IAN CASSELS AGAINST NEWSROOM

Case Number: 2937

Council Meeting: SEPTEMBER 2020

Verdict: Not Upheld with Dissent

Publication: NewsRoom

Ruling Categories: Accuracy
Balance, Lack Of
Comment and Fact
Unfair Coverage

Overview

[1] On 7 April 2020 Newsroom published a story by Nicky Hager headlinedThe long, sorry saga of Shelly Bay. Mr Hager was described as “a Wellington author and investigative journalist” who had taken an interest in the fate of Shelly Bay for “many years before the current events”.

[2] The introductory paragraph summed up the aim of the story as using “official documents to lay out the roles of money, power and wheels-within-wheels on this most contentious of developments”.

[3] The lengthy story was divided into nine parts, and began by saying New Zealand was lucky in respect to its lack of corruption, but it was easy to become complacent about “the kinds of compromised and non-transparent processes that we do have”. The classic area where this could occur was local government, and the complex tale of Shelly Bay was one such case, the story said.

[4] Mr Hager said there were three players - iwi who own land, a developer who wanted to build apartments and the Wellington City Council (WCC), which owned a key piece of land and would need to fund infrastructure for the development.

[5] Mr Hager said the story was intended to spell out what was going on, based largely on official information requests he had made to the WCC.

[6] The first section of the story dealt with what Mr Hager described as an “unhealthy practice”. As part of the Treaty of Waitangi settlement process, Maori were given the right to buy surplus public land, which Mr Hager described as “good policy”. But developers had realised they could “buddy up” with iwi and get “first dibs” on public land at cheaper than market rates.

[7] The story detailed three examples where the iwi trust, the Port Nicholson Block Settlement Trust (PNBST), had bought land and on-sold it, including two examples involving The Wellington Company (TWC), of which Ian Cassels is a shareholder. “The Wellington Company name is disturbingly reminiscent of the 1840s New Zealand Company, which fleeced Maori… of their land,” the story said.

[8] Sections two and three of the story said iwi were divided on land sales, and that Mau Whenua, a group of iwi members, had been fighting to stop the Shelly Bay sale. It outlined the ongoing conflict around the sales process, saying that although PNBST members had voted against the sale, it ultimately went through based on “an artificially low valuation and massaged figures”. The board told trust members they had a deal to sell three out of four parcels of land for $11.4 million. But in a "quiet sale" in July 2017 TWC paid only $2 million, and got the option to buy a final fourth block of land. There was a "vague 'profit sharing' agreement", the story said. When the news of the sale became public, the story said TWC bought the final fourth block of land, dropping the profit share agreement but raising the total sales price to $12 million. PNBST had paid $13.3 million of their settlement money to acquire Shelly Bay in 2009. Eight years later it was bought by TWC for $12 million, the story said.

[9] This section of the story also recorded that film-maker Sir Peter Jackson had opposed the housing development.

[10] Section four was headed: “Council staff too open to developer’s needs, part one: ignoring the no-sale result.” It dealt with WCC’s role in selling land for a “luxury housing enclave”, being asked to pay public money for roading, water and services for the development and giving it planning permission. “It seems some of the WCC staff and councillors have been far too close to the developer,” the story said, drawing attention to the fact that the council knew the sale had gone ahead despite the original vote against it. WCC staff should have kept out of the project as they knew the sale didn’t have proper approval from PNBST, Mr Hager said. Instead senior council figures were copied into a plan to “massage the figures” so that the Shelly Bay sale would not need iwi members’ approval for the sale.

[11] Section five and six dealt with council officers softening their stance regarding roading requirements for the development, in favour of the developer, and working to stop a community meeting about the Shelly Bay development. It also recorded that Mayor Justin Lester, whose election campaign was financially backed by Mr Cassels, backed TWC’s plan.

