BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

An item on Native Affairs, entitled ‘Bones of Contention’, reported on the discovery of ‘kōiwi’ (human remains) at a development site in Devonport, and apparent tensions between iwi and the owner and developer of the site, Redback Develop Ltd. The Authority did not uphold the complaint from Redback that the item contained inaccurate information about the development and the discovery of kōiwi. Nor did the Authority uphold the complaint that the content of the panel discussion was misleading. The broadcaster treated Redback fairly and made reasonable efforts to put forward Redback’s position, by inviting onto the programme the individual who it had been referred to as the appropriate person to comment.

Not Upheld: Accuracy, Fairness, Controversial Issues

Introduction

[1]  An item on Native Affairs, entitled ‘Bones of Contention’, reported on the discovery of ‘kōiwi’ (human remains) at a development site in Devonport. The focus of the report was apparent tensions between some Mana Whenua¹ and the owner and developer of the site. The presenter introduced the item as follows:

Devonport is described by those who live there as a charming seaside village just a ferry ride from the city lights. But it wasn’t always this way. As early as 1350, Māori have occupied the coastline setting up fishing stations, community gardens and settlements. So, no surprise then that the remains of many Māori are still buried there. Developers building the old Masonic Tavern [sic] found out the hard way. Their diggers were ordered to stop digging when they hit human remains, and for the past month nothing has happened at the site, costing the owners time and money.

[2]  The reporter interviewed a member of the Ngāti Whātua iwi (P) who opposed the development. Later, a panel discussion involving the reporter, a resource management consultant (B), and the Project Kaumatua (T),² took place. The programme was broadcast on 19 August 2013 on Māori TV.

[3]  Redback Develop Ltd (Redback), the developer, made a formal complaint to Māori Television, alleging that the item contained inaccurate and misleading information about the development at the Masonic Tavern site, and particularly with regard to the archaeological investigation and the discovery of kōiwi. In addition, it argued that the item lacked balance, and that they were treated unfairly.

[4]  Redback raised Standards 4, 5, 6 and 8 in its original complaint, but did not to refer its Standard 8 complaint to this Authority. The issue therefore is whether the broadcast breached the accuracy, fairness and controversial issues standards as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Background

[6]  The Masonic Tavern was built in 1866 and is one of New Zealand’s oldest buildings. The site is believed to be associated with pre-1900 human activity and is therefore deemed an ‘archaeological site’ under the Historic Places Act 1993.³ This was supported by the discovery of Māori skeletal remains in 2001, close to the site.⁴

[7]  Redback’s proposal in 2009 to demolish and reconstruct the tavern to make way for a luxury apartment complex, car parks and a café was opposed by heritage advocacy groups and Māori who saw the site as an important part of Māori and local history. In 2010, an appeal against the granting of resource consent was lodged in the Environment Court.⁵ In addition, a Waitangi Tribunal claim sought to prevent the demolition of the tavern on the basis it was a wahi tapu (sacred site) where the bones of Māori were buried.⁶

[8]  Ultimately, Redback was able to proceed with the development. The archaeological status of the site required Redback to obtain authorities from the Historic Places Trust (HPT) to investigate, destroy, damage, or modify the site before commencing demolition and construction work.⁷ This led to a preliminary investigation under HPT authority 2010/160 and the discovery of one burial. A full investigation commenced in May 2013 under HPT authority 2011/486 and further burials were discovered.

[9]  An Iwi Protocol was established to meet the requirements of authority 2011/486. This set out the terms and conditions for carrying out and monitoring the development, including the procedure for dealing with kōiwi, as agreed between the developer and Mana Whenua.

[10]  The archaeological investigation under authority 2011/486, which is ongoing, formed the focus of the Native Affairs broadcast on 19 August 2013.

Nature of the programme and freedom of expression

[11]  Native Affairs is a news and current affairs programme presented from a unique Māori perspective. As noted in the introduction, the item subject to complaint reported on the development of the Masonic Tavern site from the perspective of some Mana Whenua, who expressed their opposition to the development and what they saw as the desecration of a site of historical importance to Māori.

