Taranaki Regional Council and Radio New Zealand Ltd

Taranaki Regional Council and Radio New Zealand Ltd - 2014-013

Members

Peter Radich (Chair)
Leigh Pearson
Mary Anne Shanahan

Dated

3 December 2014

Complainant

Taranaki Regional Council

Number

2014-013

Programme

Morning Report

Broadcaster

Radio New Zealand Ltd

Channel/Station

Radio New Zealand National

Standards

*Te Raumawhitu Kupenga declared a conflict of interest and did not participate in the determination of this complaint.

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

Morning Report looked at the Taranaki Regional Council’s ‘landfarming’ policy and contained an interview with a Council representative. The Authority did not uphold the complaint that the broadcast was misleading, unfair and unbalanced. The report was an accurate and fair reflection of what the representative told the reporter in the interview, and it is legitimate and important in our free and democratic society to challenge and criticise public bodies on matters of strong public interest.

Not Upheld: Accuracy, Fairness, Controversial Issues

Introduction

[1] An item on Morning Report reported on the Taranaki Regional Council’s (TRC) ‘landfarming’ policy. The reporter interviewed TRC’s Director of Environment Quality, Gary Bedford, and his comments formed the basis of the story.

[2] TRC made a formal complaint through its lawyer to Radio New Zealand Ltd (RNZ), alleging that the item contained inaccurate, misleading and unbalanced information. It argued that the Council and Mr Bedford were treated unfairly.

[3] The issue is whether the broadcast breached the accuracy, fairness, and controversial issues standards, as set out in the Radio Code of Broadcasting Practice.

[4] The item was broadcast on Radio New Zealand National on 17 December 2013. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[5] Morning Report is a comprehensive three-hour news programme that airs between 6am and 9am on weekdays. The item subject to complaint was a brief report, about 5 minutes in length, and was introduced by the presenter as follows:

[TRC] claims to be following international best practice in allowing fracking waste to be disposed of on farmlands in the region. Yet the Canadian province it’s modelling itself on doesn’t allow fracking waste anywhere near agricultural land and insists it be sent to industrial waste management centres. The Office of the Parliamentary Commissioner for the Environment has confirmed to [RNZ] that the Commissioner is concerned about the dumping of fracking and drilling waste on farms, and is investigating.

[6] RNZ’s rural reporter explained, ‘Fracking is the mining process which involves the high pressure injection of water and a cocktail of chemicals far below the earth’s surface to access oil and gas. In Taranaki, the waste from fracking is controversially being applied to farmland – an operation known as landfarming’. It was reported that TRC was misleading the public by claiming this was consistent with the international best practice of the Alberta Energy Regulator (AER) in Canada. This impression stemmed from the reporter’s commentary juxtaposed with statements from Mr Bedford, as follows:

Reporter: [TRC]’s Director of Environment Quality, Gary Bedford, says he knows landfarming is safe because the council is following Alberta’s lead. He says the Canadian province it’s modelling itself on is regarded as implementing international best practice.

Bedford: The starting point is to use standards for controlling the application of the wastes which are internationally recognised and internationally proven. Essentially we have derived them from Alberta in Canada…

Reporter: What the Council isn’t telling people is that Alberta forbids the disposal of fracking waste on agricultural land because of the chemicals involved. The [AER] told [RNZ] that in Alberta, fracking waste must be sent to industrial facilities for disposal or recycling. It said fracking and other drilling waste are distinctly different and generated by different processes. Mr Bedford doesn’t agree.

Bedford: The key thing to remember, and people don’t grasp this, is that fracking waste is in many ways no different than any other waste produced during any other drilling or exploration activity.

[7] The focus of the item was safety concerns associated with the landfarming of ‘fracking’ and ‘drilling’ wastes. The reporter referred to American research showing that ‘fracking and farming are not good stable mates’ and that ‘fracking and drilling activities in the United States have led to polluted water supplies, animal deaths and reproductive and respiratory problems in stock and poisoning of people’, and that ‘people and stock near drilling and fracking sites in America are getting sick’. The item contained comment from a Taranaki resident who ‘initially allowed a drilling site on her land but concerns about the contamination of the water supply and chemicals in the air contributed to her family moving off their dairy farm’.

