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New Zealand Engineering 1998 March

Customary </h3>   Customary Rights <HR>Morris Te W Love is director of the Waitangi Tribunal <IMG SRC="../gifs/waka.GIF" NOSAVE HEIGHT=225 WIDTH=220 ALIGN=RIGHT> The recent Maori Land Court case related to the seabed and foreshore in the Marlborough Sounds would not have been out of place last century when the investigation of the customary interest of Maori in land was commonplace. The case brought by eight iwi from the north of the South Island sought a determination from the court that the foreshore and seabed in the Marlborough Sounds are Maori customary land. There is high interest in the case in part generated by how the Coalition Government might respond to it. We have now become accustomed to Maori seeking redress of Treaty rights but cases related to customary rights are less common. Claim to the foreshore was investigated in the Ninety Mile Beach case before the Court of Appeal in 1963 [NZLR 461]. The case in the Maori Land Court was heard before Judge Hingston who found that the Ninety Mile Beachcase should be limited to its essential finding concerning land where customary title was investigated by the land court prior to any disposition of the land. The decision should not be extended to lands purchased before the land court came into being. In areas of early land sales such as the South Island, the New Zealand purchases and early sales where the foreshore was not expressly dealt with, customary rights might remain. In his interim decision Judge Hingston has only stated that "The case law before me clearly demonstrates that customary title rights (where they exist) cannot be lightly disregarded. All recent authorities both in other jurisdictions and New Zealand spell out the need that confiscatory legislation in this field must clearly and unequivocally deal with extinguishment; it must be part of or one of the purposes of an enactment that extinguishment is intended;.." The legislation in this case being the Territorial Sea and Exclusive Economic Zone Act 1977 in particular s7 vesting the seabed in the Crown. The case related to foreshore has been guided by the Ninety Mile Beach Case [1963] NZLR 461, but on this the judge states in conclusion: ".. I am of the opinion that I am not bound by the Ninety Mile Beach case because it applies only where the Maori Land Court has investigated the adjoining lands above high water mark. My not being prepared to extend the ratio must result in a finding that, where the Marlborough Sounds Maori were separated from their customary lands adjacent to the foreshore by purchase, the customary rights to the foreshore not included in the sales or not having been expressly extinguished since sale by an Act or other statutory instrument, still remain." The Marlborough Sounds was an area of early Crown purchase where no specific mention was made of foreshore. These areas include most of the South Island and the old New Zealand Company settlements at New Plymouth, Wanganui, and Wellington. Parts of Northland and Auckland could also be affected. The seabed Section 7 of the Territorial Sea and Exclusive Economic Zone Act 1977 provides: "Bed of territorial sea and internal water vested in Crown - Subject to the grant of any estate or interest therein ........ the seaward side by the outer limits of the territorial sea of New Zealand shall be deemed to be and always to have been vested in the Crown." The judge did not make a determination in this case preferring that the matter be the subject of more extensive legal argument. It seems assured that there will indeed be more argument all of which will no doubt be helpful in clarifying these matters. It is too early to leap to conclusions about the consequences if further courts find that customary title rights have not been extinguished. In this case the claimants are seeking both to clarify the law and, more importantly, to ensure that rights related to the occupation are fully and properly considered. They are concerned that seabed rights have been appropriated by careful use of regulations which have effectively excluded Maori from what could be legitimate rights in aquaculture and activities which involve the occupation of coastal space. When Sir Geoffrey Palmer, during the resource management law reform which led to the Resource Management Act, determined that matters of "resource ownership" would be dealt with in another forum, issues such as the ownership of the seabed and foreshore were set aside. Although belated, this case may well be one of these "other forums". This case is only the beginning of the matter with the next chapter to be worked out through the Maori Appellate Court. If the law is clarified, and that allows the Maori Land Court the ability to determine customary rights in relation to foreshore and seabed there will be questions as to what those rights may constitute and how they will relate to existing rights. <HR> </td> </tr> <tr> <td width="30"><img src="/ipenz/images/front/1x1tr.gif" alt="Blank space" width="30" height="50"></td> <td width="160" valign="top" align="left"><img src="/ipenz/images/front/1x1tr.gif" alt="Blank space" width="160" height="50"></td> <td width="20"><img src="/ipenz/images/front/1x1tr.gif" alt="Blank space" width="20" height="50"></td> <td width="400" align="left" valign="top" class="bodya"><img src="/ipenz/images/front/1x1tr.gif" alt="Blank space" width="400" height="50"></td> <td align="right" valign="top" width="250"> </td> </tr> </table> <div id="footer"> © 1996 - 2010 IPENZ </div> </div> </body> </html>