[12]  We recognise that the item carried very high public interest. The item was a serious report on an important topic, particularly for Māori. It raised issues relating to the preservation of heritage and respect for cultural and community values on the one hand, and the utilisation of land for development and economic reward on the other. We agree with Māori TV that it is the responsibility of a current affairs programme such as Native Affairs to highlight these types of issues ‘so as to ensure that its viewing audience, and in particular Māori, are fully engaged in issues of environmental, historical, and cultural importance in the context of future development throughout all parts of New Zealand’.

[13]  The value of the item in terms of free speech must be balanced against the potential harm likely to accrue to the complainant, and to the audience. The alleged harm was said to derive from inaccurate and misleading claims, and a lack of balance, which was said to mislead and misinform viewers and create an unfairly negative impression of the developer.

Was the item inaccurate or misleading?

[14]  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.⁸

[15]  The accuracy complaint raises the following key issues:

• Did the item contain inaccurate and misleading statements about the discovery of kōiwi?
• Did the item contain inaccurate and misleading statements about the archaeological investigation?
• Did the item contain any other inaccurate or misleading statements?
• Was the content of the panel discussion inaccurate or misleading?

[16]  We consider each of these issues and the parties’ arguments below.

Did the item contain inaccurate and misleading statements about the discovery of kōiwi?

[17]  Redback argued that the item contained inaccurate statements about the discovery of bones at the site, specifically:

• ‘Dozens of kōiwi have been recovered’ (reporter)
• ‘…but what investors may not know is that under their beds lie the bones of ancient Māori, lots of them’ (reporter)
• ‘The news of the kōiwi discovery in one of Auckland’s exclusive seaside settlements spread quickly’ (reporter)
• ‘I was aware of that history… aware also of the fact that along the Devonport foreshore at various times over the many decades now, that some of the evidence of that ancestral occupation and use has been revealed, including multiple examples of where human remains have been exposed, and specifically to do with the Masonic Tavern site. It was already known that there were burials on that [Masonic Tavern] site…’ (P) [our emphasis]

[18]  Redback argued that it was deliberately misleading and sensationalist to claim that ‘dozens of kōiwi’ had been recovered at the site. It argued that no more bones were in situ in the development area, that the term ‘ancient’ was ‘vague and misrepresentative of what we actually know of the kōiwi so far’, and ‘the news of further kōiwi being discovered at the site has never been released publicly by the tavern’s representatives and [it] is really conjecture that this has spread quickly’. In regards to P’s statement, it asserted that only one burial was recorded or discovered before the archaeological investigation commenced in May 2013.

[19]  Māori TV said that ‘kōiwi’ translates to ‘human bone’ as well as ‘corpse’.⁹ It stood by the veracity of the statements, saying that a ‘human skeleton contains over 200 bones’. The broadcaster said it was informed by P that dozens of bones were recovered and it maintained that he was well qualified to give his opinion on the topic. It said that Māori history is generally recorded orally, and that many oral accounts of kōiwi discovery at and around the site could be provided.

[20]  This aspect of the complaint requires us to look at exactly what had been discovered at the site at the time of the broadcast on 19 August 2013. In response to our requests for further information, Redback provided a file note from a hui dated 26 July 2013, and a copy of the Iwi Protocol. The file note revealed that:

• 3 burials were excavated and kept on site in a secured area
• 1 burial was still in situ but not excavated at that time
• burial 4 was still in situ but would eventually have to be excavated and documented
• 2 burials were at least prehistoric and 1 related to the historic period
• there was potential for more burials to be found in the foredune.

[21]  In addition to the four burials on the site, the file note recorded the discovery of ‘numerous fragments of human bone scattered through the dark pre-European occupation layer’. The scattered bone was said to come from ‘at least two different individuals’.

[22]  In determining whether the statements made were inaccurate, we note that the Iwi Protocol defines ‘kōiwi’ as ‘human remains’, which is consistent with several sources.¹⁰ The word is not limited to denoting a single corpse and we are satisfied that it was accurately used in the programme to mean ‘human bones’ or ‘skeletal remains’. Based on the information available to us, and particularly the hui file note, we are satisfied that the references to ‘dozens’ and ‘lots’ of kōiwi were accurate and did not mislead. We reject the complainant’s contention the ‘discovery involved significantly less than 10 kōiwi’.

