BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary 

[This summary does not form part of the decision.]

Native Affairs broadcast an item entitled 'What Lies Beneath', which reported on the recent conviction of Northland farmer Allan Titford and examined the cultural and legal impact he had on race relations in New Zealand. The Authority declined to uphold a complaint that the item was biased, inaccurate and unfair. It was not necessary to present alternative views on Mr Titford's conviction, the item was materially accurate and subject to editorial discretion, and no one was denigrated or treated unfairly.

Not Upheld: Controversial Issues, Accuracy, Fairness, Discrimination and Denigration

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Introduction

[1]  Native Affairs broadcast an item entitled 'What Lies Beneath', which reported on the recent conviction of Northland farmer Allan Titford and examined the cultural and legal impact that he had on race relations in New Zealand.

[2]  Mike Butler complained that the item was a 'biased [and] inaccurate presentation of the Maunganui Bluff land claim issue'. He considered that Mr Titford and his supporters were denigrated and treated unfairly.

[3]  The issue is whether the broadcast breached the controversial issues, accuracy, fairness and discrimination and denigration standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on Māori TV on 12 May 2014. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[5]  Native Affairs is a news and current affairs programme focusing on issues of importance to all New Zealanders, and presented from a unique Māori perspective.

[6]  'What Lies Beneath' was in two parts. The first part focused on the conflict between Allan Titford and Te Roroa, set in the context of Treaty of Waitangi issues which New Zealand has experienced nationally. It showed archival footage of Mr Titford and his supporters as well as contemporary interviews with a Te Roroa representative and a member of the Waitangi Tribunal. The second part continued an examination of Treaty issues, including interviews with a Māori rights activist, John Ansell (a supporter of Mr Titford and the author of the blog 'Treatygate'), Martin Doutré (a supporter of Mr Titford who claims a Celtic race, not Māori, was the first to settle New Zealand) and Paul Moon, an historian specialising in Māori history.

[7]  The item carried a high level of public interest, and was of importance to Māori and particularly the people of Te Roroa. The 'Titford case' attracted considerable publicity throughout the 1980s and 1990s and generated controversy around the place of the Treaty of Waitangi and the jurisdiction of the Waitangi Tribunal over private property rights.

[8]  In assessing the complaint, we must balance the high value of the speech, the significance of the issues to the target audience and the broadcaster's right to freedom of expression against any potential harm alleged to have been caused to Mr Titford and his supporters.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[9]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.¹

[10]  Mr Butler referred to the presenter's introductory remarks, and specifically:

So when [Mr Titford] accused the Northland iwi Te Roroa of being greedy Māori who were after his land, the country rallied behind him. Te Roroa, he said, were violent terrorists who burned down his home. Mainstream media bought the story, as did a group of wealthy, white New Zealanders who were tired of what they called the 'Treaty gravy train', and their influence stretched all the way to Parliament.

[11]  There were two main branches to Mr Butler's complaint:

• He maintained that while two opposing viewpoints were presented in the story, 'Māori TV presented the viewpoint it disagreed with in a hostile, pejorative manner, meaning that the viewpoint was not fairly presented'.
• Mr Butler also argued that the programme omitted the perspective of Ngāpuhi. He noted that Mr Titford's now estranged wife had Ngāpuhi ancestry and so 'equating the Te Roroa claim with a Māori perspective fails to understand that part of the dispute over land at Maunganui Bluff was a clash between Te Roroa and Ngāpuhi'.

[12]  Māori TV said the item included views from 'Titford supporters' Martin Doutré and John Ansell, as well as archival media footage of Allan Titford and his supporters. It denied that the material was presented in a 'hostile and pejorative manner'. Additionally, it argued that the purpose of the item was not to review the court decision about Allan Titford; rather, it was to provide 'long-overdue balance and a Māori perspective to the erroneous mainstream depictions' of Allan Titford.

[13]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue 'of public importance', it must be 'controversial' and it must be 'discussed'.²

[14]  The Authority has typically defined an issue of public importance as something that would have a 'significant potential impact on, or be of concern to, members of the New Zealand public'.³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁴

[15]  In a previous decision on a related story broadcast by Māori TV,⁵ the Authority found that discussions about the place of the Treaty of Waitangi in society were controversial and of public importance. This broadcast in our view contained a similar discussion, in the context of the story of Allan Titford. We are satisfied that the item amounted to a discussion of a controversial issue of public importance.

[16]  The next question is whether the broadcaster made reasonable efforts to present significant views on that issue. Mr Butler has conceded that the story presented two opposing sides, but argued the side in favour of Mr Titford and his supporters was not presented fairly.

[17]  Guideline 4b to the balance standard allows us to take into account the programme's introduction, whether the programme approached the topic from a particular perspective (for example, public advocacy and access programmes) and whether viewers could reasonably be expected to be aware of views expressed in other coverage, when assessing whether a reasonable range of views have been presented. Here, the programme was clearly presented from a Māori perspective and it was therefore not surprising that it was critical of views that were dismissive of the Treaty and the protections afforded to Māori. We noted in our decision on Askin and Bolton that 'This was a matter of editorial discretion and a legitimate angle for a broadcaster to take, given the nature of the programme [Native Affairs] and its target audience.' The same applies here.

