Paper presented to the Waitangi Tribuna to assist an inquiry into a claim by the New Zealand Maori Council and Nga Kaiwhakapumau I Te Reo relating to broadcasting (Wai 150), October 1990, at the Waiwhetu Marae.
Keywords: Environment & Resources: Maori; Political Economy & History;
Introduction and Disclaimer
1.1 As the title of this paper emphasises that it is no more than an attempt by a Pakeha economist to write an account of the Maori claim to the radio spectrum and related broadcasting issues.
1.2 It is with reluctance I do so, for the Maori is perfectly able to make the claim in their own right, and indeed have done so. However it has not always been easy for the Pakeha to understand the claim. Thus the purpose of this paper is to ‘translate’ their cliam into an account which a Pakeha economist, and hopefully other Pakeha, can understand.
1.3 This raises a second reason for my reluctance. As will become clear the issue from a Pakeha perspective is not solely an economic one. Other perspectives -including those of the anthropologist, historian, lawyer, physicist and public policy specialist -are also relevant, and I shall have to trespass over their domains, no doubt unintentionally misrepresenting them, as I may also the Maori claim.
1.4 The third reason for my reluctance is the task is essentially one of scholarship. As I have worked in this area I have become increasingly aware that the issue is an enormous one, and that many aspects have yet to be worked through. The excuse for setting down the little I know at this time is that it sets a foundation from which more work can be done, while at the same time it may assist others’ understanding of the issues involved.
1.5 Yet despite the modest intentions of this paper, it represents an exciting project for at least two reasons. First the issue of Maori Broadcasting is an integral part of the survival of Maori into the twentieth first century. We simply have to get it right.
1.6 Second, this is the first paper I have seen which attempts to provide some economics perspective on the Treaty of Waitangi. There are Maori, historian, law, philosophical and-political perspectives on the Treaty, far more scholarly than this. But I am unaware of any economic account of the significance of the Treaty despite its second article having considerable economic significance, because it is concerned about – in Western terms – ownership, control, and use of resources. The more I have worked on this topic the more I have come to the conclusion that for a Pakeha to understand the Treaty properly there is a need to understand the traditional and modern Maori economy, and the economic significance of the Treaty and the events which followed it. I hope this paper will stimulate a wider debate on such issues.
1.7 The reader is entitled to know a little more of the context in which this paper is written. The author has been employed as an economic consultant by the New Zealand Maori council in the course of its negotiations with the Crown over broadcasting policy. My function has been broadly that exhibited in this paper; translating the Maori concepts into the relevant Pakeha concepts and vice versa.
1.8 An earlier version of this paper was requested by my clients. and submitted in November 1989 to the negotiators on behalf of the Crown. who said they found it “helpful” .The same paper was later suhmitted to the Waitangi Tribunal as a part of the clients’ claims on broadcasting (Wai 150).
1.9 In October 1990 I was asked to present the paper to a hearing of the Waitangi Tribunal on the claim. I have subsequently revised the paper. The structure remains the same. hut more material which I collected over the following year has been incorporated.
1.10 I am grateful to helpful comments from Peter Cleave. Jane Kelsey, Pip Saffrey. Piripi Walker, Ranginui Walker, Whatarangi Winiata, the staff of Te Upo O Te Ika. and a seminar of the Economics Department of the University of Waikato where the paper was presented. I also had the good fortune to attend a number of hui sponsored by the Maori Council on broadcasting policy issues from which I benefited. And I am also glad to have the opportunity to acknowledge the contribution of public officials, who acting as negotiators for the Crown, assisted my understanding, and thereby contributed to the strengths of the November 1989 paper.
1.11 The report represents my own assessment. and does not purport to reflect the views of either client. or any other Maori group. nor of anyone mentioned in the previous paragraph, Because it is an independent assessment it may even contradict the Maori account. although that would he unintentional. The role of the translator is to reflect as clearly and accurately as possible the intention ot the speaker, rather than imposing his or her own opinion.
1.12 Note however, that the translation of a conceptual framework involves a much wider remit than the translation of a text. Sometimes 1 may stray too far but clearly it is necessary. to include Pakeha (or more strictly Western) concepts in the account.
1.13 In particular 1 have deliberately considered what might he the Crown account of the issue. It is only by identifying the counterpoint. in so far as it exists and can be identified. that we can understand the Maori argument.
2. The Treaty of Waitangi
2.1 There is no need to detail the Treaty of Waitangi, that solemn compact signed between the Maori and the British Crown in 1840. Its significance to broadcasting policy is that it is the Treaty which is the foundation on which the Maori broadcasting claims are based. There may be other bases -for instance aboriginal rights -but current Maori thinking derives from the Treaty.
2.2 For our purposes the Treaty the three articles of the Treaty may be described as the ‘Kawanatanga’ article, the ‘Rangatiratanga’ article and the ‘Tikanga’ article.
2.3 The first transfers kawanatanga from the Maori to the British Crown. Here we shall take the term to mean ‘governorship’, although there has been much exegesis on what was meant.
2.4 The second article places a weighty caveat upon the transfer of governorship, for it states that the British Crown agrees to the Maori, “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa.” Kawharu (1989) translates the expression as “the unqualified exercise of their chieftainship over their lands over their villages and over their treasures all”. A far earlier translation reported by the Rev. Richard Davis, who was at the signing, in his memoirs says “the entire supremacy of their lands, of their settlements, and of all their personal property”. (Coleman 1865) This indicates that the generation involved in the signing of the Treaty could be aware of the import of the Maori version.
