BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint from the New Zealand Forest Owners Association alleging an item about the sale of a sheep and beef station, Huiarua, to an overseas buyer breached the accuracy and balance standards. The Authority found no breach of the balance standard as the majority of the item was about the sale of a specific piece of land, and the period of interest is ongoing. The broadcaster also noted it would endeavour to include forestry perspectives in future items covering the issue. In context, it was not misleading for the item to not discuss the ‘special forestry pathway’ under the Overseas Investment Act, and the distinction between production forestry and carbon farming was not material to the item. While there were aspects of the issues discussed which were not included in the item, it would not have misled viewers to an extent justifying regulatory intervention.

Not Upheld: Balance, Accuracy

The broadcast

[1]  An item on Newshub Live at 6pm, broadcast on 11 January 2022 on Three, covered the sale of a 5000 hectare sheep and beef station, Huiarua, which discussed the possibility of the station being converted to a carbon farm. The item was introduced:

A 5000 hectare historic station on the East Coast may soon be turned into a foreign owned carbon farm. Newshub understands the sale is all but final pending approval from the Overseas Investment Office. Locals are devastated and saying it's the beginning of the end for not only farming in the region, but the region itself.

[2]  The item showed an on-farm sale day at Puketoro Station and included clips of locals saying, for example, ‘Days like this are fantastic’; and ‘people live for this stuff you know’. The reporter went on to discuss the sale of nearby Huiarua Station, saying ‘Newshub understands it's been sold to foreign investors pending approval from the OIO. Locals believe it will be covered in pine, but they won't even be harvested.’

[3]  Comment from Gisborne Mayor Rehette Stoltz, local Selwyn August and Mata School principal expressed concerns about the future of the area.

[4]  The programme went on to examine what the Government was doing to ‘stop fertile lands being converted to forestry’ noting the Government’s commitment to give ‘Councils more power to stop’ this but ‘more than a year later nothing has changed’. Forestry Minister Stuart Nash said: ‘Taking out a 5000 hectare station for carbon forestry, you know, that is not a good use of land… It is not as simple as I initially imagined…we are doing a lot of work in this space to get this right.’

[5]  The item closed with a discussion between the studio host and the reporter, who discussed Government work in this area, noting the Forestry Minister’s warning for foreign investors wanting to convert farms to pine forests: ‘He says proceed with caution’. The reporter also confirmed the Overseas Investment Office (OIO) ‘hasn’t yet received an application for the property’.

Background

[6]  The Emissions Trading Scheme (ETS) incentivises the planting of trees (particularly non-native radiata pine, which grows quickly and sequesters carbon at three times the rate of native forest).¹ The ‘special forestry pathway’ introduced by the OIO in 2018 allows overseas investors to bypass the usual ‘benefit to New Zealand’ test when purchasing large sections of land if intending to use it for forestry.² There is debate about the impact of carbon farming and the increasing conversion of productive land into forestry.³

[7]  Since the broadcast, the OIO has confirmed it has received a consent application for the sale of Huiarua to overseas investors for forestry,⁴ and a petition launched to prevent the sale.⁵ On 24 February 2022, the Government announced an intention to remove the ‘special forestry’ pathway from the Overseas Investment Act.⁶

The complaint

[8]  The New Zealand Forest Owners Association (FOA) complained the broadcast breached the accuracy and balance standards. It alleged the broadcast lacked a perspective which was pro-afforestation. ‘Nobody was quoted to argue that forestry is beneficial for a community and to provide evidence for that case. As such, the item lacked balance.’ It raised the following inaccuracies:

(a)  The introduction misleadingly stated Huiarua may soon be turned into a foreign owned carbon farm.

(b)  The item omitted ‘evidence that afforestation was beneficial to these rural communities’ and omitted ‘other widely known reasons for rural community decline,’ effectively making forestry the ‘scapegoat’.

(c)  The item conflated productive forestry and carbon farming.

