SYDNEY, Australia -- Is the radio spectrum a natural resource, like fish, forests, and gold?
That's the question facing New Zealand as it considers whether a 159-year-old treaty between European settlers and the native Maori people covers assets unknown in the 19th century.
The 1840 Treaty of Waitangi obligates the New Zealand government to consider Maori interests whenever the use or development of the islands' abundant resources comes up. Often called New Zealand's founding document, the treaty was drawn up when the land's riches could only be caught with a hook, felled with an axe, or harvested with a plow.
But the founders never imagined treasures mined from the ether. Now that New Zealand wants to auction off the 2-gigahertz band -- a part of the spectrum sought by wireless broadband service providers -- it first has to figure out the interests of the Maori.
In March, New Zealand Communications Minister Maurice Williamson announced a three-month postponement to the spectrum auction, just three days before bidding was to begin.
Had the auction gone ahead on schedule, it would have been among the first in the world for spectrum of this kind, providing a valuable precedent for subsequent auctions in other countries. Estimates of the auction's proceeds have ranged from US$6 million to $60 million.
The delay will allow the Waitangi Tribunal, a permanent, 17-member panel, to consider whether wireless spectrum should fall under the treaty's provisions. The tribunal will make a final report by the end of June.
Among the broad issues the tribunal will consider is whether wireless spectrum should be considered in the same way as New Zealand's other resources -- things like gold, oil, and geothermal energy. While there are similarities, there are also differences.
For instance, you can mine gold with a shovel, but you can access wireless spectrum only with a handset and a system of transmission towers. Which is the resource, the handset or the spectrum?
A second line of inquiry is whether Maori language and culture would be adequately protected by the spectrum sale. In its final report, the tribunal could recommend that spectrum be set aside for the Maori for cultural, educational, or even commercial use.
The closest precedent to the current case was a 1990 examination by the tribunal of AM-FM radio waves, according to researchers at the Waitangi Tribunal. But that case primarily involved the protection and perpetuation of Maori language and culture. It didn't address the natural resource issue.
Since the tribunal's role is advisory, the ministry isn't compelled to follow its recommendation. New Zealand has long supported the consultative management of traditional resources, but it's uncertain how the tribunal should apply old standards to new resources exploited by brains, not brawn.
"The subject matter and the concepts involved are at the outer limits of treaty jurisprudence as presently perceived," wrote Judge P.J. Savage, the panel's presiding officer, in a letter to the government containing the interim report.
For the wireless industry, the spectrum auction postponement was a major disappointment. That's because far from being just a humdrum sale of spectrum appropriate for pagers and mobile phones, the bands being offered could break ground on advanced services such as wireless high-speed Internet access and digital-video transmission.
"We would have preferred the auction go ahead as planned," said Mark Champion, spokesman for Vodafone NZ, one of the country's two biggest wireless players. The other big wireless player is Telecom New Zealand, which was equally disappointed.
"The reality is that the auction has been delayed and there's nothing Telecom can do about it," said spokesman Clive Litt.