[12] Section seven and eight covered the council’s in-principle decision at a September 2017 council meeting to sell or lease publicly owned Shelley Bay land to TWC for development. Councillors who spoke in favour of selling lauded its potential to show partnership with iwi. Councillors were unaware that iwi had already sold three of four parcels of land to TWC. When one of the councillors said iwi owned 99 per cent of the land, council staff, PNBST representatives and TWC staff in the room did not correct them. The story said the sale would primarily benefit the developer not iwi, calling the relationship a “caricature of genuine partnership”. After the news of the sale became public TWC changed their messaging to say that iwi benefited from a wider partnership, the story said. It gave the example of a TWC 54-apartment development in Petone where TWC would sell PNBST members some apartments “on favourable terms". Property records showed the PNBST chair, a family member and an associate bought apartments. A handful of ordinary members of the trust also appear to have bought apartments.

[13] The final section of the story said the fight over the future of Shelly Bay was still going on. It concluded: “...what seems certain is that the future of an important piece of the capital city should not be determined by decisions made like this. The whole Shelly Bay issue has a bad smell.”

The Complaint

[14] Wellington Urban Consulting on behalf of Ian Cassels complained that the story breached Principles 1, 4 and 5. Under Principle 1: Accuracy, Fairness and Balance, the complaint said Mr Cassels and his company were accused of underhand dealings in relation to Shelly Bay. The word “corruption” had been used. It was alleged Mr Cassels “manipulated” iwi and his company was compared to the New Zealand Company, which fleeced Maori of their land. The writer did not approach Mr Cassels or his company for comment, which was grossly unfair and meant the story lacked balance.

[15] The story was not accurate as it was a selective curation of information, and other publicly available information had been left out. “The cherry-picking of facts, incorrect weighting of information and (we say deliberate) omission of mitigating or relevant facts presents a one-sided and incorrect picture of the situation and parties involved.” The article also conflated time periods where various emails or events took place, meaning certain issues that had been resolved are presented as ongoing. The story was based on years-old correspondence meaning it was outdated and incomplete.

[16] The story was the reporter’s one-sided opinion rather than a proper investigation. Had the reporter approached Wellington Urban Consulting, they could have had full access to Mr Cassels and other emails that would have provided balance.

[17] Specific matters that were raised under Principle 1 included that the Mau Whenua group that opposed the sale were described as an iwi group, when anyone, living and affiliated anywhere could belong.

[18] The PNBST actions over the sale were now before the courts and a fair and balanced report could have quoted from court documents. The version of events in the story was denied by PNBST.

[19] The story’s “ring-fencing” of Sir Peter Jackson’s involvement was objected to – he was still very much involved, the complaint said. The reference to Justin Lester’s support for the proposal was also unfair. Lester had declared the $2000 campaign donation from Mr Cassels and did not participate in council votes related to Shelly Bay in his time as mayor. In contrast, Mayor Andy Foster received $36,000 from Sir Peter Jackson, refused to declare a conflict of interest and advocated for Sir Peter’s case.

[20] The article alleged bias and/or corrupt behaviour, but failed to mention that both the question of WCC bias and Mr Cassels’ ownership of the land had been cleared in the courts.

[21] Mr Hager neglected to engage with Mr Cassels on the subject of why pieces of land were sold for seemingly low sums, the complainant said. These were complex matters and he had left out the value of financial risk, management and liability of the site, which was also transferred to TWC as part of the deal – particularly pertinent for the Shelly Bay sale as it was a ramshackle set of buildings with failing infrastructure.

[22] In its initial complaint to Newsroom, the complainant requested the story be re-labelled opinion and Mr Cassels be given a right of reply. Mr Cassels had been mentioned 11 times in the story and his company 36 times in a way that would make a reasonable person think negatively of him. PNBST and WCC should have been offered the chance to comment too.

[23] Principle 4: Comment and Fact, which requires a clear distinction between factual information and comment, had also been breached, the complainant said. The article was a mix of fact and comment but presented to readers as fact. Comments in the story that the relationship between TWC and PNBST were a “caricature of a genuine partnership” and “little more than public relations”, as well as the comment that it had become “profitable for property developers to become best buddies with iwi and use them as a means to get cheap public land” were statements of opinion dressed as fact, the complainant said. Mr Hager’s credibility as an investigative journalist reinforced the influence these opinions would have on readers.

