COA Decision

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NGA -T I A PA , N OA TI KOA TA , & ORS v KI IE TAU lHU TRUST & ORS [2003J N...Page 1 of 49. .

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NGATI APA, NGATI KOATA, &DRS V KI TE TAU IHUTRUST &ORS [2003] NZCA 117 (19 June 2003) ....IN THE COURT OF APPEAL OF NEW ZEALAND

CA173/01(~ . CA75f02BETW EENNGATI APA , NGATI KOATA, NGATI KULA, N GATI RARUA, NGATI TAM A,NGATI IDA AND RANGITANE

First AppellantsAND TE ATIA W A MANA WHENUA Kl TE TAU IHU TRUST'Second AppellantsANDTHEATIO~NEY-GENERAL

~ . First RespondentA .1\JDN EW Z EA LAND MARINE FARMING A SS OC IA TION INCORPORATEDSecond Re sponden t

, AND PORT MARLBOROUGH LiMITEDThird RespondentAND MARLBOROUGH D ISTRICT COUNCILFou rt h Re sponden tIIearing: 1-4 July 2002C oram : E lias C JG ault P


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NGATI APA, NGATI KOATA, & ORS v Kl TE TAU IHU TRUST &ORS [2003] N... Page 2 of49

Keith JTipping JAndersonJAppearances: H C Keyte oc. L G Powell and M T Lloyd for AppellantsK L Ertel and E M Cleary for Te Atiawa AppellantsJ M Dawson and A M McGregor for Te Runanga 0Muriwhenua (supporting appellants)W M Wilson QC for Mao ri n ot o th er wi se representedT Arnold Q C~ H M Aikman and F Sinclair for First RespondentG W R Palmer and MeW Hickford for Second RespondentM J Hunt for Third RespondentB P D wyer for Fourth RespondentJudgment: 19 June 2003

JUDGMENTS OF THE COURT

JudgmentsPara NoElias CJ

illGaultP

" . , [93]Keith and Anderson JJ

Tipping JLL8J ]

ELIASCJT ab le o f C on tents

ParagraphNumber

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The appeal[ l J

The legal status of customary interests in land[ 1 , 4 . 1

Ownership of foreshore and seabed[49}

Jurisdictional objection that seabed not "land"1J

Area~specific legislation

The Harbours Acts 1878 and 1950[ 5 . 9 . ]

Territorial Seas Acts[ 6 . J J

Section 9ARevesting Act[64]

The Resource Manaeement Act 1991,---,-" ....--.-,-,-,-.,,"-~---,,',,'-"'~-~-" -"--

Investigation of titie to land bounded by sea[71]

Conclusion

Result1 9 . J J

The appeal[1] For the purposes of Te Ture Whenua Maori Act 1993, all land in New Zealand has one of sixs ta tu ses ident if i ed b y slZ9(1) of the A ct.T he si x pos sib ili ties are:M aori cus tom ary land; M aorifr ee ho ld la nd ; g en er al lan d ow ned by Maori; general land; C row n land; and C row n land

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reserved for Maori.[2] The Maori Land Court has jurisdiction under s18(1)(h) of the 1993 Act to determine for thepurposes of any proceeding in that Court "or for any other purpose" whether any specified land"is or is not Maori customary land or Maori freehold land or General land owned by Maori orGeneral land or Crown la nd ". The Cour t a ls o h as j ur is di cti on to make decl ara tions by way ofstatus orders under s131(1) that land has the status of Maori customary land. This jurisdiction isnot exclusive. The jurisdiction of the High Court to determine an y quest ion relating to theparticular status of any land is not affected (s131(3.The Maori Land Court has howeverexclusive jurisdiction under s132 to investigate the title to such land an d to grant an ordervesting it inthose found on investigation to be entitled to it.The effect of a vesting order is tochange the status of land from Maori customary land (held according to tikanga Maori) to Maorifreehold land (held in fee of the Crown and in respect of which under ss139-141 the DistrictLand Registrar must issue a fee simple title under the ~nd TrfU1.f~t.As.U952).[3] Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa, Rangitane, and Te

Atiawa applied to the Maori Land Court for declaratory orders that certain land below the meanhigh w ater m ark in the Marlborough Sounds i s Maori customary land.If successful in obtainingdeclaratory orders that the land has the status of Maori customary land, they seek aninvestigation of title to the land under s132 of the Act. If the Maori Land Court should find thatthe land is Crown land, not Maori customary land, the applicants seek a declaration that theCrown h old s th e land in a fiduciary capacity for their benefit under s18(1)(i) ofTe Ture WhenuaMaori Act.

