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 1 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 2 (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 conflicting3 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 spectrum4 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 5 ” 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”6 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Treaty Claimants Group will take the Government to court and its likely that the offer of a $30 million fund will be withdrawn.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 7 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 spectrum8 . 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 9 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 Greening10 has produced a submission.

Treaty Claim

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 11 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 12 between the parties involved.

Some would argue that Te Huarahi Tika Trust 13 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 14 , 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 15.

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.

 

In 1999 RANGIAHO THERESA EVERTON (née PAURINI) took a claim to the Waitangi Tribunal on behalf of Māori arguing that the Crown did not have right to create property rights around spectrum and should not assume ownership.

The Waitangi Tribunal agreed in a majority decision that Māori had fair and equitable access to the spectrum.

The Crown, at the time, and since has rejected the findings, however instead, set up the Māori Spectrum Trust (now named Te Huarahi Tika Trust) with $5m and the right to purchase spectrum at a 5% discount. (The 3G spectrum at the time was valued at around $14m). At the same time it also established the Mā Te Reo fund.

A request for an urgent hearing at the Waitangi Tribunal was granted at the end of 2009, however the Crown and the Claimants have instead, agreed to a series of meetings to discuss the management of spectrum as a whole.

Successive governments have denied that spectrum is a Taonga. In February 2013 the government again asserted its opinion that spectrum is not a Taonga, therefore Māori are not entitled to spectrum. However, the government may offer Maori a $30 million dollar fund to advance Maori ICT participation.

Brief timeline of Māori activity related to the search for Tino Rangatiratanga over the spectrum and their investments.

1983- 1986

  • Huirangi Waikerepuru and Ngā Kaiwhakapumau sole claimants (Wai 11) , related in part to access to scarce radio spectrum for television and radio.

 

1984-1987

  • The Aotearoa Broadcasting Systems 3rd TV Channel Bid before the Broadcasting Tribunal for the last remaining national VHF licence, sponsored by the New Zealand Māori Council

1988-1993

  • Broadcasting Corporation Assets Case to High Court, on access to mainstream radio and television licences, which was appealed to the Court of Appeal and Privy Council .

1989-1990

  • Right to Radio Frequencies Cases to the High Court, Court of Appeal and the Tribunal (Wai 150)

1990/91

  • Early claims by the New Zealand Māori Council and Ngā Kaiwhakapumau i Te Reo had sought access to FM for Māori radio development before the Waitangi Tribunal.

1996

  • Cases to prevent the sale of the State Owned regional radio networks (the ZM and ZB networks). These cases were to the High Court of New Zealand, (also taken further by Māori to the Court of Appeal).
  • The ‘prior interest’ of iwi in spectrum was advanced again by Whatarangi Winiata, Graeme Everton, and the late Rangiaho Everton, when the Government continued with the sale of valuable spectrum later in the 1990s.

1999

  • The sale of 3G(for 3rd generation) spectrum led to a claim by Rangiaho Everton, which succeeded at an interim, and later, a full Waitangi Tribunal hearing.
  • The Crown rejected the idea that Māori had an Article 2 interest in the radio spectrum. While rejecting the reports from the Waitangi Tribunal, the Crown unilaterally decided to create: A reservation of a ‘joint development right’ over one quarter of the 3G spectrum for sale, whereby Māori would have to enter into a viable contract with a commercial partner for use of that spectrum; and A charitable trust, known as Te Huarahi Tika Trust, to represent Maori interests in negotiations and receive $5m by way of a grant from the Crown.
  • In March 2009 representatives of Te Huarahi Tika Trust, and the Wai 776claimants held discussions with the Minister of Telecommunications in relation to spectrum and the Treaty.
  • The Tribunal had found in its reports on claims in 1990 and 1999 that Māori are guaranteed rights of ownership ahead of the Crown and other recreational or commercial users in relation to the spectrum.