[8] The reporter questioned whether TRC had seen ‘any peer reviewed international science which shows it’s safe to put livestock onto these farms?’ In response, Mr Bedford referred to guidelines published by the Ministry for the Environment and research conducted by an ‘animal and farming expert’. The reporter concluded:

The authors of the United States research say they didn’t investigate landfarms in their study but they’re worried about the practice. Their concern is that the toxic compounds used in fracking and which are hard to detect could be absorbed by plants, concentrated in animals and then accumulate in people’s bodies.

[9] The story carried a very high level of public interest. It involved questioning a local authority’s regulatory framework, under the Resource Management Act 1991, for the disposal of waste produced from oil and gas exploration activities. Hydraulic fracturing (fracking) and drilling, and the disposal of their by-products, is a major issue internationally given the potential environmental and health impacts, including water and soil pollution, and bioaccumulation in plants and animals. The focus of this item was the potential adverse impacts on human health through consumption of products sourced from animals that graze on landfarms returned to agricultural use, and whether sufficient research has been done to ensure landfarming is safe. It is the responsibility of the media to investigate such issues and hold public officials to account. This is an important and invaluable role performed by journalists, in the interests of exposing truth and enhancing debate among the public at large.

[10] The high value of the speech and the broadcaster’s right to freedom of expression must be balanced against the potential harm likely to accrue to TRC and Mr Bedford in his professional capacity. A strong justification, in terms of the harm caused by the broadcast, is required to restrict the broadcaster’s right to report on such matters, and the audience’s right to be exposed to critique on how local authorities are treating such issues.

Was the item inaccurate or misleading?

[11] 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.¹

[12] TRC argued that the item inaccurately portrayed its landfarming policy, saying the ‘sting’ of the broadcast was that it allowed ‘fracking’ waste to be disposed of on active farmland, allowed livestock to graze on pasture containing ‘fracking’ waste, and falsely claimed to be following the international best practice of AER. It said the report caused significant public alarm and distress in the region, nationally, and overseas. Listeners were led to believe there was significant land pollution and consequent food safety issues in Taranaki, it said, and the broadcast was picked up by international media, with potential ‘catastrophic’ consequences for the region and New Zealand. The complainant considered that RNZ should be informing debate on the role of the oil and gas industry in New Zealand, not publishing ‘misinformation’ in ‘attack-style journalism’ which was ‘of grave concern and… no service to the public’.

[13] We have considered the following key questions to determine the accuracy of the item:

Was it inaccurate to accuse TRC of: a) allowing ‘fracking’ waste to be disposed of on landfarms, and b) falsely claiming to follow the international best practice of the AER in this respect?
If yes, did the broadcaster make reasonable efforts to ensure that the item was accurate and did not mislead in this respect?
Did the item’s use of the terms ‘farmland’ and ‘agricultural land’ create a misleading impression that landfarms consist of land where animals graze?
Was it misleading to say that TRC ‘commonly allows stock to graze on pasture on farms three months after waste is spread’?
Was it misleading to say that ‘A three-year study into the ecological consequences of landfarming by Landcare Research in Taranaki was abandoned after the first year’?
Did the item suggest that Fonterra collects milk from animals that graze on farmland where fracking waste is concurrently spread?

Was it inaccurate to accuse TRC of: a) allowing ‘fracking’ waste to be disposed of on landfarms, and b) falsely claiming to follow the international best practice of the AER in this respect?

[14] TRC argued that the broadcast confused ‘fracking’ and ‘drilling’ wastes, and inaccurately accused it of allowing the former to be disposed of on landfarms. At the time of the broadcast it only allowed ‘drilling’ waste to be landfarmed, it argued, whereas ‘fracking’ waste was typically disposed of by deep-well injection. It conceded that ‘fracking’ waste had been disposed of on one landfarm historically but said that site was now closed and had not been returned to agricultural use. It distinguished between the two types of waste, saying that ‘drilling’ waste is produced from drilling activities (not fracking) and consists of solids such as muds and sludges, whereas ‘fracking’ waste is the liquid waste produced from fracking.