The broadcaster’s response

[9]  Discovery NZ Ltd (Discovery) did not uphold the complaint for the following reasons:

Balance

• The focus of the broadcast was ‘how the potential sale of a large station could impact the surrounding rural communities in the East Cape’. It ‘did not focus on forestry but rather on the community impacted by this potential sale’. Balance was achieved ‘on the focus of this broadcast’.
• ‘Even if we were to find that appropriate views had not been presented here, the Broadcasting Standards Authority routinely determines that balance can be achieved within a period of interest and we maintain that period is still ongoing.’
• ‘We do acknowledge that the Broadcast considers a complicated issue; the plan is to revisit it once the Overseas Investment Office has received the application in relation to this sale. Once that application has been received by the OIO, a clearer picture of exactly what the plan is for the station and what it would mean for the community will be more evident.’
• ‘The reporter covering this story would be happy to include comments from forestry representatives when Newshub revisits this story. Please advise if you would like [the] Committee to share your details with the reporter to contact you for possible future stories on this issue.’

Accuracy

• The complaint alleged ‘the station is likely to be sold under the special forestry test, and it can only be sold to foreign investors if it is for trees that will be harvested’. However, ‘some past sales of farms show that rule is not being followed and so far no action has been taken against those who do not harvest. The reporter did not go into the complexities of this issue because the OIO hasn't received the application for this sale yet. The reporter plans to clarify this issue when Newshub revisits the issue once the OIO has received the application.’
• ‘The Broadcast prefaced the commentary contained in the story by saying the points are what “locals believe” - this was included in the introduction and the Committee is satisfied viewers would have understood this’. 
• Many of the points raised in the complaint are ‘technical points’. ‘…we have not identified any material errors of fact.  We do not agree that the audience was misled so as to alter their understanding of the overall focus of the item.’

The standards

[10]  The balance standard⁷ states when controversial issues of public importance are discussed in news, current affairs or 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.⁸ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁹

[11]  The purpose of the accuracy standard¹⁰ is to protect the public from being significantly misinformed.¹¹ It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

Our analysis

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

[13]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

Balance

[14]  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’.¹²

[15]  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’.¹³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁴

[16]  We have previously found the impact of carbon farming on rural communities is a controversial issue of public importance.¹⁵ This item primarily discusses the sale of a specific piece of land, the possibility of that land being converted into forestry, and the potential impact of such a conversion on the local community. It also includes some analysis of Government efforts to address forestry issues. Therefore the balance standard applies.

[17]  The key question is whether it was necessary for the item to include a pro-forestry perspective (ie to explain the potential positive impacts on such a community). The following factors are relevant to the assessment of whether a reasonable range of other perspectives have been presented in this item:¹⁶

• The introduction included the statement ‘locals are devastated’ which clearly signalled its perspective.
• The item was focused on one aspect of a larger, complex debate, the sale of Huiarua in the context of the ETS.
• The issue has been covered in other media over the past few years, generally from a perspective opposing pine forestry.¹⁷ This coverage is ongoing, particularly in light of the Government’s proposed changes to carbon farming.¹⁸
• Perspectives included in the item were those of locals who wanted Huiarua to remain a sheep and beef station; the Gisborne Mayor who was concerned about families leaving rural communities; and the Forestry Minister who was concerned about the appropriate use of land but identified that the issues were ‘complex’.

[18]  Ultimately, the objective is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).¹⁹ Balance can be achieved within a single broadcast, or it can be achieved over time, ‘within the period of current interest’ in relation to a particular issue.²⁰ One factor in considering balance is the nature of the issue and whether viewers could reasonably be expected to be aware of views expressed in other coverage, including coverage in other media. For example, in an ongoing topic of debate, viewers may reasonably be expected to have a broad understanding of the main perspectives on the issue.²¹

[19]  FOA previously raised a similar complaint under the balance standard, and we noted then that Newshub had published a number of items around the same time, including three items from the forestry industry’s perspective,²² and other media outlets had also covered the issue.²³ We commented:²⁴

The broadcasts were covering a nuanced debate, and we recognise that the FOA sees this as a complex issue. Such issues lend themselves well to the achievement of balance over time (it being challenging to encompass all perspectives within the time constraints of a particular programme or programmes). In these cases, it is important for broadcasters to continue to delve into the issue over time, to properly analyse the complexities.

