Standard 4 – failed to present range of views – unbalanced – uphold
Standard 5 – factual inaccuracies – partial – uphold
Standard 6 – Iwi dealt with unfairly – uphold
Broadcast of statement
Publish statement in Bay of Plenty Times
This headnote does not form part of the decision.
 The concern of four Pakeha landowners on Kopukairoa, because of the registration of the mountain in the Bay of Plenty as wāhi tapu, was dealt with in an item broadcast on Holmes at 7.00pm on 18 November 2002. The item included interviews with the four landowners and Mr Toni Paraire who, it was said, represented the views of the local Māori who registered the wāhi tapu.
 On behalf of Ngati Pukenga Iwi, Rehua Smallman, Chair, complained to Television New Zealand Ltd, the broadcaster, that the item was unbalanced, inaccurate and unfair. It maintained that Mr Toni Paraire was not authorised to represent the views of tangata whenua on this matter, as he had no knowledge of the registration application. Furthermore, neither the Iwi’s nor Māori landowners’ views were fairly represented in the item.
 In response, TVNZ disagreed that the programme breached broadcasting standards. It said that Mr Paraire was interviewed to provide an iwi perspective on the issues raised which, TVNZ considered, he had the authority to do. It noted that Mr Paraire’s views had not been disputed and maintained that the view of the Iwi had been fairly represented.
 Dissatisfied with TVNZ’s decision, the Iwi referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint.
 The members of the Authority have viewed a video and read a transcript of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Peter Adds, Senior Lecturer in Māori Studies at Victoria University, was co-opted as a person whose qualifications and experience were likely to be of assistance to the Authority.
 Member Tapu Misa did not participate in the determination of this complaint, declaring a perceived conflict of interest. Prior to her membership she wrote a newspaper column about this item.
 An item on Holmes examined the concerns of four landowners on Kopukairoa because of the registration of a wāhi tapu on the mountain. It examined the possible impact the registration of wāhi tapu might have on the rights of those private landowners to develop their properties. The item included interviews with the four landowners and Mr Toni Paraire who was said to represent the view of local Māori that made the application under the Historic Places Act. The item was screened at 7.00pm on TV One on 18 November 2002.
 On behalf of Ngati Pukenga Iwi, Rehua Smallman, Chair, complained to TVNZ that the item was unbalanced, inaccurate and unfair. Mr Smallman maintained that Mr Paraire was not the appropriate person to represent the views of tangata whenua on this issue, as he had no knowledge or involvement with the registration process. Mr Smallman wrote:
He [Mr Paraire] has no mandate to represent the views of Ngati Pukenga and Ngapotiki and the Holmes show should have made it clear to viewers that the views Mr Paraire expressed were only his personal views not those of Ngapotiki and Ngati Pukenga and he had no knowledge of the registration.
 Mr Smallman stated that neither Ngati Pukenga Iwi nor Ngapotiki Resource Management Unit, the applicants, were invited by TVNZ to appear on the programme and to present their views on the issues associated with the wāhi tapu registration.
 The item, Mr Smallman stated, also failed to advise viewers that:
A large proportion of the area registered for the wāhi tapu on Kopukairoa is land owned by Māori under Māori and general title and the Holmes show did not make this clear to viewers and did not make any approaches to the trustees and individual owners of these blocks of land for their views.
 TVNZ assessed the complaint under the standards in the Free-to-Air Television Code of Broadcasting Practice nominated by the complainant. The Standards read:
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
 TVNZ declined to uphold the complaint. Turning first to that aspect of the complaint concerning Mr Paraire’s representation on the item, TVNZ expressed its regret to the complainant and explained that it did not intend to cause any offence in having Mr Paraire appear as a spokesperson for the local Iwi. It said that Mr Paraire was "approached in good faith to provide an Iwi perspective" regarding the landowners’ concerns.
 TVNZ detailed why it had interviewed Mr Paraire and why it had assumed that Mr Paraire had the requisite standing on behalf of the Iwi to present its views on the issues raised in this item. TVNZ wrote:
While there is often an argument that someone else might have been a more appropriate spokesperson in any area of controversy, the [complaints] committee believed that Mr Paraire’s record in matters concerning Kopukairoa qualified him to speak as a spokesperson for the Iwi.
 The reporter was invited to the Marae for the interview with Mr Paraire, TVNZ advised. Further, it noted that prior to the interview being recorded Mr Paraire consulted with others on the Marae "before advising the reporter that he had permission to speak on behalf of the Iwi."
 TVNZ contended that the complainant had not disputed Mr Paraire’s comments, and in its view Mr Paraire had reflected the "basis upon which the Kopukairoa wāhi tapu was registered."
