The foreshore and seabed debate has been hot. On one hand we have the media and red necked politicians claiming Māori are trying to secure beach access for themselves. On the other we have Māori claiming they have been stripped of their rights in the biggest land grab since the Māori wars.

This article doesn’t try to solve the debate, it simply lays out the background and history around the debate. What led to the legislation being rushed through, what is customary title, customary rights and native title? Why do Māori get it and how did the court suddenly come up with this right that the government had to squash?

What is Native Title

Native Title, also called customary title, is a Common Law principle in many colonised countries, such as the USA, Canada, New Zealand and Australia. It is based on the idea that before settlers arrived the native people had customary practices that defined rights over land. Those rights predate the establishment of colonial rule, and unless expressly extinguished they continue and may be recognised by the court in ‘modern’ law.

This doctrine is quite different to the Treaty of Waitangi. Although it could be argued the idea of Native Title is recognised in the treaty under Article 2, where the crown is granted the exclusive right to purchase land from Māori, it is far from the same thing. Most importantly is that in New Zealand the Treaty is not directly enforceable in law, Native Title is.

Native Title can be extinguished, either by sale of the land to another, express legislation that removes the right or by general consent of the natives who hold such title. It’s also important to remember that not just any Māori descendent could walk up to a piece of land and claim it, they need to prove that under traditional customs (Nga Tikanga Māori) they have exclusive rights to that land, something that isn’t easy to prove. In some cases Customary Rights can be awarded, these are rights which are less than full property ownership and allow for traditional usage to continue on crown land.

We should not forget either than Native Title cannot be claimed on private land, for land to be privately held it must have been sold at some point and therefore Native Title is extinguished. Claims of Native Title can only be made on crown land, essentially land that has not formally been assigned to anyone.

Native Title in New Zealand

In the twenty or so years after the Treaty was signed it seems the courts fully respected the idea that Māori were entitled to Native Title over their lands. In the case of R v Symonds (1847) the court clearly confirmed Māori rights. It affirmed Native Title existed in New Zealand, that crown ownership of land was encumbered with obligation to respect Māori claims of ownership (or usage) and if a group of Māori can prove they have rights over some land it should be granted to them by the court.

Of course it should be remembered that many of the early judiciary were considered quite ‘new age’ for their time. They saw New Zealand as a chance to ‘do the right thing’ and perhaps right some the wrongs committed in other parts of the empire during colonisation. Also Māori greatly outnumbered Pakeha at this time and English law was only just starting to spread through the colony. It would have been impractical at best to try to tell Māori they didn’t actually have rights to own land they had been inhabiting for the last few hundred years.

However all this changed. Through the 1860s settler numbers surged and Māori populations fell. The new arrivals wanted land, but the Māori owners were increasingly reluctant to sell it. They had probably not envisaged quite so many Pakeha arriving and were starting to feel their rangatiratanga was being threatened.

The Native Lands Act of 1862 set up a court which was largely there to investigate Māori claims of Native Title and award European Title to the owners. The push was to move Māori away from the concept of communal land and instead place it in individual ownership. This made the land easier for settlers to get hold off and helped assimilate Māori into the British way of doing things.

Tensions built and lead to the Māori land wars and ultimately the mass confiscation of vast tracks of desirable Māori land and converting it into private Pakeha ownership. This was partially a reaction to the Māori wars, but probably as much a way to get around the inconvenience of the Native Land Court and those pesky Māori who refused to sell. This is evident by the fact that big chunks of land were confiscated from Māori who actually fought on the side of the British.

By 1877 attitudes of the 1840s had changed. In Wi Parata v Bishop of Wellington (1877) the court essentially disregarded the idea that Māori had any form of cultural laws that predated European settlement. It declared the Treaty a ‘nullity’ and basically held that the idea of Native Title did not exist in New Zealand. They did this partially by eliminating the idea of customary laws and partially by adopting an idea that the native must have developed (in a European sense) the land for it to be their property. Land that has simply been used to hunt or gather on is waste land and Māori could not own it. The court made it clear the only burden on the crown was a moral one, they could be nice to the Māori but there was no legal compulsion for them to do so.

A few years later this decision was heavily criticised by the Privy Council in England, the highest court of New Zealand at the time in the case of Nireaha Tamiki v Baker (1901). This didn’t overturn the Wi Parata case, but it sent a strong message to the colony that their approach to Native Title was wrong. This combined with other criticism led to a protest by the judges here (the Protest of Bench and Bar), where they basically said the Privy Council didn’t understand the situation in New Zealand.

This is interesting for a few reasons. Firstly is that a number of people who argued to keep the Privy Council did so on the basis that they were removed from the domestic situation so could give an objective legal view of things, it seems the early courts disagreed with this idea. Secondly, one of the justifications for later overturning Wi Parata was that it did not take into account the circumstances in New Zealand and stuck too rigidly to the British concepts of property. Good example of whether you like it or not judges are human and do represent the attitudes of society in some way.

Modern History

So the principles in Wi Parata lived on in New Zealand, the Native Land Court continued to award Native Title where it could, the government legislated where it felt fit to extinguish Native Title and people bought up land. By the later part of the 20th Centaury there wasn’t a lot of land left that could be claimed to have Native Title attached to it.

In 1963 a claim was made for the foreshore of Ninety Mile Beach. This went to the Court of Appeal where it was rejected. The court largely followed the thinking in Wi Parata, it also pointed out that to even claim the foreshore it must be connected to (contiguous) dry land that was customary land. As there is very little of this dry land left, and probably very little of it (if any) coastal it would have seemed that was the end of it.

The Native Land Court still existed, although now called the Māori land court. In 1993 the Te Ture Whenua Māori Act was passed. This essentially reaffirmed the Māori Land Court and granted them the power to investigate claims of Native Title and award ownership to anyone who could prove their case under the principles of Nga Tikanga Māori. Many of the previous restrictions placed on the court were removed and the wording used in the new Act was quite general. On one hand it was seen as granting of greater powers to the Māori Land Court, on the other hand it was considered a safe bet as all the ‘good land’ had already had its native Title extinguished… or had it…

Ngati Apa

After many years of battling with the local council over getting permission to set up an aquaculture project in the Marlborough Sounds, a group of eight Iwi went to the Māori Land Court. They wanted the court to award them title over certain sections of the foreshore, this would allow them to go ahead with their project. They claimed they had Native Title due to their traditional usage over the foreshore. No one knows if such a claim was true, the facts have never been properly presented in court.

The Attorney-General immediately objected. It was claimed that the Māori Land Court had no jurisdiction to hear the case, that it could not award title to the seabed so the case must be rejected. The AG claimed this relying on a few simple arguments. Firstly that the case of Ninety Mile Beach (1967) meant the claim was going to fail right away. Secondly, that the government had passed various legislation which extinguished Native Title over the foreshore. Finally, that the empowering Act, Te Ture Whenua Māori Act, did not cover the foreshore; the use of the word ‘land’ in the act only applied to ‘dry land’.

The Māori Land Court wasn’t so sure. In a preliminary finding it distinguished the 1963 case and held that the legislation referred to didn’t extinguish Native Title. However the AG appealed to the Māori Appellate Court, who in turn referred the matter to the High Court to decide.

The High Court found in favour of the AG. The courts thinking is a little tricky to explain but I will try:

Firstly the court found that the crown owned the land below the high water mark (foreshore & seabed) and that Native Title had effectively been extinguished by legislation. It used the Wi Parata reasoning that the radical title the crown acquired with its sovereignty equated to full ownership (fee simple), that there was an obligation for the crown to respect customary rights but it was for the crown to decide on this.

Secondly the court upheld the thinking in Ninety Mile Beach (1963), arguably it was required to as that was a Court of Appeal decision and this was just the High Court. The court could have distinguished it, but obviously felt there were not enough grounds to do so.

Finally it did find that the Te Ture Whenua Māori Act could apply to both ‘dry’ and ‘wet’ land. A small and meaningless victory for the Māori Iwi concerned.

Not surprisingly the Māori groups appealed.

Ngati Apa v Attorney-General [2003] NZCA 117

The Court of Appeal found in favour of the Māori groups. In doing so it completely changed the judicial attitudes of the previous 126 years and sparked what has been termed a constitutional crisis.

In a nutshell the full bench of the court found (in a unanimous decision) that Ngati Apa had the right to have their case heard in the Māori Land Court. They did not say the case would succeed, actually quite the opposite. They went to great lengths to state that proving the case would be difficult and it could very likely fail, also that even if they won they may not be awarded full ownership and may only get some recognition of rights. But all of that needed to be decided on the facts of the case, the court of appeal was just ruling on a point of law over whether the Māori Land Court could hear the case or not.

In overturning the High Court decision the Court of Appeal made some striking decisions.

Firstly it overturned its own previous decision in the case of re Ninety Mile Beach (1963). It found that in that case the court had made an error, it relied on the thinking in the Wi Parata case which had itself been criticised as being wrong by a higher court (Privy Council).

The court also clarified that the crown did not acquire full ownership when it acquired sovereignty in New Zealand, rather it acquired the right to make any law it wants over the land. Native Title (customary rights) continue to exist and must be recognised by the crown if proven, the two concepts (customary rights and sovereignty) are not mutually exclusive of each other.

Having laid this concept out it also found the legislation relied on wasn’t enough to extinguish customary rights. It really just affirmed the crowns sovereignty over the seabed and foreshore, which does not preclude customary rights from existing.

These are deceptively subtle but important finding. For 126 years it was assumed that the crown owned all land outright in New Zealand. If it granted title to someone it must have the title to grant. The Court of Appeal found this thinking flawed, it did not take account of local circumstances as provided in the English Laws Act 1858 and assumed New Zealand was the same as Britain where the crown does own all land outright (thanks largely to William the Conqueror conquering and introducing the feudal system). As New Zealand was not conquered and didn’t have the feudal system the application of English law in its pure form was invalid and crown ownership of land was subject to (encumbered by) customary title. If the crown didn’t like that it had to use its sovereignty to pass very clear and express legislation which extinguished that title.

So Ngati Apa and the other Iwi could go have their case heard in the Māori Land Court at last! Or could they…

Political Reaction

The government of the day was furious by this perceived about turn from the courts. It felt that the decision flew in the face of their intention for the Te Ture Whenua Māori Act and was a direct challenge of governments authority.

This thinking was probably flawed. The minister in charge of bringing the Act in back in 1993 didn’t seem surprised by the finding, nor did most academics who had warned this would happen. It can also be seen as the court doing nothing more than clarifying a point of law that had been wrongly applied for 126 years.

This didn’t appease the government. They openly criticised the courts decision (something forbidden by constitutional convention) and began to rush through legislation to overturn it. It told the Māori land court to not hear any cases, which the court duly responded ‘no’.

The proposed legislation essentially extinguished customary title to the foreshore & seabed, and initially didn’t provide for any express compensation for Māori. It can easily be seen why many Māori saw this as a second confiscation of land, it was the taking away of a property right without compensation – something the United Nations was also somewhat critical off (hence why the rather weak compensation clauses were added). Initially the government said they’d put all the ‘beaches’ into public hands, then they remembered they’d already sold off bunches of the seabed and foreshore to other people in the past and decided to just take away Māori rights to the land and leave the existing, largely Pakeha, owners alone.

The Waitangi Tribunal made a report which pointed out that although under Article 1 they government could do this, the legislation was in breach of both Articles 2 and 3. Not only did it treat Māori differently to non-Māori (by only taking away their rights) but was an infringement on their rangatiratanga (regardless of whether you translate this as sovereignty or governorship, it breached it).

The government was unmoved. Fuelled by unfounded claims in the media that access to beaches was under threat the government rushed through the legislation. This lead to the breakaway of the Māori party, the loss of the Māori vote for labour and this author believes the eventual downfall of the Labour government.

Conclusion

What we see is that between 1877 and 2003 the customary rights of Māori were thrown in the back of the sock drawer and forgotten about. Then the Court of Appeal decided to correct past injustices and set the legal record straight. But in doing so it highlighted that New Zealand society probably wasn’t quite ready to accept this change. The government, with huge general public support, returned to the status quo.

However things do not stand still. The decision of the Court of Appeal may not have immediately changed what they intended to change, but it has lead to the bizarre situation where New Zealand has a National led government in coalition with a Māori party. This has led to a number of concessions to Māori, a number of probably long overdue concessions. Māori may never get the right to claim the foreshore and seabed but there is no doubt that the Court of Appeals decision in Ngati Apa set a course that has finally led to a greater political recognition for New Zealand first people.

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