BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld an accuracy complaint about a statement by RNZ’s Morning Report host, ‘Māori have a clearly proven proprietary right over water… the Supreme Court has acknowledged that’, during an interview regarding the National Party’s Local Water Done Well policy. The complaint alleged there was no case in which the Supreme Court had made such a statement. The Authority found the statement was not materially inaccurate or misleading in the context of the broader discussion: most audience members would not have interpreted the statement in a strictly legal sense or appreciated the technical legal distinctions drawn in the complaint; and the key point being made by the host was that National would need to ensure Māori interests in water were adequately dealt with – or risk facing further litigation – since its policy removed co-governance as a feature.

Not Upheld: Accuracy

The broadcast

[1]  During the 14 April 2023 broadcast of Morning Report, an 8-minute interview between host Corin Dann and National Party MP Simon Watts discussed the Government’s changes to the Three Waters proposal. The segment was introduced:

‘You can change the badge on the Lada, but it's still a Lada.’ Well, that is how the National Party leader, Christopher Luxon describes the rebranded Three Waters reforms announced by the Government yesterday. National’s Local Government spokesperson Simon Watts says the rebrand won’t fool New Zealanders. He is with us now.

[2]  During the segment, Dann and Watts discussed several features of the Government’s and National’s proposed plans, including in the last two minutes of the interview, the following exchange concerning co-governance and Māori interests in water:

Dann:              Okay. The co-governance issue. You don't support the system that the government is proposing. 

Watts:             So nothing’s changed in regards to co-governance. What was there before is there now. They’ve simply changed four entities to ten. Nothing else has changed. So co-governance is in there, it's divisive, and we don't think it is going to work. It's not part of our model.

Dann:              So you don't have that co-governance model. What would you do then? Because there is a good likelihood that if you didn't have that model involved under your plan, when councils are dealing with water and joining together, you would face court action, wouldn't you? Because Māori have a clearly proven proprietary right over water in this country. The Supreme Court has acknowledged that under the asset sales legislation rulings that went through, you've got to deal with that. 

Watts:             Look, under National’s Local Water Done Well, local authorities will be able, and expected, to engage with iwi. The reality is, is that it's not going to be central government forced and mandated. Those relationships already exist. And that's the feedback we heard through Select Committee from a number of iwi. We want to work and continue to work locally as we do. We don't want to be lumped into these entities which mean that we're going to lose local voice. 

Dann:              Sure, but there may be iwi who feel that they're not getting the representation they want by just being, you know, along those lines. They want a clear, a much clearer definition of their role, and you would potentially face court action. 

Watts:             Look, we're confident that the local authorities will be able, under our model, to be able to work with iwi, to be able to get that engagement. And actually, as a minister overseeing those plans that come back in the first 12 months, I would expect that they would have engaged appropriately with iwi and got to a position where they can work together.

The complaint

[3]  Robert Hayes emailed a complaint to Morning Report, which RNZ accepted as a formal complaint under the accuracy standard of the Code of Broadcasting Standards in New Zealand. We consider Hayes’ key arguments can be summarised as follows:

• ‘I am confident that the Supreme Court has made no such statement’ that Māori have proprietary interests in fresh water. (If the Court had made such a finding, individual iwi/hapu would ‘rightly claim royalties for use: both commercial and domestic’).
• Approximately 20 minutes after Dann’s interview with Simon Watts MP, during Morning Report, Professor Carwyn Jones ‘impliedly rebutted’ it, saying: ‘We’ve had the Waitangi Tribunal recognise Māori interests in water. Although Māori wouldn’t necessarily describe it as a property right, the Tribunal recognised that in order to recognise those rights that were guaranteed in te Tiriti, that we should understand that Māori have continuing rights’. The complainant submitted that ‘if the Supreme Court have held that Maori have a proprietary interest (i.e. a property interest), Carwyn would have said so.’
• Responding to RNZ’s acknowledgement of his complaint, Hayes added, Māori have customary use rights, and the Waitangi Tribunal has found that Māori have proprietary rights in flowing fresh water. However, ‘the precise nature of those use rights have not been determined judicially and certainly not by the Supreme Court as claimed by Corin’.

[4]  On referral to the Authority, and in response to RNZ, the complainant added:

• ‘The Supreme Court (and lower courts) have rightly acknowledged Māori interests in fresh waters (including flowing fresh waters) and the special relationships in particular bodies of waters. Nevertheless, the Supreme Court has not yet held that those interests amount to a proprietary or ownership interest. The Court has been particularly careful in not describing those interests as proprietary or ownership interests’.
• ‘the 2013 case¹ [cited by RNZ] evidences that the Supreme Court is open to deciding the question of ownership when an appropriate case comes before it’ but it has not decided this yet.
• The difference is not a ‘technical’ one but is significant because: Waitangi Tribunal findings are not binding on the Government, as Supreme Court findings are; ‘the Crown has consistently argued that New Zealand law does not allow for ownership of such waters’; and the Three Waters model would look very different if the Supreme Court had in fact held that Māori have a proprietary/ownership interest in flowing fresh water.