 Referring to the complainant’s point that there had been no mention in the item to Māori land on Kopukairoa, TVNZ stated that this was irrelevant in the context of the item which "examined the concerns of four private landowners."
 Turning to Standard 4, TVNZ maintained that the item had provided "balance between the views of the four landowners, and those of the Iwi." Although it accepted that the complainant did not consider that Mr Paraire was the appropriate spokesman on the issue, in TVNZ’s view "his credentials" did make him an appropriate interviewee, and further he had "checked with others about his suitability before consenting to the interview." TVNZ also submitted that both the presenter and the reporter provided balance in the item, by providing explanations about the meaning of "wāhi tapu", and the consequences of such a registration over privately-owned land.
 TVNZ also found that Standard 5 had not been breached. It noted that the complainant had not identified any inaccuracies in the programme.
 In relation to Standard 6, TVNZ reiterated that it had acted fairly in identifying Mr Paraire as an appropriate spokesman for local Māori. In this capacity, TVNZ contended, he had been treated fairly. In declining to find a breach, TVNZ said that it did not consider that the "views of the Iwi were unfairly represented."
 TVNZ concluded:
The [complaints] committee was sorry that the item caused you dismay and apologises if, through not being consulted, the Ngati Pukenga Iwi feels it has been slighted in any way. The intention was to ensure that an Iwi voice was heard in the item and Mr Paraire’s credentials were accepted in good faith.
 The complainant reiterated that Mr Paraire did not have the authority to speak on behalf of Ngapotiki Hapu and Ngati Pukenga Iwi. Furthermore, the failure to present the Iwi’s and the Māori landowners’ viewpoints resulted in a programme that was unbalanced, partial and inaccurate regarding issues associated with the wāhi tapu registration, Mr Smallman said. He continued:
The complaint was made because it is a "controversial issue of public importance" and Māori landowners are affected by the wāhi tapu registration boundary. Ngapotiki Hapu and Ngati Pukenga Iwi who did the registration were not in any way contacted or approached nor informed that the issue was to be aired on the Holmes show so that their "significant" points of view could be presented as required in the Act. Sixty per cent of the "wāhi tapu" registration area is under Māori title or Māori ownership under general title.
We make this complaint to the Authority because of the seriousness of matters that have arisen from the show and implications that have been brought to bear on Ngapotiki and Ngati Pukenga. The issue received national attention from the media, was raised in Parliament and has brought Ngapotiki and Ngati Pukenga under much doubt around the country as to the issue and integrity of the registration of Kopukairoa. There is also a petition circulating around Tauranga calling for the registration of Kopukairoa as a wāhi tapu under the Historic Places Act to be revoked.
 The complainant detailed why Mr Paraire did not have the standing to speak on behalf of the Hapu or the Iwi. He disputed TVNZ’s submissions regarding the authority of Mr Paraire and its contention that Mr Paraire had been accorded the status and cited as an "Iwi spokesperson". It reiterated that Mr Paraire had no involvement with the application, and therefore "could not present a significant point of view as to the registration of the wāhi tapu".
 The complainant stated that "asking people on the marae when being interviewed" did not verify Mr Paraire’s status to speak on their behalf. Mr Smallman noted that neither TVNZ nor Mr Paraire approached the Ngati Pukenga Iwi or Ngapotiki that a programme was to be presented on the registration of Kopukairoa as wāhi tapu.
 The complainant further contended the programme misrepresented the impact that the registration of a wāhi tapu would have on the four landowners. The complainant maintained that the item was "slanted to present the registration as a form of ‘land grab’ of four Pakeha property owners". In his view, TVNZ had "discriminated against the Māori property owners in not presenting their views." Mr Smallman argued that the item was biased and unbalanced by only presenting the views of Pakeha property owners.
 TVNZ confirmed again that Mr Paraire had been nominated as the appropriate spokesperson to provide a Māori perspective. It advised that the reporter had spent time on the Marae with members of the Hapu and Iwi discussing who their spokesperson should be. TVNZ reiterated that Mr Paraire "also consulted people on the Marae to ensure he had their permission before proceeding with the interview."
 In reference to the complainant’s contention that the programme "misrepresented the impact the registration of wāhi tapu would have on the four private landowners", TVNZ maintained that the programme was explicit in that "it was reflecting the anxieties of those landowners as a result of enquires they had made." TVNZ continued:
While TVNZ does not dispute the fact that the rules and regulations surrounding the registration of wāhi tapu cannot in themselves prevent the development of private land, what happens in practice is somewhat different. In this case the Western Bay District Council told Holmes that the decision to register a wāhi tapu on Kopukairoa had "some very difficult implications" for the four landowners shown in the 18 November item.
