the Commerce Act.

This auction was subject to a claim before the Waitangi Tribunal for an urgent remedies hearing, alleging that the proposed auction was in breach of the principles of the Treaty of Waitangi and inconsistent with the Māori right to a fair and equitable share in the resource. This claim was based on previous findings of the Tribunal, in the Radio Frequencies Report 1990 and the Radio Spectrum Final Report 1999, that the electromagnetic spectrum formed part of ō rātou taonga, or the special or prized possessions of Māori.³ On this basis, the claimants argued that Māori have existing property rights in the spectrum which cannot be appropriated by the Crown without their prior consent. This is consistent

* This article is a revised version of a research paper for LAWS480

^{Supervised Research, Faculty of Law, University of Otago, 2013.}

^{The author is a recent graduate of the Otago Law Faculty and will}

^{commence his legal career in Wellington in 2014. The author has strong}

^{interests in the areas of Māori legal issues and the contemporary role}

^{of the Waitangi Tribunal. Considerable thanks must go to Prof Dawson}

^{for engaging his time and energy in supervising my research and}

^{providing constant food for thought, and to the Dean of the Faculty for}

^{his encouragement.}

^{1 Amy Adams “Radio spectrum auction details announced” (press release,}

^{4 September 2013).}

^{2 Bill Bennett “4G spectrum auction set with competition in mind” (2013)}

^{Digtl Technology <www.digitl.co.nz>.}

^{3 Waitangi Tribunal Report of the Waitangi Tribunal on Claims Concerning the}

^{Allocation of Radio Frequencies (Wai 26/150, 1990); Waitangi Tribunal The}

^{Radio Spectrum Management and Development Final Report (Wai 776, 1999).}

with retention of tino rangatiratanga or chiefly authority under Article 2 of the Treaty, and the principles of active protection and partnership. The claimants sought recommendations from the Tribunal that the auction be delayed until a negotiated agreement could be reached which reserved a fair and equitable portion of the spectrum for Māori and which laid out a process for determining future allocations.⁴ In response, the Crown took the position, in line with previous Governments, that the spectrum was not a taonga, and thus it owed no obligations to Māori under the principles of active protection and partnership. The Crown refused to allocate a portion of spectrum for Māori, but a $30 million fund from the revenue generated was proposed to promote Māori involvement in information and communications technology (ICT).

In its decision of 17 September 2013, the Tribunal refused the application for an urgent remedies hearing, finding there was no well-founded claim on which such a hearing could proceed. The claim made was not yet ripe for a remedies hearing, the Tribunal held, because full prior inquiry was required into the merits of the claim, before remedies could be considered. The earlier decisions in favour of Māori interests in the radio spectrum could not simply be imported into a new claim, or re-opened for the purposes of a remedies hearing, because hearings on those claims had been completed over ten years ago. Therefore, the Tribunals in those claims were functus officio, in that they had fully completed their duties and functions as inquiries and had no authority to re-open them.⁵ The claimants could still bring a fresh claim accompanied by an application for urgency, however the Tribunal found it would be unlikely to grant urgency as the Crown had already received the benefit of the earlier recommendations and findings in the previous claims. The Crown was unlikely to be further informed by the repetition of any Tribunal findings prior to the new auction and many other important claims existed before the Tribunal whose hearings had been long delayed.⁶ The Tribunal also suggested that the $30 million ICT fund may be a viable alternative to spectrum allocation in order to promote the Māori language and culture, and may be sufficient to satisfy the Crown’s Treaty obligations without any allocation of spectrum.⁷

This paper will critically review the claimants’ case for a fair and equitable share in the spectrum, and the assumptions and arguments underlying it. It will assess the theoretical foundations for the two previous decisions of the Tribunal, especially the language and culture argument, and ask whether, in light of significant developments in this area, the Crown continues to be in breach of its obligations to protect Māori interests. In reviewing the wider property-based claim to rights in

⁴ Waitangi Tribunal WAI2224 Statement of Claim (2013) He Huarahi Tika

^{Trust <www.thtt.co.nz>.}

^{5 Waitangi Tribunal WAI2224 Decision #2.5.8 (2013) Te Huarahi Tika Trust}

^{<www.thttt.co.nz> at 55.}

^{6 At 68.}

^{7 At 67.}

the spectrum, the application of Article 2 principles to resources unknown to both the Crown and Māori in 1840 will be discussed. The current status of taonga in contemporary contexts and the wider implications of this debate will be reviewed. This complex issue provides a lens through which fundamental issues concerning the scope of the Treaty’s application, and the current nature of Crown-Māori relations, can be viewed. These issues go to the very core of the contemporary role of the Treaty in our society.

A What is the Radio Spectrum?

