BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Due to Ms Morris’ membership of the Waitangi Tribunal, and participation in the Tribunal’s Inquiry into the Crown’s Foreshore and Seabed Policy in March 2004, the complainant and the broadcaster were consulted prior to consideration of this complaint by the Authority. Both agreed Ms Morris did not have a conflict of interest.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
20/20 – segment on the Foreshore and Seabed Bill entitled Your Shore, Our Shore – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – other perspectives acknowledged – wide media coverage of the issue – not upheld

Standard 5 (accuracy) – misrepresentations of Court of Appeal decision and Foreshore and Seabed Bill – two aspects upheld

Standard 6 (fairness) – subsumed under Standard 4

Order
Broadcast of statement

This headnote does not form part of the decision.

Broadcast

[1] A segment on 20/20 on 9 May 2004 entitled Your Shore, Our Shore set out to explain the motivation of those who attended the hikoi to parliament protesting the proposed foreshore and seabed legislation. The introduction to the piece said:

The Prime Minister called them haters and wreckers but the protesters seem to have galvanised Māori opinion. Their hikoi to Parliament has brought the foreshore and seabed debate right into our living rooms…

… How many of us really understand what the hikoi was all about. Here to cast some light, Melanie Reid.

[2] The reporter first interviewed Dayle Takitimu, introduced as a Treaty issues lawyer and advocate, about the reaction of many iwi to the proposed foreshore and seabed legislation. They discussed concerns of non-Māori that they could be excluded from the beaches. A voiceover then introduced the Court of Appeal ruling in the Marlborough Sounds case:¹

The Crown went to court assuming they owned the contested foreshore and seabed. The Marlborough iwi went to court assuming they were the holders, by right, of pre-existing title, what’s known as native title.

[3] The case was then discussed with Tim Castle, legal counsel for iwi claimants and an independent advisor on Māori issues, who explained the concept of native title as “title held according to customary usages and practice”. Another voiceover by the reporter said:

The Court of Appeal eventually said yes, Marlborough iwi did indeed have ownership by way of native title. What’s more, they had the right to have the nature and extent of that title determined by the Māori Land Court.

So what in effect this ruling did was to confirm to iwi and hapu all over New Zealand what many of them had always known: much of New Zealand’s foreshore and seabed, except that in private ownership, was theirs by right of native title.

What the ruling also did was tell the Government that their assumption the Crown owned the foreshore and seabed was wrong.

[4] After discussing the public’s reaction to this, the item went on to describe the Government’s reaction as drafting the Foreshore and Seabed Bill, which:

…proposes to take the bulk of existing native title off Māori and put it into Crown ownership…so it would become the Crown’s absolute property.

From a Māori point of view one moment they had confirmation of their native title over much of New Zealand’s foreshore and seabed. The next they faced having it taken off them despite the proposed legislation acknowledging things like ancestral rights.

There is protection for Māori customary interests in the foreshore and seabed that can be acknowledged and specific rights identified and protected.

[5] A later voiceover said that the proposed legislation would “strip iwi of their right to go to the Māori Land Court and seek clarification of the nature and extent of any native title they may have had”. In response to this Tim Castle replied:

This Bill as it’s presently designed forecloses on the right of Māori to establish the full title and the nature of it, its incidents of title, or the bundle of rights which attach to it and it does that only for them. It does that only for Māori. It does not interfere with the processes that include private titles for non Māori.

The reporter stated that this was “discrimination”, to which Tim Castle said “indeed”.

[6] Ms Takitimu went on to say that due process for Māori was being denied, and the perception for Māori was that:

…the Court of Appeal said the avenue is open for you to go to the Māori Land Court and have your arguments assessed as to whether you still have native title and so the legislation just crunches right over the top of that and basically stops that as an avenue for redress.

Complaint

[7] Laura Cronin, a Senior Policy Advisor in the office of the Deputy Prime Minister (Hon. Dr Michael Cullen), complained to CanWest TVWorks Ltd that the programme was not balanced, fair or accurate and had therefore breached approved codes of broadcasting practice.

[8] Ms Cronin complained that the programme “contained significant errors of fact” in the following statements:

• “The Court of Appeal eventually said yes, Marlborough iwi did indeed have ownership by way of native title”
• “much of New Zealand’s foreshore and seabed, except that in private ownership, was theirs [Māori] by right of native title”
• “That reaction of course is the Government’s drafting of the Foreshore and Seabed Bill which proposes to take the bulk of existing native title off Māori and put it into Crown ownership”

[9] The complainant maintained that “none of these statements are true” and that:

What the court actually found was much more limited. It found that some Māori customary rights may continue to exist and that the Māori Land Court had jurisdiction to hear claims. However it said that they would have to face a number of hurdles both in fact and in law to establish that land below the high water mark was Māori customary land and therefore capable of attracting a fee simple title.