 TVNZ denied that the item was "slanted to present the registration as a form of ‘land grab’ for four Pakeha property owners". It argued that the item examined "genuine concerns arising from the registration of private land as wāhi tapu", and stated that there was a "clear public interest in the story." TVNZ reiterated that the views of Māori landowners were not relevant in the context of this item.
 The complainant reiterated earlier submissions and expanded on a number of issues. In its view, TVNZ’s preparation in identifying an appropriate spokesperson for tangata whenua was "inadequate". Further, the broadcaster’s attempts to justify using Mr Paraire as the appropriate spokesman, including quoting from minutes taken at a hui in 1997, it found insulting. Ngati Pukenga and Nga Potiki advised it had systems in place to determine appropriate spokespeople. It noted a number of ways in which TVNZ could have "investigated a process of identifying the appropriate tangata whenua spokesperson".
 Mr Paraire’s involvement in Iwi affairs was acknowledged by the complainant. However, given the focus of the item, in its view, it was completely inappropriate to speak with Mr Paraire about the wāhi tapu registration, given that he had no involvement with the application at all. It reiterated that Mr Paraire was not the "mandated person to speak on our behalf on this matter." Consequently, it maintained that the programme was inaccurate in representing Mr Paraire as the Iwi spokesperson.
 Relating to the impact that the registration would have on landowners, the complainant wrote:
We contend the programme could not possibly comply with the accuracy standards because the registration of wāhi tapu plays no part in determining development plans. The local district council is the only body that can stop developments. wāhi tapu registrations play a part in that process. This programme failed to point out the significance of this fact in any meaningful way – rather the reporter chose to highlight wāhi tapu as a major impediment to allowing the four landowners to further develop the land.
 Ngati Pukenga Iwi complained that the item broadcast by TVNZ on Holmes about the concerns of four landowners relating to the registration of wāhi tapu on Kopukairoa breached broadcasting standards relating to balance, accuracy and fairness.
 Standard 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 In the Authority’s view, the item dealt with a controversial issue of public importance to which the standard applies. The item examined the concern of four Pakeha landowners whose land was designated wāhi tapu. In addition to the views expressed by the affected landowners, the item also included comments from Mr Paraire who, it was said, represented the views of local Māori.
 There is a dispute between the parties as to the standing of Mr Paraire. The complainant argues that Mr Paraire was not authorised to represent the views of tangata whenua on this issue, as he was not involved with the registration and had no knowledge of the process regarding the application. TVNZ maintains that Mr Paraire was interviewed to provide an iwi perspective and that he was an appropriate spokesperson. It advised that the reporter was invited to the marae, and Mr Paraire consulted with people on the marae before advising the reporter that he was permitted to speak on behalf of the Iwi.
 The Authority considers that the issue of Mr Paraire’s standing is not a matter of broadcasting standards. The issue for the Authority is whether reasonable opportunities were given, or reasonable efforts were made, to present significant points of view in the programme by Mr Paraire or others. Therefore, Mr Paraire’s contribution to the item has been considered as an aspect relating to balance.
 In the Authority’s view, the broadcast did not afford a reasonable opportunity to present other significant view points on the issue despite the contribution of Mr Paraire. The Authority notes that Mr Paraire spoke three times in comparison with the four landowners each of whom spoke several times during the course of the item. While the Authority has previously noted that the time allocated to each party to effect balance can not be determined based on any simple mathematical formula, the Authority considers that on this occasion the time given to the views of the four landowners significantly outweighed Mr Paraire’s contribution or other significant points of view.
 The Authority also finds that Mr Paraire’s comments were insufficient to balance the landowners’ views on the item. The Authority notes Mr Paraire’s comments in the item "I can’t answer because it is not my role or my place to answer". It is apparent by Mr Paraire’s own admission that he was not the appropriate person to address, comprehensively, the concerns raised by the landowners.
 The Authority does not consider that a balance of perspectives was aired during the programme. In its view, the programme advanced the views of the four landowners, but no reasonable efforts were made to present significant alternative points of view during the programme. The item failed to represent the views of the Iwi or to canvass why the wāhi tapu application was made. The Iwi was not afforded the opportunity to address the landowners’ concerns arising from the registration and the impact on their rights as property owners. In the Authority’s view these were fundamental aspects which formed the basis of the landowners’ concerns, and needed to be addressed in the item. Additionally, the item failed to present the impact of wāhi tapu registration by broadcasting informed comment from official agencies such as the Historic Places Trust or the local authorities.