[4] Preliminary objection was taken in the Maori Land Court by the Attorney-General and the non-Maori parties that the applications could not succeed as a matter of law.The objections wereb ased on common law and statute. First, it was said that In Re the N inety-M ile B each [1963]NZLR 461 establishes that all foreshore in New Zealand which lies between the high and lowwater marks and in respect of which contiguous landward title has been investigated by theMaori Land Court is land in which Maori customary property has been extinguished. Onlyforeshore contiguous 10Maori customary land on the shore on this view is capable of beingMaori customary land. There may be no such land within the area of the application, althoughthe factual position has not yet been investigated.It is generally accepted that few mainlandpockets of customary land remain in New Zealand. Secondly, it was said that by legislation (s7of th e I~rritoJt~1.~ea,0!1jj .@9 .1f.~2Qm:-,,-andx'tlM $i~ r;:_.Eco.nom .ic. Q I 1 _ A c t J . 2 7 7 and s9A of th eForeshore and Seabed Endowment Revesting Act 1991) any Maori customary property in theseabed and foreshore of New Zealand was extinguished because th e legislation vests al l propertyin foreshore and seabed in the Crown. .

[5] X n a n in.terim decisiQll.it.l:theMaori LMdCourt Judge Hingston distin~uished In R t . . the Nine.ty-Mile Beach and held that the legislation relid Onwas D m effective to extingujsh any cllstomarypmpertY ~ ap_pligants might establish ~ cMe.1Jroc~d~d.The interim decision was appealedto the Maori Appellate Court by the Attorney-General and all parties who were not claimants. TeRunanga 0Muriwhenua and Te Atiawa Manawhenua Ki Te Tau Ihu Trust obtained leave to jointhe proceedings. After some hesitation, the Maori Appellate Court agreed to a request to state acase for the opinion of the High Court on points of law which could substantially determine theapplications.It was prevailed upon to do so in the hope that much time and cost could be savedby such a course. The Court's initial reluctance to state it case was based on.concern thatquestions which necessarily invited abstract answers might risk erroneous assumptions. of fact(as In Re.the Ninety-Mile Beach may demonstrate) and might not prove helpfu1.For reasons laterdeveloped. Im of the view that the questions as eventually framed are indeed not helpful andthat it is impossible to resolve many of the legal points raised in them in advance ofdetermination of the facts.It is as well to keep in mind the warning of Lord Haldane inAmoduTijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 404 that, when considering questionsof customary property,

Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.

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[6] Eight questions were posed for the High Court:1. What is the extent of the M aori L and C ourt's jurisdiction under Te Ture Whenua Maori Act1993 to determ ine the status offoreshore or seab ed and th e w aters related thereto?2 . D oes the law of New Zealand recognise any Maori custom ary title to all or any part ofthe. foreshore? .3. (If the answ er to question 2 is Y es.jlrrespective of any fact in a ny p ar ti cu lar c as e; w hen th er e

has b een an extingui shm ent of M ao ri customary ti tle to land having the sea as a b oundarywithout express mention o f th e f or es ho re in the instrument evidencing extinguishment, as amatter of law , can any M aori cus tom ary ti tle to the fo reshore rem ai n?

