Radio Spectrum – Digital Land in a new era of confiscation
Radio Spectrum is largely unheard of in our non-technical society and especially in Maori culture, despite radio spectrum being recognised as a Taonga by the Waitangi Tribunal which resulted in the New Zealand government giving Maori $5 million dollars to invest in Maori ICT participation. In turn this was used to form a part share in 2Degrees Mobile (which removed the duopoly in the NZ mobile market) is also almost unknown by Maori. Nor are the facts about how well that investment has been and to what extent Maori have benefited as the media offers conflicting stories and scaremongering while we await the Annual Report to be published.
It is important to note that earlier this year the government stated they do not see spectrum as a Taonga and will sell radio spectrum to the highest bidder (i.e. the three mobile carriers). But that the government “might” offer $30 million ICT fund to be administered by a Crown agency as recognition of their treaty partnership. But this is not definite and no other details have been provided to the public.
One has to question the benefits and cons of such an offer. Tariana Turia referred to the deal as a “Beads and Blankets” deal while respected te reo and spectrum stalwart Piripi Walker states “Maori received the “rats and mice” from the post-auction FM frequency barrel, months after the auction” in regards to the 1990 Waitangi Tribunal decision.
If Maori began to think of the spectrum like they do land, then there would be wide spread Maori outrage at the fact that the government has denied Maori its Taonga. There would be another major alliance of Maori marching in force on parliament as there was with the Foreshore and Seabed issue which saw the largest Maori protests creating unity and the first time in history Ngai Tahu officially participated in a protest march.
It is likely that the Treaty Claimants Group will take the Government to court and its likely that the offer of a $30 million fund will be withdrawn. It is important to note that no details of the fund has been offered and the word “might” is used. So there is no guarantee that there is a fund and no guarantee that the money will not be sourced from other Maori initiatives. If the fund is to be created, then the main question Maori need to ask is what benefit will a $30 million fund provide for the wider Maori community.
Will this fund benefit Maori in the same manner that the Ma Te Reo fund has helped thousands of Maori language speakers. Or are we better as Maori to take the spectrum for the long term and expect that the spectrum will generate economical wealth for all Maori? Or as has been suggested, Maori would prefer $30 million of spectrum. This appears to be logical and would even up the Maori investment in 2Degrees. Without it, Maori percentage in shareholder rights is likely to dwindle .
What is Spectrum
As Maori we walk on our land and see what our ancestors saw and for some of us we contemplate the changes that occurred to our ancestral lands. Some Maori look to the stars and contemplate the traditional navigation systems our tipuna used. Some Maori think about the spirituality of our tipuna and the myriad of gods and demi gods that escalated from the highest heavens all the way to Rangi and Papa. In between all of the gods and heavens is natural phenomena now known as radio spectrum. Some Maori will say that the spectrum and other things we cannot yet logically grasp was the way our tipuna communicated to the gods and spirits.
4G Spectrum will allow our mobile device driven society to access the Internet faster and create a whole new range of social/cultural/economic possibilities that may not even be thought of yet. It is part of a global multi-billion dollar industry that has the opportunity to boost the Maori economy with investments, employment opportunities and create a whole new raft of educational and cultural opportunities.
A major advantage would be Internet access to the rural communities who have no or inadequate Internet access. Access to such technology could address the many Iwi/marae issues of people living away from the rohe and not coming back. More participation in hui and tangi via video links would likely involve more people in the marae and Iwi making for a better informed and represented Iwi.
4G spectrum in layman’s terms is an electromagnetic field in the air. Electromagnetic Fields occur both in nature and artificially. For a technical analysis Toa Greening has produced a submission.
One of the founding principles as defined by the Waitangi Tribunal is the establishment of a partnership and the duty to act reasonably and in good faith.
The Treaty established a partnership, and imposes on the partners the duty to act reasonably and in good faith. The principle that the Treaty established a partnership and imposed on the partners the duty to act reasonably and in good faith was independently agreed to by all five members of the Court of Appeal, though it was expressed differently by each.
Justice Cooke characterised this duty as ‘infinitely more than a formality’. He stated that, ‘If a breach of the duty is demonstrated at any time, the duty of the Court will be to insist that it be honoured.’
Land, waterways and forests can be territorially defined by Iwi, Hapu, right down to individuals in some cases. The Spectrum has no territorial definition for either the Crown or Maori therefore its usage must be principled based with duties to act reasonably and in good faith.
Who will benefit from the Waitangi claim?
If Maori successfully argue to the Waitangi Tribunal that 4G Spectrum is a Taonga as they did with the Waitangi Tribunal for 3G and the Crown allocate Maori a percentage of spectrum or funds to invest, there will be an issue of who is to manage the spectrum. There are a number of groups who are interested in managing the spectrum and there is already a public disagreement between the parties involved.
Some would argue that Te Huarahi Tika Trust as the kaitiaki for Maori 3G spectrum would be the natural spectrum manager, but the counter argument questions how much benefit Maori have gained from Te Huarahi Tika Trust and that by using a different telco would spread Maori investment, yet this would dilute the Maori 2 Degrees investment. Perhaps it is the Maori council, but the counter argument again is how representative is the Maori Council? Maybe it is the Iwi Leaders Forum, at least those people are elected to power by their own Iwi and arguably should be representative of their people. But this does leave out Urban Maori. As Antony Royal mentioned, this is a topic which will have to be decided after 4g Spectrum has been allocated to Maori. There will obviously be discussions prior to that and already we have seen a new Maori ICT group appear like a Phoenix making claims to a part of the spectrum allocation.
Groups involved with the spectrum Claim
There are three Maori groups involved.
Wai 2224: is the group that are taking a claim to the Waitangi Tribunal for ownership rights to Spectrum. The group consists of Graeme Everton, The New Zealand Maori Council and Nga Kaiwhakapumau I te Reo Inc.
Treaty Coalition Partners: New Zealand Māori Council, Ngā Kaiwhakapūmau, Graeme Everton, WAI776 (original claimants), Te Putahi Paoho, Te Huarahi Tika Trust.
Te Huarahi Tika Trust: were allocated $5 million dollars in 2000 as a solution to the Waitangi Tribunal decision that spectrum is a Taonga. The Trust then established a commercial arm (Te Hautaki Trust) to invest the money which eventually lead to 2Degrees Mobile entering New Zealand as the countries third Mobile operator, resulting in the duopoly being removed.
Fore more information and links, The New Zealand Maori Internet Society have a consultation for Maori and a number of resources.