BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Story reported that Auckland purchasers of homes near areas of cultural significance for Māori may need to get consent from iwi before undertaking any structural building work, as part of the Auckland Unitary Plan. As an example of one of the areas of cultural significance, the presenter reported from an empty field, saying, ‘So this is what an area of cultural significance looks like. This is called a midden... it’s pretty much a rubbish dump. We looked it up – “midden” is an old Danish word for “domestic rubbish dump”’. The Authority did not uphold a complaint alleging that the item discriminated against and/or denigrated Māori and was unfair. While acknowledging the presenter’s tone could be seen to be culturally insensitive and dismissive, the Authority found this did not reach the high threshold necessary to encourage discrimination or denigration. Additionally, comment was included from the iwi named in the item, so they were not treated unfairly.

Not Upheld: Discrimination and Denigration, Fairness

Introduction

[1] An item on Story reported that Auckland purchasers of homes near areas of cultural significance for Māori may need to get consent from iwi before undertaking any structural building work, as part of the Auckland Unitary Plan. It reported that this information was not currently required to be included on a property’s Land Information Memorandum (LIM). As an example of one of the areas of cultural significance, presenter Heather du Plessis-Allan reported from an empty field, saying:

So this is what an area of cultural significance looks like. This is called a midden. It’s where back in the old days Māori used to throw the shells when they’d finished eating their seafood. So it’s pretty much a rubbish dump. We looked it up – ‘midden’ is an old Danish word for ‘domestic rubbish dump’.

[2] The report went on to discuss that some of the land had not had its status as ‘culturally significant’ updated for quite some time and that some (unnamed) iwi were charging ‘exorbitant’ prices to give consent. Ms du Plessis-Allan said that 11 iwi had been contacted for comment and that only three had responded. The item concluded with a discussion between the presenters, with presenter Duncan Garner saying that this was ‘not a good look for the Unitary Plan at all’.

[3] Ross Carter complained that the broadcast was racist and denigrating of Māori culture, and unfair.

[4] The issue is whether the broadcast breached the discrimination and denigration and fairness standards of the Free-to-Air Television Code of Broadcasting Practice.

[5] The item was broadcast on TV3 on 17 December 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast encourage the denigration of, or discrimination against, Māori as a section of the community?

[6] 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.

[7] The term ‘denigration’ has consistently been defined by the Authority as tarnishing the reputation of a class of people.¹ ‘Discrimination’ has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment.² It is also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.³

[8] Mr Carter said, ‘I make no observation about the iwi approval requirements, their efficacy or otherwise as this is obviously a reasonable issue for debate and investigation’, but argued that the ‘manner and tone’ of the broadcast amounted to ‘denigration and diminution of what is... culturally important to Māori’. He said the ‘worst’ part of the broadcast was the reference to ‘middens and the use of a Dutch dictionary definition to belittle the importance of such a site’.

[9] MediaWorks denied that the broadcast was racist. It argued that the definition of ‘midden’ had been taken from the Auckland Council website, and that describing it as a ‘rubbish dump’ was ‘essentially its meaning in archaeology’. It also said, ‘The point... was to illustrate that the areas of cultural significance are sometimes unremarkable in their appearance’. It concluded that none of the content in the broadcast breached the standard.

[10] We agree with Mr Carter that it was the manner and tone of the broadcast, rather than the topic itself, that was potentially objectionable. As Mr Carter pointed out, it was legitimate for Story to investigate and report on these issues regarding the Auckland Council’s consent process. However, having viewed the broadcast several times, we are sympathetic to Mr Carter’s view that Ms du Plessis-Allan’s report could be seen as carrying racist undertones. She seemed incredulous that regard should be had to certain culturally significant sites, including the ‘midden’. Archaeological sites such as middens certainly can hold cultural and historical significance, and in many cases are much more than just ‘rubbish’ dumps. The report lacked cultural sensitivity and we can understand how some viewers would have seen it as racist.

[11] Nevertheless, the report overall did not carry sufficient invective or malice against Māori for us to intervene, limit the right to freedom of expression and find that the programme encouraged discrimination or denigration in breach of Standard 7. The issues around the Council’s consents process, including that the requirements for iwi consent were not included in LIM reports, that some iwi were reportedly charging exorbitant rates for consent and that the status of some of the sites needed to be updated, were legitimate issues that were in the public interest to investigate. Further, many of them were presented as the fault of the Council rather than iwi. For example, the concluding remarks from the presenters characterised the problems as being caused by the Unitary Plan rather than iwi.

[12] For these reasons, we do not uphold the complaint under Standard 7.

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

[13] 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.⁴

[14] Mr Carter did not make specific arguments under the fairness standard, nor identify who he thought was treated unfairly, but implied that other perspectives should have been included in the item.

[15] MediaWorks pointed out that Ms du Plessis-Allan had approached a number of iwi for their perspective, but all had declined to appear on the programme. Three iwi – Ngāti Whātua Orākei, Te Uri-o-Hau and Ngāi Tai Ki Tāmaki – provided comment to the effect that ‘information relating to areas of cultural significance should be on LIMs or in some other way made clear to property owners’, and two iwi reportedly said that ‘all of the areas of cultural significance in Auckland deserve to be there’. MediaWorks considered that ‘all parties referred to in the broadcast were treated fairly’.

[16] Mr Carter did not specify any individual or organisation who he believed was treated unfairly, but presumably he considered that all Auckland iwi were treated unfairly. Standard 6 applies only to individuals or organisations taking part or referred to in a broadcast, so we cannot apply it to Auckland iwi generally. Only three iwi were named in the broadcast and comment from them was included (see [15] above).

[17] Additionally, as we have said above at paragraph [11], the issues covered in the programme carried public interest and were legitimate for Story to report on. Taking into account the public interest value in the broadcast and the fact that comment was included from the three named iwi, we are satisfied that the broadcast was not unfair.

[18] Therefore we do not uphold the complaint under Standard 6.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich

Chair

12 May 2016

Appendix

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

1      Ross Carter’s formal complaint – 18 December 2015

2      MediaWorks’ response to the complaint – 4 February 2016

3      Mr Carter’s referral to the Authority – 4 February 2016 

4      MediaWorks’ response to the Authority – 4 March 2016

¹ See, for example, Mental Health Commission and CanWest RadioWorks, Decision No. 2006-030

² For example, Teoh and Television New Zealand Ltd, Decision No. 2008-091

³ E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152

⁴ Commerce Commission and TVWorks Ltd, Decision No. 2008-014