 In the Authority’s assessment the views of the four landowners dominated the item, while the views of other landowners also affected by the registration were not canvassed at all in the item. The Authority considers that the views of the Māori landowners should have been included in the item, because a majority of the land deemed wāhi tapu belonged to local Māori who were also affected by the registration application. It does not accept TVNZ’s claim that the views of Māori landowners were not relevant in the context of the item. They were clearly relevant to balance the item.
 In the Authority’s view, the above aspects needed to be addressed in the item in order to effect balance and the failure to canvass a range of viewpoints during the programme of other significant parties breached the requirements of Standard 4.
 Standard 5 requires that news and current affairs programmes be not only factually accurate, but also impartial and objective. The complainant alleged that the item misrepresented the impact that the registration would have on landowners and that the item was biased because it represented the views of the Pakeha property owners only.
 The Authority finds that the item was not accurate in reporting the impact that the registration would have on landowners and, consequently, represented the registration as preventing the landowners from developing their land. The presenter said:
Now four private people own land on the mountain and they live on it and they want to sub-divide it they want to build houses, they want to harvest their forests. But suddenly they can’t. …So now before the landowners can do anything with that land they own, they have to consult local Māori first, they’ve got to do through the process, because suddenly the land is tapu.
 The Authority notes that the act of registration of wāhi tapu does not, per se, stop property development. Local authorities grant applications for resource consent. Registration simply ensures that the heritage value of the site is taken into account when the local authority makes planning decisions. It was incorrect to say that Māori now have the final say on land development proposals, and have "suddenly" taken away the landowners’ rights.
 The presenter also stated that the mountain had "suddenly" become tapu. The Authority agrees with Mr Adds that this was incorrect. Registration recognised that the Iwi regard it as sacred, but it did not "suddenly" make the mountain tapu. The Authority was also advised that Kopukairoa’s status was pre-existing, not a recent occurrence, and the registration by the Historic Places Trust was public acknowledgment of the Iwi’s beliefs.
 The Authority considers that there were a number of aspects in the item that breached the requirement for impartiality and objectivity under Standard 5. The item focussed on the views of the Pakeha property owners, which evoked sympathy for those landowners. The item failed to advise viewers that the majority of the area designated wāhi tapu belonged to the local Iwi, whose views were not included in the item.
 The item’s introduction also breached the requirements for impartiality and objectivity. When the Holmes presenter introduced the programme, it was framed in a way calculated to incite moral indignation. He said:
…wait till you hear about this one. Prepare to go ballistic. We’ve had the taniwha in recent weeks, we’ve had the sand on the North Shore beach and now the mountain, a mountain called Kopukairoa, in Welcome Bay, just outside of Tauranga.
 The Authority considers that the presenter’s introductory words - particularly "…wait till you hear about this one. Prepare to go ballistic"- were inflammatory and displayed partiality. By coupling the item with previous Māori-related issues, the introduction framed the item to evoke negative reaction among viewers. The item’s emphasis was anger on the part of the four landowners who believed property rights had been taken away from them because of Māori spiritual beliefs. The Iwi’s view was not represented and this perpetuated the partiality of the item.
 The Authority concludes that the item contained factual inaccuracies and was partial in breach of Standard 5 of the Television Code.
 Standard 6 requires the broadcaster to deal justly and fairly with any person or organisation taking part or referred to.
 A central aspect of the Iwi’s complaint was that its views were not represented on the programme. The complainant argued that, as it was its registration application that was the subject of the landowners’ concerns, its views should have been included in the item. The failure to do so was unfair because the item had raised doubts about the validity of its application. TVNZ responded that the programme had achieved balance and fairness by including an interview with Mr Paraire, who it claimed, was the Iwi spokesperson.
 In the Authority’s view, it was not reasonable to suggest that Mr Paraire’s comments were sufficient to address the concerns raised by the four landowners and provided sufficient fairness on behalf of the Iwi. For example, Mr Paraire did not address the Iwi’s reasons for the application to the Historic Places Trust. In the Authority’s opinion, Mr Paraire’s comments could not be considered a substitute for the Iwi’s views.
 The Authority finds that the item’s focus questioned the validity of the Iwi’s application, and was dominated by the concerns of the four landowners, who believed they were going to be adversely affected by the Iwi’s actions. In the Authority’s view, the item was critical of the Iwi and its registration of Kopukairoa as wāhi tapu. The Iwi was portrayed in a negative light, its actions were presented as unreasonable and the motivation for the registration was to obstruct any development.