[10] In support of her contention, Ms Cronin supplied a portion of the Chief Justice’s judgement in that case, which stated that the “outcome of the appeal cannot establish that there is Māori customary land below high water mark”.

[11] The complainant also deemed the following statement by the reporter to be “highly misleading and inaccurate”:

Add to this the proposed legislation will strip iwi of their right to go to the Māori Land Court and seek clarification of the nature and extent of any native title they may have had.

[12] Ms Cronin asserted that it was inaccurate because “the government’s proposal allows iwi the right to clarify the extent of any native title through the High Court”. The Court would determine the extent of any rights to the area by applying the common law, she said, and the matter would be passed to the Crown for redress if territorial customary rights were established.

[13] The complainant also believed that the broadcast was unfair and unbalanced. She stated that the “foreshore and seabed issue is highly contentious so the obligation on the media to present fairly all sides of the argument…is especially strong”. Ms Cronin complained that “the inaccurate statements were left unchallenged” because other interested parties did not have an opportunity to respond.

[14] Ms Cronin was concerned that because the programme was:

…presented as the Māori perspective, it would be entirely rational to assume that there was almost no support in Māoridom for the government’s foreshore and seabed policy. That is in spite of the fact that in the most comprehensive survey of Māori opinion, TVNZ’s Marae Digipoll, Māori were evenly split in support for and against the government’s proposals.

[15] The complainant added that the issue could be resolved by the broadcaster “correcting these inaccuracies at the earliest opportunity”.

Standards

[16] CanWest TVWorks Ltd assessed the complaint under Standards 4,5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

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.

Broadcaster's Response to the Complainant

[17] In its response to the complainant, the broadcaster accepted that the matter involved complex legal issues and that “both the decision and the proposed Bill are capable of more than one interpretation”. However, CanWest argued that the introduction made it clear that:

[the programme] had a limited aim – to shed some light, not on the issues and outcomes of the court case, the decision and the legislation, but on the motivation for the hikoi and the protesters who brought the hikoi to Parliament.

[18] The broadcaster outlined the views of the producer of the programme, who considered “that there had been a significant amount of coverage on both major Networks of the government viewpoint but little to explain the motivation of the protesters”. The producer gave the following examples of the Government “repeatedly and forcefully broadcast[ing] its point of view”:

• 3 News had broadcast numerous items containing the Government’s views
• On 17 December 2003 the Hon Michael Cullen had a four minute interview with John Campbell on 3 News
• The Hon Michael Cullen spoke on TVNZ’s Agenda programme
• Mai Chen spoke on TVNZ’s Breakfast programme on 11 May 2004.

[19] According to the producer of the programme, while the public had plenty of opportunities to hear the Government’s views, “few seemed aware of the standpoint of those taking part in the hikoi. The programme producers intended the Your Shore Our Shore item to redress that imbalance”.

Accuracy

[20] The broadcaster then dealt with the first two comments that were subject to complaint (refer to para [8]). It said that the “finding by the Chief Justice is recognised by the reporter’s statement that the nature and extent of the title held by the iwi would need to be determined by the Māori Land Court”. CanWest interpreted the Court’s decision as:

…upholding the right of the appellants to go to the Māori Land Court to establish the nature and extent of their native title and [the broadcaster] finds that the decision made it clear to all Māori that the opportunity to establish native title had not been extinguished by the legislation relied upon by the Crown.

[21] The broadcaster did not agree that these two comments were inaccurate “in the context in which they appear”. It was contended that the comments were “clearly opinion, analysis and comment on the Court of Appeal decision and there was an adequate basis for the comments in the decision being considered”.

[22] Turning to consider the second two comments that Ms Cronin had complained about, CanWest maintained that these also could not be considered in isolation from their immediate context. Any concerns that the reporter’s comments did not explain “the iwi right to apply to the High Court to clarify the extent of native title and to seek redress” were invalid, as these rights were explained in the subsequent remarks by the reporter:

From a Māori point of view; one moment they had confirmation of their native title over much of New Zealand’s foreshore and seabed; the next, they faced having it taken off them, despite the proposed legislation acknowledging things like ancestral rights.