[23]  The assertion that ‘under their beds lay the bones of ancient Māori’ was in our view sensationalist, but not inaccurate or misleading. In the file note, the archaeologist is recorded as using the terms ‘pre-European’, ‘historic’ and ‘pre-historic’ in regards to the kōiwi discovered, so it was reasonable to describe the bones as ‘ancient’. The file note confirmed that, at the time of the broadcast, four burials and scattered fragments of bone remained at the site though three were no longer in situ, and the Iwi Protocol indicates that in some instances kōiwi would ‘be left in place’. The statement was therefore not inaccurate in regards to the current status of the ‘kōiwi’, as alleged.

[24]  The reporter’s statement, ‘the news of the ‘kōiwi discovery in one of Auckland’s exclusive seaside settlements spread quickly’, was not a material point of fact in the context of the item. It simply conveyed the point that the discovery of kōiwi was being discussed locally. This was a subjective analysis of the situation, not a statement of fact.

[25]  P’s comment that ‘it was already known that there were burials on that [Masonic Tavern] site’ was not sourced to any written account of kōiwi discovery, so would not have been taken as a statement of fact. It is reasonable to interpret the comment as a reference to oral history, based on P’s research, as this is how Māori history is often recorded. We note, as an aside, that the Iwi Protocol does refer to ‘known burials from 2001 and 2010’.

[26]  We decline to uphold these parts of the complaint.

Did the item contain inaccurate and misleading statements about the archaeological investigation?

[27]  Redback argued that the item contained inaccurate and misleading statements about what was happening at the site as part of the archaeological investigation. It said this indicated that Māori TV did not understand or properly research the development history. Specifically, it referred to the reporter’s statements:

• ‘Their diggers were ordered to stop digging when they hit human remains’
• ‘…for the past month nothing has happened at the site, costing the owners time and money’
• ‘…for the past month nothing has happened, at the cost of the owners’
• ‘Over the fence, work on the multi-million dollar development has ground to a halt as archaeologists sift through the soil’.

[28]  Redback asserted that it was not ‘ordered to stop digging’ and the development had not ‘ground to a halt’, as the archaeological investigation was always planned and budgeted for. It disputed the contention that ‘nothing had happened’ at the site, saying the past month saw the completion of part of the investigation, including the uplifting of human remains as per the conditions of the Iwi Protocol and authority 2011/486. In response to a request for further information from the Authority, Redback provided photographs dated July and August 2013, which it said showed archaeological and excavation work in progress.

[29]  Māori TV said the issues were presented in a way that was immediately understandable to viewers, as opposed to a more technical telling of the story which could have lost the audience’s interest. It said the point being made was that the archaeological investigation, including consultation with iwi, interrupted the development. It asserted that protocols were in place to ensure developments were halted following the discovery of human remains. The archaeological process, on which the development depended, inevitably cost both time and money, built into the overall development cost, it said.

[30]  The statements outlined at paragraph [27] relate to the ongoing archaeological investigation under the HPT authority 2011/486. Based on the further information provided to us, we know that kōiwi (consisting of four burials and numerous fragments of scattered bone) were discovered as part of that investigation, though it appears that this information had not been officially released to the public at the time of the broadcast. The statements subject to complaint refer to the archaeological process for dealing with the kōiwi.

[31]  While Redback denies that it was ‘ordered to stop digging’ and that the development ‘ground to a halt’, we think this was a reasonable summation of the provisions in the Iwi Protocol, and particularly clauses setting out the procedure for dealing with kōiwi. We note the following clauses:

1.0      Summary of Actions and Contacts for Finds of Significance

In the event of the discovery of finds of significance during works on the Masonic Tavern redevelopment including Kōiwi Tangata (human remains)… All work on site will cease and the immediate area will be taped off or otherwise secured and may not be disturbed until the Project Manager allows… [our emphasis]

5.0      Stand Down Periods

Stand down periods are provided for in NZHPT authority No. 2011/486 in order for archaeological investigation and cultural practices to occur.