The broadcaster’s response

[5]  RNZ did not uphold Hayes’ complaint, saying:

• ‘We think it most likely that Mr Dann intended to say that the Supreme Court has noted that the Waitangi Tribunal has held in a number of decisions that claims of Treaty breach in relation to waters are well-founded and that Māori rights in relation to waters of significance are in the nature of ownership² which is quite a mouthful and hard to paraphrase in a live broadcast situation. But there is little doubt that Mr Dann was doing his best to convey the sense that ‘rights in the nature of ownership’ exist in respect of ‘waters of significance’ and, for the purposes of this discussion, cannot go unnoticed by governments, local and central.’ [RNZ’s emphasis]
• ‘In a discussion with the National Party’s local government spokesperson about the future management of water assets in New Zealand, it is not materially misleading for Mr Dann to accidentally attribute dicta of the Waitangi Tribunal to the Supreme Court. Nor is it wrong to point out that any new entity in control of water infrastructure should be mindful of Māori rights in relation to waters of significance that are in the nature of ownership.’

[6]  Responding to Hayes’ referral to the Authority, RNZ added:

• In New Zealand Māori Council v Attorney-General ‘the Supreme Court noted that the Waitangi Tribunal has held in a number of decisions that claims of Treaty breach in relation to waters are well-founded and that Māori rights in relation to waters of significance are in the nature of ownership.’
• ‘To be quite clear, Mr Dann did not suggest that the Supreme Court had reached a definitive judgment on Māori ownership rights over flowing water. He simply (and accurately) pointed out in the context of a co-governance debate that the Crown is required to act consistently with the principles of the Treaty of Waitangi, and that this had been acknowledged by the Supreme Court in its decision regarding state-owned assets in 2013. To say that the Supreme Court has acknowledged something does not mean that the court has ruled or made a definitive finding on that thing as the complainant is suggesting.’ [RNZ’s emphasis]
• ‘[Dann’s] suggestion that the National Party’s proposals could lead to court action were based on the clear notion established by the Waitangi Tribunal that Māori have proprietary rights over water, regardless of what the Supreme Court has ruled’.
• The complainant’s issue could be considered technical and unlikely to significantly affect the audience’s understanding of the content as a whole; the comment was not material to the overall item, which concerned the National Party’s stance on the Government’s Three Waters plans, and these ‘objections were not based on any findings of the Supreme Court’.

The standard

[7]  The purpose of the accuracy standard³ is to protect the public from being significantly misinformed.⁴ 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

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the important right to freedom of expression. It is our role to weigh up the right to freedom of expression, including the value and public interest in the broadcast, against any harm potentially caused by the broadcast. Political speech and discussion of political policy and issues, as featured in this broadcast, carries high public interest value – meaning the harm caused must be correspondingly high to outweigh the importance of freedom of expression. We may only intervene and uphold a complaint where placing a reasonable limit on the right to freedom of expression is demonstrably justified in a free and democratic society, in light of the harm.⁵

Legal background

[10]  The Supreme Court stated in New Zealand Māori Council v Attorney-General:⁶

The Waitangi Tribunal has held in a number of decisions relating to Māori claims of Treaty breach in relation to waters that the claims of Treaty breach are well-founded⁷ and that Māori rights in relation to waters of significance, such as the Waikato River, are in the nature of ownership.⁸

[11]  The Supreme Court dismissed the case brought by the New Zealand Māori Council on the basis that:⁹

For the reasons that follow, we are of the view that the proposed sale of the shares (on which the claim of material prejudice is based) is reviewable for consistency with the principles of the Treaty. …We have concluded, however, that the partial privatisation of Mighty River Power will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Māori interests in the river…

[12]  However, the Supreme Court acknowledged that the Tribunal’s work was ongoing (at the time of the decision) in relation to this matter.¹⁰ The report referenced has now been completed, finding that:¹¹

…present law in respect of fresh water is not consistent with Treaty principles… very few of the recommendations made in previous Tribunal reports have been implemented.