There is protection for Māori customary interests in the foreshore and seabed that can be acknowledged and specific rights identified and protected.

[23] According to the broadcaster, “in light of the context and the explanation given by Government when it introduced the Bill…the comments are clearly analysis or comment on the likely effect of the Bill and have an adequate basis”. CanWest found there was no breach of Standard 5 (accuracy).

Balance and Fairness

[24] In determining whether the broadcast had breached Standards 4 (balance) 6 (fairness), CanWest referred again to “the limited purpose or editorial focus of this item”. The broadcaster reiterated that the programme had set out to present only one element of the wider issue – “the motivation of those protesters who had brought the hikoi to Parliament that week”.

[25] CanWest stated that, provided the Code requirements were complied with by the overall coverage of the issue, “programming may look at one particular area and focus largely on that”. According to the broadcaster, the programme did not set out to portray the viewpoint of all Māori, so the complainant’s concern in that respect was not relevant.

[26] CanWest contended that the protesters had an “equal right” to have their view heard, because:

…viewers had already been presented with a wealth of other material on other elements of this complex issue and particularly with the Government point of view or motivation for introducing the legislation.

[27] It was the broadcaster’s view that current affairs programming has a “duty” to present all sides of an issue to the viewing public. It said:

To the extent necessary for a programme with such a narrow focus the other significant points of view were presented. There was no unfairness to the Government in the preparation or presentation of the programme.

[28] The broadcaster commented that upholding Ms Cronin’s complaint could hinder those opposed to Government views from having their say. It stated that a complaint from the office of Dr Cullen was “a bald attempt to constrain freedom of expression and shut down opposing viewpoints so that the dominant message…is one that Government finds acceptable”.

[29] In weighing Ms Cronin’s complaint against the freedom of expression provided for by the New Zealand Bill of Rights Act 1990, CanWest considered that it would “unreasonably and unjustifiably restrict the public’s right to receive information” if the complaint was upheld.

Referral to the Authority

[30] Dissatisfied with the broadcaster’s response, Ms Cronin referred her complaint to the Authority. She was concerned that:

TV3 claims that the programme was designed to redress an imbalance created by a four minute interview between Dr Cullen and John Campbell five months earlier, this assumes long memories among the audience.

TV3’s claim that Dr Cullen had a solo spot on TVNZ’s Agenda programme, 24th April 2004 and Mai Chen had a similar opportunity on TVNZ’s Breakfast programme, 11th May 2004 seems to assume that broadcasters can rely on other media to provide their balance for them and, in the case of the Mai Chen interview which aired after Your Shore, Our Shore, invites the view that programmers have to anticipate, and redress in advance, the actions of other media outlets.

[31] Ms Cronin reiterated that she had no objection to the reasons behind the hikoi being aired, but her complaint was that the item “did not accurately reflect the import of the Court of Appeal decision and was therefore unfair and unbalanced”. Ms Cronin expressed her offence at the suggestion that the motivation behind her complaint was to “constrain freedom of expression” and present only the Government view to the viewing public.

[32] The complainant was concerned about the “repeated assertions by Melanie Reid that the Court of Appeal ruled that Māori owned the foreshore and seabed”. It was her contention that “the Court’s finding was much more limited”.

[33] The complainant maintained that the foreshore and seabed issue was “not only a complex issue but a highly contentious and potentially inflammatory one”. In this respect, she argued it was especially important that the broadcasting standards were met.

Broadcaster’s Response to the Authority

[34] In its response to the referral, CanWest said it had never stated that the programme had been designed to “redress an imbalance”. This was only referred to when the broadcaster was quoting the producer in an attempt to explain the “limited editorial focus” of the item.

[35] The broadcaster felt that “within its limited focus, the programme was balanced to the extent necessary for it to comply with the provisions and requirements of standard 4 of the Code”. The mention of broadcasts by other media was:

…not an attempt either by the Producer or by the [Standards] Committee to claim that a lack of balance in this programme had in someway been “cured” by the coverage provided by other media.

[36] The broadcaster did not disagree that the findings of the Court of Appeal were “complex”. It submitted that the reporter’s comments were “accurate and an acceptable interpretation or explanation” in the context of the programme, and only a limited explanation was required to “enable viewers to appreciate what the hikoi protesters were concerned about”.

[37] CanWest maintained that “particular care” was needed in considering a complaint by a Government Minister concerning a programme explaining the view of those opposed to ”government policy being championed by that very Minister”. The broadcaster submitted that the Authority should not uphold such a complaint unless there was a “very serious or flagrant” breach.