Time delays may occur if… Kōiwi Tangata/human remains… are discovered during works. The length of the delay will depend on the nature and the extent of the finds and weather…

7.0      Kōiwi Discovery

The following procedures will be adopted if Kōiwi Tangata (human remains) are discovered, or are reasonably suspected to have been unearthed, during development… All work shall cease on the Masonic Tavern site. [our emphasis]

[32]  We agree with the broadcaster that the photographs provided by Redback, in response to our request for further information, appear to support, rather than disprove, these claims. Redback explained that the photographs showed the progress of archaeological work alongside general excavation. They did not show any construction work on the apartment complex, and we presume this is because construction could not take place until the investigation – including the procedure for dealing with kōiwi – was complete. Clause 5 of the Iwi Protocol refers to ‘time delays’ where kōiwi is discovered. It was reasonable to summarise for viewers that ‘nothing has happened’ and the development had ‘ground to a halt’. Naturally, any stoppage of works would be an additional cost borne by the developer, whether or not this was planned and budgeted for, so it was also reasonable to say these delays cost time and money.

[33]  We agree with Māori TV that the story was presented in a way that viewers could readily understand. Given the length of the item and the focus of the report, it was not necessary or practical for the broadcaster to canvass the background to the development, including detailed reference to the HPT authorities and the Iwi Protocol. Viewers would not have been misled in the manner alleged.

Did the item contain any other inaccurate or misleading statements?

[34]  Redback argued that the following statements by the reporter were inaccurate and misleading:

• ‘Developers building the old Masonic Tavern’
• ‘The developer made it clear that our presence was not welcome here’

[35]  The complainant argued that the first statement was inaccurate because ‘we are not building the tavern, we are redeveloping the site’. In regards to the second statement, Redback said the reporter was informed it was not willing to comment as per a condition of the Iwi Protocol.

[36]  In this first statement, the reporter should have said ‘Developers building at the old Masonic Tavern’, but in our view the inadvertent omission of a word would not have misinformed or misled the audience. We agree with Māori TV that viewers would have understood from the story that the developers were building at the site of the Masonic Tavern, not rebuilding the tavern.

[37]  Turning to the second statement, this accompanied footage of the reporter standing on the footpath outside the development site. She was told by a man wearing a fluorescent vest, ‘You can’t film us working’ and, ‘it goes against the protocol. It’s an archaeological dig – no media whatsoever.’ We think the reporter’s statement, ‘The developer made it clear that our presence was not welcome here’, accurately reflected this. The content of this complaint further reinforces that the reporter was not welcome at the site.

[38]  These statements were accurate in a broad sense and did not mislead viewers.

Was the content of the panel discussion inaccurate or misleading?

[39]  Redback argued that the resource management consultant, B, was allowed to make inaccurate and misleading statements during the panel discussion, despite having no knowledge of the development work or consultation process. It referred to B’s statements:

• ‘I’m quite surprised that it [a proper consultation process] didn’t happen in this particular case.’
• ‘Yes, well, they’ll [the developer] just have to sit there now until whatever it is the HPT is doing on that site is completed, and they can get the go-ahead.’
• ‘I presume they [the developer] will be working with Ngāti Whātua to remove kōiwi they find.’
• ‘In this case, according to the archaeologists, the existence of this urupa [Māori burial site] was notified quite early.’
• ‘I understand that the work, regardless of being told about [the urupa], the work proceeded anyway, and so we have this situation.’
• ‘In giving the consent for that work to go ahead, the HPT and the consent authority… should have made sure that there was a proper process in place for monitoring of the project as it went along.’
• ‘There maybe should have been an opportunity for the iwi viewpoint, as expressed again by the archaeologists, to be taken seriously.’

[40]  Māori TV maintained that B had expertise in this area and was offering his opinions in general terms, sometimes referring to the Masonic Tavern site. It said that T (see below) was representing the developer, the archaeologist and the HPT.