 The Authority considers that the Iwi were not dealt with in a fair and just manner as required by the standard. The Iwi’s application was the focus of the landowners’ frustration, and yet it was not invited to participate in the programme. In addition, the item adopted a partial position regarding the issue of wāhi tapu registration and the implications for the landowners interviewed. Further, the Iwi’s position was not given sufficient airing on the item, for example, regarding the basis on which it had made its application to counter the doubts that were raised about the validity of its application. Accordingly, the Authority concludes that Standard 6 was breached.
 In view of the impact of the item, the Authority notes that the views of the four Pakeha landowners were promoted and their concerns elevated, as yet another example of Māori with cultural claims usurping the rights of private landowners. In the Authority’s opinion this perspective distorted the item. The item, as broadcast, was framed by its introduction to inflame viewers by reference to "taniwha", "sand on the North Shore beach and now the mountain". Its populist introduction set the tone for the item which omitted vital information from the Iwi perspective.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of the complaint, including the nature of the complaint.
For the above reasons, the Authority upholds the complaint that the item broadcast by Television New Zealand Ltd on Holmes on 18 November 2002 breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. The Authority invited submissions from the parties. In doing so it asked the parties to reflect on the serious nature of the breach which the Authority considered had occurred on the occasion of this broadcast.
 TVNZ advised that it did not wish to make a specific submission on the imposition of orders. However, it did request that the Authority "reflect further on the substance of the story" in imposing any order and raised a number of issues regarding the Authority’s decision. These included:
Whether the Authority had considered the two subsequent Holmes items broadcast that it had referred to the Authority. TVNZ contended that they were relevant to aspects relating to balance and the period of current interest.
The issue of Mr Paraire’s standing. TVNZ maintained that it had gone through the "proper protocols" in establishing Mr Paraire as the appropriate spokesperson for local Māori on the item.
Its agreement with the Authority that the introduction to the item was "populist". However, it argued that other media coverage on the issue was similar in content and nature to the item in question.
 TVNZ submitted that as a result of the Authority’s decision it felt it was "unfairly being held to a standard no one else is held to." It maintained that the item had dealt with an issue of high public interest and reflected the genuine public concern felt about the registration of wāhi tapu on private land.
 In its submission, the Iwi requested an order requiring that a statement summarising the Authority’s decision be broadcast on Holmes from its marae. It asked that the statement include the following aspects of the Authority’s decision:
Balance paragraphs 32–34, 36, 37, 40 and 41
Accuracy paragraphs 42–46 and 49
Fairness paragraphs 50, 52–54
 The Iwi did not seek compensation, but stated that it had suffered considerable emotional strain and felt that "public acknowledgement" of its complaint would "appease the situation."
 Having taken the submission into account, the Authority concludes that an order is appropriate. In its view TVNZ has attempted to re-litigate the complaint in its submission on orders. The Authority notes that the two subsequent items broadcast on Holmes referred to by TVNZ were not considered by the Authority, as they were not considered relevant to the substance of the Iwi’s complaint regarding the 18 November item. The items broadcast on 19 and 26 November 2002 were not addressed by TVNZ in its response to the complainant and therefore could not be referred as new material to the Authority by the broadcaster.
 The Authority also notes TVNZ’s submission regarding the issue of Mr Paraire’s standing. The Authority dismisses this aspect as re-litigation, as it is an issue determined by the Authority in paragraph . It reiterates that the issue of Mr Paraire’s standing is not a matter of broadcasting standards.
 The Authority believes that an order is appropriate in view of the extent to which it has upheld the Iwi’s complaint that the broadcast was a serious breach of broadcasting standards. The Authority considers that the broadcast of a full statement that is also published in the Bay of Plenty Times is the appropriate action. The statement should represent a full summary of the Authority’s decision. In addition, the Authority considers that the statement should acknowledge those aspects of the decision specifically referred to by the Iwi as well as paragraph  of this decision.
 The Authority notes the Iwi’s suggestion regarding the broadcast of the statement from its marae, and acknowledges its motivation for the request. The Authority suggests that the Iwi extends its invitation to TVNZ.
Pursuant to s. 13(1)(a) of the Broadcasting Act 1989, the Authority orders
Television New Zealand Ltd to publish, within one month of the date of this decision, a full statement summarising the Authority’s decision that explains why the complaint was upheld as a breach of Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. This statement shall be approved by the Authority and broadcast at a date and time to be approved by the Authority. The approved statement shall also be published in the public notices column of the Bay of Plenty Times newspaper.
The Authority draws the broadcaster’s attention to the requirements in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
Signed for and on behalf of the Authority
29 September 2003
The following correspondence was received and considered by the Authority when it determined this complaint: