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Can the developing doctrine of Aboriginal

Native Title assist a claim under the


Foreshore and Seabed Act 2004?
VALMAINE TOKI*

Abstract

Despite intense national opposition to the Foreshore Seabed Bill, legislation was
enacted vesting the foreshore and seabed in the Crown. International bodies have
found this legislation to be discriminatory, nevertheless barring a change in the
political climate or revolution, Maori (indigenous people of New Zealand) have no
recourse other than to satisfy the provisions of the legislation for recognition of
customary rights within the foreshore and seabed area. The legislation directs a
consideration of the doctrine of aboriginal title. This doctrine is relatively
undeveloped in New Zealand and a comparative analysis with comparable
jurisdictions is required to ascertain whether this will assist a claim for Maori.

Introduction
In May 2004 a hikoi (march) culminated in over 20,000 people gathering at
Parliament to protest against the Foreshore and Seabed Bill. This was the largest form
of protest1 by Maori since the Land March of 1975. Tariana Turia,2 a Labour Member
of Parliament who could not support the Foreshore and Seabed Bill, resigned. A
Waitangi Tribunal Report3 released was strongly critical of the government policy on
the foreshore and seabed. An overwhelming majority of those who made submissions
to the Select Committee opposed the Foreshore Seabed Bill. On the 18th November,
2004 that Bill passed its third reading. Metaphorically on the same day Tim Selwyn,
akin to Hone Hekes action,4 put an axe through the electorate office of the Prime
Minister, Helen Clarke. Nevertheless on 24 November 2004 the Foreshore and Seabed
Act was enacted vesting title of the foreshore and seabed into the Crown.5 In October
2006, Tariana Turia, now co leader of the Maori Party, introduced a Private Member's
Bill designed to repeal the Foreshore and Seabed Act.6
The rights accorded to Maori in Article 2 of the Treaty of Waitangi ensured that this
taonga, foreshore and seabed, would be protected.7 The Waitangi Tribunal8 stated that
the Treaty of Waitangi recognised and guaranteed te tino rangatiratanga over the
foreshore and seabed as at 1840. Maori, as a minimum, unequivocally expected the
right to apply to the Court for recognition of their customary rights within the
foreshore and seabed. The Foreshore and Seabed Act 2004 [FSA] overrode this option
and under the current political climate it appears that a reform of the Foreshore and
1

* BA LLB (Hons), MBA (Tas) Barrister and Solicitor High Court of New Zealand, Lecturer in Law,
Faculty of Law, University of Auckland. I am grateful for the support of the law faculty while writing
this article.
See Theres a message here Mana Magazine, Auckland, New Zealand, June July 2004 Issue 58,
32.
2
She had held the Maori seat for Te Tai Hauauru as a Labour candidate. Following her resignation she
was returned to Parliament as a member of a newly formed and independent Maori Party.
3
See Waitangi Tribunal Report, Report on the Crowns Foreshore and Seabed Policy, Wai 1071.
Available at <http://www.waitangi-tribunal.govt.nz/scripts/reports/reports/1071/00AEFB80-5FE04D2E-AD9E-0F45E36B91AE.pdf> (29 November 2007).
4
Cutting down the flag pole, in 1844, at Korerareka was a symbolic attack which warned that Maori
authority and independence ought to be respected it was not an action of violence, for the sake of
violence, but one of rejecting Crown sovereignty. See James Belich The New Zealand Wars
(Penguin, Auckland, 1998).
5
Section 13 (1) FSA.
6
Foreshore and Seabed Repeal Bill (2006-10-12).
7
R Boast, Foreshore and Seabed, (Lexis Nexis, Wellington, 2005) 57.
8
Wai 1071 above n 3, 28.

Seabed legislation is unlikely.9 Any recourse for Maori now lies in satisfying the
provisions of the FSA.
A successful territorial customary claim under the FSA requires that applicants meet
the tests considered by Parliament to be the equivalent of common law recognition of
customary or aboriginal title. Commentators10 perceive this as a hurdle, because if the
title is not one that the common law could recognize then there is no foundation for a
territorial customary claim.
This does not mean that the common law does not recognize customary, aboriginal or
native title; nor does it mean that the process required to seek common law customary,
aboriginal or native title is invalid. It is just the vehicle that has changed.
The doctrine of aboriginal native title in New Zealand is embryonic in comparison to
other jurisdictions. This article will discuss how aboriginal or native title is
recognized by the common law in comparative jurisdictions that New Zealand might
like to draw upon, such as Canada and Australia. Recent Australian case law11 that
affirms common law recognition of a customary or native title within the foreshore
and seabed area will also be discussed.
The first part of this article will outline the relevant sections of the FSA that are
required to be satisfied for a territorial rights claim.12 Based on these provisions the
second part will discuss the developing international jurisprudence on customary,
aboriginal and native title and whether it will assist to satisfy the provisions for a
territorial rights claim under the FSA for Maori. In the final section this article will
apply these findings to a territorial rights claim under the FSA and highlight this with
an example. In conclusion a comparison will be drawn between a post and pre
legislative claim.
Background
9

John Keys (leader of the National Party currently in opposition) latest statement has dashed any hope
for support of the Foreshore and Seabed Repeal Bill (2006-10-12) as proposed by Tariana Turia.
Without this support the FSA will remain part of the law un-amended. See Editorial: Maori Party can
go past core issue NZ Herald Auckland, New Zealand, Monday 23 July 2007
<http://www.nzherald.co.nz/topic/storay.cfm?c_id=247&objectid=10453146> (at 31 July 2007).
10
Boast above n 7,144.
11
Gumana v Northern Territory of Australia [2007] FCAFC 23.
12
See sections 32, 33, 34 FSA.

Prior to the enactment of the FSA, the Crown had been content to rely on the
assumption that it owns the foreshore by a prerogative right in New Zealand the same
way that it does in Britain.13 In recent years legislation such as the Territorial Sea and
Fishing Zone Act 1965, which deemed the area from low water mark to the three mile
limit to and have always been vested in the Crown, and the Territorial Sea,
Contiguous Zone and Exclusive Economic Zone Act 1977 extended this to the current
12 nautical mile limit were passed.
The decision by the Court of Appeal on 19 June 2003 in the Ngati Apa case14 held that
the Maori Land Court had jurisdiction to determine whether areas of New Zealands
foreshore and seabed are Maori customary land under Te Ture Whenua Maori Act
1993. This decision15 overturned a line of precedent dating back to the 1877 decision
in Wi Parata v Bishop of Wellington,16 and affirmed by the New Zealand Court of
Appeal in the 1963 Ninety Mile Beach17 decision. Academic writing in the 1980s and
1990s18 resolved that the Ninety Mile Beach case had been wrongly decided, so it is
perhaps no surprise that, the Court of Appeal followed overseas precedent, and held
that legislation must be explicit if it is to extinguish customary rights to land.
Although an application by Maori to establish a customary interest may have been
unlikely to result in full exclusive ownership, the prospect of a successful claim
created considerable hostility in many sectors of society.
1.0

Foreshore and Seabed Legislation

The proposed repeal of the FSA is unlikely to proceed without a dramatic (and
unlikely) turn around from one of the major political parties. Barring revolution and
civil disobedience, Maori have no alternative now but to work within the confines of
the FSA to seek recognition of their customary rights.
13

R Boast, A Erueti, D McPhail and N Smith, Maori Land Law (Lexis Nexis, Wellington, 2004),
105.
14
Ngati Apa v Attorney General [2003] 3 NZLR 644 paras 91, 124, 182.
15
Ibid 644, see para 215.
16
Wi Parata v Bishop of Wellington (1877) 3 NZ Jur 72.
17
In Re Ninety Mile Beach [1963] NZLR 477.
18
See Paul McHugh "Aboriginal title in New Zealand courts" (1984) 2 UCLR 235-265 and "The legal
status of Maori fishing rights in tidal water" (1984) 14 VUWLR 247; also see R Boast, "In Re Ninety
Mile Beach Revisited: The Native Land Court and the Foreshore in New Zealand Legal History"
(1993) 23 VUWLR 145.

Both a territorial customary rights claim and a customary rights order can be sought.
A customary rights order19 will entitle Maori to carry out a recognized activity in
accordance with sections 52, 17A and Schedule 12 of the Resource Management Act
1991. However, unlike a territorial customary rights claim, under a successful
customary rights order there is no avenue to seek redress from the Crown or negotiate
with the Attorney-General or the Minister of Maori Affairs. This paper will confine its
discussion to an application for a territorial customary rights claim.
The application seeks a declaration from the High Court to recognize that Maori
would have been entitled to hold territorial customary rights to the foreshore and
seabed area, had the full legal and beneficial ownership not been vested in the Crown.
Section 33 provides that:
The High Court may, on the application of a group, or on the application of a person make
a finding that the group would but for the vesting of the full legal and beneficial
ownership of the public foreshore in the Crown by section 13 (1), have held territorial
customary rights to a particular area of the public foreshore at common law.
(emphasis added).

Before issuing the declaration to recognize a territorial customary rights claim, the
Court must be satisfied that the customary title right, or aboriginal title, would have
amounted at common law to an exclusive right of occupation or possession of the
public foreshore and seabed area.20
Once issued, an order can be sought requiring the Attorney-General and the Minister
of Maori Affairs (or other relevant Ministers) to enter into discussions with the
relevant Maori group to consider the nature and extent of any possible Crown redress.
The legislation provides:21
36 (1)

If the High Court makes a finding under section 33 in favour of an applicant group, the
applicant group may apply to the High Court for either of the following orders:

19

Customary Rights Order sought from the Maori Land Court. Customary Rights Orders sought form
the High Court entitles activities under section 76 and ss 17A and s 17B and Schedule 12 of the RMA.
20
See section 32 (1) of the Foreshore Seabed Act 2004 (FSA).
21
See sections 36 (1) and 37 (1) of the FSA.

(a)

an order referring the finding to the Attorney-General and the Minister of Maori
Affairs;

(emphasis added).
37 (1)

If a finding is referred to the Attorney-General and Minister of Maori Affairs under section 36
(1) (a) the Ministers must enter into discussions with the applicant group for the purpose of
negotiating an agreement as to the nature and extent of the redress to be given by the
Crown in recognition of the finding of the High Court under section 33.
(emphasis added).

Previous settlement processes between the Crown and Maori have been influenced by
the Crowns agenda, financial restraint (fiscal envelope)22 and differences over
compensation. The FSA provides for redress and not compensation. Notwithstanding
the view taken by the Privy Council23 this does not lessen the financial constraint
imposed by the Crown upon Maori.
The starting point is a legislative direction under the FSA to consider the nature and
extent of any possible Crown redress. To ensure public access; the recent stance from
the Crown is to negotiate and compensate farmers for land confiscated under the
Public Works Act24 as of right. Whereas, the Crown must negotiate with Maori over
redress but ultimately will pay what it sees fit.
The Human Rights Commission stated that:25
Once the existence of a customary title has been proved,
equitable redress by the Crown should be guaranteed to that right
22

See Mason Durie The Hirangi Hui: A Report Concerning the Governments Proposals for the
Settlement of Treaty of Waitangi Claims and Related Constitutional Matters, 29 January 1995 in G
McLay (ed) Treaty Settlements: The Unfinished business (New Zealand Institute of Advanced Legal
Studies, Wellington, 1995) where the fiscal envelope was proposed by the Crown of one billion dollars
to settle all Treaty of Waitangi claims. This amount was non negotiable and the basis for calculations
unavailable to Maori.
23
New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513; suggests that the level of
resources provided by the Crown must be constrained in a recession; any redress must be within the
Crowns ability to pay.
24
See P Oliver Farmers win veto rights over waterway access NZ Herald Auckland New Zealand,
Thursday 8 March 2007. Available <http://www.nzherald.co.nz/topic/story.cfm?
c_id=195&objectid=10427689> (31 July 2007) The report effectively kills plans to open access to
lakes, creeks and rivers without compensation to landowners for the public use of their land; see also
Damien OConnors (Minister for Rural Affairs) comments in an address to the NZ Meat and Fibre
Producers AGM; Available <http://www.fedfarm.org.nz/speech_notes/OConnorNZMFPAGM.html>
(31 July 2007).
25
See Human Rights Commission on the Foreshore and Seabed Bill: Part 1 Submission to Fisheries
and Other Sea Related Legislation Select Committee, 12 July 2004, 12. Available <
http://www.hrc.co.nz/home/hrc/newsandissues/foreshoreandseabedbill.php> (22 November 2007).

holder under the Bill (whether in the form of monetary compensation


and/or some other form).
(Emphasis added)

Brookfield notes that the legislative removal of these customary rights or customary
title, as a species of legal property, by the Crown should be recognized with full
compensation.26 The provisions of the FSA may entertain this possibility.27 According
to Brookfield an alternative solution would be to declare that the foreshore and seabed
were vested in the Crown as trustee for Maori that successfully made its claim; and
provisions for public access would apply.28 In my view this would be a viable and
appropriate interim solution.

1.1

Application Process

Although the process to apply for a territorial customary rights claim is not explicit in
the FSA it appears that the application process is similar to an application to the High
Court for a customary right order.29 In a process similar to seeking a resource consent
other parties are required to be notified30 of the application including local authorities,
the Minister of Conservation, Minister of Maori Affairs and any other parties deemed
by the Court as to likely to be directly affected by the application.31 The application is
also required to be publicly notified.32
It should be borne in mind that a resource consent for occupation of, for instance, the
seabed for the purposes of establishing a marine farm does not confer a title or
property right, upon the applicant, but rather it allows a limited property right. As a
Council cannot derogate from the rights conferred by the resource consent this infers
a property right. A resource consent is not only valuable in an economic sense but is
26

See Comments made by Jock Brookfield Jock Brookfield: Time for a rethink on Maori customary
title NZ Herald 19 February, 2007. Available
<http://www.nzherald.co.nz/index.cfm?objectid=10424568> at 31 July 2007.
27
See section 37 (1) where the Ministers must enter into discussions for the purpose of negotiating
an agreement as to the nature and extent of the redress to be given by the Crown
28
F M Brookfield Waitangi and Indigenous Rights: Revolution, Law and Legitimation (Auckland
University Press, Auckland, 2006), 192.
29
A Customary Rights Order can also be sought from the Maori Land Court; see section 48 FSA.
30
Refer Part 6 of the Resource Management Act 1991.
31
Section 70 FSA.
32
Section 71 FSA.

also seen as real or personal property in a legal sense.33 It is no surprise that parallels
in the application process exist between a territorial customary rights claim and a
resource consent.
1.2

Grounds for determination of application

A territorial customary right is defined as:34


a customary title or aboriginal title that could be recognized at common law and that
(a)

is founded on the exclusive use and occupation of a particular area of the public
foreshore and seabed by the group; and

(b)

entitled the group, until commencement of this Part, to exclusive use and occupation
of that area.
(emphasis added)

Exclusive use and occupation requires:35


(a)

that [the] area was used and occupied, to the exclusion of all persons who did not
belong to the group, by the members of the group without substantial interruption in
the period that commenced in 1840 and ended with the commencement of this Part;
and

(c)

the group had continuous title to the contiguous land.


(emphasis added).

If the application is successful a finding is made that:36


the group would, but for the vesting of the full legal and beneficial ownership of the
public foreshore and seabed in the Crown by section 13 (1), have held territorial customary
rights to a particular area of the public foreshore and seabed at common law.

The High Court may then make an order setting aside that area as a reserve37 or, as
previously noted, an order referring the finding to the Attorney-General and the
Minister of Maori Affairs38 for redress.

33

Kemp v Queenstown Lakes District Council [2000] NZRMA 289 Judge Jackson.
Section 32 (1) FSA.
35
Section 32 (2) FSA.
36
Section 33 FSA.
37
Section 36 (1) (b) FSA.
38
Section 36 (1) (a) FSA.
34

This section is yet to be tested.39 Nevertheless, at this point the Ministers must enter
into discussion with the applicant to negotiate the nature and extent of the redress to
be given by the Crown.40 In my opinion this redress could include compensation or
support for the recognition of property right. The Crown has previously been reluctant
to grant adequate compensation.41 However, Maori in this instance are not necessarily
seeking financial redress, but a recognition of these customary rights. This recognition
could entail a sui generis42 indigenous title; a title or right similar to a resource
consent right mentioned above; or a title that was equivalent to freehold title.
Importantly, it would recognize and reflect customary rights in a form or title that was
acceptable to Maori. Any title would ensure public access rights43 and include
restrictions on sale.44
If it was the Crowns intention to vest title of the foreshore and seabed area in Maori,
Parliament as sovereign could have taken this action should that have been the wish of
Parliament. It has not. The wording of the FSA is clear vesting the foreshore and
seabed in the Crown, indicating that any possibility of vesting title to the foreshore
and seabed in Maori is limited. Nevertheless, if the provisions for a territorial rights
claim are met; then the FSA does allow, albeit marginally,45 this possibility for Maori.
2.0

Issues

39

There are separate and direct negotiations that commenced prior to the FSA between Ngati Porou, Te
Whanau a Apanui and Ngati Porou ki Hauraki and the Crown to resolve iwi claims to the foreshore and
seabed. See Damien Stone The Treaty, Foreshore and more: a full year ahead February 2007.
Available <http://www.bellgully.com/resources/resource.00793.asp> (12 December 2007).
40
Section 37 (1).
41
See comments by Te Arawa on recent Tribunal settlement in Jon Stokes $200m treaty deal makes
tribe a force NZ Herald New Zealand 30 September, 2006. Available
<http://www.nzherald.co.nz/topic/story.cfm?c_id=350&objectid=10403715&pnum=0> (12 December
2007). See also comments by the Waitangi Tribunal in Wai 84 Further Crown Breaches, 19.6.8
Available <http://waitangitribunal.govt.nz/scripts/reports/reports/84/328A56EF-5250-4406-B725953CD0B327C2.pdf> (29 November 2007).
42
It is my opinion that a unique form of title reflective of the indigenous legal system and
accompanying customary rights within the foreshore and seabed area could be developed for Maori.
The details are beyond the scope of this paper, however with respect to the existence of various forms
of title such as lease hold, freehold and Maori freehold, in my opinion this proposal is possible.
43
Conditions of public access can be imposed similar to those contained in Resource Consents for
Coastal Permits issued pursuant to provisions of the Resource Management Act 1991.
44
A similar scheme adopted by the Maori Fisheries Act could be used. See sections 161 and 162 Maori
Fisheries Act 2004 which restricts sale of quota as a settlement asset to other iwi and Te Ohu Kai
Moana.
45
Section 36 (1) and 37 (1) FSA allow a negotiation process for redress.

10

To be successful under the FSA there are two major, but related, issues that are
required to be satisfied. The first requirement is that customary title or an aboriginal
title can be recognized at common law.46 Arguably the use and occupation provision,
prevalent throughout other jurisdictions such as Canada and Australia, will provide a
basis to satisfy this requirement. The second requirement is establishing exclusive use
and occupation of the area. This entails occupation without substantial interruption47
and continuous title to contiguous land.48 The legislation is adopting a stringent
approach to determining title. This is effectively a return to the Ninety Mile Beach
reasoning.
2.1

The developing doctrine of aboriginal title and common law

There has been no application, to date, to the High Court for a territorial rights claim.
If the customary or aboriginal title, in relation to that applicant, is not recognized by
common law then the application will fail. This provision, therefore, perhaps
somewhat remarkably retains the entire body of the law relating to the content,
creation and extinguishment of native rights at common law.49 Boast50 perceives this
as a hurdle, because if the title is not one that the common law could recognize then
there is no foundation for a territorial customary right. It is quite clear that one area of
the common law where indigenous customary law is part of the common law and
cognizable by the ordinary Courts is the law relating to aboriginal or native title.51

2.1.1

What is Aboriginal/Customary Title?

Aboriginal title is defined as52 indigenous title existing before the arrival of colonists.
Common law aboriginal title is concerned with the effect of Crown sovereignty upon

46

Section 32 (1).
Section 32 (2) (a).
48
Section 32 (2) (b).
49
Boast above n 7,145.
50
Boast ibid 144.
51
Boast et al above n 13, 31.
52
Peter Spiller (ed) Butterworths New Zealand Law Dictionary (Lexis Nexis, Wellington, 2002, Fifth
Edition) 2.
47

11

pre existing property rights of tribal inhabitants.53 When the colonizing power
declares itself sovereign over a territory it establishes institutions of governance
including Courts that apply English law; that being common law and statute law.
The source of common law aboriginal title doctrine is found in European notions of
international law dating back to the sixteenth century.54 Aboriginal rights are based
largely on the presumption of continuity.55 The presumption applies regardless of
whether the new territory was acquired by conquest, cession or settlement.56
Cooke P defined aboriginal title in Te Runanganui o Te Ika Whenua Inc Society v
Attorney General [1994] 2 NZLR 20 at 23 24 as:
On the acquisition of the territory, whether by settlement, cession or annexation, the
colonising power acquires a radical title or underlying title which goes with sovereignty
the radical title is subject to the existing native rights.
(emphasis added)

In Re Lundon & Whitaker Claims Act 1871 the Court of Appeal said:57
the Crown is bound, both by the common law of England and its own solemn engagements,
to a full recognition of the Native proprietary right.
(emphasis added)

Contrary to the presumption of English real property law where possession reflected
ownership, at common law the foreshore and seabed was assumed to be owned by the
Crown in the absence of evidence to the contrary.58 Private title to the foreshore was
not favoured by the Crown due to the policy to protect public rights of fishing and
navigation. Despite this the Crown have cited reasons of public interest, public access,
security and recreation as considerations to warrant ownership.
53

Paul McHugh, The Foreshore and Seabed, New Zealand Law Society Seminar, July 2004, 26.
Williams D Unique Treaty based relationships remain elusive in M Belgrave, M Kawharu and D
Williams (ed) Waitangi Revisited (Oxford University Press, Australia, 2005), 381.
55
Law Commission, Maori Custom and Values in New Zealand Study Paper 9, Law Commission
Wellington March 2001, 11.
56
Kent McNeil Aboriginal Title and Aboriginal Rights: Whats the connection? (1997) 36 Alberta
Law Review 193.
57
(1871) 2 NZCA 41 at 49.
58
For example evidence of a Crown grant or an inferred Crown grant.
54

12

For Maori and other indigenous peoples there was no distinction between land below
or land above the water.59 Any presumed Crown title in the foreshore would be subject
to a customary Maori title that was capable of transmission from a customary title to a
Crown granted freehold tenure.60
Boast61 argues that it has been assumed in New Zealand that Maori customary title
needs to be independently extinguished prior to a Crown grant which may be said to
be a core feature of the doctrine of aboriginal title at common law. The onus lies upon
the Crown to prove extinguishment. Extinguishment is usually through purchase.
Prior to the FSA, in New Zealand this has been evident for land above the high water
but not within the foreshore area. There is the common law relating to native title in
general and the common law relating to native title within the foreshore and seabed
area.
The FSA is a clear example of extinguishment of any customary title within the
foreshore area and vesting title of this area in the Crown. This act is strengthened, in
the FSA, by the Crown refusing any fiduciary obligation,62 or obligation of a similar
nature, to any person in respect of this area.
However, the Court in Ngati Apa adopted the orthodox common law principle that
Maori customary title continued after the British Crowns assertion of sovereignty
over New Zealand in 1840 and found that the customary title was not extinguished by
any general or specific legislation.63 This conclusion was supported by case law.
The Court in this instance, interestingly, did not refer to the rights or principles of the
Treaty of Waitangi (the Treaty). Any Treaty reference through the common law and
the principles or the text itself would have led the Court to address the applicability of
the Treaty, the principles and possibly any breach. The confusion or interpretation
59

See Gumana v Northern Territory of Australia [2007] FCAFC (2 March 2007) 28 Aboriginal
tradition does not distinguish between land and sea and that country can include sea country
60
See as an example Native Lands Act 1862 ss 2, 7 and 9; also Native Lands Act 1865 ss 5 and 46.
Involved a two step process, firstly to prove according to customary law ownership and secondly Court
certificate produced in exchange for Crown grant.
61
Boast above n 7, 45.
62
Section 13 (4) FSA.
63
Boast ibid 62.

13

as evidenced in Re Ninety Mile Beach, often experienced between the Treaty and
aboriginal title, could have contributed to this decision. Nevertheless, a discussion of
the relevance of the Treaty or the principles of the Treaty to the Foreshore and Seabed
debate has not been mentioned by the Court.64
In my opinion, to discuss the development of the customary title doctrine in New
Zealand the Treaty is central to this. However as the Court in Ngati Apa did not
discuss the relevance of the Treaty to the Foreshore and Seabed debate this paper with
respect to analyzing a claim under the FSA will confine its application accordingly.
Consistent with a colonizing power the Courts reasoning was limited to common
law and statutes. The Court was concerned with the issue of what extent the
colonizing powers common law recognizes the aboriginal title. Two results have been
suggested by McHugh. The first is legal discontinuity and concerns the suspension of
tribal property. The second is continuity and entails recognition by the courts of the
arriviste legal system. At its most basic formulation, common law aboriginal title is
founded upon this presumption of legal continuity. It allows the tribal owners to have
their communal land rights recognized by the introduced common law legal system.65
The common law aboriginal title operates within a set of principles defining the
character and nature of Crown sovereignty. The Court of Appeal turned to those
principles in Ngati Apa when it held that the Crowns sovereignty over the foreshore
and seabed did not preclude the continuance of property interest of Maori. That
continuity could be recognized by the High Court applying those common law rules
of aboriginal title, or through the Maori Land Court applying its statutory jurisdiction
to declare the status of land.66 This opened the window for New Zealand to adopt a
new jurisprudence on customary title akin to Australia in the Mabo67 case and Canada
in the Calder68 case.
2.1.2

Customary Title in New Zealand

64

See Wai 1071 above n 3, 28, for full discussion of the Treaty principles.
McHugh above n 53, 26.
66
P McHugh Aboriginal Title in New Zealand: A retrospect and Prospect (2004) NZJPIL, 145.
67
Mabo v State of Queensland (No 2) (1992) 175 CLR 1.
68
Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145.
65

14

The Treaty of Waitangi and the subsequent legislation placed New Zealand in a
unique position where the doctrine of customary title (to land above the high water
mark) had less impact. This was due to the fact that the original, aboriginal or
customary title had been transmuted by the Crown through recognized tenures. These
tenures were implemented after sale, cession, confiscation or transmutation of the
land by the Native Land Court.
Unsurprisingly, until the doctrine of customary title was articulated in common law
jurisdictions the recognized position was that the statutory jurisdiction of the Maori
Land Court (previously the Native Land Court) combined the legal recognition and
also the transmutation of customary property rights. In separating the two and
acknowledging the first lay in the common law itself, the Court of Appeal in Ngati
Apa was identifying with and recognizing the doctrine of common law aboriginal
title.
The enactment of the FSA effectively closed the avenue for Maori to seek title to
customary land (below the high water mark) in the Maori Land Court. This does not
mean that the common law does not recognize customary title; nor does it mean that
process required to seek common law customary title is invalid. It is just the vehicle
that has changed and more importantly the consequences of such recognition.
Nevertheless the development of this doctrine in New Zealand is not as progressive as
other jurisdictions.
2.1.3

Development of Aboriginal Title in Canada - A broad approach

Canadian case law, from the Calder69 decision to the Van der Peet70 trilogy and
Delagummuku,71 has grappled with aboriginal rights and aboriginal title. The Courts
have attempted to define and clarify the source, meaning and extent of the rights
accorded by common law. Both Calder72 and Guerin73 recognized that a form of
69

Calder above n 68.


R v Van der Peet [1996] 2 SCR 507.
71
Delgamuuku v British Columbia (1997) 3 SCR 1010.
72
Calder above n 68.
73
Guerin v The Queen (1984) 13 DLR (4th) 321.
70

15

aboriginal title existed and suggested that its source was in the prior occupation of the
land (rather than the Royal Proclamation of 1763). The title so recognized was sui
generis rather than the equivalent of any common law tenure but it carried with it
something more than usufructuary or merely personal rights.74 Guerin75 was also
important because it identified the existence of a fiduciary duty owed by the Crown
which impacted on the manner in which the Crown dealt with aboriginal title.
The test for present day incidents of aboriginal title differ from activity based
aboriginal rights. The time frame for determining whether aboriginal title has been
established is the date that the Crown asserted sovereignty in the area76 and the focus
of the courts is the intensity of the aboriginal group's attachment to the land in
question at that time, not (as in the case of activity based rights) in determining which
activities were central to its culture.77 Significantly, aboriginal title gives a First
Nation the right to occupy and use traditional lands for a wide range of activities,78
not merely to engage in traditional activities that were integral to its distinctive
society at the time of contact. Finally, like other aboriginal rights, aboriginal title to
traditional lands continues to exist today unless it has been given up by treaty or
extinguished prior to 1982 by a federal law.79 The Canadian courts tend to stress
occupation and use. They are prepared to recognize the existence of native title
provided that the indigenous group occupied and used a particular area at the time of
contact, and provided also that the group is still in existence at the present time.80
Unlike a territorial claim under the FSA, if there is no title to the contiguous land this
is not fatal when ascertaining aboriginal title. The Court recognizes that that approach
would be too restrictive. Nevertheless, quite clearly, the common law in Canada
recognizes and provides for the doctrine of aboriginal title.
74

M Tehan Delgamuuku v British Columbia (1998) 22 Melb UL Rev 763.