[38] The broadcaster described the programme as a “fair, accurate and matter-of-fact examination of the motives of one group”, and stated its belief that viewers would have appreciated that there were a number of views about the motivation of the protesters.

Complainant’s Final Comment

[39] In her final comment, Ms Cronin first dealt with the broadcaster’s response with regard to Standard 4 (balance). She acknowledged that the introduction to the item stated that it would show the motivation of those who organised and participated in the hikoi. However, Ms Cronin felt that “simply characterising a story as being about part of a debate” was not sufficient to fulfil the requirement that reasonable efforts must be made to present significant points of view.

[40] The complainant referred to the broadcaster’s assertion that other significant points of view (including the views of the government) had been “referred to and included in the programme”. She contended that the only statement that could amount to referring to the government’s views was “The Prime Minister called them haters and wreckers…”. Ms Cronin submitted that the inclusion of this statement could not amount to making a reasonable effort to present opposing viewpoints.

[41] Ms Cronin also referred to the broadcaster’s argument that any failure to present opposing viewpoints about the meaning of the Court of Appeal decision and the Foreshore and Seabed Bill was “reasonable in the context that the programme was about the motives of the protesters”. She said:

The flaw in this logic is protesters were motivated by their interpretation of the Court of Appeal decision and the subsequent introduction of the Bill – discussion of these issues was the main content of the interview with Mr Castle and a substantial element of the linking statements by [the reporter]. A balanced report would have addressed the fact that these interpretations were substantially contested.

[42] The complainant did not agree with the broadcaster that the motivation of the protesters “was presented – but not endorsed or advocated in a way that would breach the requirements of the [broadcasting] code”. In addition she alleged that the reporter’s “frequently inaccurate statements about the Court decision and the Bill (the motivation for the protest)” were not presented as opinions, rather they were given as statements of fact.

[43] Referring to the broadcaster’s statement that the reporter’s comments were an “accurate and acceptable interpretation” of the Court decision in the context of the programme, Ms Cronin stated:
Context does not remove the requirement for accuracy and neither does complexity, in this case the statements are unequivocal in the face of a decision that was quite limited and this is inaccurate and misleading.

[44] The complainant acknowledged that the Authority should be slow to uphold a complaint by a government agency unless the breach is of a “serious and flagrant nature”. She submitted that this breach met those criteria. Given the controversial issue at hand, she said, the broadcaster was “under an obligation to be accurate and provide balance”.

[45] Ms Cronin argued that the breaches of broadcasting standards had led to a story which “tended to polarise rather than clarify” the debate. Upholding the complaint would not result in “a chill effect on a free media”, she said, because the complaint did not argue for the suppression of views or the right of broadcasters to explore one side of a debate. Instead, Ms Cronin said, the complaint was simply seeking “that standards of balance and accuracy be applied”.

Further Correspondence

[46] Responding to the complainant’s final comment, CanWest reiterated that the programme had a limited focus, examining the motivations of those behind the hikoi. CanWest submitted that it would be wrong to interpret the balance standard as requiring every programme examining a controversial issue to look at every aspect of that issue, every time it was considered.

[47] CanWest also reiterated its view that the programme simply put forward an interpretation of the Court’s decision in the Ngāti Apa case. It submitted that the interpretation of a legal decision can never be a question of fact, as even among experienced lawyers, opinions will differ in interpreting what a judge has said or written.

[48] CanWest concluded that:

The Authority must consider the overall context of the explanation of the court’s decision and consider whether in the totality of the programme and in light of its focus the requirements of the standard have been met.

Authority's Determination

[49] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Balance and Fairness

[50] The complainant contended that the programme breached Standard 6 (fairness) because it did not “present fairly all sides of the argument”. Ms Cronin alleged the item was unfair to the Government and to other New Zealanders, including many Māori, who believed the foreshore and seabed should be held in public ownership. The Authority considers that the fairness aspect of this complaint is addressed more appropriately under Standard 4 (balance), given that the complainant has not articulated any separate grounds for unfairness other than contending that the broadcast was unfair due to a lack of balance. Therefore, the Authority subsumes this aspect of the complaint under its consideration of whether Standard 4 is breached.

[51] Standard 4 of the Free-to-Air Television Code requires that when controversial issues of public importance are discussed, broadcasters must 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.

[52] The Authority considers that the focus of the programme was the motivation of those participating in the hikoi to Parliament in May 2004. The hikoi was one of the key political events of 2004 and a current affairs programme that aimed to explain the motivations of the participants clearly constituted discussion of a controversial issue of public importance.