[15] The complainant said the confusion between ‘fracking’ and ‘drilling’ waste formed the basis of the accusation that it falsely claimed to be following the international best practice of AER. It maintained that it followed AER guidelines regarding the disposal of both types of waste. In addition, it complied with New Zealand and Canadian guidelines regarding the surrender of land for agricultural use, it said. TRC asserted that Mr Bedford was led to believe the interview was about the controls placed on ‘drilling’ waste, and no precise questions were put to him about the extent or circumstances in which ‘fracking’ waste is or has been allowed or applied to landfarms, or what TRC’s policy on this was. It asserted that Mr Bedford’s comments were taken out of context to make it sound as if he agreed there was a discrepancy between TRC’s and AER’s policies.

[16] RNZ maintained that the story accurately reflected what the reporter was told by Mr Bedford in the full 40-minute interview. It asserted that at no stage during the interview did Mr Bedford indicate that the distribution of ‘fracking’ waste on landfarms in Taranaki no longer occurred. It rejected the contention his comments were taken out of context. The broadcaster cited a document published on TRC’s website entitled Guide to Regulating Oil and Gas Exploration and Activities under the Resource Management Act.^² It noted that this document was updated on 9 October 2013 (two months before the RNZ broadcast) and included information indicating that the landfarming of ‘fracking’ waste was in its early stages, as opposed to having occurred ‘historically’, as now contended by TRC. RNZ maintained that a ‘reasonable conclusion’ at the time of the broadcast to be drawn from Mr Bedford’s comments and TRC’s documentation was that it ‘allows fracking waste on farmland identified as landfarms and that [it told the public] this was the practice in Alberta’.

[17] The item stated and implied that TRC allowed ‘fracking’ waste to be disposed of on landfarms and that it falsely claimed to be following the international best practice of AER. No distinction was made in the story between ‘fracking’ and ‘drilling’ wastes. While most listeners would not understand the technical distinction between the two types of waste, the reference to ‘fracking’ waste was material in context because the assertion TRC allowed ‘fracking’ (as opposed to ‘drilling’) waste to be landfarmed formed the basis of the claim that its policy was inconsistent with that of AER. This was fundamental to the message conveyed in the story that TRC was actively misleading the public. It also bolstered the impression that what was being allowed had not been adequately tested, despite the potential adverse effects on animal and human health. We know that AER allows the disposal of solid drilling waste on landfarms but that liquid waste is disposed of by deep-well injection.

[18] To determine whether or not it was inaccurate or misleading to report that TRC’s landfarming policy, at the time of the broadcast, allowed for the disposal of ‘fracking’ waste, we requested from RNZ a copy of the full 40-minute interview with Mr Bedford, and had recourse to a number of documents on the regulation of oil and gas exploration activities in Taranaki, including fracking, which are publically available on TRC’s website.

[19] Having listened to the full interview, we are satisfied that RNZ had a sufficient basis for the comments made in the broadcast about TRC’s landfarming policy. The broadcast was a fair reflection of what Mr Bedford told the reporter in the interview. Mr Bedford’s comments were accurately reported and were not taken out of context. In particular, we highlight the following exchanges in the full interview:

Reporter: First off, fracking is something that has been taking off in Taranaki – tell us a bit about what’s going on and what the benefits are for the region…?

Bedford: Drilling for oil and gas in Taranaki is well established… But in terms of process… most of the easily accessible and easily flowing gas and oil has already been found… so the new shift is towards technology that enables some of the harder to get hydrocarbons to be produced, and the means of doing this is by what’s called hydraulic fracturing… and essentially this process involves forcing water, together with a substance called a proppant, down into your gas bearing formation and you use the pressure of the water to actually force micro-cracks to develop in a short distance into the formation... The pressure is then released and the proppant means that the cracks are held open. So you then have a flow path for the hydrocarbons in the formation to flow more readily back up to the surface. So it’s a way of enhancing production of hydrocarbons that are already there but are hard to get out under normal pressure.

Reporter: Right, okay. Then tell me about landfarming… What’s landfarming?

Bedford: Landfarming is actually nothing directly to do with fracking. Landfarms have been established in Taranaki for some 15 years, just as part of normal management of waste that arises from conventional drilling. But of course if you are fracking then you are also producing a small volume of waste to be disposed of as well, so fracking wastes do go to landfarms or they can also be deep well re-injected. So landfarming is a way of dealing with the wastes that arise basically from drilling.

…

Reporter: Does Alberta let fracking waste be applied to land?

