BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld two complaints that it was inaccurate and/or unbalanced for an item on 1News to describe land in central Auckland as being ‘gifted’ by Ngāti Whātua to the Crown in 1840. The Authority found it was not materially inaccurate to describe the land in this way in the context of an item focused on Ngāti Whātua’s call to change Auckland Anniversary Day. Further, any harm caused by not including a detailed explanation of the land transfer did not outweigh the broadcaster’s right to freedom of expression. The balance standard did not apply.

Not Upheld: Accuracy, Balance

The broadcast

[1]  An item during 1News broadcast on 18 September 2023 discussed a proposal from Ngāti Whātua Ōrākei (Ngāti Whātua) to change the date of the Auckland Anniversary public holiday to 18 September, the date in 1840 when 3000 acres of land in what is now Auckland were transferred to the Crown by the iwi.

[2]  The item was introduced as follows:

Ngāti Whātua is demanding a change of date for the Auckland Anniversary public holiday to better reflect the city's founding story. It comes as the tribe marks 183 years since it gifted thousands of acres of land to Pakeha settlers to establish the city. Our Māori Affairs Correspondent Te Aniwa Hurihanganui reports.

[3]  The item then included the following relevant comments:

Reporter:      At the summit of Maungawhau, Ngāti Whātua remembers. It was here in 1840 that their ancestor Apihai Te Kawau stretched out his arms and declared 3000 acres of tribal lands would be gifted to Governor Hobson to establish Auckland.

Te Aroha Grace (Ngāti Whātua): It's important that everyone knows that Apihai Te Kawau was the originator, the progenitor of the city.  

…

Reporter:      This is Auckland today. If we overlay the gifted land on top, you can see it covers most of the central business district and surrounding suburbs.  

Joe Pihema (Ngāti Whātua): It was to draw near to him and his people, a partner, a friend.  

Reporter:      But that partnership has been tested. By the 1950s, Ngāti Whātua was left virtually landless, and their decades long fight for justice culminated in the 1977 land occupation at Bastion Point.    

Joe Pihema: The irony of the 100 years that followed his gift, a concerted effort by the council and government to relieve Ngāti Whātua of its own whenua, after we had given so much.

Reporter:      Now the iwi wants its history recognised by moving Auckland Anniversary in January to today's date.

Marama Royal (Ngāti Whātua Ōrākei Trust): I don't know the significance of anniversary day in January.  

Reporter:      Not even the Deputy Mayor knows… We asked if she'd prefer to see the date changed.  

Auckland Deputy Mayor Desley Simpson: I do actually. We wouldn't have Auckland without that gift.

Reporter:      That's ultimately a decision for the next government. Ngāti Whātua hopes whoever it is will reciprocate this enormous gesture.

The complaint

[4]  Robin Grieve and Wayne Ryburn complained that the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand. Robin Grieve submitted the following:

• The item claimed that the land was gifted. The land being gifted was a major part of the story, but the land was not gifted. The 3000 acres referred to was sold, which even the Waitangi Tribunal acknowledges.¹  
• ‘The Tribunal also clearly differentiates between the original 3000 acres that were sold by Māori and some land that was later gifted.’
• ‘The selling of the land did bring about the founding of the city, but the true context of the situation is masked by a fiction that this was some sort of magnanimous gesture whereas according to the Waitangi Tribunal the land was sold, not gifted, and the motivation was as much to do with self-preservation for the tribe from invading Māori tribes.’
• Even if the Crown and iwi acknowledge the transaction to be a gift, that does not make this a historical fact. TVNZ’s response demonstrates they understand the complexity and details of the transaction, and some of this detail being included in the broadcast would serve to accurately and sensitively describe how Ngāti Whātua’s land ended up in Crown ownership.
• What modern viewers believe a gift to be and the use of the term in this context are significantly different.
• The transaction was also not a ‘gift’ as Māori would understand the word. The concept of utu and reciprocity is not synonymous with the idea of ‘gifting’.
• ‘The evidence [TVNZ] provided does not say that Māori regarded [the land] as a gift at all.’ ‘At best the evidence provided by TVNZ could be argued to support that Ngāti Whātua believed that as well as the money they received for the land they would also have some involvement in the land and that this was not honoured. This though does not establish the status of the transfer as a gift, it just establishes a complexity to the sale.’
• ‘This does not mean that Ngāti Whātua’s concerns should not be articulated and respected… all TVNZ need do is tell the truth. The Crown paid for the land but Ngāti Whātua regarded the transaction more as a gift. That seems to be factual and an honest respectful description of the situation.’
• ‘The accuracy of New Zealand history is important, and this item is part of that history…to allow a news item that misleads people is to deny and corrupt our history.’