[41]  The comments by B gave the impression there had not been proper consultation with iwi. This issue was the focus of the panel discussion which also included comment from the Project Kaumatua, T, whom the reporter was referred to by Redback as the appropriate person to comment on these issues. We note that T made comments that were consistent with B’s opinion that the consultation undertaken by the developer was inadequate. T described how, on behalf of iwi, he became involved in the project as a result of a problem, and how there had been subsequent monitoring and consultation, saying:

We’ve been engaged as a result of discussions that have been ongoing… It’s been a process that started maybe some two years ago where iwi met and we talked about what we would do in order to confront this issue, and how we can engage. So we’ve been involved as a result of that practice, the reports that were made available, we were presented with that…

[42]  At the end of the interview, T was asked what on reflection could have been done differently. He responded that there could have been better links between the parties and better consultation. For example, he said:

• ‘It’s about making sure that we’re engaged to monitor.’
• ‘There has been some ad hoc consultation going on but since we’ve been engaged, there was a collective decision to have somebody maintain and so one of the first things we decided to do is make sure that we have monitors in place so that their practices [are] closely monitored right throughout the process and we will continue to do that.’

[43]  Viewers would have appreciated from these comments that there had been some consultation with iwi about the site, though it was obvious that both B and T considered that this was inadequate. The consultation started at least two years prior, and T had been involved throughout. When asked what could be done better in the future, T responded that there could be better consultation and better links between the parties. He expressed the opinion that some of the consultation had been ad hoc. Viewers seeing this exchange would have understood the comments of B as amounting to his opinion on the adequacy of the consultation, and as having been balanced to some extent by T. They would also have seen T expressing his own opinion that the consultation had not been entirely adequate. We remind ourselves that this was a broadcast which was expressing a Māori perspective, as it was entitled to, and as it would be seen to be doing.

[44]  We acknowledge the complainant’s objection to the suggestion there had been inadequate consultation, considering consultation had been ongoing and involved the development of an Iwi Protocol with conditions for ongoing iwi engagement and monitoring of the development. It would have been useful for the reporter to outline some of the consultation that had taken place over the years, so as to inject some further balance into the story, and particularly the panel discussion.

[45]  However, the reporter’s failure to do so did not result in the content of the panel discussion being inaccurate or misleading. Viewers would have understood that B and T were expressing their opinions on the adequacy of the consultation, which was only one side of the story, expressed from a Māori perspective. Further, the reporter did make efforts to obtain comment from Redback and she was ultimately directed to T as the appropriate person to comment on these issues. It was for this very reason that T was invited to take part in the panel discussion, and any failure of T to put the developer’s position was not the fault of the broadcaster.

[46]  Accordingly, we decline to uphold this part of the complaint. In any case, we think it is better dealt with under fairness, in terms of whether Redback was provided with an opportunity to put forward its position.

Overall accuracy

[47]  The accuracy complaint is based on Redback’s literal interpretation of the words used in the item and the argument that more detail regarding the development history should have been included. However, this ignores the realities of broadcasting where broadcasters must utilise techniques such as shorthand to convey information in a way that is readily understandable to viewers in the timeframe available, and piques their interest. Overall, we are satisfied that the item was accurate in relation to all material points of fact and would not have misled viewers in any significant respect, and we decline to uphold the Standard 5 complaint.

Was Redback treated unfairly?

[48]  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.¹¹

[49]  Redback argued that the broadcast of the alleged inaccurate and misleading information was unfair to it. In addition, it asserted that T was not its nominated or authorised representative, that the Iwi Protocol prevented it from commenting, and that only the Project Manager could issue a press release about the development. It argued that its refusal to comment did not excuse Māori TV from broadcasting an item that had little, if any, factual basis.

[50]  Māori TV argued that despite numerous attempts to obtain comment from Redback, the archaeological company, and the HPT, the reporter was ‘completely shut out and referred to iwi consultant [T]’. The reporter was informed when she visited the site that T ‘was the only person permitted to speak about the development and the only person with authority to speak for the developer and iwi’, it said. The broadcaster maintained that the interviewees were qualified to speak and express their expert opinions on the issues.

[51]  The ‘Communications Strategy’ applicable to the development is set out in Clause 10 of the Iwi Protocol. This reads:

In general, all external communications about the project and its progress will be by media press release prepared by Redback Develop Ltd or its agents and will require sign-off by the Project Manager… In the event of the discovery of Kōiwi…:

• Media releases will be prepared by Redback Develop or its agents and will require sign off by the Project Manager; and …
• All requests for direct comment by media will be directed to the Project Manager and Project Kaumatua; no one else may comment to media without the approval of the Project Manager.