Radio spectrum is the term given to those parts of the electromagnetic spectrum which are exploitable through technology to transmit telecommunications. The electromagnetic spectrum is the range of all possible forms of electromagnetic radiation, consisting of waves of photons or mass-less particles of varying levels of energy which travel at the speed of light.⁸ These particles can operate in a vacuum and pass through space, and encompass everything from long-range radio waves at the lowest-energy end, through to microwave, infrared and the visible spectrum or light, and high-energy radiation such as X-ray and gamma waves.⁹ The higher the energy these particles possess, the shorter the wave length and the distance they can travel. Technological advancements over the past 120 years have allowed for the man-made production and manipulation of these waves to transmit various forms of communication, including radio, television, and cellular mobile signals. The radio spectrum specifically refers to waves with frequencies between

3 kilohertz (kHz) and 300 gigahertz (GHz) at the low-energy end of the spectrum.¹⁰

The radio spectrum has been subject to Government regulation since the passage of the Wireless Telegraphy Act 1903 which established stations to control the transmission and receipt of wireless communications, and to create criminal liability for any interference in the spectrum without consent.¹¹ Rights were held to be vested in the Government in perpetuity as a direct result of the assertion of sovereignty, and held in a complete monopoly. This was an initial response to safeguard New Zealand “airspace” from foreign military interference, to protect against the interception of communications, and to protect Government revenue.¹²

^{It quickly developed into a centralised system of spectrum management}

^{run through the New Zealand Post Office, which issued restricted licences}

⁸ David Schneider “Electromagnetic Spectrum” in Remote Sensing of the

^{Global Environment (1993) Michigan Tech <www.geo.mtu.edu>.}

^{9 Ibid.}

^{10 Waitangi Tribunal (2013) WAI2224 A005a Annexure A: Spectrum}

^{Management He Huarahi Tika Trust <www.thtt.co.nz>.}

^{11 For extensive background discussion, see Zita Joyce “Creating Order in}

^{the Ceaseless Flow: The Discursive Constitution of the Radio Spectrum”}

^{(PhD Thesis in Film, Television & Media Studies, University of Auckland}

^{2008) at 53–57.}

^{12 At 53.}

and retained an effective monopoly over the resource. Later New Zealand was a pioneer in deregulation of the resource, and was the first to adopt the Coase model, a system which allocated tradeable rights in blocks of spectrum to licence holders through management licences under the Radiocommunications Act 1989, creating an open commercial market of tradeable property rights.¹³

II The WAI776 Claim and the Electromagnetic Spectrum

The WAI776 (or Radio Spectrum) claim, originally brought by Rangiaho Everton, was made in respect of the last major auction of spectrum rights in the 2GHz band conducted in 2000, which allocated the “3G” spectrum currently used in mobile technology. 20-year management licences were to be awarded in blocks of spectrum to successful bidders, with recurring rights of renewal. The claim to the Tribunal, challenging this auction, had two main limbs: one, that Māori had a right to a “fair and equitable share in the radio spectrum resource”; and two, that this was especially so where the Crown has an “obligation to promote and protect Māori language and culture”.¹⁴ The claim was based on the foundation that the spectrum was a taonga, or alternatively a natural resource, and was protected under Article 2 of the Treaty of Waitangi and the principle of active protection. The claimants argued that the Radiocommunications Act 1989 failed to acknowledge Māori rangatiratanga over radio spectrum through assuming a monopoly over it and alienating property rights in the spectrum without consultation. The ceding of kāwanatanga, or government, did not involve the acceptance of an unfettered legislative supremacy over resources.¹⁵ On the second limb, it was claimed that telecommunications could have a prominent role in the revitalisation of Māori language and culture, and that the Crown’s efforts in relation to Māori broadcasting did not satisfy their obligations entirely. Recommendations were sought to the effect that: Māori had a guaranteed right under the Treaty principle of partnership to participate in spectrum management; the proposed auction and legislative regime was in breach of that right; and the current spectrum management policy should be discontinued until a negotiated agreement could be reached between the Crown and claimants.¹⁶

In response, the Crown argued the spectrum was not capable of constituting a taonga protected under Article 2 of the Treaty, and that the claim related solely to “rights to artificially generated radio waves” which were not a “natural resource” to which Māori could claim a right of development.¹⁷ Despite the fact that the claim was accepted to apply not solely to the spectrum itself but, also, in economic terms, to “the value within the monopolised rights in the resource”, the Crown

¹³ At 122.