2000

  • The Maori Spectrum Charitable Trust, known as Te Huarahi Tika Trust, was incorporated as a charitable trust to enable Maori a right of purchase over the third generation spectrum (3G) radio frequency being auctioned by the Crown that year. The terms of the purchase were negotiated between the Crown and the trust. The trust, whose members broadly represent Maori, was established so that it could engage a commercial partner to develop the 3G spectrum allocated to Maori. Leading Maori businessman Bill Osborne was appointed to establish the trust, holding the position of Chair for the first 18 months.
  • Hautaki Trustwas established
  • December 2001, Bill Osborne stepped down as chair of Te Huarahi Tika Trust, however, he remained the chair of Hautaki Limited.
  • December 2001, Hautaki Limitedentered into a commercial relationship with Econet Wireless Limited. Hautaki Trust now owns 30% of Econet Wireless New Zealand Limited (EWNZ) with Econet Wireless Limited holding 63%. EWNZ is planning to build a third cellular network in New Zealand.
  • Bill Osborne was succeeded as trust Chair by prominent Maori businesswoman Mavis Mullins, who also holds directorships on a number of key primary sector boards.

2002

  • An electoral collegewas set up to take over the responsibility of appointing and monitoring trustee performance of Te Huarahi Tika Trust.
  • KLR Ltd (Tex Edwards) and Hautaki attract Econet Wireless to form Econet Wireless NZ.
  • Hautaki Trustleverage’s its spectrum options to own 30% of Econet Wreless NZ with KLR owning 5% and Econet Wireless 63%.

2007

  • Econet attracts investment from CVP and GEMS takes 36.5% interest each, Hautakishare 12.5%. It was renamed NZ Communications and purchases 900MHz from Vodafone

2008 – 2009

  • Crown and Māori agreed in 2008-2009 to form a joint working party to examine the linguistic and cultural consequences digital broadcasting will produce, and the opportunities it may provide Māori.
  • Submissions from the Māori Television Service itself and Te Putahi Paohoto responsible Ministers all supported the retention of the UHF Frequencies by the Service and its Māori stakeholders.
  • 15 September 2009, Te Huarahi Tika Trust called a hui of national Māori broadcasting and telecommunications groups in Wellington. A number of interested Māori organisations attended this hui.
  • A two-day hui was duly called by the New Zealand Māori Counciland Nga Kaiwhakapumau i te Reo, for 5-6 November 2009, at Kokiri Marae in Petone.
  • The groups present wrote a letter to the Prime Minister, on the following day 7 November 2009 expressing concern at speed with which the two major decisions on spectrum were being taken. A reply was received from the Prime Minister on 24 November 2009.
  • A further letter to the Prime Minister was sent on 3 December 2009 asking that the Crown give an urgent assurance that decisions by Cabinet would be delayed.
  • A claim was then lodged under urgency to the Waitangi Tribunal, by the New Zealand Māori Council, the Wai 776 claimants, Ngā Kaiwhakapumau I Te Reo on current issues in the radio spectrum, on 10 December 2009.
  • An urgent judicial conference was conducted before the Tribunal consisting of Prof Sir Hirini Moko Mead, Judge Patrick Savage (Chair), and Tim Castle on 15 December 2009. The Tribunal agreed to an urgent hearing of the claim, scheduled for February 2010.
  • There was an urgent hui with officials on 23 December 2009, following the initial judicial conference before the Tribunal panel.
  • Trilogy International invests in NZ Communications Ltd which is then renamed 2 Degrees MobileLtd
  • 2Degreesnetwork launched

2010

  • Further national hui took place in Mangere, Manukau, and at Kairau Marae, Waitara, Taranaki, in Feb 2010 and June 2010 respectively to nominate a group to engage with the Crown on their behalf.
  • The engagement process began in February 2010, and continued throughout the first half of the 2010 year, ending on 30 June. 10 August 2010.
  • The Draft Cabinet paper and a second paper prepared by Māori ready for consideration by Cabinet in July/August 2010, but were not taken to Cabinet in any form until a year later – August 2011.

2011

  • A letter was finally received in Sep 2011 from the Minister of Communications, and the Minister of Maori Affairs rejecting the taonga argument. Read it here.