[18]  Guideline 4b recognises that the requirement to provide balance may be lessened if the item is clearly approached from a particular perspective, as this item was. The less stringent requirement for balance was met by the inclusion of comments from the reporter and Mr Titford's supporters, as follows:

• 'I think that in some cases around the country now some of these people [Māori] are getting away with too much.' (Allan Titford)
• 'The Treaty has been adopted as this living, breathing thing, and it's very dangerous because it's all about racial division, right in the heart of New Zealand democracy.' (Muriel Newman, ACT MP)
• 'I'm not anti-Māori, I am anti a certain sector of Māoridom which I believe to be a minority, I am anti the Treaty industry because it's been expanded and exaggerated and provably so ...[my] agenda is for a racially neutral country where race doesn't come into it. The race that I care about is the human race.' (John Ansell, supporter of Mr Titford)
• 'Ansell says Titford's a political prisoner who doesn't deserve his jail sentence.' (presenter)
• 'He's just someone who was particularly victimised by this process and has done an exhaustive amount of work to prove that the Treaty claim on his farm was false, and the State, and not to mention Te Roroa, the local iwi, don't like that, and now we find that he has been put away for 24 years for crimes that did not involve anybody dying, which is an extraordinary length of time.' (Ansell, talking about Mr Titford)

[19]  The item sufficiently canvassed different viewpoints by interviewing supporters of Mr Titford and also by showing archival footage of him and his supporters. The perspective of Martin Doutré, a supporter of Mr Titford who claims a Celtic race, not Māori, was the first to settle New Zealand, was the focus of approximately three minutes of the item. The presentation of the issues by Māori TV was not 'hostile' or overly 'pejorative' to Mr Titford and his supporters as alleged by Mr Butler, although, as we have noted, it was legitimate for Native Affairs, as a programme especially concerned with Māori issues, to frame the issues from a Māori perspective. This was consistent with expectations of regular viewers of the programme.

[20]  We agree with the broadcaster that this story presented a different perspective on an historical issue, and we note that Native Affairs broadcast a follow-up story a week later which also contained comments from Titford supporters. We recently declined to uphold two complaints about that broadcast, for reasons similar to those outlined here.⁶

[21]  Mr Butler also argued that Ngāpuhi's involvement was not presented as it should have been. This was ultimately a matter of editorial discretion for Māori TV. Ngāpuhi's involvement was not the focus of the story – which was the story of Allan Titford and the influence he and his supporters had on race relations. Therefore Māori TV was not required, in the interests of balance, to include the Ngāpuhi perspective.

[22]  For these reasons we decline to uphold the complaint that Standard 4 was breached.

Was the broadcast inaccurate or misleading?

[23]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁷

[24]  Mr Butler alleged that the following aspects of the broadcast were inaccurate and misleading:

• The presenter's comment that '14 years later the truth came out – it was Allan Titford who burnt his house down'.
• The reporter's comment that 'By 1876 nearly 90,000 acres of Te Roroa land had been bought by the Crown.'
• The reporter's statement that 'Allan Titford finally sold his land to the Crown for five times more than he paid.'
• Overall the story was not impartial, in breach of guideline 5c to the accuracy standard.

House fire

[25]  Mr Butler argued that as the house fire occurred 22 years ago, the phrase '14 years later' was inaccurate. He also argued it was misleading to state Mr Titford had burnt down his house, as he continued to deny his guilt and planned to appeal his conviction. Mr Butler argued that 'viewers were not made aware of the existence of two sworn statements that cast reasonable doubt on Titford's guilt regarding the arson'.

[26]  Māori TV argued that the reference to '14 years' was in fact a reference to Te Roroa's negotiations with the Crown. It considered Mr Titford's plans to appeal his conviction were 'irrelevant' and said it was fact that Mr Titford had been found guilty in a court of law.

[27]  We are satisfied by Māori TV's explanation that '14 years' was intended to mean 14 years after the Crown negotiations with Te Roroa. In any case the difference between 14 years and 22 years did not materially affect the story as a whole. It was not misleading to report the fact that Mr Titford was convicted in court of burning his house down.

[28]  We therefore decline to uphold this aspect of the accuracy complaint.

Details of Te Roroa land claim

[29]  Mr Butler argued that the reporter's statement, 'By 1876 nearly 90,000 acres of Te Roroa land had been bought by the Crown. However, Te Roroa disputed the inclusion of urupa, reserves and the lake in the sale, arguing that there had been a mistake in the survey' was inaccurate because:

• The actual land area was 72,892 acres, which was 17,000 acres 'short of [the reporter]'s sweeping guess'.
• The Maunganui block was actually awarded to both Te Roroa and Ngāpuhi, so it was inaccurate to characterise the land as belonging solely to Te Roroa.
• There was no dispute at the time of the sale as to what was included in the sale, and the reporter incorrectly implied that Te Roroa disputed the inclusion of urupa, reserves and the lake.
• The reporter did not provide specific background information relating to Te Roroa's claim which Mr Butler considered should have been included – for example, that the 'first appearance of a claim for that land... and another area on a neighbouring farm... was in 1899, after both vendors and all involved in the 1876 sale had died', and information about a special sitting of the Native Land Court in 1939 and a recommendation by Chief Judge G.P. Shepherd to Parliament in 1942.