^{14 Waitangi Tribunal The Radio Spectrum Final Report above n 3.}

^{15 At 7.}

^{16 Ibid.}

^{17 At 31.}

contended that the extremity of the claim would hold that Māori owned all resources in New Zealand and that the Crown may manage them only with the agreement of Māori. This challenged the constitutional role of government and broad social and economic policy.¹⁸ Evidence was produced that Māori ownership of spectrum was not necessary for their economic or cultural development where other alternatives including cash were available. The taonga argument was rejected by the Crown on the basis that the spectrum remained undiscovered to society in general as of 1840, not just Māori, and so could not form part of ō rātou (their) taonga. On the second limb, concerning language and culture, the Crown argued that while it was “conceptually more convincing”, the issue had been addressed through the Crown’s efforts promoting te reo Māori through education and broadcasting, and that existing services were sufficient for the goals sought by the claimants.¹⁹

A two:one majority of the Tribunal disagreed with the Crown’s submissions and accepted the claimant’s arguments on both limbs. In a short conclusion, the majority found the entire spectrum was known to Māori, existing in nature as light and sound.²⁰ The use for the purpose of navigation of light emitted by stars, and the legend of Tāwhaki ascending to the heavens to bring knowledge to Earth, were cited as physical and philosophical examples of this use and knowledge. Māori had therefore “us[ed] radio waves for their own purposes, though they lacked the technology” of today.²¹ This “traditional knowledge and use of parts of the electromagnetic spectrum” was the basis on which the Tribunal accepted that the spectrum was their taonga, and that the right of development under the Treaty could extend to its use in telecommunications. The Tribunal refused to conclude whether the spectrum constituted a natural resource capable of protection as a taonga.

In light of this finding, the Tribunal disagreed with the Crown’s framing of the argument as a challenge to their right to regulate under the principle of kāwanatanga, and found that the Crown had not done enough to actively protect Māori interests in the taonga of the spectrum. The majority recommended that the auction be postponed until agreement was reached reserving a fair and equitable portion of frequencies for Māori. On the second limb, the Tribunal was unanimous in accepting the claim that Māori had a right to a fair and equitable share in the spectrum where the Crown had an obligation to protect Māori culture and language. Distinguishing this point from that on which he dissented, the minority member Savage J found that, in the continued

¹⁸ Ibid.

^{19 At 46.}

^{20 As an aside, this is an error in the Tribunal’s understanding of the physics}

^{of the electromagnetic spectrum. Sound waves, as reverberations in}

^{the movement of air, are entirely distinct from the spectrum and the}

^{movement of photons. While electromagnetic waves can travel through}

^{a vacuum, sound waves cannot as they rely on vibration to exist.}

^{21 At 41–42.}

absence of any improvement, “the Crown is continuing an aggravated breach of the Treaty in relation to te reo Maori and culture”.²² Savage J believed that allocating a portion or the entirety of the funds generated from the sale would be sufficient to discharge the Crown’s duty.

III Arguments for the 4G Claim

As these arguments show, in order to make an argument that the proposed auction in the 4G spectrum would prejudice Māori rights under the Treaty of Waitangi, several positions have to be accepted.

Firstly, Māori must be able to point to rights in either the electromagnetic spectrum, the radio spectrum or the management rights created by the transfer of licences under section 42 of the Radiocommunications Act 1989. They must do so by proving they had some rights in the electromagnetic spectrum as of 1840, and that, consistent with the residual rights theory and the approach taken at common law, these rights have not been positively conferred on others or extinguished with consent in a manner consistent with the Treaty. These rights, or the spectrum itself, must then fall within the definition of ō rātou taonga under Article 2 of the Treaty of Waitangi and be subject to a broader right of development. Finally, the transfer of management licences under section 42 must be contrary to the principles of the Treaty of Waitangi in order for the Tribunal to find evidence of a breach.²³

In order to accept the Crown’s argument, the converse positions must be made out: that the electromagnetic spectrum is not a taonga protected under Article 2; that the concept of residual rights is not applicable to such an intangible and infinite resource; and that the transfer of the spectrum would not run contrary to the Government’s obligation to protect the taonga of the Māori language and culture, especially in light of the proposed $30 million ICT fund to promote Māori involvement in ICT.

The most solid and convincing foundation on which Māori claims have been based in the past is that Māori have rights to an equitable share in the spectrum in order to protect the taonga of the language and the culture. This will be dealt with first.

A The Language and Culture Justification

Two important questions must be posed here: what obligations are owed by the Crown to protect the language and culture, and what is required to discharge that obligation in light of changing circumstances since the Tribunal’s previous findings? It is now orthodox in both the Tribunal and the courts that te reo Māori is an essential part of the Māori culture and forms part of their prized possessions or taonga. In the Privy Council’s decision in the Broadcasting Assets case, Lord Woolf referred to it as “part of the national cultural heritage of New Zealand” and held that the Crown had a solemn duty under the principles of partnership and

²² Waitangi Tribunal The Radio Spectrum Final Report, above n 3, at 69.