2.5 The English language version of the Treaty, which is scheduled in the Waitangi Tribunal Act, refers to the same expression as “the full exclusive and undisturbed possession of their Lands and Estates Forests and Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession”. (This version seems to be the thrid draft of the Treaty completed on 3 February 1840. The following day it (or a later version in English) was given to Henry Williams to translate. It appears that at least one alteration was made to the Maori translation. Thus the Maori text signed by the chiefs on the Marae was the fifth, and possibly the sixth, draft. So the third draft is not comparable with the signed Maori version and it is quite misleading to say, as I was taught, that they are translations of one another (Ross 1972))
2.6 The third article, the least contentious of the three, states the British Crown gave the same tikanga as the people of England. In this context the phrase involving tikanga is usually translated something like “citizens rights and duties”.
2.7 This paper focuses upon the second article, although the other two will also concern us. The point here is the second article states that the Maori retained certain property rights as a part of the transfer of governorship and citizenship. At dispute is what those rights were in respect to the radio frequency spectrum.
2.8 Two important terms in the Maori language second article appear to have English language parallels, albeit loose ones, for we might compare “rangatiratanga” with ownership and “taonga” with property (or, as we shall see, resources). However in each case the Maori term is more comprehensive than the English term. Understanding these distinctions are crucial for understanding the Maori Case.
2.9 Therefore the next sections explore the distinction. Underlying our approach is that “the Treaty always speaks”. We are asking, what then does it say about broadcasting?
3. Property (and Resources) and Taonga
3.1 At a superficial level the notion of property appears to be well established in the Western conception.(1) This is because it appears to be founded on such a tangible matter as land. However, in recent years economists, among others, have become increasingly aware that there exist phenomena which has appear to have the characteristics of property but are far from tangible.
3.2 As a result economists tend to focus on ‘property rights’ rather than property. Thus there exists intellectual property rights, as for example embodied in copyright. By analogy there exists ‘intellectual property’ despite it being much less tangible than land.
3.3 But property rights associated with land may also be far from tangible. For instance under town planning ordinances the owner of a piece of land may be able to sell the airspace above it, forgoing the full use of the planning entitlements to the land by selling the unused entitlements to the developer of another piece of land. The Land Transfer Act 1972 defines land to include “messuages, tenements, and hereditaments, corporeal and incorporeal, of every kind and description”. My dictionary gives a legal meaning for incorporeal as ‘having no material existence’ and ‘intangible’.
3.4 As is evident from the above examples, Western environment property rights are based on common and statute law. There may well be phenomena which appear to be like other property, but because there is no law there is no way of enforcing property rights. For example while there is a copyright on this paper, were it to contain any original ideas that author would have no claim to them as property, and could not charge others for their use.
(3.5 This is by no means a trivial issue. The development of hardware, software, and usage of computers is fraught with these property right issues, and we can expect the evolution of statute and judge made law to cope with them. If there is not such a development the evolution of computers services themselves may well be inhibited.)
3.6 The economics literature sometimes uses the expression ‘resource’ mean something for which there is a potential property right. Thus while there may be no law which determines the property rights of the resources, or of all aspects of the resource, never the less one might conceive of an enactment of such a law which would formalise the property rights. We shall follow the terminology here.(2)
3.7 This distinction between property and resource nicely solves the question as to whether there was any property on 5 February 1840. Because there was no legal framework, in the Western concept, it could be said that there was no property in the legal sense. But there were resources, and indeed there were well defined procedures by the Maori to settle issues of usage and ownership. Clearly the relevant concept for interpreting the Treaty’s use of the term taonga in a Western framework is resource. It is also clear that a crucial process in the post 1840 history has been the conversion of resources into property.
3.8 But the Maori notion of taonga is broader than resource, or property as exhibited by the existence of property rights. It is not that taonga may be intangible, for we have seen that this is true for property in the Western system. However taonga, which is usually translated as ‘treasured possessions’, may include matters for which there exist no legal property rights.
3.9 This insight was stunningly illustrated by the Waitangi Tribunal when it ruled that the taonga mentioned in the Treaty included the Maori language, a position which is now also adopted by the Crown. It is not just that there can be few things more intangible than a spoken language (and more concrete in human terms). But there is no obvious way it can be converted into a bundle of property rights, in the usual sense of the term. No body, be it a collectivity or an individual, can claim exclusive use to the language, control its form or substance, or transfer the rights through sale. To do so would be to limit the very things which make it a taonga.
3.10 Thus the Maori notion of taonga encompasses the Western notion of property, because it includes all property, and some items which cannot properly be designated as property.
4. Is the Radio Frequency Spectrum a Property (or Resource)? Is it a Taonga?
4.1 It would be possible to dispute at some length that the radio frequency spectrum does not exist, or is so intangible that it is not property or resource. But the fact of the matter is that there is a phenomena on which property rights to its use are based or can be provided. As a result it is convenient to treat that phenomena as resource with the potential to be converted into a property.