4. W ould the law of N ew Zealand prio r to the enactm ent of the Territo rial Sea and F ish ing ZoneA ct 196 5 have recognised any Maori customary title to all o r any part of the seab ed and thewa te rs r ela te d t he re to ?5. (If the answer to question 4 is Yes.)0 ) D id 57 of the T erritorial S ea C ontiguous Z one and E xclusive E conom ic Z one A ct 1977("T erritori al S ea A ct"), or its p redecess or, (s 7 of th e T errito ri al S ea an d F is hing Z on e A ct 1965 );ext inguish an y Maori customary ti tle to th e s eab e d?(ii) C an the exercise of any jurisdiction held b y the M aori Land Court to determ ine the status of thefores hore and /or seab ed and /or w aters thereto am ount to a "gran t of an y estate or interes ttherein" in tenus of s7 of ei ther of the T erri torial S ea A cts?6. D o s7 of the Terri torial Sea Act and 8129(3) of Te Ture W henua M aori Act 1 99 3 p re ve nt th eMaor i Land Court from making a declaration under s 131 of Te Ture Whenua Maori Act th at th e

seabed is Maori customary land?7. D o es the follow ing area specific leg islation w hich vested areas of the foreshore and/or seab ed inthe M arlb orough S ounds in H arb our B oard s, local authoriti es and other perso ns, exti nguis h an yMaori custom ary title to the foresho re an d s eab ed i n those areas :.. T he P ub lic R eserves M anagem ent A ct 1867 (M arlb orough) The P icton R ecreati on R eserve A ct 1896 v es ted an a r e a o f P icto n H ar b ou r in th e P i cto n

Borough Counci l The Havelock Harb our Board Act 1905 Section 30 of th e R g_ _~ ~ 'esnd_Qfu!;LLands_l2 i~posaJ~} j_p_! . l . b l ic~ .Qgj .Y~. l impQ)Y.~r inK.A~~l907 The Re~gy_~~and Qt_h~rLand s D .i .~ 129s all !qp_ubl i~J3._Q4ies EillP-ow~ring_Act J 91 0 T h e Reserves < M ld O t h e r _ L ( . l n Q . ~ D i s - p - Q _ ~ l ! lan d Pu~l.i.cJ~gdiesE_mp9_\yNi.ng_A~J 1 9 t ? _ The M arlb orough Harb our Al.nendmem Act 196Q The Reserve~ ..@d OtQ.er L~_ o.d~D i:m..Q~ ~JAct 191~ The M arlb orough H arb our A mendm ent Act 1977?8. D o es s9A of the F oreshore and Seab ed E ndowm ent R evesting A ct 1991 extinguish an y Maoricustom ary title to the fores hore and seab ed?[7] T he case stated fo r th e o pi ni on of the H igh C ourt w as heard by E llis J.In a jud gm ent reported at[2 00 2] 2 NZLR 661 he held that land b elow low w ater m ark in N ew Z ealand w as b eneficiallyowned by the Crow n at conunon law and w as declared to b e so ow ned by 87 o f th e Te rr ito .I if lJ .S~~_CQnt iguo~_Z9M. an d Ex~l~jveEconQmic Zon ~ _ .A ct 1 97 7 a nd 89A of the F oreshore andS eab ed E ndo wm ent R evesti ng A ct 19 91.A ccordi ngly . it co uld not b e M ao ri custo mary land.Inthe case ofland ab ove low w ater m ark, E llis J (a t 6 79 -6 80 ) re ga rd ed s ucc es si ve Ma or i L an dleg is la ti on as th e mea ns by w hich the T reaty o f W ai tangi g uarantee of protection of theirp ro pe rti es to M a ori was discharged:I find in the present context, i t attractive to hold that upon cession of sovereignty to the C row n. theC row n then held the land as again st her sub jects i ncluding M aori w ith "fu ll an d ab solu te dom inio n';includi ng the fee.T he C row n's T reaty ob ligati ons w ere then for the C ro wn to honou r by t ransferr ing