[52]  In further information provided, Redback acknowledged that it was informed of T’s intention to meet with Māori TV to discuss the ‘inappropriateness of the coverage’. It argued that T then participated in the programme without advising the Project Manager, which it claimed was contrary to the provisions of the Iwi Protocol.

[53]  In our view, what has happened here is that Māori TV has made extensive efforts to obtain Redback’s side of the story to enable an informative broadcast on a matter of high public interest, but, for whatever reason, Redback chose not to engage with the programme. The broadcaster was referred to T, and so it invited him to participate in the panel discussion, which he did, in accordance with the provisions of the Iwi Protocol. We read the provision differently to the complainant. In our view the provision states that media enquiries should be directed to the Project Manager and the Project Kaumatua, and that no one else – apart from the Project Kaumatua – was permitted to comment without the Project Manager’s approval.

[54]  The crux of the complainant’s fairness concerns is that T did not adequately put forward Redback’s position or outline the level of consultation that had taken place with Mana Whenua, in accordance with the Iwi Protocol. If T is seen as not having performed well in the panel discussion, this is a matter between T and Redback, and is not the responsibility of the broadcaster. Māori TV believed it was giving Redback the opportunity to provide its side of the story by inviting T on to the programme.

[55]  Overall, and given the level of public interest in the story, we find that Redback was treated fairly and we decline to uphold the Standard 6 complaint.

Did the broadcaster make reasonable efforts, or give reasonable opportunities, to present balance on the issue?

[56]  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.¹²

[57]  Redback argued that the item was unbalanced because it did not include the developer’s viewpoint. Māori TV argued that reasonable efforts were made and reasonable opportunities were given to present significant viewpoints in the programme and in other programmes within the period of current interest.

[58]  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’.¹³

[59]  In its submissions, Māori TV framed the item as ‘[tackling] the difficulties regarding development while questioning the preservation of historic sites, particularly those relating to Māori’, and ‘the tension between preservation and progress’, and considered this to be ‘an issue of national importance’. We agree that this wider issue, touched on in the programme, was a controversial issue of public importance, defined as having topical currency and exciting conflicting opinion,¹⁴ and which is of concern to the New Zealand public.¹⁵

[60]  However, the complainant’s concern in relation to Standard 4 is that its view was not put forward on this particular development site at the Masonic Tavern – which in our view is a narrower focus, and just one example of the wider issue. For the reasons we have discussed under fairness, we are satisfied that the broadcaster made reasonable efforts, and gave reasonable opportunities, to present Redback’s view in the programme. The broadcaster maintains it invited the complainant a number of times to appear on the programme to discuss the issues, and that this invitation remains open. Redback says the reporter was advised that it was not able to comment due to the conditions of the Iwi Protocol (although Māori TV disputes that the reporter was told there was an Iwi Protocol). In the absence of any comment or interview from Redback, Māori TV then invited the spokesperson it was directed to by the site manager, to appear on the programme, which he did. Redback was aware of the story and that Māori TV was making efforts to obtain comment, and could have issued a statement or a press release in advance of the broadcast in accordance with the conditions of the Iwi Protocol, as an alternative to giving an on-camera interview.

[61]  We are satisfied that Māori TV complied with the requirements of Standard 4 by making reasonable efforts and giving reasonable opportunities to provide balance in the programme, and as the invitation to appear on the programme remains open, also within the period of current interest.

Minority Comments (Mary Anne Shanahan)

[62]  The Authority is unanimous that this item did not breach broadcasting standards. However, I differ in the analysis of parts of the complaint. I was misled. I thought the item lacked balance.

[63]  I agree with the analysis of the various statements Redback asserted were inaccurate as detailed in paragraphs [17] to [38] of the decision. But cumulatively and in conjunction with the panel discussion, the overall impact was misleading. The tone was set in the introduction when the presenter stated that Redback ‘found out the hard way’ that ‘many Māori are still buried there’ (on the site) ‘costing the owners time and money’. Later in the panel discussion, B asserted that ‘the HPT and the consent authority… should have made sure that there was a proper process in place for monitoring of the project as it went along’, and, ‘There maybe should have been an opportunity for the iwi viewpoint, as expressed again by the archaeologists, to be taken seriously.’