[30]  Māori TV cited the Te Roroa Claim Settlement Act 2008 in support of the statements made in the item.⁸

[31]  In our view, none of the points raised by Mr Butler in relation to this statement would have materially affected viewers' understanding of the item as a whole. For example, the difference between 90,000 acres and 72,892 acres was immaterial to the focus of the story. In any case, having had regard to the information provided to us, including reference to findings of the Waitangi Tribunal and legislation, we are satisfied that Māori TV made reasonable efforts to ensure the statement was accurate. Many of the facts disputed by Mr Butler appear to be supported by source material, and we do not purport to challenge the Waitangi Tribunal on these statements.

[32]  That the broadcaster focused on certain factors of the claim and not others, such as Ngāpuhi's alleged involvement and other background information, did not result in the story being misleading. It is unreasonable to expect that the story could canvass every single point in relation to the claim, and as we have noted already under balance, it was legitimate for Native Affairs to take a certain angle.

[33]  Accordingly we decline to uphold the accuracy complaint in relation to the details of the Te Roroa land claim.

Land sale

[34]  Mr Butler argued that the reporter's statement, 'Under a National Government in 1995, after rejecting numerous offers, Allan Titford finally sold his land to the Crown for five times more than he paid' was inaccurate. He considered this statement implied Mr Titford had made a profit, which was incorrect. He stated, 'While it is true that the sale price of $3.225 million is about 5.3 times the purchase price, [the reporter] did not say that the $3.225 million included 1,450 head of stock valued at $750,000 and plant at $50,000. Neither did she say that out of the $3.255 million, $1.8 million went to the National Bank and $425,000 went to other creditors. Therefore, Titford was left with $200,000 for land he paid $600,000 for nine years earlier'.

[35] Mr Butler accepts that the statement itself was correct, in that Mr Titford sold the land for approximately five times the original purchase price. It was not necessary to include a full breakdown of the sale. This was not material to the overall story and would not have misled viewers.

Sources

[36]  Guideline 5c to the accuracy standard states that news must be impartial. Mr Butler argued that the item, and specifically the selection of sources, was partial in breach of guideline 5c. He asserted that Mr Ansell was the only real representative of Mr Titford's position and he featured in a 'highly selective interview', while the item contained extensive comment from Te Roroa representatives.

[37]  As we have said already, Native Affairs is a current affairs show produced by Māori TV specifically focused on the Māori perspective. It was legitimate for Māori TV to take a certain angle and focus on Te Roroa's side of the story. The broadcast nevertheless presented other perspectives including from Mr Titford's supporters so we disagree that the story's focus resulted in it being partial.

[38]  We therefore decline to uphold this part of the Standard 5 complaint.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[39]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁹

[40]  Mr Butler argued that the coverage of the 'Titford/Te Roroa saga' was not presented fairly because the item did not canvass 'known facts on both sides of the dispute'. Instead, he said the reporter jumped to the conclusion that Mr Titford burnt down his own house, and ignored 'evidence that raised reasonable doubt as to whether Titford started the fire, such as two sworn statements indicating another party had admitted responsibility'.

[41]  Māori TV argued that, as Mr Titford had been found guilty of the allegations in a court of law, he was not treated unfairly.

[42]  The purpose of the story was not to relitigate Mr Titford's conviction. The fact is that Mr Titford was found guilty of burning down his house, so it was not unfair to refer to his conviction without seeking comment from him. In any case Māori TV did provide alternative viewpoints from Mr Titford's supporters and archival footage of Mr Titford himself.

[43]  We therefore decline to uphold the Standard 6 complaint.

Did the broadcast encourage the denigration of, or discrimination against, any recognised section of the community?

[44]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[45]  Mr Butler argued that the item encouraged discrimination against and the denigration of 'those who criticise the divisiveness of race-based affirmative action and treaty politics'. He referred to the reporter's introductory comments describing Mr Titford's supporters as 'anti-treaty', and 'anti-Māori', 'many of whom used their money, time, and connections to push their political agendas'.

[46]  Those who criticise 'the divisiveness of race-based affirmative action and treaty politics' are not a recognised section of the community to which Standard 7 applies. We therefore decline to uphold the complaint under this standard.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
4 March 2015 

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1      Mike Butler's formal complaint – 26 May 2014
2      Mr Butler's referral to the Authority – 24 July 2014
3      Māori TV's response to the Authority – 10 December 2014
4      Mr Butler's final comment – 15 December 2014
5      Māori TV's confirmation of no final comment – 28 January 2015

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

² For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)

³Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁴ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076

⁵Askin and Bolton and Māori Television Service, Decision No. 2014-084

⁶Askin and Bolton and Māori Television Service, Decision No. 2014-084

⁷ Bush and Television New Zealand Ltd, Decision No. 2010-036

⁸ http://www.legislation.govt.nz/act/public/2008/0100/latest/DLM1132303.html

⁹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014