4.2 We will not elaborate the previous paragraph. The proposition is so self evident that Richard Posner in his classic text Economic Analysis of Law (1986) adopts it without providing a justification. A section is headed ‘Property Rights in Law and Economics: The Case of Broadcasting Frequencies’ (p39). He says’ so in economic, although not in formal legal terms (in the United States at the time of writing], there are property rights in broadcast frequencies’ (p.41). Later he remarks ‘broadcast frequencies [are] a resource that has some of the economic characteristics as water’ (p.69), and ‘the fact that the electromagnetic spectrum is limited does not distinguish it from other resources’ (p.634). In each of these quotations, Posner is treating as an uncontentious matter of fact that the radio frequency spectrum is a resource.
4.3 There are unusually strong reasons for taking notice of Posner in the context of the New Zealand debate. It derives not merely from his eminence in the field of the development of Law and Economics while on the faculty of the University of Chicago, nor that he is currently a Judge of the U.S. Court of Appeals of the Seventh circuit. It happens that Posner is using exactly the same analysis as underpins the New Zealand Government’s policy on the radio frequency spectrum. In particular the N/E/R/A report, commissioned by the Ministry of Commerce, refers to the same literature as Posner, which commences with some seminal work by Posner’s University of Chicago colleague, Ronald H. Coase.(3)
4.4 Moreover Posner’s concern in his text is the inefficiency of an incomplete set of property rights in the radio frequency spectrum, exactly the concern in New Zealand public policy. For the New Zealand government to deny Posner’s assertion that the electromagnetic spectrum is a resource would involve them constructing an entirely different justification for the proposed policy regime than the one they currently offer.
4.5 The issue of intangibility may be thought about this way. The path across a field may be said to be to be intangible. There is the physical phenomenon of the earth undertfoot. and the footwear on the earth, and there is a regulation in their relationship when people cross the field. Nevertheless we could argue that the path itself has no corporeal existence. Even so it could still generate property rights. insofar as someone may have the right to say who may or may not use the path. and to charge for those rights. and to alienate them to someone else. or even to change the path across the field. The property rights need not be held by the owner of the land. since if the path is a public right of way it is the pedestrian who has the relevant property rights. Similarly even if the electromagnetic spectrum is intangible. there are property rights associated with its use. In that sense the spectrum is clearly a resource, ,
4.6 If the radio frequency spectrum is a resource then it is a taonga. (4) However the Maori have offered some further justifications for this status.
4.7 First is the Maori account of creation.(5) The Maori creation story might be thought of as the Maori way of stating a set of principles which have been summarised in Western terms as
“(i) A reverence for the whole of creation;
(ii) A sense of kinship with fellow beings;
(iii)A sacred regard for the whole of nature and its resources as being gifts from the gods;
(iv) A sense of responsibility appointed stewards, guardians, and rangatira;
(v) A distinctive economic ethic of reciprocity;
(vi) A sense of commitment to safeguard all of resources (taonga) for the future generations.”(6)
4.7 In regard to the broadcasting debate the Maori is saying – I think that the traditional Maori view was that all things created are taonga, and that while the 1840 Maori may not have had a concept of an electromagnetic spectrum, there was a certainly a place in their universe for it.
4.8 The 1840 Maori was no less informed than the 1840 European on such issues. In discussion Maori people have suggested to me that the Pakeha ought to provide an 1840 European account how the radio frequency spectrum would have fitted into their cosmology, if they could have grasped the notion. The point they are making is that the Maori exposition. of the radio frequency spectrum in their creation story should be judged against this European account.
4.9 iu Moreover we need to be careful about assuming what the nineteenth century Maori and Victorian did or did not know. Both knew something about the electromagnetic spectrum. because light itself is a part of that spectrum, with a higher frequency than radio waves. It is even possible that the Maori and the .Victorian had notions of phenomenon that today we call electromagnetic radiation which they could not see. For instance they may have heen aware that on a cloudy day ultra-violet light (as we call it) can affect a person.
4.11 The point is that we have biological receivers for light. That is what makes radio waves different from light. not some inherent feature of their physical properties. As I understand it the Maori does not contest the general principle that they should pay for receivers of radio receivers. nor any patent that may be involved with the equipment. That is different from the resource itself.
4.12 The scientific relationship between light and other parts of the electromagnetic spectrum would certainly be called upon by the Maori to reinforce their claim that the spectrum was created. I find it interesting the central role that light plays in the Maori creation story. Following Te Kore, the great void of emptiness. there was Te Po. the night. The darkness was everywhere. As Te Rangikaheke. the Te Arawa Tohunga. told George Grey
Koia enei kupu. “Te Po. te Po. te Ao. te Ao. te kimihanga. te hahaunga. i te Kore, i te Kore.” (1956:1)
Grey translates this literally: ‘Hence also these sayings of old times are found in our prayers: “Darkness. Darkness. light. light. the seeking. the searching. in chaos. in chaos” (Grey 1956:2). Ranginui Walker offers a freer interpretatiun of the prayer as “Because there was no light. there was no knowledge” (1990:12)
4.13 In a twentieth century guise that prayer remains at the heart of the Maori broadcasting claim. “Without access to the relevant part of the electromagnetic spectrum. there will he no Maori language and culture.” Were they alive today, Te Rangikaheke and his tupuna would be very happy for their prayer to be a motif for the Maori broadcasting campaign.
4.14 The second reason the Maori propose for treating the broadcasting spectrum portion of the radio frequency spectrum as a taonga above that of merely a resource is that they are an oral culture.g Thus a means of oral transmission is particularly valuable to the Maori. This point is put rather movingly in the draft submission to the Waitangi Tribunal (yet to be submitted) which likens broadcasting to a means of sustenance of the mind, language and culture of the Maori people. If this paragraph is short, its import is long. If the Maori culture is to survive, if the taonga of language is to be preserved, they must have adequate access to the broadcasting system.
4.15 The third issue the Maori raise is that very often the broadcasting transmission and reception are on sacred Maori sites (for the obvious reason that sites which were prominent to the Maori provide long clear sight lines for of signals). There are two grievances here. One is that the sites were alienated from their owners in unsatisfactory circumstances, and any further usage of the site reminds the wronged past owners of their grievances. Clearly this is a matter that needs to be addressed – preferably promptly – but it is not germane to the broadcasting issue since other sites could be used at a greater cost. The other grievance arises because the site and instillation is seen as a tangible evidence of the claim to the intangible radio frequency spectrum.
4.16 In summary there is no doubt that the radio frequency spectrum is a resource, and in so far as the informal property rights associated with it are legally formalised the radio frequency spectrum is a property. It is also a taonga, not only because it is a resource, but because it is an integral part of the Maori perception of their world, and a fundamental means by which they can protect and promote their language and culture.
5. Ownership and Rangitiratanga
5.1 Economists usually characterise possession of a property right of an asset (including a r~source) by three features
(i) the right to use the asset;
(ii) the right to change its form or substance;
(iii)the right to transfer all rights through sale.
5.2 Where there exist in a relatively unfettered form the individual or collective which possessed these rights would be described as an owner. There will almost always be some restrictions on the rights, and even where they are onerous the term ownership may apply. For instance the owner of a building with a premier historic buildings classification may not possess the right to change the building’s form or substance, but the term ‘ownership’ would still be used. However the owner retains the right to sell the building, and that third right – of transferability – is usually the crucial characteristic of ownership.
5.3 Note that the owner may be an individual or a collective. This is important in the Maori context, because as the English language version of the second article of the Treaty of Waitangi states, collective ownership was common, certainly dominant, and possibly universal excluding personal items) in traditional Maori culture.
5.4 It should be recorded that much of the land legislation of the last 150 years has been to convert Maori collective ownership into individual title.(8) But the second article of the Treaty recognizes that collective ownership was legitimate, and guaranteed its continuance over existing Maori possessions – wenua, kainga, and taonga – following the signing. That the notion of ownership was clear is indicated by the second sentence of the article which discusses the circumstances in which the owners may choose to alienate their land.
5.5 A third point is that the property rights of same tangible (or intangible) asset may be possessed by different persons or collectives. For instance leasehold land is owned by one agent, who typically is different from the agent who has the right to build on the land, while the right to dwell on the land may belong to a third. In the informal system of Maori property rights it appears it was not unusual for different whanau, and even hapu, to have separate rights to utilise different resources which came from the same piece of land. There was even time sharing.(9)
5.6 However the notion of ‘rangitiratanga’ is wider than merely of ‘ownership’. The word itself – despite appearing in the second article of the Treaty – presents some real problems for it is a word constructed for the specific purpose of the Treaty rather than being generally in the Maori lexicon. It is clearly intended to derive from the indigenous Maori word “Rangatira”, who was “a person of high rank, a chief” (Biggs 1989).
5.7 There have been a number of attempts to untangle what the signatories had in mind by using this word. Kawharu translates “tino rangatiratanga” as “unqualified exercise of their chieftainship”. The English language version of the Treaty uses the phrase “full exclusive and undisturbed possession”. Davis as “entire supremacy”. The English language third draft uses the phrase “full exclusive and undisturbed possession”. Significantly it does not use the term “ownership”, suggesting the English language drafters had a more comprehensive notion in mind.
5.8 The Waitangi Tribunal has pondered on the issue in detail (e.g. 1987 part III), but it has not yet turned its attention to the distinction between ownership and rangatiratanga.
5.9 For a final source I turned to Raymond Firth’s seminal Economics of the New Zealand Maori. Although it is packed with information about the economic behaviour and custom of the Maori it does not link together rangatira and ownership. Never the less it is from that source I hesitantly offer the following conjecture.
5.10 The Rangatira could claim authority over possessions which they did not actually own. The ‘legal’ owners would require some agreement from the relevant Rangatira if they were to markedly change its usage, form, or owners. The rules for the exercise of this agreement I can only guess, but we know from accounts of the events which precipitated the Taranaki Wars that a major change of the ownership of land involved the agreement of the highest Ariki. It also seems likely that such changes would involve not only the recognition of the Rangatiras’ mana, but perhaps a koha (gift), for reciprocity (utu) was central to Maori society. If so it would be virtually impossible to alienate the rangatiratanga from a possession, for each change would require approval from the Rangatira.
5.11 This approach may not be as alien to Western experience as might at first appear. In particular, English law maintains that in some sense the land is the Crown’s possession, and those who are said to own it actually hold it only in fee simple. While they have considerable freedom to use and dispose of the land as they wish, the Crown reserves considerable powers over its use. Examples include town planning, and historic places legislation, while the owner may be restricted from selling the land to foreigners. What is important is that in each case the Crown may vary the requirements and restrictions, but the owner in fee simple has no redress or right to compensation. It does not seem to me to be a travesty of the concept to state the Crown has rangatiratanga over English land.
5.12 But rangatiratanga was more than this. Another aspect was custodianship for people in the past and future, and on behalf of all that is created. The parallel today would be the sentiments expressed by most environmentalists.
5.13 The responsibility to generations in the future is nicely illustrated by the rules of forfeiture of rights. Smith (1936) wrote ‘If a native left his tribe and went to live in another district either through marriage or otherwise, and he and his descendants remained away for three generations, they would forfeit all rights to the land so abandoned’. (p.57) The implication that such was custodial responsibilities of the rangatira that he could not unilaterally abandon land for which he was accountable. The abandonment had to be confirmed by, not one but, two further generations. including people who were almost certainly not alive when the: initial decision was made. Here again is another illustration of the wider scope of rangatiratanga in comparison to ownership.
5.14 Many of the remarks in the last few paragraphs are conjectures. and should be treated as such. If they were to prove correct they would have the implication for the radio frequency spectrum that if the Maori once held rangatiratanga over it. any sufficiently significant change to its use. form. or ownership would require the acknowledgement of that rangatiratanga, even though ownership had been alienated.
6. Who Owns the Spectrum? Who has Rangatiratanga Over It?
6.1 Earlier we established that the radio frequency spectrum was a resource .e.:n a taonga. We have yet to establish who has the property rights to it.
6.2 The Maori account of the possession of the radio frequency spectrum is simple. It was a resource on the 5 February 1840 over which they exercised rangatiratanga by the fact that it was a part of creation. Resources were guaranteed to the Maori under the Treaty signed on the 6 February 1840. No resources or property rights were transferred by the Treaty. Ergo on the 7 February 1840 the Maori still exercised rangatiratanga and ownership. At no stage have they voluntarily transferred these rights. Therefore on 1 December 1989
either the Maori retain their rangatiratanga and ownership of the radio frequency spectrum;
or it has been expropriated without compensation.
6.3 The argument requires a little more care in a couple of areas. First did the Maori really own the resource in early 1840. since they knew nothing about it? The easy point is that neither did the British Crown. More subtly the resource existed, even if on-one knew that it did. Someone must have owned it then.
6.4 The only alternative that I can think of is that the radio frequency spectrum might he deemed to he .wasteland. and for the Crown to claim it under some territorium nullius approach. in which the sovereign claims the wasteland. The Crown has been hesitant to make such a claim in regard to the South Island during the Ngai Tahu hearings before the Waitangi Tribunal even though Governor Hobson did.
6.5 In any case. where in the Treaty is such a right agreed to? It is not obvious that it is encompassed by the Kawanatanga provision of the Treaty of Waitangi. Significantly perhaps, the notion of a wasteland appears in the second draft of the Treaty, which was under the direction of Hobson. In the third draft. in which Busby who was more familiar with Maori custom was closely involved. references to wastelands were dropped. presumably because it was thought there was none. Insofar as the second draft sheds any light on the status of wasteland it implies that they were nevertheless the responsibility of the chief. The exact words are
“The United Chiefs of New Zealand yield(10) to Her Majesty the Queen of England the exclusive right of Presumption over such waste lands as the Tribes may feel disposed to alienate.”
It is hard to see that there is merit in the wasteland thesis.
6.6 The second problem is that suppose it is established that the Maori had full possession of the radio frequency spectrum in 1840. Did they do enough to maintain that possession’? One test of Maori land tenure required usage in order to maintain possession. “I ka to nu taku ahi i runga i toku whenua -my fire has ever been kept alight on my land” ( Firth 1959:385).
6.7 Recall there was a procedure by which after three generations of abandonment a hapu or whanau lost its rights to some land (5.13). Three generations – say 75 years – is a long period of non-usage before ownership is extinguished. The next section shows that the Maori has ben much more active in the usage of the spectrum over the period it has been used. Indeed Maori involvement had been almost continuous, and so meets the tougher test of paragraph 6.4.
7. The History of Maori ‘Occupation’ of the Spectrum
7.1 In the case of the radio frequency spectrum this is a much harder matter to establish because of the inherent characteristics of the resource. In particular our understanding of the spectrum as a resource has evolved.
7.2 It seems to me the best test as to whether the Maori had adequately ‘occupied’ the radio frequency spectrum to maintain possession is ask to what extent the Maori used the spectrum as it became available in the light of the understanding of the day, and their material situation.
7.3. As I understand Maori custom, it is not necessary for the claimant to establish dominant occupation of the disputed possession, only continued occupation. This is important in the broadcasting context, because it would be unreasonable to expect the Maori to have dominated spectrum usage, given their rural base in the middle of the twentieth century, and their relative impoverishment.
7.4. It may be that the Waitangi Tribunal hearings will obtain oral histories of the Maori ‘occupation’ of the radio frequency spectrum. The best I can offer in the interim is a short review of the written histories, which focus only upon broadcasting.
7.5 It is useful to identify six repeat phases in the development of spectrum usage.
I – late 1880s to 1903: the period of scientific research;
II -1904 to 1925: the period of scientific development;
III -1926 to 1936: the period of commercial development;
IV – 1936 to 1969: the period of the state monopoly;
V – 1970 to 1988: the period of opportunities for private commercial development;
VI – 1989 to ?: the period of commercialisation.
