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Using spectrum allocations to address indigenous policy obligations: the case of New Zealand
conference contributionposted on 2022-10-19, 21:08 authored by Bronwyn HowellBronwyn Howell, Xin Tang
Radio spectrum is fundamental to the operation of wireless communications services. In order to allocate radio spectrum for different services, spectrum is regulated via national laws, coordinated by an international body, the International Telecommunications Union (ITU). For the most part, national (state) governments undertake the legal definition and allocation of spectrum. The most common method of allocation is auction, where competing parties bid for the rights to use specific bundles of spectrum, ensuring that the spectrum goes to the users and uses where it is most commercially valuable (Crandall, 1998). Alternatively it is 'gifted' to winners of a 'beauty contest' using predetermined government-specified criteria in order to meet other policy objectives (Prat & Valletti, 2000). Sometimes, spectrum can be reserved for particular government policies or other redistributive agendas (Howell & Potgieter, 2022). In February 2022, the New Zealand Government announced that a yet-to-be-formed 'Māori Spectrum Entity' would “receive an ongoing allocation of 20 percent of future national commercial spectrum allocations, at no cost.” This is in addition to the 25 percent of spectrum designated for 5G technology (mid-band, 3.4-3.8GHz) under the Māori Spectrum Working Group agreement. The policy is novel as it creates a perpetual obligation rather than simply a one-off transfer. The Māori people are the indigenous people in New Zealand. The 1840 Treaty of Waitangi signed between the British Crown and Māori tribal leaders granted the tribes “exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties.” (Te Ara, 2022). Māori tribal leaders have asserted that since they exercised control over the air above their lands in 1840, they are entitled to a share of the spectrum within it. This controversial claim was supported by a Waitangi Tribunal (special court) hearing (Wai 776, 1999). Further support for the policy derives from New Zealand’s obligations as a signatory to the United Nations Declaration on the Rights of Indigenous Peoples. In this paper, we use comparative policy analysis to examine perpetual allocation of spectrum at no cost to tribal interests while at the same time selling spectrum at positive cost to industry parties, against the espoused objectives of both industry and other policies. While wealth and control is transferred from the Crown to the tribal entity, meeting various legal treaty obligations, it is not clear that the tribal entity faces the same incentives as the firms paying positive sums to deploy the spectrum in the most socially-useful manner. That is, meeting legal obligations may abrogate economic ones.