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Crown options for Māori media have a colonial “feel and smell” to them, writes the University of Auckland’s Dr Claire Charters 

Are the Government’s Options for Māori Media unconstitutional, contrary to Te Tiriti o Waitangi, international Indigenous peoples’ rights and human rights? Does the Government even know?

Hon Nanaia Mahuta’s recent publication of shift options for Māori media, Te Ao Pāpāho Māori: He Ara Hou, has attracted strong criticism from, well, much of Māori media. The focus of that criticism has been on the “news aggregation” option, to create a “single news service within Māori Television Service”, which would function as a “clearing house”.

Prime Minister and Te Puni Kōkiri have described criticism as based on “misunderstanding”, that there is no intention to create a single news room (which seems contrary to the words of the Te Ao Pāpāho). Nonetheless, whatever the exact intention behind the “clearing house” proposal, and the shape and form it might take in practice, there is certainly a clearly-expressed “option” to centralise Māori news within one news station, Māori TV.

A number of the options suggested in Te Ao Pāpāho, including the centralisation of Māori news, are highly problematic constitutionally: inconsistent with limited Crown authority to regulate te Ao Māori in te Tiriti o Waitangi; contrary to good governance under Western political theory and tikanga Māori; and in breach of New Zealand’s international legal obligations under the UN Declaration on the Rights of Indigenous Peoples. Let’s take each in turn.

First, under New Zealand’s founding constitutional document, te Tiriti o Waitangi, Māori and the Crown share authority to govern the lands, territories, resources and peoples of Aotearoa New Zealand. Māori continue to exercise rangatiratanga Māori. The Crown, through state governmental institutions, exercises kawanatanga. Rangatiratanga Māori is reinforced by the international legal right to self-determination under the UN’s Indigenous Declaration.

In any jurisdiction, like New Zealand’s, where there are multiple governance authorities and legal systems (as in any with Indigenous peoples), coordination is needed. Who should take the lead regulating what? When is joint regulation appropriate? I would suggest that Māori media is an area over which Māori should have primary authority to regulate, even if there remains a role for the Crown. At best, the Crown should support and partner Māori in determining our own policy and laws.

Māori have been given a few weeks to comment on the Crown’s draft options. Even if drafted with the best of intentions, the policy thus feels and smells colonial. It is certainly constitutionally questionable for a te Tiriti perspective.

So, a baseline question might be, “Why is the Crown leading policy and regulatory reform of Māori media at all?”.

Instead, the options have been presented by the Crown. There is no mention to rangatiratanga Māori in the “vision”, in the “key outcomes” or in “the principles” that guide options. In fact, a search on rangatiratanga in the document comes up with 0. Instead, Māori have been given a few weeks to comment on the Crown’s draft options. Even if drafted with the best of intentions, the policy thus feels and smells colonial. It is certainly constitutionally questionable from a te Tiriti perspective.

Based on precedent, the Waitangi Tribunal could well find the Crown’s options, and process, in breach of te Tiriti principles (thinking also back to the high-level court cases on radio frequency and broadcasting assets cases in the 1990s). I feel the potential of an urgent inquiry coming on.

Second, media in general is of constitutional significance. Media is constitutionally significant under tikanga Māori and it is constitutionally significant under Western democratic traditions.

As Mihingarangi Forbes points out, tikanga Māori requires the teasing out of different views and voices in the exercise of rangatiratanga Māori, which makes for better, more considered governance.

Similarly, in modern Western democratic thinking, which underpins New Zealand’s state governance, voice, participation, the expression of conflicting views are all essential to the healthy functioning of our democracy: a “marketplace of ideas”. In turn, diverse media, the so-called “fourth estate”, is essential to that. Without alternative views, we have good reason to fear autocracy, whatever the applicable legal system: state or Indigenous.

What is perhaps most worrying is that the Government’s options paper is completely silent on the te Tiriti, constitutional and human rights and Indigenous peoples’ rights issues associated with regulation of the media, especially Māori media. Deafeningly so.

The current Government appreciates the importance of a plurality of voice in mainstream media, and has recently invested significant funding to ensure this remains the case in a post-Covid environment. Yet, it is concurrently suggesting news “aggregation” (the government’s word) with respect to Māori news.

Equality requires that the same standards, and opportunities, be applied with respect to Māori governance, and Māori media. That is a major objective of the black (and brown) lives matter campaign: the exposure and then elimination of hidden (and not so hidden) systemic discrimination.

Legally, inequality is of concern from a Bill of Rights perspective, and article 3 of te Tiriti perspective.

Third, the UN Declaration on the Rights of Indigenous Peoples has been endorsed by the current Government. It has stated its objective for New Zealand to be the first state to develop a plan to realise the rights expressed within it, on the international stage at the UN in New York and at home. Mahuta said at the time “other countries look to what we are doing”, citing reo revitalisation and the importance of media.

The Working Group established to advise the Government on the plan and engagement needed to realise the Declaration submitted its report on 1 November 2019, and provides ideas for a blueprint to realise rangatiratanga Māori, expressed as the right to self-determination in the Declaration, including with respect to Māori media.

It is worth citing the media rights in the Declaration in full:

Article 16 (1) Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.

Article 16 (2) States shall take effective measures to ensure that state-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.

It doesn’t require legal training to see that the realisation of international legal norms requires multiple sources of Indigenous media, including in “mainstream”, non-Indigenous media. Limiting Māori media in the mainstream to access to a centrally controlled “clearing house” (if that’s what clearing house means) is contrary to that objective

So, in short, a state governmental plan that proposes a single Māori news service is a matter of concern from the perspective of te Tiriti, human rights, constitutional rights and Indigenous peoples’ rights. It is potentially contrary to: (Western) state constitutional principles; Māori constitutional principles, under tikanga Māori; Aotearoa’s constitutional foundation, te Tiriti o Waitangi; human rights; and the international legal norms New Zealand professes to provide leadership in.

What is perhaps most worrying is that the Government’s options paper is completely silent on the te Tiriti, constitutional and human rights and Indigenous peoples’ rights issues associated with regulation of the media, especially Māori media. Deafeningly so. It is especially wordless on the (lack of?) source for its authority to regulate Māori media.

The impression is that the Government is not even aware of the significant constitutional and Indigenous rights issues into which it is wading or, if it is, and potentially even worse, it does not want Māori to appreciate their importance. In either case, we would have even greater cause for concern, and pressing need for an independent, critical, pluralist Māori media.

Dr Claire Charters is Associate Professor in the University of Auckland Law School

Originally published in newsroom. Republished with permission.

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