Guerin above n 73.
76
Delgamuuku above n 71, paras. 144-45. The assertion of Crown sovereignty frequently occurred
well after first contact between Europeans and the First Nation.
77
See R v Bernard, [2005] SCC 43, at paras. 58-59. See also Delgamuuku above n 71, paras. 137-39
for more on the distinction between activities that give rise to Aboriginal rights and those that may
support aboriginal title,
78
See Delgamuuku above n 71 paras. 125 - 28. There are two major limitations to the ownership rights
given by aboriginal title. The First Nation's present uses of the land must be reconcilable with the
nature of their attachment to the land and the First Nation cannot transfer the land except to the Crown.
79
Michael Coyle Addressing Aboriginal Land Rights in Ontario: An Analysis of Past Policies and
Options for the Future: part 1 (Fall 2005) 31 Queen LJ, 75, 109.
80
Boast above n 7,145.
75

16

2.1.4

Development of Native Title in Australia a restrictive approach

Mabo v State of Queensland (No 2)81 provided for the recognition of indigenous
rights. The High Court of Australia decided that native title is recognized by the
common law and that indigenous inhabitants have rights to their traditional lands. For
the first time since white settlement judicial recognition was given to the rights of
indigenous peoples with regard to land.
The High Court in Ward82 construed that native title rights and interests are derived
from traditional law and custom. In Australia, the common law recognizes those rights
and interests through the concept of native title and the subsequent passing of the
Native Title Act 1993 (NTA). However, the continued emphasis that the Court placed
on traditional law and custom as defining the content of native title, rather than
possession (as in Canada), was disappointing to some, not least because of the
evidentiary burden this has created.83
In Ward the majority confirmed that Native Title is defined in section 223 (1) of the
NTA and the statutory definition requires two inquiries:84
(a)

the rights and interests possessed under traditional laws and customs, and identification
of the rights and interest possessed under those laws; and

(b)

the connection to land and waters.

Case law confirms that the common law of Australia does not create native title; the
common law recognizes native title. Native title has its origin in and is given its
content by the traditional laws acknowledged by and the traditional customs observed
by the Aboriginal peoples.85 In comparison to Canada where occupation and use is
stressed, in Australia native title is derived from the maintenance of customary law
down to the present day. In my view the Australian approach, as it has developed, is
81

Mabo v State of Queensland (No 2) (1992) 175 CLR1,


Western Australia v Ward (2002) 213 CLR 1, 66 [18] (Gleeson CJ, Gaudron, Gummow, and Hayne
JJ).
83
Lisa Strelein Compromised Jurisprudence Native Title cases since Mabo (Aboriginal Studies
Press, Canberra, Australia, 2006), 65.
84
Western Australia above n 82.
85
Mabo above n 67, 58 Brennan J.
82

17

far more restrictive than Canadas with New Zealands approach, as dictated by the
statutory scheme, more restrictive again. Nevertheless it is clear that the common law
in Australia recognizes and provides for native or aboriginal title.

2.1.5

Customary, Aboriginal, Native Title Conclusion

It is widely accepted that the colonizing power establishes sovereignty in a new


territory subject to any existing legal systems. However it is incumbent upon the
colonizing power to recognize through common law any existing rights. In Canada
aboriginal title is recognized by the common law and it arises primarily from the use
and occupation of lands prior to the time when the Crown asserted sovereignty.86 In
Australia87 the common law recognizes native title and subsequently as a result the
NTA has been passed. In New Zealand native title is also recognized by the common
law. 88 Whilst the terminology may differ from aboriginal, native or customary the
basic principles still apply.
It is clear from these jurisdictions and acknowledged by the Courts that customary or
aboriginal title can be, and is, recognized by common law. This satisfies the first limb
of the test required to establish a territorial customary rights claim to the foreshore
and seabed for Maori.89 Notwithstanding the restrictive nature of the tests adopted by
statute in New Zealand, in my opinion, the New Zealand Courts are free to pick and
choose from this developing jurisprudence within these jurisdictions and authorities to
develop the law according to the situation.
2.2

How can the Court be satisfied that the customary title rights would have
amounted at common law to an exclusive right of occupation or possession
of the public foreshore and seabed area?

86

Delgamuuku above n 71, 143.


Mabo above n 67.
88
See Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 per Cooke P
23 24.
89
Section 33 is thus a tautology when it states High Court group held territorial customary right
have held territorial customary rights to a particular area of the public foreshore at common law.
87

18

As well as showing that the title could be recognized at common law, the title must be
in addition founded on the exclusive use and occupation of a particular area of the
foreshore by a group.90The key is proving, to the satisfaction of the Court, that these
customary title rights, recognized by the common law, would have amounted to
exclusive occupation or possession of the public foreshore and seabed. Underpinning
this recognition is the strength of the customary or native title. To consider the success
or otherwise of a territorial rights claim to the High Court it is again obligatory to
consider case law and the developing jurisprudence from other Commonwealth
jurisdictions on how the questions of Native Title, customary title rights, together
with the exclusive right of occupation or possession of the foreshore and seabed, are
considered.
2.2.1

Customary Title applications to the Foreshore in New Zealand

The Maori Land Court heard early applications for investigations of title into areas of
foreshore at Gisborne, Orakei, the Hokianga, Herekino and Ninety Mile Beach well
prior to the FSA.91 In some cases the Court was willing to contemplate granting a title
to areas of land below high water mark.92 These investigations required the same level
of evidence for title to the land above the high water mark; whakapapa, exclusive use,
resource and harvesting according to Maori customary law. Although it was
recognized that the Crown did not own the foreshore the High Court and Court of
Appeal held that investigations to the adjacent coastal blocks extinguished Maori
customary or native title within the foreshore area.93 The Court of Appeal in Ngati
Apa overruled this decision reverting to the original position that the Maori Land
Court had the jurisdiction to hear applications for Maori customary title within the
foreshore area. The FSA has withdrawn that ability.94
2.2.2

Native Title applications to the Foreshore in Australia

90

Boast above n 7, 147.


Boast et al above n 13,105.
92
Ngakororo case (1942) 12 Auckland NAC Minute Book 137 as cited ibid.
93
In Re: Ninety Mile Beach above n 17. The Court of Appeal upholding a decision of the High Court.
94
Section 13 (1) now vests title in the Crown.
91

19

Nearly one third of all Native Title claims (approximately 800 claims in total) are to
the foreshore. However, only three95 claims have been tested.
The claim to the seabed was withdrawn during proceedings in the Mabo96 decision.
The Court was not required to rule on the issue of rights to the foreshore and seabed.
However, there was never any doubt that customary marine tenure would be
recognized.97 Subsequently it is timely to consider how two of these claims have been
assessed; and whether these decisions will assist a territorial customary rights claim
under the FSA.
2.2.3

Commonwealth v Yarmirr

The appeals in Commonwealth v Yarmirr98 provided the High Court with the first
opportunity to consider whether native title could be recognized over indigenous
peoples sea country99 or the foreshore and seabed. The main determinations initially
sought by the claimants were:100
(a)

native title exists in the claimed waters and land;

(b)

the native title is held by the claimants;

(c)

the native title rights and interests confer possession, occupation, use and enjoyment of
the waters on the claimants to the exclusion of all others.