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the fee to Maori in respect of customary land, where they could show rights more or less equivalentto th ei r right to exclus ive possession, an essential aspect of fee simple.In other words if the Crowngrants or concedes a fee simple title to owners of Maori customary land, it must have i t to g ran t.Ellis J accepted that the Maori Land Court had jurisdiction under Te Ture Whenua Maori Act toinquire; into whether foreshore land between the high and low water marks was Maori customaryland.But he applied In Re the Ninety-Mile Beach in holding that an y Maori customary property in theforeshore had been extinguished once the contiguous land above high water mark had lost the statusof Maori customary land. Such status could be lost by Crown purchase Or vesting order made by theMaori Land Court where the sea was described as the boundary.He answered the questions of lawposed for him accordingly.The present appeal is brought from this decision by the Maori parties.[8] The matter therefore comes before this Court on the preliminary and general questions of lawposed b y the Maori Appellate Court for th e H ig h C ourt. T he significance of the determinationsthis Court is asked to make should not be exaggerated. The outcome of the appeal cannotestablish that there is Maori customary land below high water mark.And the assertion that thereis some such land faces a number of hurdles in fact and law which it will be for the Maori LandCourt in the firs t ins tance to consider, i f it is able to enter on the inquiry.[9] "Whetheror not the appellants will succeed in establishing in the Maori Land Court any

customary property in the foreshore and seabed lands claimed and the extent of any interestr ema in s c on je ctu ra l.I n th e past. claims to property i n ar ea s of foreshore and seabed seem tohave identified relatively discrete areas comprising shellfish sandbanks, reefs, closely-heldharbours or estuaries, and tidal areas or fishing holes where particular fish species weregathered.(See, for example, the references in the proceedings of the Maori Parliament at Orakeiin 1860 reported in (1879) AJHR 0-8, the evidence of Chief Judge Fenton to the NativeAffairs Committee recorded in the Journal of the House of Representatives. 18 June 1880. andcourt cases such as Waipapakura v Hempton (1914) 33 NZLR 1065).Nor will the appealresolve questions of the nature of any property interest in land (whether it approximates a feesimple interest or whether it is lesser property).

[10] Depending on the nature of any interest accepted by the Maori Land Court as a matter oftikanga, subsequent questions of law may arise.They could include, for example, whether theMaori Land Court (in its statutory jurisdiction) or the High Court (in its inherent jurisdiction)can recognise interests in land not equivalent to rights of ownership of the fee simple andwhether any interest is affected by the terms of the Treaty of Waitangi (Fisheries Claims)Settlement Act I992. Such matters cannot sensibly be considered until the facts have first beenfound.If the land below high water mark is mainly Crown land, as the respondents maintain, itis not clear whether there may be a basis on the facts for the application under s18(1)(i) of TeTure Whenua Maori Act f or a d ec la ra ti on . th at it is held in a fiduciary capacity.

[11] The case is at an early stage.Detenninations favourable to the respondents will not entirelydispose of the applications.It was acknowledged in the High Court that in respect of foreshoreland which abuts Maori customary land onshore, the matter must proceed to hearing.If thejudgment in the High Court is upheld, the scope of the hearing will be limited to any foreshoreland contiguous to remaining Maori customary land above the high water mark-There may beno such land, in which case' the applications will fail on a relatively limited factual inquiry.Ifhowever there is such customary land above the high water mark or if the Maori appellantssucceed in the present appeal and can embark on the wider applications for status orders inrelation to an y foreshore and seabed within the area of claim, there is still a long way to gobefore such orders could be made in respect of an y land.

[12] This appeal deals only with the initial question whether the Maori Land Court can enter intothe substantive inquiry.It is only if it is clear without any evidence being necessary that theappellants cannot succeed as a matter of law that they can be prevented from proceeding to ahearing.