 

2012

  • In July 2012, Te Huarahi Tika Trust, Te Putahi Paoho and Ngā Pū Waea (National Advisory Group on Broadband) contacted by the Minister of Māori Affairs to engage with Māori interested in spectrum matters. A coalition formed including the 2224 claimant group. A joint paper prepared by members of the coalition presented to the Minister of Māori Affairs and Minister for Communications and Information Technology in August 2012.Read it here.
  • 2Degrees announces 1million customers
  • Te Huarahi Tika Trust electoral college appoint new Trustees; John Tamihere, Karaitiana Taiuru, Toa Greening, Ian Taylor.

2013

Hautaki sell shares and offer Maori an opportunity to invest in 2Degrees Mobile. Media Release.

The Waitangi Tribunal rule in favor of the Crown. Waitangi Tribunal Report

 

Maori parties involved with spectrum

WAI 776 Claimants

The original claim to the Waitangi Tribunal in 1999. The full report is here.

  • Estate of R EVERTON

 

WAI 2224 Claimants



Maori Spectrum Coalition Group

———————————————————————————————————————————————–

The following organisations are legal entities that were established after the original Waitangi Claim to invest and represent Maori with spectrum. Claimants group details below.

Te Huarahi Tika Trust a charitable trust, originally called the Māori Charitable Spectrum Trust, to represent Maori interests and received the original $5m by way of a grant from the Crown to invest in spectrum. Te Huarahi Tika Trust administers an award of a part interest in radio spectrum (in particular 3G cellphone frequencies to Māori)

Hautaki Limited is the trustee of Te Huarahi Tika Trust’s commercial arm, Hautaki Trust. This trust has a Corporate Trustee structure, with Hautaki Ltd wholly owned by Te Huarahi Tika Trust. Te Huarahi Tika Trust is the sole beneficiary of the Hautaki Trust and appoints the directors to Hautaki Ltd.

Electoral College was created by virtue of the Te Huarahi Tika Trust Deed. Its task is to appoint Trustees to Te Huarahi Tika Trust, between 7 and 14 in number, in accordance with the terms of the Trust Deed. It takes advice from the Chairperson of Te Huarahi Tika Trust , and their lawyers. It also sees itself as an independent supervisory body of national Māori organisations, which must respect the rights of all Māori in this block of electronic spectrum, and the claimants, and act as kaitiaki of their rights to development. The college attends occasional joint hui with the trustees of Te Huarahi Tika Trust, for example their AGM, and has briefed the claimant groups fully on developments.

Members of the Electoral College are:

2 Degrees Mobile is the company that Maori have invested into.

 

Māori Spectrum in the media

2013

2012

 2011

 2010

 2009

 2007

 

Hautaki Trust

2 Degrees

2 Degress in the media (Maori focus)

Footnotes

  1. http://www.waitangi-tribunal.govt.nz/reports/view.asp?reportID=9b5ed50e-e089-4d64-8961-aea664b9a08d
  2. http://www.2degreesmobile.co.nz/
  3. http://computerworld.co.nz/news.nsf/news/maori-at-odds-over-spectrum 4 http://business.scoop.co.nz/2013/02/21/spectrum-decision-a-disgrace/
  4. http://www.wanganuichronicle.co.nz/news/accept-beads-and-blankets-again-no-prime-minister/1770035/
  5. http://www.stuff.co.nz/dominion-post/comment/8375562/Why-Maori-seek-share-of-4G-spectrum
  6. http://ma-tereo.co.nz/
  7. http://www.stuff.co.nz/business/industries/8340171/Maori-may-split-over-radio-spectrum
  8. http://www.taiuru.maori.nz/cyber-tangi/
  9. http://www.nzmis.maori.nz/spectrum/Spectrum%20Submission%20Paper%20-%20Toa%20Greening.pdf
  10. http://www.waitangi-tribunal.govt.nz/reports/view.asp?reportID=9b5ed50e-e089-4d64-8961-aea664b9a08d
  11. http://computerworld.co.nz/news.nsf/news/treaty-claimant-on-radio-spectrum-speaks-out
  12. http://thtt.co.nz/
  13. http://www.maoricouncil.com/
  14. http://computerworld.co.nz/news.nsf/news/maori-at-odds-over-spectrum

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