[5]  Wayne Ryburn submitted the following under the accuracy standard:

• ‘The item made the erroneous claim that the land shown in the clip had been gifted by Ngāti Whātua to the colonial government under Governor Hobson. In fact the 3000 acres was purchased.’
• ‘The motives for local iwi to invite Hobson to move the capital of the fledgling colony from Russell to the Waitemata was not only for trade but most importantly to bring security [from neighbouring iwi].’
• ‘Russell Stone, emeritus professor of history Auckland University and author of “From Tamaki Makaurau to Auckland” 2001, in The NZ Herald June 19th 2009,² expressed that while chief Apihai Te Kawau invited Governor Hobson to come to the Waitemata, the land some 3000 acres, was not gifted but was in fact sold to the Crown. He told how John Logan Campbell recounted his meeting with the chief in late 1840. The chief had in his possession the sovereigns for the initial sale of the land. The total amount paid for the land was 341 pounds.’
• ‘The fact that more land was purchased in 1841-2 plus the sale of land that the local iwi had gifted to Waikato tribes without redress clearly indicates that tribes understood how money could be made from land sales.’

[6]  Ryburn also complained that the broadcast breached the balance standard for the following reasons:

• The item included Ngāti Whātua and the Waitangi Tribunal’s perspective but did not include a Pākehā/European perspective.
• By not including this perspective history is being rewritten by the broadcaster to suit a particular ideology.
• Both perspectives on how Auckland was established should have been expressed in the broadcast. Teaching history to students always involves ‘discussing multiple perspectives on major changes in history…It is important to obtain a variety of viewpoints on what happened and more importantly why the event happened and the outcome or consequence of the event. This forms the basis of adult critical thinking.’

[7]  Ryburn also provided other submissions regarding the history of Aotearoa New Zealand, the findings of the Waitangi Tribunal and TVNZ’s approach to the reporting of history. While we note these comments, our role is limited to consideration of the current broadcast under the standards raised. Accordingly, we have focused the summary above on the points of most relevance to our decision.

The broadcaster’s response

[8]  TVNZ did not uphold Grieve’s or Ryburn’s complaints for the following reasons:

Accuracy (Grieve and Ryburn)