Bedford: The key thing to remember, and people don’t grasp this, is fracking waste is in many ways no different than any other waste produced during any other drilling or exploration activity. There will be essentially trivial changes in chemical makeup and I mean trivial in a sense of ecological consequences. Obviously every mixture is adjusted from a drilling perspective to make it fit for a particular purpose, but for fracking again you are talking primarily water, sand and traces of other chemicals, so there is nothing unique or particularly strange about fracking waste.

Reporter: But does Alberta let fracking waste be applied to land?

Bedford: Essentially the regulations in Alberta, the directive that the Alberta authorities provide, specify the controls that are applied in respect of particular constituents. So the short answer is yes, fracking waste can go on to any site that is for land disposal alongside any other drilling waste as long as they meet the same specifications, which are gross specifications in terms of things like hydrocarbon content.

[20] The full interview audio, and these extracts in particular, show that the interview was set up by the reporter as being about the landfarming of ‘fracking’ waste. Mr Bedford was asked, at the outset, to explain these two concepts, and we find it strange that in this context he chose (whether or not consciously) to use the term ‘fracking’ waste, if, as TRC now claims, he was actually intending to denote the waste produced from drilling. While Mr Bedford told the reporter that ‘landfarming is actually nothing directly to do with fracking’, he then went on to say, ‘But of course if you are fracking then you are also producing a small volume of waste to be disposed of as well, so fracking wastes do go to landfarms or they can also be deep well re-injected’. It seems clear to us that in this statement he was telling the reporter that the waste produced from fracking – that is, liquid waste – is also landfarmed. It is curious that Mr Bedford was apparently using the term ‘fracking’ waste interchangeably – to sometimes mean the liquid waste from fracking and at other times to mean the solid waste from drilling.

[21] Mr Bedford’s explanation of landfarming and his choice of language was, in our view, the source of the alleged inaccuracy. At no stage during the 40-minute interview did he distinguish between the two types of waste or explain his phraseology. If the parties were talking at cross-purposes, this was Mr Bedford’s doing and was not due to any failure on the part of the broadcaster. In fact, the reporter twice asked Mr Bedford whether AER allowed ‘fracking waste to be applied to landfarms. At first, Mr Bedford skirted the issue, responding that ‘fracking waste is in many ways no different than any other waste produced during any other drilling or exploration activity’. When the reporter repeated the question, Mr Bedford replied, ‘yes, fracking waste can go on to any site that is for land disposal alongside any other drilling waste as long as they meet the same specifications’. We disagree with TRC that ‘If there was any confusion about Mr Bedford’s comments, [RNZ] had ample time to clarify them between the date of the interview… and [broadcast]’. The purpose of the interview was to seek information on fracking and landfarming from TRC. Mr Bedford, as TRC’s representative (and not the reporter) was the expert and it was up to him to provide a clear and accurate explanation.

[22] In addition to the comments made by Mr Bedford in the interview, we have seen documentation suggesting that TRC allowed liquid fracking waste to be disposed of on a landfarm as recently as two months before the Morning Report broadcast. Specifically, TRC’s ‘Guide to Regulating Oil and Gas Exploration and Activities under the Resource Management Act’says:^³

‘The fluids returned to the surface also need to be properly managed and regulated to avoid potential for adverse environmental effects… Fluids are usually injected into authorised deep disposal wells… with some land farmed with appropriate environmental standards in place…’ (at page 55)
‘Mainly drilling cuttings and muds are land farmed in Taranaki with return fluids deep well injected.’ (page 112)
‘In Taranaki to date, land farming has consisted of single applications of drilling wastes to designated treatment areas. In more recent time it has been used as a method of disposing well work-over fluids and return fluids from hydraulic fracturing. At present there is one site which is consented to dispose of return fluids in the region and it is about to be completed and closed.’ (page 114)
‘Land farming of HF return fluids remains in the early stages, however, laboratory analyses of return fluids from Taranaki wells indicate that the chemical concentrations and composition of HF return fluids are similar to those of other drilling wastes that have been used in land farming thus far. Furthermore, initial receiving environmental soil sample results for areas where return fluids have been spread show that constituent levels are consistent with areas spread with other types of drilling waste.’ (pages 115-116)
‘Disposing of drilling waste and return fluids to land through land farming, if managed effectively, is recognised internationally as presenting a relatively low cost disposal option with low environmental impacts’ (page 128). [Our emphasis]

[23] Given that this report was updated on 13 October 2013 it is disingenuous for TRC to claim that liquid fracking waste was only disposed of on one landfarm ‘historically’. The Authority requested further information from the parties, including information on the number of land areas in Taranaki where fracking waste has been deposited. TRC responded that fracking waste ‘has historically been disposed of on a single landfarm in Taranaki… [and] deep well injection has been the commonly used method for the disposal of fracking waste and today the Council has not yet released the consent obligations’. TRC did not say exactly when this landfarm closed, how much fracking waste was deposited there, and over what time period.