[20]  At the time of this broadcast, there was not the same level of surrounding coverage capable of providing balance on the perspectives alleged to be missing. However, we are conscious the sale of Huiarua continues to be the subject of media attention. Since the broadcast, the OIO has confirmed it has received a consent application for the sale of Huiarua to overseas investors for forestry,²⁵ and a petition launched to prevent the sale.²⁶ On 24 February 2022 the Government also announced an intention to remove the ‘special forestry’ pathway from the Overseas Investment Act.²⁷

[21]  However, as the majority of the broadcast was focused on the sale of Huiarua, and the period of current interest for the relevant issue is still open, we are satisfied there was not a breach of the balance standard in this instance. Any potential harm from the broadcast did not outweigh the value of freedom of expression or the public interest in presenting the views of a community. In making this finding, we are also influenced by the broadcaster’s statement of its intention to include comments from forestry representatives in future. Should a pro-forestry perspective not be represented in relevant media going forward, this may present issues of balance in the future.

Accuracy

[22]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²⁸ The standard is concerned only with material inaccuracy. For example, technical or other points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.²⁹

[23]  The audience may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.³⁰ Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together, for example.³¹

[24]  Overall, we have not upheld the complaint under accuracy. The issues raised by the FOA are complex. We appreciate this news item did not examine the ETS, the sale of farms to overseas investors and the special forestry pathway for investors with the level of nuance necessary to address such complexities. However, the item was providing the views and fears of local residents and, in this context, did not materially mislead viewers to an extent requiring regulatory intervention or justifying limits on the broadcaster’s freedom of expression. We expand on our reasoning under each of the alleged inaccuracies below.

(a) Huiarua may soon be turned into a foreign owned carbon farm

[25]  FOA alleged this was misleading as it is not possible for foreign investors to convert land into carbon forests:

There are two pathways to gain approval for foreign investors to invest in forestry.  In summary, one is the ‘special forestry test’ and the other is a ‘benefit to New Zealand test’. Under by far the most common process, the special forestry pathway, an applicant is not permitted to invest in carbon farming – that is to plant trees with no intention of harvesting them.  The rules only permit planting forests for harvest. The ‘benefit to New Zealand’ process requires a government minister to approve it, a decision therefore not ultimately with the Overseas Investment Office…From the interview at the end of the item, it is clear that [the broadcaster] did contact the OIO, to try to seek confirmation that an application had been lodged with the OIO. It is astonishing that the reporter at the time did not discuss approvals specifically for carbon farming, because that seemed to be the reason for running the story and what the introduction was about.

[26]  Discovery responded that although, under the special forestry test, land can only be sold to foreign investors for trees that will be harvested:

Some past sales of farms show that rule is not being followed and so far no action has been taken against those who do not harvest. The reporter did not go into the complexities of this issue because the OIO hasn't received the application for this sale yet. The reporter plans to clarify this issue when Newshub revisits the issue once the OIO has received the application.

[27]  FOA said this was incorrect:

The Special Forestry test became operative in October 2018.  The trees planted under that approval would have been planted in mid-2019 at the earliest. They will be less than three years old. Trees are not harvested at this age. If they are pines – the great majority of production plantation trees are – then they would not expect to be harvested for another 20 years at the earliest.

[28]  The item opened with the statement, ‘A 5000 hectare historic station on the East Coast may soon be turned into a foreign owned carbon farm’. This was the premise of the item: that Huiarua may soon be converted to forestry, in particular, a foreign-owned carbon farm, which impacts the local community in terms of employment and lifestyle. FOA argues this was a ‘fallacy’ because overseas investors are not permitted to invest in carbon farming.