7.6 The period to 1902 need hardly detain us. It covers the time when Heinrich Hertz first identified radio waves, through the experimenting of Gugliemlo Marconi (and, incidentally, Ernest Rutherford at Canterbury in 1894) to the passing by the New Zealand of the Wireless Telegraphy Act 1903. As the Act title indicates the phenomena was at the time conceived by the New Zealand parliament as an alternative to (Wire) Telegraphy, and there appears little idea of the full implications of the medium. There is no record of, and it would be inappropriate to expect, significant Maori involvement in this phase.
7.7 That applies also to the second phase in which the potential of the spectrum was explored (notably by Professor Jack of the University of Otago). There may have been some Maori involved in the experimentation and exploration but thus far no record has been sighted.
7.8 The phase ends with the gazetting of the “Radio Telegraph Regulations for Experimental and Broadcasting Stations 1923″ and a speech by the Postmaster General, Gordon Coates. Both have considerable significance for the analysis. Note the regulations still use the term ‘telegraphy’ indicating still a limited conception of the medium. However the regulations included program content regulation including that there be a high proportion of local artists. We shall see the import of this for Maori in the next phase. The Coates speech insisted the State control of wireless communications, reaffirming the position adopted Liberal Government in 1903. The key word here ‘control’. There is as yet no notion spectrum being a resource which may have property rights.
7.9 For our purposes the third phase from 1924 to 1935 is when the Pakeha historians begin to refer to Maori involvement in the program content of the broadcasting system. The indications are that a particularly special occasion was Waitangi Day, 1928 – less than two years after the YA stations were set up – when 2YA presented a ‘Maori history in two and half hours of oratory, song and story’. Maori entertainers (from Wanganui) were used, as they had been earlier in 1927. The program was rebroadcast on other domestic stations and even by a Sydney station 2FC.
7.10 In the third phase there had been a mixture of forms of ownership, all with heavy control by the State (for instance advertising had not been permitted). In 1936 (almost) all the stations were nationalised, leading to the NZBS, the NZBC, and BCNZ. The historic record of Maori involvement includes Pani Parata Te Tau as the first broadcaster using the Maori language in 1936 (although the Maori would have been heard from 1927), the appointment of a Maori announcer in each of the four YA stations in 1937, and the news in Maori in 1942. This news appears to have been part of the War effort, and perhaps appropriately – if sadly – the first true Maori news item was the report of the death in 1944 of Hori Tupea, one of the most respected chiefs of Maoridom, killed in battle. Previously the news had been solely a Maori translation of what Beverley Wakem describes as the ‘Pakeha global message’.
7.11 The record to this period is that the Maori was using the spectrum as a means of communication, to the Pakeha of its language and cultural taonga, and to their own people. They did not claim ownership of the medium because it was not seen as something which could be owned. In return the state run broadcasting system responded to Maori desires – perhaps sluggardly. For instance, from 1944 a mobile recording unit collected Maori material for the program “Harmony and History”, while in 1957 a three quarters of an hour program for East Coast Maori listeners was commenced in Napier.
7.12 The phase of monopoly national ownership came to an end with the licensing of Radio Hauraki in 1969. After that we find regular attempts by the Maori to be more actively involved in the running of broadcasting. At least six Maori groups made submissions to the Adams Committee on Broadcasting, who recommended the establishment of a (state run) Polynesian station based in Auckland. This fell through but in Radio New Zealand established in 1976 “Te Reo o Aotearoa”, a station without a transmitter. Local Maori Radio stations sprung up, and the New Zealand Maori Council established the Aotearoa Broadcasting System to apply for the third Television Channel in 1984. In the same year Nga Kaiwhakapumau Te Reo made a claim to the Waitangi Tribunal which involved aspects of Maori broadcasting. The Tribunal chose not to rule on that matter.
7.13 In summary the recent period has seen a shift from the Maori using broadcasting spectrum for conveying its message, to demanding the controlling the vehicle through which broadcasting was conveyed. In doing so the Maori reflected the conventional wisdom as to the nature of the radio frequency spectrum and of the broadcasting system as reflected in the 1973 Adams report and the 1986 Royal Commission on Broadcasting, among others.
7.14 The latest stage involves the corporatisation (and possibly privatisation) of the State Broadcasting System, and the creation of transferrable (i.e. sellable) property rights in the radio frequency spectrum. The technical term for this is ‘commercialisation’. It is relevant to observe that the to observe that the intellectual ideas are as recent as 1959 – a shorter gap than between Hertz’s discovery of radio waves and the 1923 regulations. As recently as 1986 the Royal Commission failed to favour this approach.
7.15 The Maori response has been to claim their share of the property rights to the radio frequency spectrum under the Rangatiratanga provision of the Treaty of Waitangi.
7.16 In summary, the Maori have a record of ‘occupation’ of broadcasting, consistent with an active interest in the use of the media, in the light of the understandings of the media of the time.
7.17 A couple of canards need to be dealt with, albeit briefly. It is perfectly true that the Maori did not understand the nature of the radio frequency spectrum in 1840. Neither did the European, including Queen Victoria. Indeed. in 1880, an Englishman David Hughes may have identified electromagnetic signals seven years before Hertz, But a gathering of scientists including the Chief Electrician of the Post Office and the President of the Royal Society, to whom he demonstrated his results, took the view that this was not a new phenomenon, thereby leaving the discovery of electromagnetic radiation to Hertz. seven years later (Mason 1981). It seems unlikely that the gathering of experts included any Maori, and one can only speculate whether one would have be:n more supportive to Hughes. given the Maori creation story.
