David Round: Absurd Treaty of Waitangi Claims

I daresay, gentle readers, that no more than me do you understand precisely the difference between analogue and digital television. If you do understand, do not bother explaining, because I might not understand your explanation, and even if I did I would soon forget it. I tend to operate on a need-to-remember basis. The important thing to note for present purposes is that in the next three to five years there is to be a switchover from analogue to digital. This is evidently going to be an improvement from a television point of view.

One consequence of this changeover will however be that the old analogue frequencies, no longer being used for television broadcasting, will be available for other purposes, such as telecommunications. Ah, now you are starting to see where this is all going. Yes, there are valuable rights in the electromagnetic spectrum ~ about $350 million may be at stake ~ and it will not surprise you to learn that Maori want their share of the spectrum, and not only want it, but claim it as their right under the Treaty of Waitangi. The Cabinet, it seems, is inclined to ignore this claim, and Maori may have to request an urgent hearing before the Waitangi Tribunal.

Please. In 1840 no-one in the world knew about the electromagnetic spectrum. (To this very day, indeed, most of us, sensible educated people as we are, might be hard-pressed to describe it in any more than the vaguest of terms. There are waves…..) Its discovery was entirely the work of scientists trained in an entirely Western tradition, and its nature, as I say, and current use and development are completely beyond the comprehension of most people. It was, we can certainly agree, entirely outside the scope of anything that was contemplated by anyone signing a Treaty in 1840. Anyone babbling of waves then would have been sent to an asylum.

Yet Maori want the waves, and claim them as a Treaty right. Their claim illustrates their rapacity. If the electromagnetic spectrum can be a Treaty right, then so is everything else that exists. Their claim also illustrates the absurdity of Treaty claims. On this matter, at least, the Cabinet does seem to see the absurdity. Several other people have come to the same conclusion, as I shall mention below.

This issue has arisen before. The present claim for the analogue spectrum is in fact based on a 1999 report of the Waitangi Tribunal, Wai 776. That report considered that Maori do have Treaty rights to the electromagnetic spectrum. The Tribunal’s approach was that Maori used the stars ~ for navigation, determining the planting of crops and the timing of other seasonal activities, and so on ~ and because they ‘incorporated the stars in their own philosophical world view’ therefore the electromagnetic spectrum (of which the light of the stars is a part) was a ‘taonga’ guaranteed by the Treaty. And just in case you think to yourself, ’Righto, nothing is stopping Maori continuing to navigate by the stars and the rest, but this is something entirely different’, the Tribunal also considered that there is a Treaty principle giving a ‘right to the development of that taonga through technology that has subsequently become available’. Once Maori have ever used a ‘resource’ (we could surely argue whether the light of the stars could be so described) then it is theirs in all its fullness forever. We might admit to the justice of such an approach in the case of forests, say, or fisheries ~ it is not unreasonable that if a tribe had extensive sea fisheries in the days of canoes and flax nets, they should be entitled to claim the use of those fisheries in the days of diesel and echo-sounders ~ but to recognise a claim to the electromagnetic spectrum because Maori once looked at the stars is, surely, absurd.

The editor of Capital Letter, a weekly update on cases, legislation and general legal development, certainly thought so. He wrote (20th July 1999) that the Tribunal’s decision may ‘come to be seen as a watershed in Waitangi jurisprudence and the credibility of the Tribunal….the logic…is elusive…. Some [may] see the Tribunal’s report as confirmation of the intellectual and political bankruptcy of the Waitangi process. But we should always appreciate those who contribute significantly to the sum of the local human comedy.’

Magnificently restrained words, yet very clear. One cannot take seriously any institution that comes up with nonsense such as this. As various other reports have also shown ~ I shall write about them some day ~ the Tribunal cannot be considered to be an impartial commission of inquiry, but as a lobby group which attempts, increasingly unsuccessfully, to hide behind an unconvincing façade of judicial impartiality. Mercifully, it may only make ‘recommendations’ which a government is free to reject. It would be an absolutely disastrous day for this country if the Tribunal were ever to be given the status of a court able to make binding judgments. The suggestion that it should be given this status is regularly made, and it would not be surprising if it were put forward again as part of the ‘constitutional review’ which the present government has promised the Maori Party.

I mention in passing that even Sir Robin Cooke, that well-known Treaty activist disguised as a Court of Appeal judge, considered (Te Runanganui o Te Ika Whenua Society v Attorney-General [1994] 2 NZLR 20) that however liberally Maori customary title and Treaty rights might be construed, they were never conceived as including the right to generate electricity by harnessing water power. One could surely use the same argument in relation to the electromagnetic spectrum. Maori claimants seem, incidentally, to be ignoring Sir Robin’s views on this matter in current objections to the installation of tidal generators in North Island harbours.

While quoting with approval people for whom I seldom have a kind word, let me also refer you to the remarks of Helen Clark and Margaret Wilson in May 2003, when the issue arose of Maori ownership of oil and gas, which in parts of the North Island are of course an extremely valuable resource. It is a long-established principle of English law that the owner of land also owns everything underneath the land. This would include oil and gas. Nevertheless, the Petroleum Act of 1937 declared all oil and gas in New Zealand to be the property of the Crown. This was a confiscation of private property ~ not just of Maori private property, but of the property of every landowner sitting on petroleum. We might object to it for that reason. Yet when Taranaki Maori laid claim to oil and gas, the Petroleum Act was defended by Helen Clark and Margaret Wilson ~ and reasonably so ~ on the ground that a Treaty claim could be defeated by the national interest.

Think of that. Wouldn’t that be nice? If the national interest were to be put before a Treaty claim? Then we would no longer see claims that the foreshore and seabed, native plants and animals, radio waves, Maori sovereignty….I think there may be something here.