ARCHIVED Paper - Procedure for Assessing the Potential Use of Radio Spectrum for the Promotion of Māori Language and Culture

Draft (ARCHIVED)

Padraig McNamara

Acting Manager, Radio Spectrum and Broadcasting Policy

Resources and Networks Branch
16 April 2002

Contents

• Purpose
• Background
  • Requirement to Report to Cabinet
  • Radio Spectrum Management
  • Crown Obligations in Respect of Māori Language and Culture
• Suggested Process for Assessing the Potential of Spectrum to Promote Māori Language and Culture
  • Stage 1 - Consideration of Key Questions by Officials
  • Scenario 1
  • Scenario 2
  • Scenario 3
  • Stage 2 - Consultation
  • Stage 3 - Finalising Proposals for Cabinet
• Conclusion

Purpose

1. This paper recommends a procedure for assessing whether radio spectrum should be reserved for the promotion of Māori language and culture.¹
2. The Ministry of Economic Development is responsible for advising the Government on radio spectrum allocation policy. Use of the procedure set out in this paper will:

• help officials from within and outside the Ministry to develop appropriate recommendations to Cabinet before new spectrum allocations take place;
• provide an opportunity for Māori to express their views on whether particular spectrum can be used to promote Māori language and culture, and if so, how;
• help the Crown to meet its obligation under the Treaty of Waitangi to promote Māori language and culture.

3. This paper has been prepared in consultation with Te Puni Kōkiri and the Crown Law Office.

Background

Requirement to Report to Cabinet

4. On 19 December 2001 the Cabinet Business Committee:

13.2 agreed that the Ministry of Economic Development, in consultation with Māori stakeholders, should report back to FIN by 30 June 2002 on how best to make the case-by-case assessments agreed to in paragraph 13.1, taking into account the Crown's obligation to promote Māori language and culture;"

5. This paper is the first step in meeting the Ministry's obligation to report back to Cabinet referred to in recommendation 13.2. After consultation with Māori stakeholders on this paper, the Ministry will report back to Cabinet, as required, by 30 June 2002.

Radio Spectrum Management

6. Before 1989 the radio spectrum was managed exclusively through the use of a "first come first served" administrative licensing system. The Radiocommunications Act 1989 ("the Act") introduced an additional framework for managing spectrum based on tradable rights. The Act provides for two types of tradable rights:

• management right - an exclusive right over a nationwide frequency band, for up to 20 years, to grant licences to frequencies within that band; and
• spectrum licence - the right to transmit radio signals within parameters defined by the management right holder.

7. By allocating these rights through a sales process such as an auction, the Crown allows those who value these rights the most to acquire them. Purchasers of rights in turn will seek to maximise the return on their investment. For most spectrum in commercial demand the sales process is considered to maximise the value of the spectrum to society as a whole.

8. There are some uses where the value to society is more likely to be maximised if radio spectrum is allocated directly by the Government. These include services:

• that can be shared and therefore do not have a commercial value that derives from exclusivity (e.g. cordless telephones, babyminders, etc.);
• provided in the public interest (e.g. aeronautical, maritime, defence, and safety of life such as radio-navigation services); and
• to help meet the Government's social policy objectives in areas such as public broadcasting;
• to help meet the Crown's obligations to Māori under the Treaty of Waitangi.

9. Reservation of spectrum is one way of helping to ensure policy objectives are met. Spectrum reserved for these objectives is allocated administratively in accordance with set criteria.

Crown Obligations in Respect of Māori Language and Culture

10. The Crown's obligations in respect of Māori language and culture have been developed and clarified through a number of claims to the Waitangi Tribunal and court cases.
11. In 1990, the Crown stated its understanding of these obligations during the hearing of two Waitangi Tribunal claims concerning the allocation of radio frequencies.² It "accepted that the provision of opportunities for the protection and fostering of the Māori language is part of the function of government derived from the First Article of the Treaty of Waitangi."

12. The Crown also accepted that:

• the Māori language is a taonga recognised and protected by the Treaty of Waitangi;
• the guarantee of protection obliges it to act affirmatively to sustain and protect the Māori language;
• as part of these overall obligations, Māori language and culture must have a secure place in broadcasting.³

13. The Crown did not accept that the spectrum itself was a taonga in its own right.
14. Subsequent claims to the Waitangi Tribunal relating to the allocation of the 2GHz spectrum culminated in the Tribunal's 1999 report entitled The Radio Spectrum Management and Development Final Report (Wai 776). The three members of the Tribunal were not unanimous in their findings and recommendations. The majority found that the electromagnetic spectrum, in its natural state, was known to Māori in 1840. The majority also found that electromagnetic spectrum was a taonga, and that Māori:

15. The Crown rejected the majority's findings and recommendation that it reserve a portion of the 2 GHz spectrum for Māori, favouring instead the findings of the minority (Judge Savage). In summary, these were that:

• the radio spectrum was not protected under either the express terms of the Treaty or its principles;
• the Crown had breached its obligation to promote and protect Māori language and culture (a finding the Crown did not explicitly accept);
• however, it was not appropriate to redress the problem by providing Māori with a share of rights to part of the radio spectrum, "particularly in relation to the portion of the spectrum which has to do with mobile communication".