• ‘The Waitangi Tribunal states: ‘Ngāti Whātua of Orakei agreed to hand over approximately 3000 acres of land for a township to be established. The details of the sale of the land were to be worked out later… Ngāti Whātua made other gifts of land’.
• In the Ngāti Whātua agreed tribal settlement, the iwi’s view is recorded as follows: ‘Ngāti Whātua assert that the transactions were akin to the principle of tuku rangatira in that chiefs wished to create mutually beneficial relationships with Europeans and enhance their mana by making land available for settlement. Ngāti Whātua consider that, consistent with their cultural practice of qualified transactions with other Māori groups, the pre-emption waiver transactions conveyed occupancy and use rights only.’ ‘At this time, Ngāti Whātua and the Crown had very different systems of property exchange. Ngāti Whātua had no experience of the consequences of transfer of title under English land law.’
• ‘The Committee does not agree that the description of Ngāti Whātua's transfer of 3000 acres of land to the Crown to site Auckland City as a gift is inaccurate.’
• ‘It is clear from the above relevant information that it is agreed the iwi did not understand property transfer in the same way as the English. The iwi considering the transaction, as described in the deed of settlement of historic claims to represent a broader concept of reciprocity, ongoing mutual obligation and the maintenance of balance between groups, whereas the British understood the transaction to represent "the payment for the said land."’
• ‘We note that different cultures have different concepts and approaches to gift-giving and exchanges of this nature. To Ngāti Whātua it was gifting, and the Crown’s view was that this was a sale. Although the Crown view that this was a sale has been widely promulgated, this does not negate Ngāti Whātua’s view, or make it incorrect, or misleading for viewers.’
• ‘1News’ Kaiurungi Māori Editor rang Ngarimu Blair, who is the Ngāti Whātua Ōrākei Trust Elected Representative [and] Deputy Chair about the issues raised in these complaints.’ ‘Ngarimu Blair stated of the agreement about the land in question: the land was a tuku rangatira, a tuku whenua, so given under our custom. We gave land to start relationships, or to maintain relationships like we gave land to Ngāti Porou in the east, like we gave land to Wherowhero Pōtatau as he was then, around Remuera and Onehunga. That was our tikanga at 1840 and that’s what we did with Hobson, Apihai giving land, tuku whenua, tuku rangatira, use rights, they can use that land for as long as we are in a mutually beneficial relationship. As soon as they don’t want the land, the land obviously stays with us, to be used for however we wish. I mean we could give it to someone else to use whilst we’re in a mutually beneficial relationship. That was our tikanga, that was tikanga Māori at that time especially for us, we had no Pākehā around, we didn’t know anything about alienation of land. The only way you lost land was na te ringa kaha, raupatu, by force. Ia anō, yeah we gave it, when Apihai Te Kawau was cross-examined in the Native Land Court by Judge Fenton he was asked ‘who was it that sold Auckland to the Europeans?’ And his response was ‘I did not sell it, I gave it to them, and I am still looking for my payment.’ That being ‘gave it’ was the translation, ‘looking for payment’ by the 1860’s he was wondering if he had done a good deal? Where was the mutually beneficial relationship, and the reciprocity? He gave (huge amounts) of land, 3000 acres the first block, 13,000 the second block and by that time no-one was trading with us and our fortunes were taking a big dive.’
• ‘Ngarimu Blair also stated We agree to disagree with the Crown, to this day they say we sold it, even though they say to us whilst we’re having a cup of tea, ‘we know you gave it but we can’t write that down.’ But we had a compromise paragraph in our agreed historical account.’
• ‘it is accepted in the Settlement that one party to the agreement (Ngāti Whātua Ōrākei) understood something different to the other party (the Crown). Although the Crown view that this was a ‘sale’ has been widely promulgated, this does not negate Ngāti Whātua’s view that it was a tuku rangatira or make it incorrect, or misleading for viewers, and Ngāti Whātua’s view about the transaction is expressly recognised by the Crown more than once in the Deed of Settlement’

Balance (Ryburn)

• ‘The Committee does not agree that the description of the gift of land by Ngāti Whātua to the Crown to establish Auckland City is controversial. It is clear from the above relevant information that it is agreed the iwi did not understand property transfer in the same way as the English, considering the transaction, as described in the deed of settlement of historic claims to represent a broader concept of reciprocity, ongoing mutual obligation and the maintenance of balance between groups.’
• ‘As this description comes from an agreed historical account between the Crown and Ngāti Whātua, the Committee does not agree that the reporting of this viewpoint is controversial.’

The standards

[9]  The balance standard³ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁴ The standard only applies to news, current affairs, and factual programmes, which discuss a controversial issue of public importance.⁵

[10]  The purpose of the accuracy standard⁶ is to protect the public from being significantly misinformed.⁷ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact and does not mislead.

Our analysis

[11]  We have watched the broadcast and read the correspondence listed in the Appendix.

[12]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.⁸

Accuracy

[13]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether the broadcaster made reasonable efforts to ensure that the programme was accurate and did not mislead.

[14]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁹

[15]  The harm the complainants are concerned about is that viewers will be misled about the nature of the relevant land transaction by its description as a ‘gift’ which is alleged to inaccurately portray its historical context.