[24] The Authority also sought comment from the Parliamentary Commissioner for the Environment. While declining to comment on the accuracy or otherwise of the claims made in the broadcast, the Commissioner’s office referred us two landfarming consent monitoring reports published by TRC on its website.⁴ These show that large amounts of liquid fracking waste were disposed of on the landfarm over a number of years. This was not a minor or insignificant occurrence. While TRC only concedes to allowing liquid fracking waste to be applied to one landfarm, we do not think it was inaccurate to use the term ‘landfarms’ in its plural sense, given Mr Bedford’s comments in the full interview, and given there was more than one application.

[25] We also note that RNZ broadcast a follow-up item the next day, having obtained TRC’s response to the story. The 18 December item included these comments:

Presenter: The Ministry for Primary Industries and [TRC] have responded to [RNZ]’s lead story yesterday about the controversial practice known as landfarming…

Reporter: Just to remind our listeners, this story is about the [TRC] allowing the waste from drilling and fracking operations on farms in the area. It says it is modelling itself on the province Alberta in Canada, but as we reported yesterday, while [AER] does allow drilling waste on agricultural land, it forbids fracking waste… We also wanted to ask the Ministry for Primary Industries if he was concerned about drilling and fracking chemicals being put onto agricultural land, but his office said this wasn’t his area of concern and that that we should speak to the regional council.

Presenter: And what has been the response of [TRC]?

Reporter: Well, I think it would be pretty fair to say that they are not happy campers. There have been some very strongly worded emails and statements and some pretty blunt phone calls since the story aired yesterday. They weren’t happy that I went to Alberta and found out that they don’t allow frack flow-back fluids on to agricultural land. They said they’ve only ever given consent for one farm for the disposal of fracking waste, and they said that it is now closed and that the soil on the farm still hasn’t returned to the levels acceptable for agriculture. Now the Council said the vast majority of mining waste they allowed onto farmland came from traditional drilling sites, not fracking waste. [Name] from the research group Climate Justice Taranaki, which opposes fracking, says the Council’s comments need to be taken in context because the industry has only needed a consent for this activity since mid-2011 and some suspect it could have been going on, on the sly before then. The Council says it is not aware of any such cases. [Our emphasis]

[26] We find that the claim TRC allowed ‘fracking’ waste to be disposed of on landfarms accurately reflected what Mr Bedford said in the interview, as well as TRC’s recent policy. We are also satisfied that any harm flowing to TRC was mitigated by the clarification broadcast by RNZ the following day.

[27] Accordingly, we decline to uphold this part of the accuracy complaint.

Did the use of the terms ‘farmland’ and ‘agricultural land’ create a misleading impression that landfarms consist of land where animals graze?

[28] TRC argued that it was misleading to use the terms ‘farmland’ and ‘agricultural land’ because the waste was disposed of on ‘landfarms’which consisted of land specifically allocated, consented and managed for such waste, and which are not used, and are often unsuitable, for agricultural purposes.

[29] We find that, while the item’s introduction referred to ‘farmland’, the body of the report made it clear that waste was not being dumped on active farmland where animals graze. As noted below (see paragraph [31]), the reporter clearly stated in the report that ‘the council commonly allows stock to graze pasture on farms three months after the waste is spread’, which indicated to listeners that the spreading of the waste not done while livestock were on the land.

[30] The complainant’s concern here is primarily one of semantics and we find that the use of the terms ‘farmland’ and ‘agricultural land’ would not have misled listeners when taken in the context of the story as a whole. We therefore decline to uphold this part of the complaint.

Was it misleading to say that TRC ‘commonly allows stock to graze on pasture on farms three months after the waste is spread’?

[31] The reporter stated in the item, ‘TRC commonly allows stock to graze pasture on farms three months after the waste is spread’.

