Indigenous Spectrum Ownership Can’t Address Digital Disadvantage

In New Zealand, February 6 is Waitangi Day, the local equivalent of the United States’ Fourth of July. On this day in 1840, Captain William Hobson the Lieutenant-Governor of New South Wales and the chiefs of a large number of the indigenous Māori tribes signed the Treaty of Waitangi. In exchange for the chiefs ceding some powers to the British Crown, the Crown would provide the Māori people with British citizenship, protection and ongoing use of their customary properties, and ongoing governance by the chiefs of their local tribal communities within laws made and overseen by Governor Hobson. Arguably to protect Māori from predatory European settlers, the Crown assumed a monopoly on the purchase of land for settlement of the new Colony of New Zealand. As New Zealand achieved greater levels of independence from Britain, the Crown’s obligations gradually transferred to the New Zealand government.

Exactly what was agreed has been hotly contested over the years, but it is no longer disputed that the treaty created obligations on both sides and that successive New Zealand governments historically committed many breaches, particularly in relation to land, forests, and fisheries, which have left Māori at an economic and social disadvantage compared to the settlers. The Waitangi Tribunal was established in 1975 to advise the government on breaches and to recommend redress. If the government agrees, then appropriate action can be taken. In relation to land, forests, and fisheries, the government has rarely failed to act on tribunal recommendations. However, alleged modern breaches are more controversial.

In 1999, a claim (Wai 776) was lodged with the tribunal alleging that the treaty had been breached by the government’s plan to auction the spectrum for 3G telecommunications services. Māori claimed to exercise a customary right over radiocommunications spectrum because of their cultural beliefs in the life forces in all natural resources. Therefore, they should receive a share of it, separate to that governed by the Radio Spectrum Management agency for the benefit of all New Zealanders and sold to commercial operators. Moreover, they claimed owning spectrum would enable them to participate in the digital economy alongside other rights-holders, granting economic benefit. They also claimed an ongoing superior right to consult with the government over future spectrum allocations and sales.

Similar spectrum allocations have been made in relation to First Nations peoples in Canada and the United States. However, in these countries the relevant spectrum rights cover only the tribal territories; the New Zealand rights covered the whole country, in direct competition with the rights obtained by commercial operators. Furthermore, claims to economic development are attributed not to the ownership of the spectrum, but access to the services and downstream applications that the services enable. Importantly, tribal spectrum ownership is not associated with earlier access to new technologies, because network access in the tribal territories is costly to supply, access to capital for self-provision is limited, and partnerships with commercial operators to get network coverage are not attractive without further incentives.

The government tribunal testimony denied that the treaty was intended to cover rights to the technologies subsequently developed to use natural resources such as spectrum. Separate Māori spectrum would distort the prices achieved at auction (and accurately valuing the spectrum for commercial decisions), and without access to the levels of financial capital available to commercial operators, Māori-owned spectrum might not be utilized either efficiently or promptly. Furthermore, owning spectrum was not essential to obtaining economic and social benefits from the digital economy.

Nonetheless, the tribunal, in a two-to-one finding, recommended that a share of the commercial spectrum be assigned to Māori and that they have the requested privileged role in spectrum policy and management. The dissenting panel member (the chair) found that granting spectrum rights under the natural resources limb meant Māori could claim rights to everything in the universe (e.g., Navaho claims regarding the moon), thereby rendering void the Crown’s ability to manage anything effectively for the benefit of all New Zealanders.

For over 20 years, the government has steadfastly refused to accept the majority Wai 776 decision. Yet, in 2022, it signed a Memorandum of Understanding (MOU) with Māori representatives, granting them 25 percent of 5G spectrum, 20 percent of all future commercial rights, and privileged policy participation. Exactly what was recommended in Wai 776, despite the MOU explicitly reiterating again the government’s rejection of its findings. The reason? Promoting Māori economic development.

An economic analysis of the MOU reconfirms the risks identified in the 1999 hearing. If anything, in the interim, the claim that spectrum ownership is necessary for obtaining digital economy benefits has been categorically disproven.

This is one policy that should not be copied elsewhere—no matter how tempting doing so might be to address the rights of indigenous peoples.