[29]  We found this speculation about the future of Huiarua was primarily analysis and comment which is not subject to the accuracy standard. However, we also considered whether, in the context of the story, it was misleading to omit detailed information about the Overseas Investment Act and how the special forestry pathway applies to land conversion.

[30]  The broadcast was framed as exploring community concerns about loss of employment and other impacts on their lives. Locals’ opinions and experiences were a dominant theme. This was legitimate to investigate and carried high public interest. The Overseas Investment Act and related issues raise complexities which were not relevant to the concerns which were the focus of the item. The local community’s concerns were associated with the impact of a large sheep and beef station being converted into forestry (whether for harvest or carbon – noting that forests intended for harvest can still benefit from the Emissions Trading Scheme).

(b) Omitted information and making forestry the scapegoat

[31]  FOA argued ‘If TV3 targeted only those it knew who were critical of forestry and didn’t think that it was worthwhile to contact any forest owning local iwi, the Eastland Wood Council or forest workers, then TV3 no doubt would think it was correct in reflecting a uniform local view’. It submitted:

At no point in the item was there any suggestion that concern about forest planting was ill-founded and that there may have been evidence that afforestation was beneficial to these rural communities…official economic and employment statistics do not support the views exclusively expressed in the item of this January. The reporter failed to mention other widely known reasons for rural community decline, such as increased mechanisation, improved roads, declining sheep and beef profitability, school amalgamation, big box retailing and a number of other phenomena. ‘Ghost town’ scenes were liberally featured, and locals quoted as attributing carbon farming for community decline. Carbon farming is a recent phenomenon, and it is likely that most or all of the four closed shops or offices had ceased trading or operating well before carbon farming was even thought of.

[32]  Discovery responded, ‘The Broadcast prefaced the commentary contained in the story by saying the points are what “locals believe” - this was included in the introduction and the Committee is satisfied viewers would have understood this’

[33]  As noted above, the item was primarily directed at conveying the views and fears of local residents. It identified the number of jobs which would be lost (eight at the farm, plus others at, for example, the school, woolbuyers and meatworks); talked to locals regarding Mata School, located on Huiarua, and sought comment from Minister Nash regarding this specific sale. Given that focus, we find it was not misleading to not discuss potential benefits of afforestation or to not include other potential reasons for rural decline.

(c) Conflation of carbon and production forestry

[34]  FOA submitted:

• ‘Production and carbon plantations were categorised together throughout the item by the reporter. It was unclear throughout whether the later interview subjects were talking specifically about carbon farming, or forestry in general. The reporter did not attempt to distinguish the two forms of tree operations.’
• ‘This confusion was exacerbated by the quotes from Forestry Minister Stuart Nash on the prospects of restricting forestry on “fertile” land, which is a measure aimed at production forestry and not specifically carbon farming.’
• ‘The depiction of eroded farm landscapes when “fertile” land was being referred to adds yet more confusion and misleading messages to the viewer.’
• ‘The studio introduction clearly referred to carbon farming, as did Minister Stuart Nash. But it is most likely that Selwyn August was referring to production forestry, since he was talking about a long-term effect of “what trees have done to the community” whereas carbon farming is a quite recent phenomenon.’

[35]  Discovery responded that many of the points raised are technical points and it did not identify any material errors of fact. It said, ‘We do not agree that the audience was misled so as to alter their understanding of the overall focus of the item’.

[36]  As discussed above, the item was primarily about the sale of a sheep and beef station to an overseas buyer, and that it would be converted into forestry. The distinction between production forestry and carbon farming is not relevant in this context. Regardless of whether trees would be planted for harvest or to form a carbon sink, the change of use of the land still impacts the families who currently live and work there. Therefore, we find this point would not have materially mislead viewers.