The determination by Justice Onley contained the following terms:101


(a)

Communal native title exists in relation to the sea and seabed in the claimed area

(b)

The native title is held by the claimants

(c)

Native title rights and interests do not confer possession, occupation, use and enjoyment
of the sea and seabed in the claimed area to the exclusion of all others

The applicants could presumably have exercised most if not all of these rights
irrespective of whether native title was granted or not. So although native title rights
95

Commonwealth v Yarrmir, Gumana, Risk v Northern Territory and ors where a claim was made to
approximately 30km of waters around Darwin. Adjacent land Crown owned claim unsuccessful.
96
Mabo above n 67.
97
J V R Prescott Australias maritime boundaries (Canberra studies in World Affairs No 16 1985) p
153 154.
98
(2001) 208 CLR 1.
99
(2001) 208 CLR 1.
100
Yarmirr v Northern Territory (1998) 82 FCR 533; 156 ALR 370 (FCA Onley J).
101
Yarmirr ibid.

20

are recognized within the foreshore and seabed area it would appear in this instance to
be a superficial title. In comparison to the rights under a freehold title to the foreshore
and seabed this determination of native title rights is arguably a resolution of lesser
rights accorded under the NTA.
Justice Onley further determined that, although native title exists, in relation to the
determination area that title did not confer possession, occupation, use and enjoyment
of the sea and seabed within the claimed area to the exclusion of others.102 As it is
usual the proposed determination also stated that the native title rights and interests
would be subordinate to any validly granted rights and interests. This further
restricted native title rights. On appeal to the full bench of the Federal Court the
majority upheld these findings.103
Justice Onley held that an exclusive title to the seabed was not possible in Australian
common law.104 This was contrary to the public rights of navigation and fishing.
Justice Onley also found that it would be contrary both to international standards and
the values of common law to recognize a native title right which conflicts with
Australias international obligation to permit innocent passage of the ships of all
States through its territorial seas.105
The appeal to the full bench of the High Court of Australia also upheld these
findings.106 Confirming, that while native title can exist offshore, as a matter of law it
cannot be exclusive. Although this was not unexpected, the decision did not provide a
great deal of guidance as to the implications for the extent of rights and protections
for native title holders offshore.
The decision is particularly interesting with respect to a territorial claim to the
foreshore and seabed as it discusses the common law relating to native title as well as
102

Yarmirr per Onley, 293; 363 - 369


Commonwealth v Yarrmir (1999) 101 FCR 171 (Beaumont and von Doussa JJ, Merkel J dissenting)
(Full Court Federal Court).
104
See Yarrmir above n 100.
105
Yarmirr ibid, para 133
106
Commonwealth v Yarmirr (2001) 208 CLR 1, 68 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby,
Hayne and Callinan JJ. Confirmed that native title rights are recognized in Australias territorial sea
subject to important limitations on their content; see also Yarmirr v Northern Territory [2000] FCA 48
(FCA Beaumont, von Doussa and Merkel JJ) upheld trial judges conclusion that non exclusive native
title exists in respect of intertidal waters.
103

21

the common law relating to the foreshore and seabed. Whilst the common law
recognized native title offshore the majority stated that the public rights recognized
in England limited any grants to areas of foreshore and seabed and this was fatal to
the recognition of native title in such areas (offshore).107 However, as Boast notes,108
if the limitations which in England are not fatal to the existence of a grant, why
should they be deemed to eliminate the possibility of native title in the seabed in
Australia, particularly if there is no doubt that native title has been established within
that area?
2.2.4

Gumana v Northern Territory of Australia109

This case was an appeal110 to seek two declarations. The first was a declaration that
the grant of freehold interest to the Arnhem Land Aboriginal Land Trust (under the
Land Rights Act) extending to the low water mark entitled the applicants to control
the access to the whole area. The second was under the Native Title Act, a declaration
of native title over lands and waters, including the lands and waters within the inter
tidal zone and outer waters of the bay (the foreshore and seabed).
In the first instance, Justice Selway, following the precedent set in Yarmirr111 and
established that the Land Grant was subject to the rights to fish and navigate. With
respect to Native Title, Justice Selway recognized that Native Title can be established.
However native title can only be proven within the foreshore and seabed area absent
the public rights to fish and navigate.
On appeal the relevant issues raised included112 whether the grant in fee simple to the
Land Trust under the Land Rights Act conferred a right of exclusive possession to the
inter tidal zone. With respect to Native Title the relevant issue on appeal was whether
the absence, from the time of sovereignty, of any recognition by the common law of a
right of exclusive possession of the inter tidal zone is an extinguishment of native title
107

Boast above n 7, 49.


Ibid.
109
(2005) 141 FCR 457 Selway.
110
the Arnhem Land Aboriginal Trust, Garwirrin Gumana and others.
111
See Yarrmir above n 106.
112
Gumana v Northern Territory of Australia [2007] FCAFC 23 (2 March 2007) French, Finn &
Sundberg, 15.
108

22

rights and interests. The Court in this instance allowed the Land Rights Appeal but the
Native Title Appeal failed.
The Court agreed with the reasoning of Justice Selway in that the grant of an estate in
fee simple to the low water mark pursuant to the Land Rights Act confers a right to
exclude from the inter tidal zone including a right to exclude those seeking to exercise
a public right to fish or to navigate. Distinguishing Yarmirr113 on this point. This was
not an issue of whether the land grant included the land of the inter tidal area or the
water above it, but whether the extent of the rights bestowed by the Land Grant
enabled the Land Trust to exclude others from entry and or taking from the land and
space above it. The answer requires a consideration of the Land Rights Act and this is
missing from the Yarrmir114 decision.
The Court was satisfied that a grant of an estate in fee simple to the low water mark
conferred a right to exclude from the inter tidal zone, including a right to exclude
those seeking to exercise a public right to fish or navigate. It is interesting to note that
the exclusive right has been accorded directly from a statutory right not a native title
right. Although the recognition of native title rights was a pre requisite for the grant of
an estate in fee simple to the appellant.
With respect to the Native Title claim the Court holds that the NTA115 does not apply
so as to mandate disregard of the omission of the common law to recognize, at the
point at which sovereignty was asserted, native title rights and interests conferring
exclusive possession in the sea or the inter tidal zone.116 The NTA117 cannot be used to
fix the common law so that it may recognize these customary rights prior to
sovereignty.
The Court on appeal reversed the finding of Justice Selway stating that the decision of
Yarmirr erred in law by not considering the Land Rights Act. The Court subsequently
allowed the Land grant appeal. But the Native Title appeal failed.
113

See Yarrmir above n 106.


Ibid.
115
See section 47A of the NTA.
116
Gumana above n 112.
117
See Section 47A of the NTA.
114

23

The Courts reinterpretation of the NTA did not grant the Native Title appeal. The
concepts of non recognition and extinguishment are used by the Court as vehicles
for the common law to not support a native title claim. Extinguishment, like
recognition, is silent on the rights and interests which arise under traditional law and
custom and the relationship which they may reflect between an indigenous society
and its country.118 However, this does not detract from or minimize the actual value or
existence of the rights and interests possessed by the aboriginal people.