16. The findings of the Waitangi Tribunal, while having "persuasive authority", do not bind the Crown (except in limited circumstances which are not relevant here). Indeed, as noted above, the Crown has not accepted the majority's findings in The Radio Spectrum Management and Development Final Report.
17. Nevertheless, it follows from the acknowledgements the Crown has made both to the Waitangi Tribunal and to the courts, that it has a general obligation to consider whether allocation of the spectrum will allow for the protection and promotion of Māori language and culture. Having accepted this obligation, the Crown must make an informed decision and consider all relevant factors, which will include Māori views about the spectrum under consideration. Making an informed decision will usually require consultation with Māori.⁵ As noted below, this paper recommends consultation be undertaken with Māori as a matter of good practice, even if in some circumstances the Crown's Treaty obligations might not extend that far.

Suggested Process for Assessing the Potential of Spectrum to Promote Māori Language and Culture

18. A three stage process is recommended:

1. Stage 1 involves officials considering the possible uses for the spectrum, and methods by which Māori language and culture may best be promoted in the event of the spectrum being useful for this purpose;
2. Stage 2 involves consultation with relevant Māori stakeholders;
3. Stage 3 involves officials reporting back to Cabinet with proposals for allocation informed by the results of the consultation process.

19. This process is consistent with the recommendations agreed to by the Cabinet Business Committee and noted in paragraph 5 above. Cabinet directed that consideration of whether further spectrum should be reserved for the promotion of Māori language and culture should occur on a case by case basis. This allow initiatives and opportunities the Crown has previously provided to Māori to promote language and culture to be taken into account when making further decisions on spectrum allocation.

Stage 1 - Consideration of Key Questions by Officials

20. Broadly speaking the two key questions are:

• could particular spectrum be used to promote Māori language or culture?
• if so, what measures, such as spectrum reservation, are most appropriate in the circumstances?

21. The first question involves an assessment of whether the relevant spectrum would be technically suitable for the promotion of Māori language and culture. In making the assessment the Ministry will consider:

• what types of technology are compatible with, and are likely to use, the spectrum;
• what potential future uses can the spectrum serve;
• whether the spectrum is useful for delivery to mass audiences or targeted audiences;
• whether the spectrum has been previously used for the promotion of Māori language and culture;
• what the coverage possibilities for the spectrum in question are;
• the costs involved in making use of the spectrum, including related matters such as the availability of suitable transmitting and receiving equipment.

22. Te Puni Kōkiri should be consulted about the views reached by the Ministry. Among other matters, Te Puni Kōkiri may be expected to provide guidance on the relationship between particular spectrum and the Māori Language Strategy which Te Puni Kōkiri is currently developing.⁶
23. The Crown's general position, as acknowledged earlier, has been that there is no obligation to consult with Māori on spectrum allocation outside the context of promoting Māori language and culture. However, this paper recommends that limited consultation be undertaken even where officials have reached a preliminary conclusion that the spectrum has no use for the promotion of Māori language and culture. In the three scenarios set out below, the key point to note is that officials' views on the potential use of the spectrum will determine the nature and extent of the consultation, not whether or not to consult at all.

Scenario 1

24. If officials agree that the spectrum to be allocated appears to have no use for the promotion of Māori language and culture, it is suggested that this view be taken to Māori as the Crown's preliminary position. It is desirable to consult with Māori in these circumstances, to avoid accusations that a "Crown knows best" approach is being taken. The Crown must approach the consultation process with an open mind. During consultation it would be incumbent upon Māori, where their views differ from the Crown's preliminary views, to show precisely how the spectrum could be used to promote Māori language and culture. There should be a clearly defined timeframe for consultation.

Scenario 2

25. In the past, the Ministry of Economic Development has seen the utility of the spectrum for the promotion of Māori language and culture as related to its potential to sustain broadcasting services. By contrast, Te Puni Kōkiri has taken the view that even parts of the spectrum suited primarily for telecommunications are useful for the promotion of Māori language and culture. Alternatively it has suggested that reservation of spectrum may be justified for other reasons such as the promotion of Māori participation in the "knowledge economy".

26. Where officials recognise, at an early stage, a range of views on whether the spectrum could be used to promote Māori language and culture, alternative views on this issue will be presented to Māori for their comment and feedback. No single option would be presented as the Crown's "preliminary view". Māori would be asked for their views on how the spectrum could be used to promote language and culture, and whether and how any spectrum might be made available for this purpose. Again, there should be a clearly defined timeframe for consultation, but longer than under scenario 1.