[24] The complainant also provided a large number of social media comments they said demonstrated readers taking the piece as investigative journalism and then extrapolating and repeating “offensive inferences” about Mr Cassels. A statement from Mau Whenua also demonstrated reliance on the Newsroom article as fact and investigative journalism.

[25] On Principle 5: Columns, Blogs, Opinions and Letters, the complainant said that whileNewsroom said the story was not an investigative piece, but rather “interpretative journalism”, they declined the complainant’s request to label it “comment”.

[26] While Newsroom had offered to publish an “opinion piece” by Mr Cassels, an opinion piece would not be seen as equal or to correct a lengthy “investigation piece” presented as fact, the complainant said. The complainant requested “at the very least” an interview by a Newsroom reporter who would speak with Mr Cassels and consider all documentation.

The Response

[27] Tim Murphy on behalf of Newsroom said the article did not claim to be an “investigation” and did not label it as such. It was a summary of information gained under the Official Information Act (OIA) obtained by Nicky Hager and tried to “paint the picture evident in the documents supplied”. Newsroom did not portray the piece as definitive or the final word on the matter, and it was not about many ongoing broader issues raised by the complainant.

[28] Newsroom did not seek others’ interpretations of what those documents said. The story was not a report on court disputes. It was not “opinion” asNewsroom would classify it, but rather “interpretive journalism”, spelling out what things in documents meant. Nicky Hager made it clear that the work and interpretations were his, opening the story in the first person. There were several instances where Mr Hager expressed his opinion, but it was more than an “opinion piece”, with Mr Hager explaining, from previously un-issued documentation, the sequence and details behind WCC interactions with iwi and the developer. His selection of what to include was “standard journalistic distillation” and backed up by Newsroom’s review pre-publication.

[29] In respect of the suggested “corrections”, Newsroom said the article did not allege corruption, but looked at the “compromised and non-transparent processes”. The complainant had repeatedly set out what the courts decided about bias and council relationship, but that was the courts’ view on the particulars before it in that case. TheNewsroom article looked at emails where in the writer’s view the council were “too open to the developer’s needs”.

[30] It was the complainant’s view that the article alleged illegitimacy over TWC’s ownership of the land, but it did not. It said the process followed by PNBST was flawed.

[31] The quoting of the sales prices for land without taking into account any possible risks was standard practice,Newsroom said.

[32] This had been a long-running saga, which had been extensively reported. Not all aspects of the story could be expected to be repeated in every article about the matter.

[33] Mr Murphy invited the complainant to elaborate on any incorrect timings, dates or conflations. “Mr Cassels’ company TWC is just one of the parties covered by these OIA documents so I’m not sure how a reply by him might argue with ‘the piece as a whole’ or speak for other parties."

[34] However if the complainant sent his view on matters pertinent to him, with any challenges to facts or Mr Hager’s interpretation,Newsroom would consider it for publication. In its reply to the Media Council,Newsroom said it had received no factual corrections and no viewpoint to consider for publication. “We are content to stand with the original story if no counter view is provided for consideration.”

The Decision

[35] In a long-running issue such as this, it is often impossible and undesirable to cover every aspect of the matter in question. This story focussed on the relationship between iwi, council and The Wellington Company, some of it informed by documents received following OIA requests, and it included context and interpretation provided by the author on important matters of public interest.

[36] The journalist was entitled to concentrate on his chosen area of focus. Matters pertaining to Sir Peter Jackson and mayoral candidates might be relevant to the wider story, but were not essential to the issues under examination here, and so it was acceptable to mention them in passing or not at all.

[37] The complainant says that by not including other publicly available documents and the results of various court cases, the story is inaccurate by omission. This is an enormously complex and convoluted local issue, involving many players and motivations, and a number of council decisions and court cases. It would be impossible to include everything of wider relevance in one story and it is part of a journalist’s role to choose what aspects to focus on.