3.0

How does this relate to a claim under the Foreshore and Seabed Act 2004?

3.1

Case law application

The New Zealand courts have a plethora of authorities and jurisprudence available to
develop the law in accordance with the situation. Subject to satisfying various
conditions such as use and occupancy119 or traditional laws and customs;120 common
law recognizes customary or aboriginal title. This satisfies the first limb of the test
required to establish a territorial claim to the foreshore and seabed for Maori.
It is not disputed in Gumana or Yarmirr that, subject to establishing that the traditional
owners were possessed under the traditional laws of the customs, rights and interests;
the common law will recognize native title within the foreshore and seabed area.
There may be other competing interests such as the public right to fish and navigate.
Absent a contiguous land title this would result in a non exclusive situation.
Nevertheless native title is recognized by the common law within the foreshore
seabed area. This satisfies the second limb of the test required to establish a territorial
claim to the foreshore and seabed for Maori.
It is by virtue of the traditional laws and customs, required to establish native title,
that a connection is recognized with the relevant land or water space. These relevant
rights and interests are recognized by the common law. Absent any legislation that
118

Northern Territory v Alyawarr (2005) 145 FCR 442 6.


Delgamuuku above n 71.
120
Mabo above n 67.
119

24

expressly extinguishes these rights, such as the FSA, native title rights are warranted
within the areas claimed.
McHugh121 argues a bundle of rights approach. McHugh states that this approach
can be seen as a balancing one that allows both an aboriginal and public band of
interest in the sea and seabed.122Whilst there may be a bundle of rights within the
foreshore and seabed or a co existence of public interest and aboriginal rights;
McHughs starting point places aboriginal rights on par with public interest. In my
opinion this is somewhat disingenuous given that academic commentary and case
law123 unequivocally state that the colonizing power is subject to any existing
aboriginal legal system. It follows that any public right would be subject to any
aboriginal right. The reasoning of McHugh, in my view, is thus flawed.
New Zealand, unlike Australia, has legislated that the foreshore and seabed is vested
in the Crown. Any uncertainty regarding sovereign assertion of title to this area has
been eliminated. However, it would seem to follow that, absent contrary legislation,
such as the FSA, or the requirement of a contiguous title, as in Gumana, if the
traditional laws and customs can be established, a native title right could be confirmed
within the foreshore seabed area. These rights established are not diminished by
contrary legislation or the requirements of a contiguous title. It is just that they are not
recognized in legislative terms.
Applying the reasoning in Gumana it would appear that if Maori held a fee simple
title to the high water mark; it would follow that this grant of an estate in fee simple to
the low water mark should confer a right to exclude from the inter tidal zone
including a right to exclude those seeking to exercise a public right to fish or navigate.
This would grant an exclusive right.
Contiguous title is but one requirement for a territorial claim. However, this situation
is interesting, in that, the fee simple title or land grant to the area above the high water
121

P McHugh Aboriginal Title in New Zealand: A retrospect and prospect (2004) 2 NZJPL, 159
161.
122
McHugh ibid, 159.
123
See Cookes comments in Te Runanganui o Te Ika Whenua Inc Society v Attorney General [1994] 2
NZLR 20, 23 24.

25

issued by the Crown was contingent upon the recognition of traditional laws and
customs. Whereas the native title recognized below the high water mark requires
recognition of a statutory right contained in the land grant or fee simple title. If Maori
held title to the high water mark, established exclusive use and occupation to an area
to the exclusion of others, under the FSA, Maori could establish territorial customary
rights claim and possibly negotiate for a sui generis title or similar.124
Notwithstanding the legislative requirements of the FSA; it is suggested that even if
Maori did not hold a contiguous title this may not be fatal to establish a territorial
claim below the high water mark. Applying the reasoning in Gumana, if Maori can
establish a native title right through whakapapa, traditional laws and customs to the
foreshore; but Maori did not hold contiguous title, due to confiscation, this would not
be fatal to a territorial claim. These rights established within the foreshore area and
not diminished or any less real because the contiguous land is not held by Maori.
These rights are not contingent upon ownership of the contiguous land and exist
independently.
3.1.1

An example The Rocky Outcrops case

A successful determination of Maori customary land within the Maori Land Court
accorded mana whenua and mana moana (ownership) to Ngati Rehua hapu to the
rocky outcrops and the environs on Aotea (Great Barrier Island).125 During the court
case extensive whakapapa evidence confirming occupation and use was given by
Ngati Rehua to establish ownership. In this instance Ngati Rehua whanau held Maori
freehold title to the contiguous land.
Bearing in mind that:
(a)

the common law recognizes native title to the foreshore;

124

This negotiation and any form of title would not involve an amendment to the FSA; title issued or
granted would be separate.
125
See John de Silva v Aotea Maori Committee and Hauraki Maori Trust Board (23rd February 1998),
25 Tai Tokereau MB 212 Judge Spencer.

26

(b)

the extensive whakapapa and traditional laws and customs given to the
Court to confirm continuous use and occupation of the foreshore and rocky
outcrops;

(c)

Ngati Rehua have been accorded mana whenua and mana moana to the
rocky outcrops and environs of Aotea; and

(d)

Maori freehold title still exits to the contiguous land,

it would appear that a territorial claim by Ngati Rehua for an area within their rohe
(area) would likely be successful. This would open the window for Ngati Rehua to
apply to the High Court for an order to refer the finding to the Attorney-General and
the Minister of Maori Affairs. Subsequently the Ministers would be directed to enter
into discussions with Ngati Rehua for the purpose of negotiating an agreement as to
the nature and extent of the redress by the Crown in recognition of a successful
territorial customary rights claim.
Not all hapu or iwi will be in this situation. Notwithstanding the legislative
requirements of the FSA, if an iwi or hapu can establish continuous use and
occupation but do not own the contiguous land for reasons of confiscation, for
instance, in my opinion this would not be fatal to such a claim.

4.0

Comparison pre and post FSA

4.1

Foreshore Seabed claim pre FSA

As the law stood immediately after Ngati Apa the Maori Land Court had two options:
it could either make a status declaration or, alternatively a vesting order with respect
to particular defined parts of the foreshore.126
4.1.1

Declaration

The Maori Land Court pursuant to section 131 (1) of TTWM could determine and
declare, by a status order, the particular status of any parcel of land, whether or not

126

Boast above n 7, 93.

27

that matter may involve a question of law. This ability, as noted in Ngati Apa,127 is non
exclusive128 but the Courts ability to determine the relative interests of the owners of
the land (that, is, to make vesting orders) is exclusive.129
Although it was assumed that the initial status of customary land was Maori
customary land, being one of the categories of land contained in section 129 (1), land
could not have the status of Maori customary land without a declaration. It would
appear that land in the foreshore and seabed area would be Crown land and subject to
native title.
Seeking a declaration130 in many ways is analogous to an indigenous claim to native
title, in the sense that the title exists and has not been extinguished as reflected in the
inquiry undertaken in the Mabo (No 2) decision. Such a declaration would be
sufficient to maintain an action in trespass and could possibly have the effect of
negating the status of Crown owned minerals on any subsurface minerals.131
4.1.2

Vesting Order

A vesting order132 translates automatically into a freehold title under the Land
Transfer Act.133 According to TTWM, once a vesting order is made the land becomes
subject to the Land Transfer Act 1952134 and section 139 requires that every vesting
order, when sealed, be transmitted to the District Land Registrar of the district in
which the land is situated.135
Although it is not explicit in the Act it would appear that once a declaration is
obtained a vesting order to secure a freehold title would be pursued. However, due to
the competing interests within the foreshore and seabed area, it would be assumed that

127

Attorney-General v Ngati Apa [2003] 3 NZLR 643,647 per Elias CJ.