7.18 Broadly the Maori understanding has grown at the same rate as the Pakeha one. The Pakeha one was often very limited too. As recently as 1986, cross examination of the Treasury evidence To the Royal Commission on Broadcasting, demonstrated that not all Crown advisers had a firm understanding of the technical issues, recalling the experience of Hughes, 110 years earlier.
(7.19 Interestingly according to the 1986 Census, the proportion of workers of Maori descent in the occupational group ‘Electrical fitters and related electrical and electronics workers’ was 2.6 per cent of their fulltime labour force. The proportion of all New Zealanders was 2.4 per cent. For whatever reason, the Maori appears to be as active in the radio related occupations as non-Maoris.(11))
7.20 So the British Crown has no special claim to the development of the scientific understanding of the radio frequency spectrum. The waves were first discovered by a German, Hertz, and commercially developed by an Italian, Marconi. Many other nationalities, not least Americans, have been involved in the development of that understanding. Where appropriate they have been rewarded by a copyright or patent, and there is no intention by the Maori (or the Crown) to resile on those.
The Crown Claim
8.1 At the time of writing there is hardly any documentation of the Crown claim to the radio frequency spectrum. It is therefore difficult to respond to the alternative to the Maori claim.
8.2. One statement made by a Crown negotiator is not only to deny Maori claims to the property rights of the radio frequency spectrum, but to claim that nobody owns it. If this is a metaphysical statement about ownership of intangibles, including of other resources, then so be it. But the fact of the matter is that there are, and will be extended by the proposed legislation, property rights to the spectrum. In economic, commercial and legal parlance, these property rights where transferable are ‘owned’. It is these which the Maori claim is about.
8.3 The alternative to ownership by the Maori or the Crown would be some collective ownership of the rights. But if so the Crown could hardly claim (as it does in the introduction to the Radiocommunications Bill) that it is vesting these rights in the Crown, or (as occurs in the Bill) the receipts of the funds from the sale of the rights goes to the Crown, without admitting it” is expropriating the collective ownership.(12)
8.4. The Crown negotiators also presented a paper which showed that the New Zealand Government was direct in lineal and legal descent from the non-Maori signatory of the Treaty and so can claim the right to make laws as under the Treaty’s Kawanatanga provision.
8.5 The right of the Crown to legislate is not the same thing as acknowledging the right of the Crown to expropriate without compensation. Admittedly the New Zealand parliament has done this in the past -more often than this Pakeha cares to remember. But each confiscation, whether it be legal or not, has been outside the spirit of the Treaty of Waitangi and has lead to grievances which a century later still have to be remedied. It is unlikely that the Crown wishes to go down this path in the Radiocommunications Act 1989.
(8.6. While there has been no official condemnation by the Maori of the proposed management regime, some Maori have expressed to me their grave reservations as to what they see as the permanent alienation of the property rights of the radio frequency spectrum resource. Their doubts arise from their experiences as landlords locked into leases in perpetuity, and the difficulties which have arisen over the fishing quota. That the entitlements revert to the Crown after 20 years is not seen as compelling, because the period is long enough and the opportunities for changed arrangements sufficient to mean that practically the entitlements are in perpetuity.)
8.7 In summary one can but speculate on the basis of the Crown claim. There may well be arguments yet to be presented. But a test must be if the radio frequency spectrum were land would the Crown case be convincing?
8.8 Ultimately the Crown must face that crucial phrase in the second article of the Treaty uses two small words which have a very major significance. In “tino rangatiratanga o o taonga katoa”, tino means something like “total” and “katoa” means “all”. Together they mean that the benefit of the doubt over property rights must be given to the Maori.
Summary and Towards a Policy Conclusion
9.1 The Maori has made a case for their Rangatiratanga and ownership of the radio frequency spectrum under the second article of Treaty of Waitangi. At the very least it is a strong prima facie case, which deserves the closest scrutiny.
9.2 The Crown has not yet presented as comprehensive case. Most of the potential arguments that they have presented, or have been explored here, are far from compelling. Until more convincing ones are developed, and the relative merits of the two cases are deliberated upon by a judicial body, the interim decision must favour the Maori case.
9.3 It may be possible to assess some of the consequences of the Crown’s acknowledgement of rangatiratanga of the Maori in respect to the radio frequency spectrum, and the provision of the explicit vesting of the property rights in the spectrum in the Maori, by referring to traditional practices of the Rangatira.(13) The Rangatira of today is as concerned with the enhancement of mana and the protection of taonga as were the Rangatira who signed the Treaty of Waitangi.
9.4 Following the full recognition of their rangatiratanga over the spectrum, the Maori people would then have to decide whether they should manage the spectrum themselves or whether they should commission the Crown to manage it on their behalf (or perhaps jointly), or whether they should make a gift (koha) of it, in whole or part.
9.5 I should not be surprised that after reserving part of the spectrum for their own use -perhaps one television network and two radio networks(14) – the Maori would gift the remainder to the Crown. One of the feature of the Rangatira is generosity -the greater the generosity the greater the Rangatira.