[53] The complainant alleged that the programme lacked the required balance, in that it was presented as the sole Māori perspective on the issue and misrepresented a number of key points surrounding the Court of Appeal’s decision and the content of the proposed legislation.

[54] The complainant’s concerns about the misrepresentations of the Court’s decision and the contents of the Bill will be discussed below under Standard 5 (accuracy). In the view of the Authority, allegations of misrepresentations of key factual background material are more appropriately dealt with as an issue of accuracy, rather than balance.

[55] This leaves the Authority to consider whether the programme was balanced in its portrayal of the debate. As a starting point, the Authority notes that the programme was clearly not intended as a wide-ranging discussion of the competing perspectives of the Government and Māori opposed to the foreshore and seabed legislation. The focus was much narrower than that; the programme was clearly introduced as an examination of the motivation of those who had participated in a significant protest.

[56] The programme also made it clear, on a number of occasions, that different views and perspectives existed, and that the feeling of grievance felt by many Māori was not universal amongst all New Zealanders. The programme referred to the Prime Minister’s comment about the hikoi as consisting of “haters and wreckers” and the reporter on a number of occasions asked the interviewees to defend their position by advancing the views of what she referred to as “middle New Zealand”, to the effect that the foreshore and seabed legislation was a necessary protection of all New Zealanders’ rights of access to beaches.

[57] The Authority also notes that the foreshore and seabed issue as a whole was, for a lengthy period in the latter part of 2003 and in 2004, an issue dominating domestic news and current affairs. CanWest, in its response to the complaint, noted that 3 News had itself run a number of news items reflecting the Government’s perspective and reasoning behind the legislation, and that the Deputy Prime Minister, the Hon Michael Cullen, had appeared twice on news and current affairs programmes to discuss the issue.

[58] The broadcaster maintained that the hikoi participants had an “equal right” to have their views heard, especially given the “wealth of other material on other elements of this complex issue” which had been presented to the public in the media. The Authority agrees. As the Authority has previously noted², programmes which explore an issue from a particular perspective are not necessarily unbalanced, as long as significant opposing viewpoints are sufficiently acknowledged.

[59] Taking into account the item’s particular focus, and in light of the extensive media coverage the issue received within the period of current interest – by no means all of it negative to the Government’s position – the Authority considers that the acknowledgement in the programme that perspectives existed other than those of aggrieved Māori, was sufficient to meet the requirements of balance.

[60] The Authority accordingly does not uphold this aspect of the complaint.

Accuracy

[61] The complaint alleged that four aspects of the programme were inaccurate and misleading.

[62] In its final correspondence, CanWest submitted that the inaccuracies complained of related to 20/20’s interpretation of the Court of Appeal’s decision, and that the interpretation of a legal decision could never be characterised as a question of fact to which the accuracy standard applies.

[63] The Authority agrees that it would be hesitant to apply the accuracy standard to a discussion exploring possible interpretations of a complex and ambiguous point of law. But it does not accept that the statements complained of could sensibly be described as such. Instead, the reporter made a number of unqualified statements of fact about the nature and outcome of the court proceedings.

[64] The first statement complained about was a statement from the reporter that “The Court of Appeal eventually said yes, Marlborough iwi did indeed have ownership by way of native title”.

[65] The Authority agrees that this statement was inaccurate. It is clear from the judgment of Chief Justice Elias that the Court was not asked to determine whether the Marlborough iwi had native title to the foreshore and seabed. As Elias CJ noted at paragraph [8] of her decision,
The outcome of the appeal cannot establish that there is Māori customary land below the high water mark. And the assertion that there is some such land faces a number of hurdles in fact and law which it will be for the Māori Land Court in the first instance to consider, if it is able to enter on the inquiry.

[66] The issue for the Court was simply whether the Māori Land Court had jurisdiction to consider the question of native title to the foreshore and seabed. While the Court agreed that the Māori Land Court had this jurisdiction, that was the extent of its ruling. It made no finding that any iwi held such native title.

[67] CanWest, in its response to the complaint, noted that the reporter made it clear that the nature and extent of the native title would have to be clarified by the Māori Land Court, and that seen in context, the statement was not inaccurate. The Authority does not accept this. While the reporter did refer to the Māori Land Court clarifying the nature and extent of title, she nevertheless fundamentally misrepresented the Court of Appeal’s decision. Furthermore this misrepresentation was aggravated by the repetition of the false premise that the Court of Appeal had established the existence of native land title.