Section 131(3) TTWM.
129
Boast above n 7, 94 section 132 (1) TTWM.
130
Refer sections 131 (1) and 18 (1) (h) of Te Ture Whenua Maori Land Act 1993 (TTWM).
131
Boast above n 7, 96.
132
Refer section 132 of TTWM.
133
Refer section 139 TTWM.
134
Section139 (1) TTWM.
135
Section 139 (2) TTWM.
128

28

the threshold in terms of type and intensity of customary use would be high before the
Maori Land Court would issue a vesting order.136
4.1.3

Pre FSA conclusion

Pre legislation the two options available for Maori was a declaration of Maori
customary land and/or a vesting order. At first blush this appears to be a more robust
position than post legislation. However, such declarations or vesting orders are
granted by the Maori Land Court. The Maori Land Court is a creation by Parliament
and not immune from political interference.137 It is also noted that this premise has
never been tested and unlikely to be in the future.
4.2

Foreshore Seabed claim post FSA

A post FSA claim like a pre FSA claim requires that customary use and occupation to
be established. The rights are regarded as terminated if other groups have occupied
that area unless that group were permitted to by the original group or that group
recognized the authority of the original group.138 The Court will take no account of
spiritual or cultural association unless it has manifested in a physical activity or use
related to a natural or physical resource.139 Unlike a pre FSA claim, these rights are
not lost because of rights of navigation have been exercised.140 It is expressly
required, however, that the claimant hold contiguous title.
If Maori held title up to the high water mark and established use and occupation
within an area, the High Court must set apart and establish a foreshore and seabed
reserve.141 However the foreshore and seabed will still remain vested in the Crown
and the public will continue to have rights of access and navigation.142
136

Attorney-General v Ngati Apa [2003] 3 NZLR 643, 673 per Gault P.


Refer to the past history of this Court (Native Land Court) in D Williams Te Kooti Tango Whenua
(Huia, Wellington, 1999. However it is also noted that the Court has changed since with the adoption of
more Maori friendly approaches such as the appointment of Maori judges, the flexibility of forum
and willingness to learn Maori concepts. See Yvonne Tahana Judges get to grips with Maori concepts
NZ Herald Auckland, New Zealand 23 June, 2007 available
<http://www.nzherald.co.nz/topic/story.cfm?c_id=247&objectid=10447437> (12 December 2007).
138
Section 32 (5) FSA.
139
Section 32 (3) FSA.
140
Section 32 (4) FSA.
141
Section 43 (1) FSA.
142
Section 40 FSA.
137

29

If Maori do not hold contiguous title to the area but it is undisputed that a native title
can be recognized by the common law in the foreshore and seabed area, it would be
suggested that although under the FSA a territorial claim is unlikely, these grounds
would provide a solid basis to enter into negotiations for a co management or similar
arrangement.143
A successful customary rights order, which does not require a contiguous title, will
entitle, Maori to carry out a recognized customary activity in accordance with section
76 and 17A and 17B and Schedule 12 of the Resource Management Act 1991.
However, this does not allow a management input or an exclusive right to the area.
Upon application the High Court may also make an order referring the finding to the
Attorney-General and the Minister of Maori Affairs. At this point it would not be
unreasonable that, based on current case law reasoning, negotiations can be entered
into to secure a sui generis title to the foreshore and seabed area. Alternatively,
compensation may be discussed.
5.0

Conclusion

Despite strong opposition the FSA was enacted vesting ownership of the foreshore
and seabed in the Crown. In my view the way in which the passage of the FSA was
managed was reprehensible and highly offensive to Maori. The minimizing of
customary rights, restrictive drafting in terms of native title recognition and the
underlying political agenda all contributed to the mistrust held by Maori.
The Waitangi Tribunal144 stated that the Treaty of Waitangi recognized,
protected and guaranteed te tino rangatiratanga over the foreshore and seabed as at
1840. The Waitangi Tribunal also found that Maori have the rights of use,
management and control that equated to full possession promised in the English
Version of the Treaty. Maori, in the least, unequivocally expect the right to apply to

143

Co management arrangements exist with the Crown for land and foreshore seabed areas as in Marine
Reserves and on Hauturu (Little Barrier). In these instances iwi do not hold a contiguous title to the
land.
144
See Wai 1071 above n 3, 28.

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the Court for recognition of their customary rights. This would provide Maori with a
vehicle to re establish their tino rangatiratanga within the foreshore and seabed area
Despite the finding by international United Nations organizations145that the legislation
is discriminatory, it is unlikely to be repealed in the current political climate. Maori
have no alternative but to work within the confines of the legislation to reconnect and
reclaim their customary rights and tino rangatiratanga.
To establish a territorial customary rights claim Maori are required to hold a
customary or aboriginal title that could be recognized at common law. This aboriginal
title must also be founded on the exclusive use and occupation. Contiguous title must
also be held by the group.
The Native Land Acts were based on the recognition of Maori customary title above
the high water mark. Until the Ngati Apa decision native or aboriginal title to the
foreshore, below the high water mark, was underdeveloped in New Zealand.
A review of the development of this doctrine and the accompanying jurisprudence
within other commonwealth jurisdictions all support its recognition by the common
law. Recent case law146 indicates that subject to establishing that the traditional
owners possessed the traditional laws and customs, native title can be established
within the foreshore and seabed area.
A claim pre FSA is more attractive offering less hurdles and resulting in a fee simple
title. For Maori a claim pre FSA is the preferred option. However, bearing in mind the
political agenda to secure the foreshore in public ownership, it is not certain that the
goal posts would not be moved should a claim pre FSA ever be available for Maori.
Particularly since the Maori Land Court, who will hear the claim, is a creature of
Parliament.

145

See Report of the Committee on the Elimination of Racial Discrimination Decision 1 (66) sixty sixth
session 17 February 11 March 2005 point 1. Available <http://www.unhchr.ch/tbs/doc.nsf/
(Symbol)/CERD.C.DEC.NZL.1.En?Opendocument> (26 November 2007).
146
Gumana v Northern Territory of Australia [2007] FCAFC 23.

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A claim under the FSA is less desirable offering more hurdles. Absent a change in the
political climate this appears to be the only option available for Maori. It is suggested
that from the developing jurisprudence and growing global recognition of indigenous
rights, in particular to the offshore, a successful territorial rights claim under the
FSA is possible. In my opinion this allows the New Zealand Courts free to develop
this growing jurisprudence and recognition. A successful territorial rights claim may
lead to redress; asui generis or similar title, but this is less certain.
The Parliament has vested title in the Crown. It is acknowledged that there are still
hurdles ahead, and a claim under the FSA is not an option that Maori wish to pursue.
However, this is the only viable option available for Maori to seek recognition of their
customary rights within the foreshore and seabed. In my opinion, whether or not the
developing doctrine of aboriginal native title will assist a claim under the FSA will be
based on the evidence and subject to the interpretation by the Courts.

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