Spectrum Sovereignty? Maori Treaty Rights to 4G Debated in New Zealand
Here’s a debate that opens all sorts of canned worms about what might be rightly considered the sovereign territory of Indigenous peoples.
As we see in this report from TVNZ’s Te Karere, some Maori have put forth arguments claiming Indigenous title to the so-called 4G (fourth generation) wireless broadband spectrum in New Zealand.
So far, these applications of Maori treaty rights to 4G do not seem to have gotten much of a hearing by New Zealand government and industry.
Apparently, while industry reports indicate that “carriers and governing standards bodies have not agreed upon exactly what 4G will be,” its use of available radio spectrum is expected to provide “users with cable-modem transmission speeds which will support high-quality streaming video.”
Multi-billion dollar spectrum auctions in other countries reveal that 4G is big business. So perhaps it’s no wonder Indigenous peoples finally want a piece of the action that’s been taking place in their airspace for some time now. Better late than never, I suppose. In fact, this follows up on an unsuccessful attempt to secure the same rights for 3G, writes SPASIFIK.
I wonder: will the day soon come when North American first peoples seek their share of this lucrative resource running through their aerial territories?
UPDATE: Turns out some First Nations already have entertained the idea.
A 2007 report by CBC said the Assembly of Manitoba Chiefs “resolved to negotiate revenue sharing with [Manitoba Telecom Services]” for any transmission signal crossing First Nations’ land, water and air space. As Chief Ovide Mercredi of the Grand Rapids First Nation put it:
When it comes to using airspace, it’s like using our water, and simply because there’s no precedent doesn’t mean that it’s not the right thing to do.
It’s been three years: what’s happened since? Looking into it, but I’d gladly accept help if you know something.
Because band councils are tied to the Indian Act – ever read it?
Hi Rick.
I looked into this at the time for Marcel Balfour and will have to go back through my records. However, as I recall, the Supreme Court of Canada decided, in The Queen (Man.) v. Air Canada, [1980] 2 S.C.R. 303 (1980), that flights through the airspace over a province, and even stop-overs in the province, did not constitute legal presence within in the province for enabling provincial taxation of goods and services provided on the flights. The Supreme Court came to a similar decision, in Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581, regarding Ontario's right to regulate alcohol on flights. I suspect that the Telcos, if challenged, would have relied on these decisions to argue that passage of signals through airspace over aboriginal land, and even retransmission using base stations or repeaters, does not consitute presence on aboriginal territory. While a number of arguments against this rationale could, obviously, be made, it could be quite difficult, and very expensive, to mount a challenge against the telcos given these precedents.
This said, I suspect that the nature of cellular technology and the importance of wireless service would provide the telcos with another (rather oppressive) tactic to stifle any attempts by First Nations to obtain revenue from cellular transmission over their land. Cellular networks use a combination of circuit switched and packet switched wireline, satellite, microwave and cellular repeater/base station technologies to provide coverage across the networks. In fact, for any given local area, for example a reserve, only local base stations are required to provide the cellular service. Transmission through a local area, for example (again) a reserve, to a target local area, for example to a another target reserve or city, can be effected over (readily available and largely pre-existing) wireline, satellite, microwave technologies, etc. to base stations in the target local area. In other words, for First Nations that want to demand compensation for passage of cell signals over their territory, the telcos could simply reroute the signals through wireline or other means. The only drawback to the telco might be that it could not have cellular base stations/repeaters on the reserve, which would mean that the telco could not provide cell service on the reserve. Given the isolated geographical situation, and relatively small client base, of many First Nations, this probably would not bother the telcos. In fact, the telco could respond to demands by a First Nation for compensation by simply removing all base stations, thus terminating cell service for the reserve in question, while happily rerouting the signals to areas, including other reserves, where such demands are not made. It is rather annoying, but completely, and easily, doable.
Edward Lane
B.A., B. Sc.A. (Computer Science), M.A., LL.B.
This Maori claim is interesting, both legally and technologically.
The New Zealand government is attempting to argue that 4G spectra cannot be taonga (or treasure) under the Maori treaty rights since “spectra” did not exist when the treaty was signed. However, the New Zealand government DID previously concede that Maori rights, although not necessarily as taonga, had to be recognized for spectra for analog television broadcasting to ensure that Maori programming would be available to protect Maori language and culture.
Where things become interesting is that the bands of Spectra that are going to be allocated for 4G, as well as for digital television, are the SAME bands that were previously used for analog television, soon to be phased out. In other words, as analog TV is phased out, the bands of spectra liberated will be allocated to 4G and digital TV. The bands of spectra will be the same. Only the nature of the signals transmitted , i.e. digital 4G and digital television instead of Analog TV, will change. Since the New Zealand government recognized previously that the rights of the Maori had to be taken into account with regard to analog television for spectra in this same band, I think a strong case can be made that there must be at least some recognition of Maori rights for 4G. Further, if it has been recognized that the Maori must have some rights in broadcasting spectra for Analog television to protect their language and culture, is it not also essential to recognize that the Maori must be enabled to protect their language and culture in a digital TV, and broader digital telecommunications, context? To say otherwise is like saying that Maori rights to communicate with one another and protect their language and culture should be stuck in the last century. I don't think non-indigenous New Zealanders would be inclined to accept this. Neither should the Maori.
Edward Lane
B.A., B. Sc.A. (Computer Science), M.A., LL.B.
Hi Rick.
I looked into this at the time for Marcel Balfour and will have to go back through my records. However, as I recall, the Supreme Court of Canada decided, in The Queen (Man.) v. Air Canada, [1980] 2 S.C.R. 303 (1980), that flights through the airspace over a province, and even stop-overs in the province, did not constitute legal presence within in the province for enabling provincial taxation of goods and services provided on the flights. The Supreme Court came to a similar decision, in Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581, regarding Ontario's right to regulate alcohol on flights. I suspect that the Telcos, if challenged, would have relied on these decisions to argue that passage of signals through airspace over aboriginal land, and even retransmission using base stations or repeaters, does not consitute presence on aboriginal territory. While a number of arguments against this rationale could, obviously, be made, it could be quite difficult, and very expensive, to mount a challenge against the telcos given these precedents.
This said, I suspect that the nature of cellular technology and the importance of wireless service would provide the telcos with another (rather oppressive) tactic to stifle any attempts by First Nations to obtain revenue from cellular transmission over their land. Cellular networks use a combination of circuit switched and packet switched wireline, satellite, microwave and cellular repeater/base station technologies to provide coverage across the networks. In fact, for any given local area, for example a reserve, only local base stations are required to provide the cellular service. Transmission through a local area, for example (again) a reserve, to a target local area, for example to a another target reserve or city, can be effected over (readily available and largely pre-existing) wireline, satellite, microwave technologies, etc. to base stations in the target local area. In other words, for First Nations that want to demand compensation for passage of cell signals over their territory, the telcos could simply reroute the signals through wireline or other means. The only drawback to the telco might be that it could not have cellular base stations/repeaters on the reserve, which would mean that the telco could not provide cell service on the reserve. Given the isolated geographical situation, and relatively small client base, of many First Nations, this probably would not bother the telcos. In fact, the telco could respond to demands by a First Nation for compensation by simply removing all base stations, thus terminating cell service for the reserve in question, while happily rerouting the signals to areas, including other reserves, where such demands are not made. It is rather annoying, but completely, and easily, doable.
Edward Lane
B.A., B. Sc.A. (Computer Science), M.A., LL.B.
This Maori claim is interesting, both legally and technologically.
The New Zealand government is attempting to argue that 4G spectra cannot be taonga (or treasure) under the Maori treaty rights since “spectra” did not exist when the treaty was signed. However, the New Zealand government DID previously concede that Maori rights, although not necessarily as taonga, had to be recognized for spectra for analog television broadcasting to ensure that Maori programming would be available to protect Maori language and culture.
Where things become interesting is that the bands of Spectra that are going to be allocated for 4G, as well as for digital television, are the SAME bands that were previously used for analog television, soon to be phased out. In other words, as analog TV is phased out, the bands of spectra liberated will be allocated to 4G and digital TV. The bands of spectra will be the same. Only the nature of the signals transmitted , i.e. digital 4G and digital television instead of Analog TV, will change. Since the New Zealand government recognized previously that the rights of the Maori had to be taken into account with regard to analog television for spectra in this same band, I think a strong case can be made that there must be at least some recognition of Maori rights for 4G. Further, if it has been recognized that the Maori must have some rights in broadcasting spectra for Analog television to protect their language and culture, is it not also essential to recognize that the Maori must be enabled to protect their language and culture in a digital TV, and broader digital telecommunications, context? To say otherwise is like saying that Maori rights to communicate with one another and protect their language and culture should be stuck in the last century. I don't think non-indigenous New Zealanders would be inclined to accept this for themselves. Neither should the Maori.
Edward Lane
B.A., B. Sc.A. (Computer Science), M.A., LL.B.
By that logic, First Nations Reserves would have the right to block, jam, interfere and intrude those aerial signals?
4G technology is the future and support the more interactive and awesome features to their user. That’s why every one have to get this one and enjoy it’s full function.