^{23 Radiocommunications Act 1989, s 42.}

active protection to take “vigorous action” where the language was in a particularly vulnerable state.²⁴ In the recent findings of the Tribunal in the Flora & Fauna Claim, it was found that the language is a taonga and the “platform upon which mātauranga Māori stands, and the means by which Māori culture and identity are expressed”. Without it, they stated “that identity – indeed the very existence of Māori as a distinct people

^{– would be compromised”.25}

The Privy Council in the Broadcasting Assets case took care to reiterate that the obligation owed by the Crown to protect te reo was “not absolute and unqualified”, as this would run contrary to the nature of the Crown- Māori relationship and their duty to govern.²⁶ The relationship should be based on “reasonableness, mutual cooperation and trust” and be tied to the circumstances of the time.²⁷ As such, there are limits on the extent to which the Crown has a duty to actively protect the language, and equal obligations rest on Māori to capitalise on opportunities for growth and revitalisation. On a full hearing, the Tribunal will have to determine whether an extra $30 million fund to develop the language and culture through involvement in new information technology will discharge this obligation in a Treaty-compliant manner. In line with the Supreme Court’s reasoning in the Mighty River Power decision, the effective privatisation of rights in the spectrum “must not impair, to a material extent” the Crown’s obligation to provide reasonable compliance with the principles of the Treaty, unless the Crown retains the ability to discharge its obligation through equally effective forms of redress.²⁸ In his minority finding in the Radio Spectrum Final Report, Savage J stated that, in his opinion, all or a generous share of the proceeds from the sale of spectrum should be devoted to “promoting, developing, and protecting te reo Māori and Māori culture”.²⁹ As mentioned earlier, the Tribunal has suggested, in this light, that the ICT fund may be a Treaty-compliant alternative to spectrum allocation for the preservation of language and culture.

When the Radio Spectrum Final Report was released in 1999, the Tribunal unanimously found that the Government had breached the principles of the Treaty by failing to provide Māori with a fair and equitable share in spectrum management to uphold their obligations in protecting the taonga of the Māori language and culture.³⁰ At that time, the fluency and frequency of te reo Māori remained in sharp decline despite efforts to provide greater access for Māori to broadcasting and radio coverage,

²⁴ New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) (Broadcasting Assets) at 516–7.

²⁵ Waitangi Tribunal Ko Aotearoa tēnei: A Report Into Claims Involving New Zealand Law & Policy and Affecting Māori Culture and Identity – Te Taumata Tuatahi (Wai 262, 2011) at 154.

^{26 Broadcasting Assets, above n 24, at 517.}

^{27 Ibid.}

^{28 New Zealand Māori Council v Attorney-General [2013] NZSC 6 (Mighty River}

^{Power) at [88]–[90].}

^{29 Waitangi Tribunal Radio Spectrum Final Report, above n 3, at 70.}

^{30 At 48–49.}

including the establishment of Te Māngai Paho, the Māori Broadcasting Funding Agency. The Tribunal held that the potential for development of the language and culture through telecommunications remained untapped.³¹ However, since that report was issued, a compromise has been reached under which spectrum was kept aside for the newly-formed Māori Spectrum Trust to purchase at a discounted rate, along with

$5 million in cash. This allotment was then leveraged by the Trust to obtain a share in the newest entrant to the telecommunications market, 2degrees, which currently stands at 10.17 per cent of the company’s shareholding.³²

The Trust and the company have worked collaboratively since to create “Reo smartphone technologies” and Hei Rere Mai scholarships for Māori studying ICT at the University of Auckland.³³ In addition, the Māori Television Service Act 2003 was passed and a dedicated Māori television channel created, bound by statute to focus on content delivered in te reo Māori.³⁴ According to Te Puni Kokiri, the channel provides eight hours of Māori language and cultural programming each day and is watched by 62 per cent of Māori. In 2008, a second Te Reo channel consisting of

^{100 per cent Māori language programming was established on digital}

^{television.35}

However, it is yet to be seen whether the continued efforts and cash injections provided by Government are effecting any real change in the strength of te reo and culture. In the 2011 WAI262 Report, figures supplied by Statistics New Zealand signalled a continuing drop in the number using te reo and their fluency.³⁶ Attempts to reinstall the language in young Māori through education appear to be failing, with the numbers of speakers aged zero to 14 declining from 38,595 in 1996 to 35,151 in

2006.³⁷ Proficiency in 10-19 year olds dropped below 1996 levels, and the only increases were found in the 25-34 age group who benefited from the peaking popularity of the Kōhanga Reo movement in the mid-1980s.³⁸

^{This is despite the fact that the Government increased funding for te}

^{reo Māori initiatives from $177.9 million in 1999 to $226.8 million in}

^{2006, $142.3 million of which was spent in education and $49.8 million}

^{in broadcasting.39 Figures suggest that by 2026, the proportion of Māori}

^{fluent in their own language will drop from its current level of 23.7 per}

^{cent to 20 per cent, and the level of proficiency amongst the projected}

³¹ At 48.