[32] TRC argued that this statement was ‘entirely untrue and has no basis [in] fact’. It said that it is typically one to two years following the last application of waste, and after extensive testing, before a site is found to satisfy the various criteria for use in agricultural production. It asserted that the reporter ‘ignored [Mr Bedford’s] clear emphasis throughout the interview that a fixed term cannot be specified’.

[33] RNZ argued that the reporter’s statement was a fair and accurate presentation of Mr Bedford’s comments in the interview. In addition, the broadcaster referred to ‘anecdotal comments’ from undisclosed sources that farmers typically wait three to four months before running stock on land used for landfarming, and it referred to monitoring reports on TRC’s website indicating this.⁵

[34] In assessing whether or not the reporter’s statement was inaccurate or misleading, we have recourse to the raw interview audio. The relevant exchange was as follows:

Reporter: [Name]’s research also said that on the farm that had been most recently landfarmed he found hydrocarbon levels that were above acceptable limits. Does that worry you?

Bedford: No, because the qualifier is the landfarm operator can apply hydrocarbons at a certain level… We separately have surrender guidelines, that’s the point at which we say this land is now suitable for return to agricultural production… at the time of surrender of the consent, the question is, is this land suitable for use for agricultural production…

Reporter: And how long does it take until you reach that surrender point?

Bedford: Typically three to twelve months, but the bottom line for us is regardless of how long it takes we will not allow it to be returned to farming purposes until it meets those surrender criteria. But in practice, three to twelve months. [our emphasis]

…

Reporter: Hey I just wanted to check something with you, in terms of withholding periods, there is no set withholding period. You wait until the levels dip to a certain level and then you say okay this can be turned back into productive land for agricultural use…?

Bedford: Yeah.

Reporter: The Landcare Research report suggests it would be prudent to have a withholding period of a year. You don’t think it would be wise to wait for that full year?

Bedford: Essentially, we require the operator to wait for as long as it takes. And if that is longer than a year, we will make them wait that long… So it is a matter of continuing to monitor and not allowing that land to be returned to an agricultural purpose until you are satisfied that the levels have dropped to the right level no matter how long it takes…

[35] These comments show us that although Mr Bedford did explain that there is no set timeframe in which farmland can be returned to agricultural use so that animals can graze there, he also told the reporter that it was ‘Typically three to twelve months’ and ‘in practice, three to twelve months’ before that surrender point is met.

[36] On this basis, while three months was at the shorter end of the spectrum, it was not inaccurate for the reporter to say that ‘TRC commonly allows stock to graze pasture on farms three months after the waste is spread’. The reference to three months was acceptable. We therefore decline to uphold this part of the complaint.

[37] We also note, as an aside, that TRC denies responsibility for animal welfare and food safety issues arising from landfarming. While it argues that it requires consent holders to demonstrate compliance with soil quality guidelines before the land can be returned to agricultural use, on the other hand it says that ‘statutory responsibility for enforcement of animal welfare and food safety issues rests with parties other than the Council, such as the Ministry for Primary Industries’. Therefore, although TRC says that strict surrender criteria must be met before land can be returned to agricultural use, it does not actually monitor whether or not land owners are meeting that criteria before putting animals back on to land that has been landfarmed. TRC refutes responsibility in this respect. The disclosure of this position reinforces the public interest that surrounded the broadcast.

Was it misleading to say that ‘A three-year study into the ecological consequences of landfarming by Landcare Research in Taranaki was abandoned after the first year’?

[38] The reporter stated in the item, ‘A planned three-year study into the ecological consequences of landfarming by LandCare Research in Taranaki was abandoned after the first year’.

[39] TRC argued that this statement was inaccurate and created a misleading impression the Council and New Zealand regulators were being ‘irresponsible’ and ‘negligent’. It asserted that ‘After two years of a planned three-year field study into the ecological consequences of landfarming, it was determined that no noticeable ecological effects were being identified by the study, so it was pointless to continue the study in that form. Instead a more intensive and thorough research programme was commissioned and is now being carried out in a laboratory’, it said. The complainant contended that Mr Bedford explained this to the reporter during the interview, but his explanation was ignored and not presented in the story.