9.6 Such a very generous gift would place a very great obligation (utu) upon the recipient to respond with an equally generous gift. The value of the radio frequency spectrum to the people of New Zealand is great that it is difficult to conceive of an equivalent gift in return. How do we value that which enables Search and Rescue to save lives at one extreme, and which gives kids the pleasure of radio-controlled cars at the other?
9.7 I believe a suitable reciprocal gift would be for the Crown to enable the Maori to establish their own national Maori Broadcasting System by granting the necessary funds. Other than, remedying some of the land and other resource grievances of the past – which the Crown is already committed to do – there is perhaps no greater contribution to the viability and vitality of Maoritanga than providing it with the most powerful twentieth century means of preserving and promoting Maori language and culture.
9.8 Of course the Rangatiratanga associated with the gift of the spectrum would not be transferred. The Crown would be duty bound to consult with the Maori if there were any further proposed major change in the usage or ownership of the radio frequency spectrum. A koha might also be appropriate in exceptional circumstances.
9.9 To the Western mind this process of exchange may appear to be no more than a complicated way for the Maori to trade their property rights in the spectrum for the funds to set up a Maori Broadcasting System. However, as we have seen, the ‘rangatiratanga’ mentioned in the second article of the Treaty is a wider concept than ,’ownership’, and the ‘taonga’ covers more than just ‘resources’. The Maori process of exchange is much more in keeping with the letter and the spirit of the Treaty of Waitangi.
Endnotes
1. The expression “Western” is intended to contrast with Maori. However the Western intellectual, tradition is wide, as are the legal foundations. Where there is ambiguity the mainstream English part of that Western tradition is being used.
2. Posner (1986) mentions the distinction between de facto or informal property rights and de jure or formal property rights. The sum of the two are economists’ property rights, but he confines (as we do) the term ‘property rights’ to the latter use only. (p 41)
3. So does the government commissioned report by John Fountain (1988).
4. This assertion need not lead to the conclusion that the Radio Frequency Spectrum is one of the taonga being referred to in the Treaty of Waitangi.
5. A version is quoted in the Ngati Awa submission to the Select Committee on the Radio Communications Bill.
6. Quoted in Waitangi Tribunal (1988) p.179.
7. On a personal note while I have read that Maori is essentially an oral culture, and can see this is true in a historical sense, I have been forcefully reminded of the point while working with the Maori as a consultant. Some of their strongest and most vivid arguments are not on the written record; part 0Ł my task is to record them. I make no judgement of the relative merits oral in comparison to written cultures. Indeed there are interesting remnants left in Pakeha culture. I suspect one of the reasons why Maori have such confidence in the courts, arises not only from the better deal they have received from them in recent years in comparison, to the written culture of bureaucratic negotiation, but the court room is essentially an oral culture in its own right.
8. In this respect the nineteenth century European lead the Chicago School economist, who also has grave doubts about the efficiency of collective ownership. This is an academic issue to be pursed elsewhere, but in my view the case against collective ownership is often based upon a misrepresentation of how collective ownership functioned.
9. Since different Maori might have entitlements of access to the same resource at different times of the year.
10 “yield” is written above a crossed out “concede”.
11. Other occupations may also be relevant, but are not identifiable from the published data.
12. A means of avoiding the expropriation claim if the Crown really believed in collective ownership of -the spectrum, would be to give the proceeds from the sale of spectrum property rights to some collective agency such as the Broadcasting Commission.
13. Firth’s chapter “The Exchange of Gifts” is particularly valuable for providing insights to the behaviour of Rangatira.
14. I take it that the Maori would be mindful of the implicit private property rights built up over time – as it is with land – and would not disturb existing frequency users by taking up their frequencies for Maori use.
References
Biggs, B. (1989) “Humpty-Dumpty and the Treaty of Waitangi”, in Kawharu (1989).
Coleman. J. N. (1865) A Memoir of Rev. Richard Davis. London.
Grey. G, ( 1854) Nga i Mahi A Nga Tupuna 4th Edition ( 1971). Reed. Wellington.
Grey, G. (1855) Polynesian Mythology. being the English Translation of Grey ( 1854). Illustrated New Zealand Edition ( 1956). Whitcombe & Tombs, Christchurch,
Firth, R. (1973) Economics of the New Zealand Maori, Government Printer, Wellington. (Reprint of Second Edition)
Kawharu, I.H. (ed) (1989) Waitangi: Maori and Pakeha Perspectives on the Treaty of Waitangi, Oxford University Press, Auckland.
Mason, P. (1981) The Light Fantastic, Penguin, Melbourne.
Orange, C. (1987) The Treaty of Waitangi, Allen & Unwin, Wellington.
Posner, R.A. (1986) Economic Analysis of Law, Little Brown & Co, Boston. (Third Edition)
Ross, R. ( 1972) “Te Tiriti o Waitangi”, New Zealand Journal of History. p.129-157.
Smith, N. (1936) Native Law and Custom, Maori Purposes Fund Board, Wellington.
Waitangi Tribunal, Report on the Orakei Claim, (Wai-9), Wellington.
Walker R. ( 1990) Ka Whawhai Tonu Matou: Struggle Without End, Penguin, Auckland
Wakem, B.A. (1989) Evidence to the High Court C.P. NO. 942/88, Wellington.
Note: Section 7 is based on a working paper prepared by the author entitled “The Time Line: The Maori and Broadcasting”.