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

Susie Staley
Chair
26 April 2022    

Appendix

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

1  FOA’s complaint to Discovery – 26 January 2022

2  Discovery’s decision on the complaint – 22 February 2022

3  FOA’s referral to the BSA – 24 February 2022

4  Discovery’s confirmation of no further comments – 3 March 2022

¹ Kate Newton & Guyon Espiner “Green Rush: Will pines really save the planet?” RNZ (online ed, 10 October 2019); Carbon Farming Group (13 September 2011) “Native Forests in the Emissions Trading Scheme” <www.carbonfarming.org.nz>
² Toitū Te Whenua Land Information New Zealand “Investing in forestry and forestry rights” <www.linz.govt.nz>
³ See for example Sally Murphy & Maja Burry “Rules helping foreign investors turn NZ farmland into forestry reviewed” RNZ (online ed, 3 February 2022);  “Forest Owners Association, Federated Farmers clash over carbon farming issues” NZ Herald (The Country) (online ed, 2 February 2022)
⁴ Murray Robertson “Applications for forestry lodged” Gisborne Herald (online ed, Gisborne, 24 February 2022)
⁵ Murray Robertson “Save the farms” Gisborne Herald (online ed, 7 March 2022)
⁶ David Parker, Media Release (24 Febuary 2022) “Streamlined forestry test to end for overseas investors planning to convert farms to forest” <www.beehive.govt.nz>
⁷ Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ As above
¹⁰ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
¹¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
¹² Guideline 8a
¹³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁴ As above
¹⁵ The New Zealand Forest Owners Association Inc and Discovery TV Ltd, Decision No. 2020-111 at [15]
¹⁶ Guideline 8c
¹⁷ See examples at footnotes 1, 3 and 5 above; see also Eloise Gibson “Carbon farming land will be 'losing money in 100 years' — East Coast report” Stuff (12 October 2021); Eloise Gibson “73 million trees ‘not nearly enough’, says company using pine to nurture native forest” Stuff (22 April 2021)
¹⁸ See for example Jamie Gray “Farmers welcome proposed changes to NZ carbon farming regime” NZ Herald (online ed, 3 March 2022); Jamie Mackay “East Coast farmer Graeme Williams says forestry changes need to happen now” NZ Herald (online ed, 25 February 2022)
¹⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
²⁰ As above
²¹ Guideline 8c
²² “Restricting forest planting 'at odds with NZ's climate change goals'” Newshub (online ed, 23 June 2020 (from RNZ)); “Forestry sector insists it's not the 'big bad wolf' coming after farmers' land” Newshub (online ed, 6 July 2020); “Forestry sector stresses 'right tree, right place' approach as debate over carbon farming continues” Newshub (online ed, 28 July 2020)
²³ Gerard Hutching “Carbon farming can provide better returns than sheep and beef” Stuff (2 May 2019); Kate Newton and Guyon Espiner “Green Rush: Will pines really save the planet?” RNZ (online ed, 10 October 2019); Bonnie Flaws “Rural communities under threat from carbon offsetting, farmers say” Stuff (15 June 2020); Eric Frykberg “'Planting a tree doesn't make carbon emissions go away' - Beef and Lamb” RNZ (online ed, 17 June 2020); Tom Kitchin “Farm owner rejects carbon bids to buy East Coast station” RNZ (online ed, 10 July 2020); Eric Frykberg “Labour policy would put forestry decisions in council hands” RNZ (online ed, 6 July 2020); Jo Lines-MacKenzie “Farmer's pitch to big biz: My land, your trees, planet's gain” Stuff (7 July 2020); Rachael Kelly “Shane Jones: Some landowners have 'allergic reaction' to carbon farming” Stuff (19 July 2020)
²⁴ New Zealand Forestry Owners’ Association and Discovery NZ Ltd, Decision No. 2020-129 at [18]
²⁵ Murray Robertson “Applications for forestry lodged” Gisborne Herald (online ed, Gisborne, 24 February 2022)
²⁶ Murray Robertson “Save the farms” Gisborne Herald (online ed, 7 March 2022)
²⁷ David Parker, Media Release (24 Febuary 2022) “Streamlined forestry test to end for overseas investors planning to convert farms to forest” <www.beehive.govt.nz>
²⁸ Guideline 9a
²⁹ Guideline 9b
³⁰ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
³¹ As above