^{32 Companies Office “Two Degrees Mobile Ltd: Shareholdings” (2013) New}

^{Zealand Business.Govt.NZ <www.business.govt.nz>.}

^{33 Te Huarahi Tika Trust “2degrees Mobile, a unique opportunity for Māori”}

^{(press release, 5 February 2013).}

^{34 Te Puni Kōkiri “In Focus: Māori Language” (2011) Te Puni Kōkiri:}

^{Realising Māori Potential <www.tpk.govt.nz>.}

^{35 Ibid.}

^{36 Waitangi Tribunal Ko Aotearoa Tēnei - Te Taumata Tuarua, above n 25, at}

^436.

^{37 At 436.}

^{38 Ibid.}

^{39 Ibid.}

150,000 speakers is likely to be far less with the impending loss of the last generation of native speakers.⁴⁰ It must be mentioned that this data is in conflict with a study conducted by Te Puni Kokiri in the same year which showed proficiency rates increasing across the board. However, the survey’s credibility has been severely criticised due to high margins of error and its frank inconsistencies with the census data.⁴¹ From this data, it is clear that Māori language rates and proficiencies have continued to decline despite Government efforts to restore and revive the language.

In light of this continued decline, the transfer of management rights in the 4G spectrum may well be found to be a further breach of the Crown’s obligations to protect the language and culture on a full hearing. The potential redress a further allocation of spectrum could provide to effectively discharge the Crown’s obligations must then be weighed against potential redress the ICT fund could provide. The majority in the Radio Spectrum Final Report held that an allocation would provide the “hands-on ownership and management” required for Māori to compete in the “knowledge economy” of the 21st century.⁴² Piripi Walker, a spokesperson for the claim, has advocated that an allocation of spectrum would promote Māori involvement in all areas of the telecommunications industry, attracting new business and investment.⁴³ The previous allocation of spectrum in 1999 at a discounted price provided the opportunity for Māori to enter this economy through their current 10 per cent shareholding in 2degrees, demonstrating the potential behind such allocations for the advancement of Māori commercial interests. On the other hand, Minister for Information and Communications Technology Amy Adams has suggested that the proposed fund could be put towards Māori digital literacy, further ICT training scholarships, connectivity for marae, and Māori language applications development. An argument could be made that these potential benefits are similar to those generated through the Trust’s allotment and current shareholding in 2degrees, and would thus be an equally effective form of redress. No empirical evidence is available to translate the effect the previous allotment has had into improvements in the strength of the Māori language and culture, apart from pure economic benefits, and it remains unclear what impact any future allocation would have. But this would overlook the great capacity this allotment has had for the translation of commercial benefits into real gains for the language and culture, and the potential that further direct involvement could have in protecting and enhancing these interests. In light of the language’s continuing decline, and the considerable commercial value the spectrum holds, a further allocation may provide better funding for language and culture initiatives, and thus a more Treaty-compliant solution, than the Crown’s proposed compromise.

⁴⁰ Ibid.

^{41 Ibid at 439.}

^{42 Waitangi Tribunal Radio Spectrum Final Report, above n 3, at 52.}

^{43 Piripi Walker “Why Māori Seek Share of 4G Spectrum” (2013) Stuff <www.}

^{stuff.co.nz>.}

^{B Challenging the Conceptual Foundations of the Wider Claim}

If it is accepted that the language and culture argument falls away in light of recent developments, the question remains as to how convincing the Tribunal’s majority finding in the Radio Spectrum Final Report is, that the entire electromagnetic spectrum is a taonga capable of protection under Article 2 of the Treaty of Waitangi. Right from the outset, this wider claim, and the WAI2224 claim which relies on its findings, posed difficult questions.

Firstly, the Māori claim to a “fair and equitable share” in the spectrum is based on the 1999 Tribunal’s finding that the entire electromagnetic spectrum is a taonga protected under Article 2. But can Māori be said to have knowledge and use of the radio or electromagnetic spectrum as a whole when the prior use claimed relates only to the visible spectrum or “light”, in a way that was used non-exclusively by countless others? Secondly, the claim relies on a finding that the spectrum can be regarded as part of “their” or ō rātou taonga under the strict wording of Article 2. Should the concept of “their” taonga be capable of extension to all newly-discovered resources of any kind, even those that neither the Crown, Māori, nor anyone else for that matter knew of in 1840? How does residual rights theory extend to such resources? Finally, how much of this debate turns on how we conceptualise what is being claimed here? Are Māori claiming rights in the natural resource of the spectrum in general, or rights in the monopolistic use of the radio spectrum through management licences to generate profit? Given that the spectrum encompasses everything from radio waves to gamma technology, could Māori have a claim to parts of the spectrum used in MRI machines?