[16]  In our determination we considered how the transaction is described in multiple sources including:

• Ngāti Whātua Ōrākei’s deed of settlement¹⁰
• A Waitangi Tribunal publication¹¹
• The kōrero of Ngāti Whātua Ōrākei Trust Elected Representative and Deputy Chair Ngarimu Blair as transcribed by TVNZ above at [8]
• Other accounts of the land transfer, including those of Te Ara,¹² Damien Venuto¹³ and Russell Stone¹⁴ (published by NZ Herald), and Democracy Action.¹⁵

[17]  The broadcast stated:

• Host: ‘…the tribe marks 183 years since it gifted thousands of acres of land to Pakeha settlers’
• Reporter: ‘Apihai Te Kawau stretched out his arms, and declared 3000 acres of tribal lands would be gifted to Governor Hobson to establish Auckland’ ‘This is Auckland today. If we overlay the gifted land on top…’
• Representatives of Ngāti Whātua and the Deputy Mayor of Auckland also described the land as being given, or as a gift.

[18]  We accept that these statements (to the effect the land in question was gifted) are conveyed as statements of fact. Therefore, the accuracy standard applies.

[19]  The first question for the Authority is whether the item was inaccurate or misleading by virtue of these statements. To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.¹⁶  

[20]  Based on the resources identified at [16], a more accurate description of the nature of the transaction would be that the Crown may have considered the land had been sold, whereas the iwi may have regarded it more as a ‘gift’, through a transaction in the nature of utu (reciprocity), and tuku rangatira (a chiefly gift).

[21]  The question for the Authority is whether describing the land as gifted was a material inaccuracy, being one which would have materially affected the audience’s understanding of the item overall.

[22]  The item was focused on Ngāti Whātua’s calls to change Auckland’s anniversary day. In our view, the precise nature of the transaction was not material to this story, and the reference to gifting (as a simplification of a more complex matter) was not materially inaccurate:

• While the details of the land transfer were relevant background information (explaining Ngāti Whātua’s role in establishing Auckland), the item was not focused on this and did not purport to provide a detailed examination of the circumstances surrounding the founding of Auckland, or the historical and modern disagreements between Ngāti Whātua and the Crown.¹⁷ In this context, further detail explaining the differing interpretations of the historical transaction would not be expected.
• The transaction’s nature (as ‘gift’ or ‘sale’) is not critical to many of the reasons suggested for the proposed change. For example, the change was suggested to:
  • ‘better reflect the city’s founding story’ (noting, as depicted in the broadcast, the significant portion of what is now Auckland which was transferred by Apihai Te Kawau)
  • ensure ‘everyone knows that Apihai Te Kawau was the originator, the progenitor of the city’
  • ‘recognise the iwi’s history’
  • reflect a date that people would understand ‘the significance of’.

[23]  We accept aspects of the broadcast (in particular the closing statement about ‘reciprocating’ Ngāti Whātua’s ‘enormous gesture’) hint at the significance of the transfer’s status as ‘gift’ in the argument for changing the date. This lends some support to an argument that the transaction’s precise status was material to viewers’ understanding of the item overall. However, given the other points identified as justification for the change, and noting Ngāti Whātua’s important role in Auckland’s origin story (regardless of the nature of the original transfer), we are not satisfied such content tips the balance towards a finding of material inaccuracy.

[24]  In any event, as outlined at paragraph [12], it is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. There was public interest in conveying Ngāti Whātua’s connection to the establishment of Auckland as well as the argument for an anniversary day which better reflects the city’s origins. While not mentioned in the broadcast, we note Auckland Anniversary Day is currently celebrated in January to mark the date when former Governor-General, William Hobson first landed in the Bay of Islands¹⁸ (29 January 1840) rather than having any direct connection to Auckland.  Given the public interest in this subject, even if some viewers were misled by the omission of a fuller account of the relevant land transfer, any harm potentially caused by this does not rise to a level justifying restriction of the broadcaster’s right to freedom of expression.

[25]  Having found the programme was not materially misleading, it is not necessary to determine whether the broadcaster has made reasonable efforts to ensure the accuracy of the programme.¹⁹

[26]  Accordingly, we do not uphold this complaint under the accuracy standard.

Balance

[27]  Determination of a complaint under the standard involves two steps. The first step is to consider whether the standard applies. It will only apply where the subject matter is:

• an issue ‘of public importance’ (something that would have a significant potential impact on, or be of concern to, New Zealanders)
• ‘controversial’ (an issue of topical currency; which has generated or is likely to generate conflicting opinion; or about which there has been ongoing public debate – e.g. issues related to New Zealand political policy, public health and safety, or public expenditure)
• ‘discussed’ in a news, current affairs, or factual programme (e.g. investigative or in-depth work – brief news reports, programmes clearly focused on a particular perspective, or personal or human-interest stories, may not amount to a discussion).

