OPINION: Maori have a difficulty with the current 4G spectrum auction.
They cannot accept the notion that they must join a long queue of very wealthy bidders at auction for a piece of the scarce spectrum resource, with the Crown as seller.
There will be roaring levels of commercial testosterone at this auction, and the Treaty of Waitangi's protective intent comes into play immediately in this scenario.
The Treaty was highly protective of Maori and their position as tangata whenua in 1840, their wellbeing, ownership rights, and cultural survival.
We should not be surprised in the digital age that its protections, in respect of the assumed royal prerogative (the right of kings, queens and parliaments to assert ownership over raw resources and the right to own and sell) reaches into areas like the spectrum resource. The courts have accepted that the Treaty deliberately placed a fetter over the prerogative in New Zealand.
Maori should not be blamed for the length and sharpness of those guarantees. Maori didn't write the Treaty nor initiate the migration and colonisation which necessitated it. They are entitled to cling to the contract their ancestors signed.
It's useful to remember that in all the claims Maori have made for spectrum in both broadcasting and telecommunications, they have displayed a clear idea of what they would do with spectrum and why it is needed. All have faced fierce Crown opposition and produced bitter fights in the courts.
In 1985 the Maori Council surprised the Government of the day by launching a bid for the third channel TV warrants before the Broadcasting Tribunal. The last national VHF network was at stake. The bid failed. Conventional wisdom of the time framed the Maori channel as an impossibility. Look at Maori Television now. A burgeoning success, but started 20 years after the main body of native speakers of the language passed into the night, along with the rich resources they would have provided.
In 1989 when the Crown launched the first round of the new system of commercial auctions in relation to the lucrative FM frequencies, all the best FM was to go in the auction pot.
Maori were to have some reservations on AM - not commercially valuable and therefore, not for auction. Maori were told they would only need such inferior frequencies "for the language and culture".
Maori won in the Waitangi Tribunal, but the courts in 1990 only delayed the auction, and couldn't bring themselves to order a reservation. The Treaty only meant the Crown had to "consult".
Maori received the "rats and mice" from the post-auction FM frequency barrel, months after the auction. Look at iwi radio now, the last true local and community-connected public radio in New Zealand, but still battling on those same scruffy frequencies.
Between 1996 and 1999 the Crown prepared the 3G frequencies for cellphones for auction. This was questioned by Maori who sought further findings from the Waitangi Tribunal. Indeed, the rights Maori asserted under Article 2 were upheld in the final report. The Crown rejected the finding but awarded a quasi-development right over one-quarter of the frequencies, with Maori to sign off on the choice of commercial partner. It established a trust, Te Huarahi Tika Trust, without the claimants' support at the time, and awarded $5 million to begin the development.
Over 12 years, by dint of hard voluntary work by the initial toilers who took on the task, the rough rain cape tossed to Maori had been turned by them into a handsome feather cloak. 2degrees Mobile was the result, along with a changed regulatory environment, a Maori shareholding in the new company, with $900m in investment and another $1.3 billion in saved cellphone charges for New Zealanders.
In the three years of negotiations in the current claim since 2009, Maori have specified to the Crown the uses to which they would put a share of the 4G spectrum. It would be deployed to increase Maori involvement in every part of the telecommunications sector and its major industries, to the benefit of the nation's economy. Maori will again attract investment to any new businesses that may result.
An award of cash won't be effective. At a national hui last year, Maori were unanimous that cash was not consistent with the Treaty guarantee. The Crown and its agencies would hold and distribute any such funds.
The Waitangi Tribunal ruled in the 3G claim in 1999 that Crown must: "Suspend the auction of . . . frequencies until . . . it has negotiated with Maori to reserve a fair and equitable portion of the frequencies for Maori . . . Such an arrangement is preferable to some form of compensation by the Crown in lieu of spectrum frequencies. Maori must have hands-on ownership and management if they are to foot it in the ‘knowledge economy', as we believe they must in the coming millennium."
Maori seek to secure a fair share of the resource, including management rights to spectrum, in order that our people, language and culture will survive in the new technological age and beyond.
A request for a hearing of the claim before the Waitangi Tribunal is being made by the three claimant groups.
The earlier rounds involved Maori in expensive Tribunal and court action. In all the above cases Maori proposals were scoffed at by most commentators. It is vital for New Zealand that this time Maori are permitted to get out of the blocks alongside other runners.
Piripi Walker, Ngati Raukawa, is spokesman for Nga Kaiwhakapumau i Te Reo, (The Wellington Maori Language Board.
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