1 Knowledge and use of the spectrum

Arguments that Māori had knowledge and use of the electromagnetic spectrum are based on a different conception of the role of the spectrum in providing knowledge transfer and connectivity, based partly on abstract mythological uses.⁴⁴ This conception redefined the spectrum, as not simply a scientific resource limited by the extent of current technology, but as a fluid space of interconnectivity and part of both te taha wairua (the spiritual world) and te taha kikokiko (the physical world) within a Māori worldview.⁴⁵ The spectrum was perceived as the space between the atua (supreme beings) and the people, through which information flowed downwards from the atua and linked all things between the earth and the sky.⁴⁶ This added a social and cultural element to the spectrum, different from the Crown’s purely commercial and scientific view of the resource.⁴⁷ Examples produced in evidence by the New Zealand Māori Council included knowledge of the space created by the separation of Ranginui and Papatūānuku (or sky and earth), and the journey of Tāne-

⁴⁴ Joyce above n 11, at 26.

^{45 At 119.}

^{46 At 137.}

^{47 At 130.}

nui-a-rangi to retrieve the seven “kete” or baskets of knowledge from the heavens through this space, in Ngāti Porou mythology.⁴⁸ The Tribunal cited the similar Ngati Awa version of this myth and the journey of Tāwhaki as justifying their conclusion that the spectrum is a taonga, on the basis that Māori incorporated the existence of the natural phenomena within it into their own philosophical worldview.

From this conclusion, the majority drew the rather long bow that Māori had knowledge and use of radio waves prior to 1840, and herein lies the most controversial element of the Tribunal’s reasoning – the conflation of metaphysical and physical uses of the spectrum. A strong argument can be made here that the extension of a finding of knowledge of the spectrum to a finding of its use means that the potential resources which can constitute a taonga would be boundless – particularly as knowledge of many other aspects of the universe could be grounded in Māori mythology. If such beliefs can result in rights in physical resources under the Treaty, many further claims to resources could result. Savage J said in dissent that accepting such a wide meaning of the term taonga would “make the Treaty so indefinite as to be meaningless” and would cast doubt on whether a meeting of the minds ever occurred between the two parties.⁴⁹ Perhaps the Tribunal would benefit from establishing clear criteria which may point to when a resource is a taonga, similar to the approach taken by the Canadian Supreme Court in R v van der Peet in relation to aboriginal rights, which included considerations such as: the independent significance of the right for indigenous people; its inherent distinctiveness; and the continuity of practices in relation to it.⁵⁰

2 “Their” taonga and a right to develop?

In order for Māori to claim rights in the spectrum, they must also be able to point to evidence which associates the resource with some exercise of possession or control of it, or the reservation of rights in it. This stems from the key phrase in Article Two of the Treaty referring to ō rātou taonga katoa or “all of their prized possessions”, which connotes that there must be some connection between Māori and the taonga as of 1840 which can be extended to contemporary circumstances. In dealing with the second of these problems, the majority in the Radio Spectrum Final Report appeared to contradict itself in its reasoning. As stated earlier, the majority found that the electromagnetic spectrum was known to Māori and used prior to 1840 in limited respects, and it was therefore “their” taonga. However, they then endorsed the findings of earlier Tribunals and those of the Radio Frequencies Report that, since the spectrum was a natural resource present universally and unable to be possessed by any one person or group, it was a “taonga to be shared by the tribes and by all mankind”.⁵¹ The majority then suggested that the various competing

⁴⁸ At 137.

^{49 At 59.}

^{50 R v van der Peet [1996] 2 SCR 507.}

^{51 At 42.}

interests could be reconciled by establishing a hierarchy of interests, giving Māori a stronger right to allocation than the general public, subject only to the Crown’s interests in conservation and the protection of wider public interests. It is hard to reconcile these aspects of the the majority’s reasoning. How can a taonga both belong to Māori – and be “theirs” in the necessary sense – and also be “unable to be possessed by any one person or group” when it is such an intangible resource?

Crucial to this analysis is the residual rights theory of indigenous law. This theory, which is prevalent throughout Western jurisdictions and which was first stated in New Zealand in R v Symonds, holds that aboriginal rights are not granted to indigenous people as a result of the cession of sovereignty to a colonising power, but rather they exist prior to cession and are preserved until they are disposed of by the voluntary consent of the holder.⁵² At common law in New Zealand, we have recognised the Crown’s right to extinguish customary aboriginal rights only by consent or express statutory intervention, and have placed a high threshold on the level of clarity required.⁵³ These rights have been held to be open to economic development and adaptation to changing circumstances in other jurisdictions. In R v van der Peet, the Canadian Supreme Court held that some commercial use of the resource must be pointed to in traditional times in order to claim aboriginal rights in its exploitation in the future.⁵⁴ In a similar vein, the Crown accepted in argument during the recent decision of the Supreme Court in New Zealand Māori Council v Attorney General that Māori hapū (sub-tribes) have retained some residual proprietary rights in particular bodies of fresh water, short of ownership protected under Article 2 of the Treaty.⁵⁵