[13]  Māori rights regarding freshwater are a complex topic. As described above, the Waitangi Tribunal has acknowledged Māori rights over freshwater are in the nature of ownership. The Supreme Court acknowledged the findings of the Tribunal, but did not decide as a matter of law that Māori interests in water amounted to a property right. We note, however, that many Māori would characterise rights over freshwater in a more nuanced manner, for example due to concepts of whakapapa (genealogy), kaitiakitanga (guardianship) and tikanga (customary law) in relation to freshwater bodies.¹²

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

[15]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect listeners’ understanding of the programme as a whole are not considered material.¹³

[16]  The statement complained about was made by the host in the context of saying:

So you don't have that co-governance model. What would you do then? Because there is a good likelihood that if you didn't have that model involved under your plan, when councils are dealing with water and joining together, you would face court action, wouldn’t you? Because Māori have a clearly proven proprietary right over water in this country. The Supreme Court has acknowledged that under the asset sales legislation rulings that went through, you've got to deal with that. [our emphasis]

[17]  In light of the background outlined at [10]-[13] above, we accept the host overstated the legal position by claiming ‘a clearly proven proprietary right’ had been ‘acknowledged’ by the Supreme Court.

[18]  However, we do not consider the statement was materially inaccurate or misleading, or that it would have significantly affected listeners’ understanding of the programme as a whole, taking into account:

• The broadcast was an extended interview (8 minutes) concerning the National Party’s counterproposal to the Government’s policy formerly known as Three Waters.
• While the issue of co-governance was important in the discussion of this policy, the exact legal nature of Māori interests in water was not (and there appears to be no dispute that Māori have some relevant legal interests).
• Most listeners would not have interpreted the host’s statement in a strict legalistic sense, or appreciated the technical legal distinctions on which the complaint is based.
• The point Dann was making, and the key takeaway for the average audience member, was that there are Māori interests in water that need to be dealt with, and National’s removal of co-governance as a feature of the policy could lead to more litigation. This was a legitimate issue to raise and put to Watts for a response, and in the public interest.

[19]  Having found the programme was not materially inaccurate or misleading, it is not necessary to determine whether or not the broadcaster made reasonable efforts to ensure the accuracy of the programme.¹⁴

[20]  Accordingly, we find no breach of the accuracy standard, and no harm caused by the broadcast which outweighed the right to freedom of expression.

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

Susie Staley
Chair
18 October 2023    

Appendix

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

1  Robert Hayes’ complaint to RNZ and subsequent correspondence –14 April 2023

2  NZ's response to the complaint – 13 June 2023

3  Hayes’ referral to the Authority (enclosing relevant Supreme Court judgment, New Zealand Māori Council v Attorney-General, NZSC 98/2012 [2013]) –
16 June 2023

4  RNZ’s further comments – 20 July 2023

5  Hayes’ final comments (including additional Supreme Court judgment, Paki and others v Attorney-General, NZSC 118 [2014]) – 27 July 2023

6  RNZ confirming no further comments – 1 August 2023

¹ New Zealand Māori Council v Attorney-General, NZSC 98/2012 [2013]
² New Zealand Māori Council v Attorney-General, NZSC 98/2012 [2013]
³ Standard 6, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ New Zealand Māori Council v Attorney-General, NZSC 98/2012 [2013] at [10]
⁷ Waitangi Tribunal Report of the Waitangi Tribunal on the Kaituna River Claim (Wai 4, 1984); Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (Wai 8, 1985); Waitangi Tribunal Mohaka River Report 1992 (Wai 119, 1992); Waitangi Tribunal The Whanganui River Report (Wai 167, 1993); Waitangi Tribunal Ngawha Geothermal Resource Report, 1993 (Wai 304, 1993); Waitangi Tribunal Te Ika Whenua Rivers Report (Wai 212, 1998); and Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (Wai 1200, 2008).
⁸ Te Ika Whenua Rivers Report; The Whanganui River Report; and He Maunga Rongo: Report on Central North Island Claims. Affirmed in Waitangi Tribunal The Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012) [Freshwater Report] at [2.8.3(1)].
⁹ New Zealand Māori Council v Attorney-General, NZSC 98/2012 [2013] at [7]-[8]
¹⁰ New Zealand Māori Council v Attorney-General, NZSC 98/2012 [2013] at [11]
¹¹ “The Stage 2 Report on the National Freshwater and Geothermal Resources Claims” The Waitangi Tribunal (2019) <forms.justice.govt.nz> at page xx
¹² Professor Jacinta Ruru and Dr Richard Meade “Te Mana o te Wai” Ministry for the Environment (August 2021) <environment.govt.nz> see for example paragraphs [9]-[13]
¹³ Guideline 6.2
¹⁴ Van der Merwe and Mediaworks TV Ltd, Decision No. 2019-015 at [21]