[68] In the view of the Authority, this inaccurate portrayal of the Court of Appeal’s decision went to the heart of the programme, and was a breach of Standard 5.

[69] The second statement complained of was that the Court’s ruling confirmed to Māori throughout New Zealand that “much of New Zealand’s foreshore and seabed, except that in private ownership, was theirs by right of native title”.

[70] For the same reasons given above the Authority agrees that this statement was incorrect and a misrepresentation of the Court’s decision. As noted above, the Court made no ruling as to the existence of native title, and instead only cleared the way for the substantive issue to be considered by the Māori Land Court. For this reason, the Authority also upholds this aspect of the complaint as a breach of Standard 5 (accuracy).

[71] The third statement complained of was “That reaction [to the Court of Appeal’s decision] of course is the Government’s drafting of the Foreshore and Seabed Bill which proposes to take the bulk of existing native title off Māori and put it into Crown ownership”.

[72] The Authority does not uphold this aspect of the complaint. The Court of Appeal’s decision established, contrary to previous widely-held understandings, that certain legislation governing land transactions did not extinguish native title to foreshore and seabed. Further, the Court of Appeal held that the Māori Land Court’s jurisdiction empowered it to consider contemporary claims that particular parts of the foreshore and seabed remained in native title.

[73] The Authority accepts that, prior to the Foreshore and Seabed Act, some part or parts of the New Zealand foreshore and seabed may have remained in native title. This position is supported by the role that the Act now accords to the High Court (see paragraph 75 below). There can be no doubt that any such native title was extinguished by the Foreshore and Seabed Act. Therefore, while the third statement complained of is not perfectly clear, the Authority considers that its essence is accurate; the statement conveys that the Bill proposed to replace with Crown ownership such native title to the foreshore and seabed as had survived to that point.

[74] The final statement complained of was the reporter’s assertion that “the proposed legislation will strip iwi of their right to go to the Māori Land Court and seek clarification of the nature and extent of any native title they may have had.”

[75] The complainant asserted that this was not the case, as under the proposed legislation Māori retained the right to seek clarification from the High Court as to the nature and extent of native title they would have held under previous common law. In the event that “territorial customary rights” were established, the matter could then be referred to the Crown for further discussion.

[76] The Authority does not uphold this aspect of the complaint. In the view of the Authority, the point being made by the programme was that the possibility of obtaining native title through the Māori Land Court would no longer be an option for claimants and that the removal of the Court’s jurisdiction was seen by the hikoi participants as denying the right to due process, further aggravating their concerns.

[77] The Authority accepts that the new legislation allows claimants the right to seek clarification from the High Court as to the nature and extent of any territorial customary rights they may previously have held under the common law. But, in the view of the Authority, this is very different from the right to have native title recognised by the Māori Land Court. For this reason, the programme was correct in saying that iwi were losing the right to have native title recognised in the Māori Land Court.

[78] Finally, the Authority notes CanWest’s apparent position that government ministers should refrain from complaining about programmes that are critical of government policy, and that any such invocation of the complaints process amount to an attempt on the part of the government to curtail the right to freedom of speech.

[79] The Authority strongly disagrees with this point of view. Government ministers are as entitled as any other person to complain about broadcasts they consider to have breached the required standards. All complaints are considered in the same manner regardless of the status of the complainant.

Bill of Rights

[80] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons, the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of an item on 20/20 on 9 May 2004 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[81] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[82] Both the complainant and the broadcaster submitted that the broadcast of a statement reflecting the Authority’s decision would be appropriate. The Authority concurs with their submissions.

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders CanWest TVWorks Ltd to broadcast, 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 Standard 5 of the Free-to-Air Television Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at a date and time approved by the Authority

The Authority draws the broadcaster’s attention to the requirement in s.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

Joanne Morris
Chair
31 March 2005

Appendix

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

1. Laura Cronin’s formal complaint – 27 May 2004
2. CanWest TVWorks Ltd’s acknowledgement of formal complaint – 2 June 2004
3. CanWest TVWorks Ltd’s decision on formal complaint – 29 June 2004
4. Ms Cronin’s referral to the Authority – 27 July 2004
5. CanWest TVWorks Ltd’s response to the referral – 18 October 2004
6. Ms Cronin’s final comment – 30 November 2004
7. CanWest TVWork’s further correspondence – 12 January 2005

¹Ngāti Apa and others v Attorney General [2003] 3 NZLR 643

²See Decision No. 2004-224.