But a finding of residual rights in the electromagnetic spectrum would need a considerable extension of this reasoning. It might take us beyond situations in which there was clear evidence of use to an assumption of Māori sovereignty over all resources, known or unknown prior to

1840. All residual rights might be claimed on the basis that Māori might have rangatiratanga over any resource (newly-discovered or otherwise) that has not been lawfully allocated to another party in a manner consistent with Treaty principles. That such a theory would apply to land, forests, fisheries and other assets Māori clearly exploited in the past is uncontentious. However, a Māori claim to rights in resources only discovered via modern science after the signing of the Treaty stretches this theory beyond its traditional limits. A right to develop resources in which Māori have established interests has been recognised by the Tribunal, in fisheries, where the customary in-shore practices were extended into rights in potential deep-sea fishing quota, and in petroleum and gas, where residual rights in land under which such

⁵² R v Symonds (1847) NZPCC 387 (SC); Calder v Attorney-General of British

^{Columbia [1973] SCR 313.}

^{53 Ngati Apa v Attorney-General [2003] NZCA 117; [2003] 3 NZLR 643.}

^{54 R v van der Peet, above n 49.}

^{55 Mighty River Power, above n 28, at [101].}

resources lay could be developed into rights of use and control of the petroleum and gas.⁵⁶ But all of these cases involved a clear connection between Māori and either a physical resource protected under the strict wording of Article 2 of the Treaty, or a resource connected to a protected identifiable taonga, and then extension of that connection in a logical contemporary direction. In these instances, where collective state and Māori interests have been transferred into individual property rights, customary allocations have been readily quantifiable and built clearly on a development of traditional use, such as allocations within the fisheries quota management system or of the land under which the resources lay. Rights in spectrum management licences are not so easily transferrable when based on limited evidence of traditional practice and use.

Two statements of Cooke P are relevant to the extension and development of these rights. In the Lands decision, he held that emphasis should be given to the “positive and enduring role of the Treaty...and that the Treaty must be capable of adaptation to newer and changing circumstances”.⁵⁷ This inherently recognises the Treaty as a “living document” and the ability for rights protected under Article 2 to respond to technological advancements not present in 1840. However, in the Court of Appeal’s unanimous finding in Te Runanganui o Te Ika Whenua Society v Attorney-General, Cooke P limited this ability by stating that:⁵⁸

however liberally Maori customary title and Treaty rights may be construed, one cannot think that they were ever conceived as including the right to generate electricity by harnessing water power. Such a suggestion would have been far outside the contemplation of the Maori Chiefs and Governor Hobson in 1840.

No authority was cited to suggest that aboriginal rights extended to the right to generate electricity.⁵⁹ While the opinions of previous Courts and Tribunals are difficult to reconcile, there is potentially more strength in Cooke P’s view in Ika Whenua emphasising the limited extent to which the “living” nature of the Treaty can respond to newly-discovered technologies in light of the contemporary political and social matrix. If a resource is found by the Tribunal to be a taonga, a hierarchy of interests may be a suitable system to manage the dual considerations of kāwanatanga and tino rangatiratanga under the principles of the Treaty. But the Tribunal must first be able to point to some distinctive feature of the Māori relationship with the resource in order to justify applying such a hierarchy to it as their taonga, existing in some form in 1840, preventing the untrammelled application of the hierarchy to new and undiscovered technologies beyond the scope of the modern Treaty relationship.

⁵⁶ Waitangi Tribunal The Muriwhenua Fishing Claim Report (Wai 22, 1988);

^{Waitangi Tribunal The Petroleum Report (Wai 796, 2003).}

^{57 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (Lands).}

^{58 Te Runanganui o Te Ika Whenua Society v Attorney-General [1994] 2 NZLR}

^20.

^{59 Ibid.}

^{3 What rights are actually being claimed?}

Finally, evaluation of the Māori claim also turns on the nature of the rights sought by Māori in relation to the spectrum. A Māori claim to property rights in the management licences conferred by the Radiocommunications Act and the economic benefit derived from them, protected under Article 2 via development of past use, is much more difficult to justify than property rights in the physical spectrum itself. An objection can be based on Cooke P’s reasoning in Te Runanga o Ika Whenua that neither Māori chiefs nor Hobson could have contemplated at 1840 that Māori would receive rights to artificially-created licences for use in telecommunications under the retention of tino rangatiratanga of their taonga – particularly when it was still 60 years before the spectrum was discovered. It is more conceivable that property rights in the spectrum itself, existing as taonga in the use of traditional knowledge systems and navigational practices, could extend and develop over time with limits tied to that past use. But perhaps the most convincing of the arguments is that neither the spectrum nor the management rights are taonga capable of protection, but that a Māori share in them can be claimed indirectly under the banner of the need to protect the intangible but recognised taonga of language and culture.