Scenario 3

27. If officials agree that the spectrum does have potential for promoting Māori language and culture, the Ministry and Te Puni Kōkiri should then assess whether spectrum should be reserved for this purpose.
28. In order to make this assessment, it will be necessary to consider the extent to which reserving additional spectrum over and above that already reserved will materially enhance the Crown's ability to meet its Treaty obligations. This will necessarily involve consideration of the effectiveness of existing measures, the availability of additional funding, and the suitability of existing governance arrangements.
29. Having made this assessment, a set of secondary questions arise that relate to how the spectrum should be used to promote Māori language and culture.
30. Options could include one or more of the following:

• reservation of spectrum with no resource payment;
• reservation of spectrum with a resource payment, e.g. based on prices realised at auction;
• giving Māori organisations, or joint ventures between Māori and commercial organisations, a first option to purchase spectrum at a set price;
• requiring the purchaser of the spectrum right to provide suitable Māori programming;
• requiring the purchaser of the spectrum right to promote Māori language and culture in other ways e.g. by funding Māori broadcasters.

31. The favoured options will then be tested through consultation with Māori as outlined below. It is considered preferable to consult on a limited number (perhaps 2 or 3) viable options, rather than a broad range of options in order to focus the discussion and avoid "information overload". It will always be open for Māori to raise alternative proposals if they do not favour any of the options put forward by the Crown.

Stage 2 - Consultation

32. The Court of Appeal has stated that consultation involves the following:

33. Any consultation undertaken with Māori must accordingly meet these minimum requirements.
34. The basic questions to be addressed when formulating a consultation strategy are as follows:

• when should consultation be undertaken?
• who should be consulted?
• how should they be consulted (e.g. in writing or in person)?
• what information needs to be conveyed?
• should Māori be resourced to participate in the process, and if so, to what amount?

35. Te Puni Kōkiri will be able to advise on the level of funding or other resourcing Māori might need to be able to participate effectively in the consultation process.
36. Consultation should take place at the start of the decision-making process. This ensures, first, that the feedback received from Māori can, if necessary, be incorporated into the Ministry's recommendations to Cabinet on allocation policy. Secondly, it ensures that the Ministry and the Minister are fully informed of possible Treaty implications well before the Cabinet decision is made. Ideally those consulted will have at least one month in which to make comments on the allocation proposal.
37. The Ministry should take advice from Te Puni Kōkiri as to whom it should consult. To ensure that there is appropriate consultation, the Ministry will maintain a contact list for the purposes of consultation. This list will be developed in conjunction with Te Puni Kōkiri.
38. Officials should be flexible on the form of consultation used. If tangata whenua, hapu, and iwi request it, officials may agree to face to face consultation, or to one or more hui or workshops being held. Experience suggests that this is often preferred, although time and financial constraints may affect the willingness of both the Crown and Māori to hold hui in particular cases.
39. Irrespective of the form of consultation chosen, officials must provide those consulted with sufficient information to enable them to understand and comment on:

• what spectrum is being allocated;
• the types of technology it can support and uses to which it can be put;
• the Crown's views on the spectrum's role in promoting Māori language and culture;
• possible methods (such as spectrum allocation) for achieving this purpose.

40. The information also needs to be presented in a form which lay people can readily understand, to encourage meaningful participation from as wide a range of interested parties as is possible.

Stage 3 - Finalising Proposals for Cabinet

41. The results of consultation should be reported back to Māori who have participated in the process. They should then be used to inform the Ministry's recommendations to Cabinet on spectrum allocation. It should be noted, however, that consultation does not require the Government ultimately to adopt the views expressed by Māori, so long as it retained an open mind during the consultation process and duly considered those views.
42. In developing final proposals for Cabinet, the Ministry will have regard to any current claims before the Waitangi Tribunal or the courts that may have implications on management of spectrum.

Conclusion

43. Use of the procedure set out in this paper should improve the process by which the Crown consults with Māori when formulating radio spectrum allocation policy, and hence the quality of information on which the Cabinet makes its ultimate decisions. Finally, it will give Māori and the Crown greater confidence that the latter's obligation under the Treaty to promote Māori language and culture is met on an ongoing basis.

Footnotes

¹This report is not concerned with other uses or potential uses of the spectrum by or for the benefit of Māori.

²Report of the Waitangi Tribunal on Claims Concerning the Allocation of Radio Frequencies, Wai 26 and Wai 150.

³Wai 26 and Wai 150, p43.

⁴Wai 776, p51.

⁵Wai 150

⁶TPK is required to report to Cabinet on the strategy by June 2002.

⁷Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671, 683.