[28]  The issue Ryburn has complained was not presented in a balanced manner is the issue of how the relevant land transfer is properly characterised considering its history.

[29]  We are satisfied this issue is of public importance. However, we do not believe the nature of the transaction and rationale for describing it one way or another are ‘controversial’. It is the nature of history that some may continue to research and challenge aspects of historical events. However, as we have previously found:²⁰

…while a historic event may be of great public interest at the time and may continue to be of historical interest, the later discussion or analysis of such an event will not necessarily be considered a controversial issue of public importance.

[30]  We consider that this reasoning applies in this instance as well. On this basis, the balance standard did not apply and the requirement for balancing comment was not triggered.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
5 March 2024   

Appendix

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

Grieve

1  Grieve's formal complaint to TVNZ - 3 October 2023

2  TVNZ's response to Grieve’s complaint - 12 October 2023

3  Grieve's referral to the Authority - 24 October 2023

4  Grieve's response to TVNZ's 17 November comments - 29 November 2023

5  Grieve's response to TVNZ's 11 December comments - 20 December 2023

Ryburn

6  Wayne Ryburn's initial complaint to TVNZ - 26 September 2023

7  TVNZ's response to Ryburn’s complaint - 12 October 2023

8  Ryburn's referral to the Authority - 8 November 2023

9  Ryburn's response to TVNZ's 17 November comments - 28 November 2023

10  Ryburn's response to TVNZ's 11 December comments - 13 December 2023

TVNZ

11  TVNZ's response to Ryburn and Grieve's referrals - 17 November 2023

12  TVNZ's response to Ryburn and Grieve’s comments - 11 December 2023

13  TVNZ confirming no further comments – 18 January 2024

¹  Waitangi Tribunal | Te Rōpū Whakamana I te Tiriti o Waitangi “The founding of Auckland” (19 September 2016)
² Russell Stone “Russell Stone: This city's future can't be built on myths” NZ Herald (online ed,19 June 2009)
³ Standard 5, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
⁵ Guideline 5.1
⁶ Standard 6, Code of Broadcasting Standards in New Zealand 
⁷ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁸ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁹ Guideline 6.2
¹⁰ Te Arawhiti “Ngāti Whātua Orakei and Ngāti Whātua Orakei Trustee Limited and The Crown, Deed Of Settlement Of Historical Claims” (5 November 2011)  see 2.11-2.28, particularly 2.19-2.22
¹¹ Waitangi Tribunal | Te Rōpū Whakamana I te Tiriti o Waitangi “The founding of Auckland” (19 September 2016)
¹² Te Ara - the Encyclopaedia of New Zealand “Page 4. Ngāti Whātua and the Treaty of Waitangi” (accessed 26 January 2024)
¹³ Damien Venuto “NZ business needs to remember the gift Auckland was built on” NZ Herald (online ed, 6 February 2020)
¹⁴ Russell Stone “Russell Stone: This city's future can't be built on myths” NZ Herald (online ed,19 June 2009)
¹⁵ Democracy Action “Lies, Lies And More Lies - Challenging The Propaganda” (April 2018)
¹⁶ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
¹⁷ See for example Lee and Radio New Zealand Ltd, Decision No. 2017-088 at [24]
¹⁸ Auckland Council | Te Kaunihera o Tāmaki Makaurau “Why we celebrate Auckland Anniversary Day” (15 January 2020)
¹⁹ Van der Merwe and Mediaworks TV Ltd, Decision No. 2019-015 at [21]
²⁰ Lee and Radio New Zealand Ltd, Decision No. 2017-088 at [13]; Lee and MediaWorks TV Ltd, Decision No. 2016-044 at [19]; Stubbs and Radio New Zealand Ltd, Decision No. 2019-049 at [14]; Vercoe and Te Aratuku Whakaata Irirangi Māori, Decision No. 2022-106 at [13]