[64]  Redback took exception to B’s comments which, although expressed as opinion, contained underlying assertions of fact. The item gave the impression that there had not been proper consultation with iwi at this development site. This was the general tenor of the story. I accept that whether or not ‘proper’ consultation has occurred is to some extent a subjective notion. Further, I would expect an item on Māori TV to express a Māori perspective and to give voice to those concerned about ‘proper’ consultation between iwi and developers. However, the standards apply. The  failure to explain in the item  what consultation had taken place, or the fact that there was an Iwi Protocol in place for the works as a result of consultation between the developers and iwi, resulted, in my view, in the item being misleading and unbalanced.

[65]  This story examined the conflict between heritage and development as it related the particular site at Devonport. The panel discussion was in general terms about the inadequacy of consultation. I would have expected the reporter to investigate, and in the programme detail what consultation had taken place to give context to the item and discussion.

[66]  When the reporter visited the site she was informed by a worker, ‘You can’t film us working… It’s not right. It goes against the protocol’.  I would have expected that in researching this story, the reporter would be at least aware that one of the conditions of HPT authority 2011/486 was for the Iwi Protocol that was developed in consultation with iwi. The reporter would then have been in a position to challenge these comments made by B during the panel discussion.

[67]  However, whilst I find the item unbalanced and misleading, and the research for the programme inadequate, I find there was no breach of the accuracy or fairness standards. Combined with the efforts made to obtain comment from the developer and the inclusion of T in the panel discussion, the broadcaster made reasonable efforts to ensure the item was accurate and not misleading and to provide the necessary balance.

[68]  As the media spokesman for the development under the protocol, T was the appropriate person to include in the panel discussion. As detailed at paragraphs [41] and [42] of our decision, T did make reference to the links between the parties and consultation with iwi. T failed to outline, other than in vague terms, the extent of the consultation or that there was an iwi protocol in place. However, as stated at paragraphs [45] and [54] any failure by T to put the developer’s position was not the fault of the broadcaster.

[69]  In all other respects I agree the decision.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
30 May 2014

Appendix

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

1                  Redback Develop Ltd’s formal complaint  – 26 August 2013

2                 Māori TV’s response to the complaint – 17 September 2013

3                 Redback’s referral to the Authority – 14 October 2013

4                 Māori TV’s response to the Authority – 12 November 2013

5                 Further material from Māori TV (including reference to Stuff article) – 19 November 2013

6                 Redback’s final comment – 27 November 2013

7                 Māori TV’s final comment – 3 December 2013

8                 Redback’s response to the Authority’s request for further information – 20 January 2014

9                 Māori TV’s response to further information provided by Redback – 23 January 2014

10                Redback’s response to the Authority’s request for further information – 11 March 2014

11                 Māori TV’s response to further information provided by Redback – 13 March 2014

12                Māori TV’s response to the Authority’s request for further information – 25 March 2014

13                Redback’s response to the further information – 1 April 2014

14                Māori TV’s response to Redback – 2 April 2014

¹ Mana Whenua in this decision is used to refer to local people who demonstrated an authority or interest in the relevant land.

²The Project Kaumatua is the person ‘responsible for all matters of Tikanga for the Masonic Tavern Redevelopment’ and ‘Responding in the first instance to finds of significance’ (Iwi Protocol).

³The Historic Places Act 1993 defines an ‘archaeological site’ as any place associated with pre-1900 human activity, where there is evidence relating to the history of New Zealand that can be investigated using archaeological methods.

⁴http://www.stuff.co.nz/auckland/local-news/north-shore-times/3404275/Tavern-work-reveals-bones

⁵Atkinson and Others v The North Shore City Council, ENV-2009-AKL-00223

⁶http://www.stuff.co.nz/auckland/local-news/north-shore-times/3294204/Claim-against-tavern

⁷http://www.heritage.org.nz/protecting-heritage/archaeology/archaeological-authorities

⁸Bush and Television New Zealand Ltd, Decision No. 2010-036

⁹www.maoridictionary.co.nz

¹⁰For example, see http://www.teara.govt.nz/en/photograph/33503/koiwi-reburial.

¹¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

¹²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

¹³For 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).

¹⁴E.g. Dewe and TVWorks Ltd, Decision No. 2008-076

¹⁵Powell and CanWest TVWorks, Decision No. 2005-125