[40] In rebuttal, RNZ said that Landcare Research advised that the monitoring programme was abandoned shortly into the start of the second year due to personnel changes (TRC and Landcare Research have disputed this). The broadcaster said it was open to it to report information ‘contrary to what the complainant provided, and it would be an extraordinary suggestion to make that [RNZ] should rely solely on what one party has advised’.

[41] We accept that in the full interview, Mr Bedford explained to the reporter that the research into the impacts of landfarming had not been ‘abandoned’ altogether but instead the field-based study had been substituted for a more intensive laboratory-based study. The relevant exchange was as follows:

Reporter: …farmers who obviously are unhappy, they said Landcare Research was supposed to do a three year report… They posted the results… from the first year, but they haven’t seen the results from the second or third year. Why is that?

Bedford: Essentially we set out to do a three year study on landfarms... What became apparent after the first year which we fully reported… was that it was actually very hard to find any evidence of effects… they weren’t showing up by field-based study… so, we carried on the studies for a second year and basically had the same consequences, so while we do have information from the second year and it is being written up… what we have done… is that we have switched to a fully laboratory-based study programme now... so it is not a matter of us abandoning the three year study because it was turning out in any way, shape or form to be showing some adverse effects, it was a matter of saying we simply can’t find evidence of any effects but we want to be sure, very sure about might be happening, and the only way to get that is to go to controlled conditions in a laboratory. [Our emphasis]

[42] The reporter’s statement that the research was ‘abandoned’ after the first year was not a statement of fact. ‘Abandoned’ is an emotive term that can have various shades of meaning depending on the context and how it is used. The issue then is whether the statement would have misled listeners because, a) the research did not cease but instead shifted from a felid-based study to a laboratory-based study, and b) this shift occurred into the second year, not ‘after the first year’.

[43] We think that the report could have been more informative by including reference to the laboratory-based study and Mr Bedford’s comments about the alleged reasons for the change in study design, as well as making it clear the results from part of the second year were being written up. However, we do not think that the reporter’s brief reference to the research would have misled the audience in any material respect.

[44] The key focus of the story was safety concerns about the impacts of landfarming and the potential consequences for animal and human health which do not appear to have been adequately tested. Given that Mr Bedford said the field-based study did not yield any useful results (the reason for substituting the design) and given the results of the laboratory study have not yet been established, we think there were important questions to be asked about whether landfarming should be taking place at this point in time. The reference to ‘abandoning’ the research reflected this standpoint, and we do not think the reporter’s statement would have materially impacted on listeners’ understanding of the story. The importance of the speech and the message conveyed by the broadcast was not in our view outweighed by the potential harm to the complainant, stemming from this statement.

[45] Accordingly, we decline to uphold this part of the complaint.

Did the item suggest that Fonterra collects milk from animals that graze on farmland where fracking waste is concurrently spread?

[46] The reporter stated in the item, ‘Fonterra says it collects milk from eight landfarms. It says it tests for petrochemicals and hasn’t found any problems’.

[47] TRC argued that, in the context of the emphasis on ‘fracking’ waste being disposed of on active ‘farmland’, this statement suggested that Fonterra collects milk from animals that graze on ‘fracking’ waste. It reiterated that landfarms are not used for agricultural purposes, and it said that only three landfarms where ‘drilling’ waste has been previously deposited have been converted to agricultural use.

[48] RNZ responded, ‘Even if fracking waste had been deposited on farmland in which cows were grazing, the latter part of the statement would have reassured listeners that no problems arose as far as Fonterra was concerned’.

[49] Given our earlier findings, we reject the complainant’s argument. The item as a whole made it clear that animals did not graze on landfarms for at least three months after waste is spread. Therefore, the statement that Fonterra ‘collects milk from eight landfarms’ did not suggest it was collecting milk from animals that graze on waste from fracking, whether that be drilling waste or liquid fracking waste. The reporter’s statement is entirely consistent with Mr Bedford’s comment in the interview, ‘In terms of your aspect about testing of milk, we were aware that Fonterra has tested milk from landfarms and has not found a single scientific reason to be concerned over that milk’.

[50] We therefore decline to uphold this part of the accuracy complaint.