[38] It would have been unacceptable, however, to “cherry pick” parts of the documents to support the journalist’s point of view or omit elements that contradicted the thrust of the article. In the lengthy correspondence between the two parties, the Media Council was not able to find any instances where it was proven this had occurred.

[39] On other specific matters raised, the use of the actual sale price for the land was standard and acceptable, and the matter of who could belong to Mau Whenua seemed relatively unimportant to the overall story.

[40] However the question remains, was the story fair to Mr Cassels and did he deserve a right of reply? Although the story did not accuse Mr Cassels of corruption, as the complainant claimed, it did say that some iwi felt “manipulated by the property developer” and that property developers had realised they could “buddy up” with iwi and get “first dibs” on public land at lower than market rates.

[41] It also said the name of The Wellington Company, Mr Cassels’ firm, was “disturbingly reminiscent” of the New Zealand Company, “which fleeced Maori (primarily Te Atiawa) of their land around Wellington Harbour…” The Media Council believes there was no reason to include that reference other than to insinuate that TWC was involved in something similar.

[42] Newsroom suggested that as there were three parties involved, it was not sure how a reply from Mr Cassels might “argue with ‘the piece as a whole’” or speak for other parties.

[43] The Media Council has a different view - in light of the serious statements made about Mr Cassels and his company, it would have been fair to allow him a right of reply. The Media Council would have been inclined to uphold the complaint under Principle 1 on the grounds of lack of fairness to Mr Cassels, if it hadn’t been for Newsroom’s appropriate and prompt offer to correct facts and to offer Mr Cassels a right of reply, an offer that he did not take up. Mr Cassels’ representative initially asked for a right of reply, but later amended this to ask for another reporter to interview him and re-examine the documents. The Media Council considers thatNewsroom’s initial offer to consider a statement from Mr Cassels for publication was sufficient.

[44] The complainant also said the story was opinion and should be labelled as such, and that because of Mr Hager’s reputation readers would have seen it as a thorough investigation without such labelling. The complainant mentioned both Principle 4 and 5, but the Media Council considers the matter of whether the story should have been labelled “comment” is best considered under Principle 4, which states: “A clear distinction should be drawn between factual information and comment or opinion. An article that is essentially comment or opinion should be clearly presented as such.” Newsroomsaid the story was not an opinion piece, but rather “interpretive” journalism, where the journalist spells out “what things mean”. In the Media Council's view, although the story clearly contained some comment and analysis, for example describing the right of Maori to buy surplus land as “good policy” and developers “buddying up” to iwi to get land at good prices, much of the piece was a factual examination of events and the communications between the parties, with analysis of the significance of these by the writer.

[45] Because of the use of the first person, and the way the intent of the article was spelled out in the introduction: “Nicky Hager uses official documents to lay out the roles of money, power and wheels-within-wheels on this most contentious of developments,” the reader would have been in no doubt that this was the writer’s analysis of the documents provided and the events surrounding them, so the complaint under Principle 4 is not upheld. The complainant also drew attention to the many social media posts that resulted from the article, saying that they showed that many people considered the piece a thorough examination of the issue, however social media response to a story is outside the Media Council’s remit.

[46] The complaint is not upheld by a majority of the Media Council members,

Dissent by Tim Watkin and Craig Cooper

The Media Council found this complaint a very close call. We dissent and would uphold the complaint on fairness grounds under Principle 1. While the complainant was offered a right of reply and prompt corrections, and we are not concerned with fact-based analysis entering a feature article such as this, we are concerned at the lack of a right of reply in the first instance. Not just for the complainant but for the Trust and council. In a story that begins with a discussion about corruption, includes comparisons with The New Zealand Company and makes accusations of "unhealthy practices", we would expect the accused parties to be given the chance to defend themselves.

Media Council members considering the complaint were Liz Brown, Rosemary Barraclough, Craig Cooper, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Marie Shroff, Christina Tay and Tim Watkin.

Raynor Asher took no part in the consideration of this complaint. Hank Schouten stood down to maintain the public member majority.