To conclude on these conceptual issues: no other Tribunal has extended the concept of taonga further than in the Radio Frequencies case, or caused so much controversy amongst the media and wider community for doing so. A number of difficult and contentious arguments have to be accepted to attach protection for taonga to the entire electromagnetic spectrum. In the absence of any hard evidence of use of the spectrum in traditional times that would take us beyond abstract and philosophical connections, perhaps the majority of the Tribunal would have been wiser to follow Savage J in his dissenting opinion and base the argument on the stronger foundation of preserving the widely accepted taonga of language and culture.

IV Wider Implications of the Majority’s Reasoning

It is not surprising that the Crown is concerned about the further application of the majority’s reasoning in their WAI150 and WAI776 reports.⁶⁰ That reasoning could have considerable implications when applied to other parts of the natural environment such as the air, wind and sea. Māori have strong mythological and spiritual connections with this environment, expressed through their ability to whakapapa, or link back genealogically, to the atua (or gods) with dominion over these domains: Tangaroa with the sea, Tāwhiri-mātea with the wind, and Ranginui with the sky, to name a few. Māori legends make repeated reference to the importance of these aspects of the environment and the role that the tangata whenua retain as kaitiaki, or guardians, over their use. Could further argument be made before the Tribunal that, as a consequence

⁶⁰ Waitangi Tribunal, above n 3.

of the Māori relationship with Tāwhiri and their previous use of the winds to guide their waka from their ancestral homeland Hawaiki to Aotearoa, Māori have a quantifiable taonga interest in wind technology and the generation of power from wind turbines? Or likewise through their use of rivers and tides for the generation of hydroelectricity? This question will form a considerable part of the second half of the Tribunal’s investigation into the Freshwater Claim. It is arguably easier to make an argument that the patent customary use of these resources by Māori make them more suitable for evaluation of Treaty-compliance where the Crown converts collective state interests into individual property rights in the resource. But such arguments could also be based on the spiritual and metaphysical relationship between Māori and freshwater resources, for example their relationship with tributaries that flow from springs traditionally used for ritual cleansing, to claim taonga rights in the full resource.

At the extremities of this reasoning, could Māori claim rights in taonga of further undiscovered resources on the basis of prior metaphysical and philosophical understandings connected to them? While these kinds of claim have been subject to open criticism from several commentators as another “gravy-train grab” by Māori, the Tribunal’s views should not be dismissed out of hand.⁶¹ To do so would demean their role as experts in both the meaning of the principles of the Treaty of Waitangi, and in the application of Māori tikanga and wider custom in the complex contemporary environment. One only needs to look at the difficulty the courts have faced in grappling with contemporary applications of recognised Māori spiritual entities such as taniwha to the Treaty- compliance of decisions made under the Resource Management Act 1991 to see that this is not just a Tribunal issue, but part of the wider discourse of Crown-Māori relations.⁶² There is nothing to suggest that Māori are acting unreasonably in their desire to challenge Crown actions on the basis of considerations which are not easily underpinned by Eurocentric values or maxims of property law.

V Conclusion

As a final note, the Tribunal may have missed a valuable opportunity to review their previous findings and the potential impact of the impending auction, as a result of their decision to decline a hearing into the urgent remedies claim. While the attempt to re-open previous claims to provide a backbone to this new claim was probably doomed to fail, an urgent hearing on the merits would have given the Tribunal another opportunity

⁶¹ Muriel Newman “Power, Water, Spectrum & Fish” (2012) New Zealand Centre for Political Research <www.nzcpr.com>; Michael Coote “Treaty train rocks on radio waves” (2012) New Zealand Centre for Political Research <www.nzcpr.com>; John Ansell “Today the 4G spectrum, tomorrow the sun” (press release, 5 February 2013).

⁶² Friends and Community of Ngāwha Inc v Minister of Corrections [2002] NZRMA 401.

to voice their opinions on a number of issues, such as whether the transfer represented a repeated breach of Crown obligations to protect the language and culture, and to review their previous findings in relation to the entire electromagnetic spectrum as a taonga. In its decision, the Tribunal states that the Crown has had the benefit of a report and recommendations on these matters before, and is unlikely to be further informed by a repetition of those recommendations – a suggestion that the Tribunal would not have come to a different conclusion. But the Tribunal’s role should be more than a purely investigative arm of Government in its recommendatory function. It should also stand as a forum where Māori concerns regarding the Treaty are given open, appropriate and full consideration – particularly when policies and actions are undertaken which pose urgent threats to the availability of redress. The Tribunal were right to take into account the existence of other pending claims and the pressing nature of their concerns, but in the face of action which may cause considerable damage to Māori ability to seek redress, the Tribunal should not be so reluctant to voice its opinion and add to the political and moral discourse regarding Crown activity. The Tribunal’s thoughts on these matters could provide a timely reminder that Māori interests extend beyond the physical into the metaphysical, and that proper Treaty compliance must consider these interests alongside concepts more familiar to the European mind.