Overall accuracy

[51] For the reasons expressed, we decline to uphold any part of TRC’s accuracy complaint. The report accurately reflected what was said by Mr Bedford in the full interview and we think that any issue TRC has is appropriately directed at Mr Bedford, not the broadcaster. It also reflected information published on TRC’s website. What can be seen from the full interview is that the quality of monitoring by TRC of landfarming and the extent to which this involves ‘fracking’ and ‘drilling’ wastes is not altogether clear. In particular, Mr Bedford’s interchangeable use of the term ‘fracking’ waste in the interview makes us question whether at one time ‘fracking’ and ‘drilling’ waste were treated similarly. It was legitimate and indeed of the utmost value and public importance for RNZ to investigate and report on this issue. In all of the circumstances, we find that upholding the Standard 5 complaint would be an unjustifiable limit on the broadcaster’s and the audience’s right to freedom of expression, guaranteed by section 14 the New Zealand Bill of Rights Act 1990. We therefore decline to uphold the accuracy complaint.

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

[52] 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.^⁶

[53] TRC argued that RNZ made no genuine attempt to present its side of the story, either in terms of presenting the facts correctly, or obtaining a rebuttal to the allegations. It considered that it was ‘clearly the aim of the broadcast to have a negative impact’. The complainant argued that the broadcast caused serious distress and damage to the professional reputations of TRC and Mr Bedford.

[54] Following from our findings under accuracy, we are satisfied that the broadcaster fairly presented the information conveyed by Mr Bedford in the interview and that his comments were not unfairly edited or taken out of context. We are also satisfied that Mr Bedford was properly informed of the nature of his participation and was given a fair and reasonable opportunity to respond, on behalf of TRC, and his response was fairly presented. We note that RNZ also sought comment from TRC’s Chairman the evening before the broadcast but he was not available to do an interview the following morning. Further, RNZ took actions following the broadcast to mitigate any potential harm accruing to TRC and Mr Bedford, which included the reporter emailing Mr Bedford to clarify TRC’s position as compared to AER, as well as the follow-up item clarifying TRC’s position broadcast on 18 December.

[55] We reiterate our view that there was very high public interest in the story and particularly in asking questions about issues that have the potential to impact negatively on public health. Local authorities must expect to be subject to very strong criticism, especially in regard to these sorts of issues. They are accountable to their local community and the wider New Zealand public. Any harm accruing to TRC and Mr Bedford was outweighed by the very high value of the speech.

[56] Accordingly, we decline to uphold the complaint under Standard 6.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[57] 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.⁷

[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’.⁸

[59] The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.⁹ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁰

[60] We accept that the disposal of ‘fracking’ and ‘drilling’ wastes by landfarming in Taranaki is controversial and of public importance to New Zealanders, and that the Morning Report item contained a discussion of this issue. While some people may be somewhat oblivious to the conflict surrounding this issue, a simple internet search shows that the controversy is very much alive. We also note that the latest report of the Parliamentary Commissioner for the Environment recognises that, as in many other countries, there has been considerable opposition to conventional drilling and fracking in New Zealand.¹¹

[61] The next issue is whether the broadcaster made reasonable efforts or gave reasonable opportunities to provide balance in the item or within the period of current interest. We think that it did. RNZ approached TRC for comment on landfarming and fracking and Mr Bedford gave a lengthy interview. The content of this interview formed the basis for the report and Mr Bedford’s comments were summarised and included. In addition to speaking with Mr Bedford, the broadcaster also sought comment from TRC’s Chairman but he declined to participate on such short notice. As the broadcast accurately and fairly reflected what Mr Bedford said in the interview, we find that RNZ made reasonable efforts and gave reasonable opportunities to provide balance. It also made reasonable efforts to provide balance within the period of current interest by broadcasting the follow-up item on 18 December clarifying TRC’s position. This issue has an ongoing period of current interest and we expect that further publications will canvass this subject in future.

[62] For these reasons, we decline to uphold the Standard 4 complaint.

Concluding Comments

[63] The complainant is a public body. When public bodies come under scrutiny, serious consideration must be given to asking for, or taking up, a response opportunity so that issues are ventilated when they are fresh. Different positions can be explained, such corrections as are sought can be addressed and generally the public interest can be served immediately. Public bodies need to expect to come under scrutiny and to face assertions they see as unfair, as part of our open democratic processes. Here, as we have found, there was nothing broadcast that was unacceptable and in breach of broadcasting standards.

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

Signed for and on behalf of the Authority

Peter Radich
Chair

3 December 2014