[13] I have had the advantage of reading in draft the judgments of the other members of the

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C ourt. L ike them . I am of the view that the appeal m ust b e allow ed and the applicants m ust b eperm itted to go to hearing in the Maori L an d C ou rt.I am Q i'the view that th~jud.gmtmtQLIudge_HingstQD. in th e MaQri Land Coyr t wa~u~o IT e~ t For the reasons given b elow , I consider that instarting with the E ng lis h comm on law , unmod ified b y New Z eala nd co nd iti on s (i nclu di ngM ao ri cu stomary prop rietary in terests ), an d in as sumin g that the C ro wn acquired p ro perty i nthe land of New Zealand when i t acquired sovereignty (as appears from the passage from thejudgm ent set out at paragraph [7] ab ove), ! ltejydgm ~ lJ! in the H igh C ourt w as in error.The .. ! I 'a ns fe r o f ~overeiintydidnot a ffe ct c us tomar y p ro pe rty . They ~ inW;ests we(Ye~ lh~com mon law until extin ished in accordance with law .! a e that the Ie is lation relied on ine Hi oUr t oes not ext" 'sh an y Maori cu stomary prop erty in th e s eab ed or fo res ho re.!a e .th K an d derso 11 an m t net e ne - e c _ ) V a s YYrongin l a w 1 !l ld shQuld llQj: b ;e f o l l m Y . e . d J z 1 .RlhRinety-Mile B a c i J followed t h e discredi:1s:da ul hQ r ity o f W i Pafata v Bisho[! of Wellington (1877) 3 NZ lur. CNS ) SC .12.l,Yh ic h lYM.rst i~cted by ~ Privy COlWc i l i n N ireah a T am aki v Baker [1901] AC 56 L This is not a m odemrevis io n. b as ed o n develo ping ins ig hts sin ce 19 63. The reaso ning th e C ourt app lied in In Re theNinety-Mile Beach w as contrary to other and higher authority and indeed w as descr ib ed at thetime a s " re vo lu ti ona ry ".

The legal status of customary interests in land[14] M . w : rr i cwrt .gmary land is defined. b y ThJur,e_Mg:Jl.Q,a_M

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common law of England because it reflected local circumstances.[18] luRe Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41 at 49 the Court of Appealaccepted that all title to lan d "by English tenure' was derived by the Crown. But that did no tprevent customary property being recognised by the common law;

[19] 'While the content of customary property differed in other colonies, the principle of respect forproperty rights until they were lawfully extinguished was of general application.In NewZealand, as is explained below, land was not available for disposition by Crown grant untilMaori property was extinguished.In the N orth American colonies land occupied or used b yIndians was treated as vacant lands available for Crown grant Even so, as the Supreme CQYJ1g fthe United SW-1.~$j ! l lQ1WQlIY M 'L l l1 . r M b (l82Jt21I.!.S..(8_Whea1Qnu.iJ hel~llJ.e Crown'sinterest m~g by it of the land was subject to the _Da t ive rig!;l.j~.(at 574~ 6_ _Q3__pgM w : W i l l C n , T h e y ~ e rights at common law, n _ _ s _ i m p J . y _ m o r r u clillms. ~ fu_ e_ ._ Crmvn (at603): _It has never been contended that the Indian title amounted to nothing. Their right of possession hasnever been questioned.The claim of government extends tothe complete ultimate title, charged withthis right of possession, and to the exclusive power of acquiring that right.

'~. :~.[20] T h e Pr ivy Council on M mmealfrom Canada in . .&C~ '~ Mil lin g and L u m b e . r Co v TheQueen_(l888) 14 1 \ t ! p Ca s :l6 I l e : s k I i h e d : t h k CrQWl l~S"substantial and paramQunt estate" a s .encumbered b . y . . 1 l l ~ r i g h t s of t h . s ; Indian inhabitant&Ths C rQwn oulx r~~itlfg " S J . plenumdQminitun". ifu!! o~ers!1U1; cOmQininglega! title iIDdbeneficial m1jtlll!!t) wl!en ! . b . . lm : l i . I D : 1

ililrJYaS surrendeood illoth.erwi!. ie ex.tin.g~Q_,[21] .Similarl.x~ inNew Zea1and~ the Crown's notional "pQ.jw.:.title~o~Q!L~th,_~QYf};~igQ_-ty:,_w.?S

held t2 Q I : ; smnsistent with and burderwd h..Dmj~ ~its1~JR v S ym onds, L undonand Wh ita ke r '.'I Claims, and N irea ha T amak i v Bajcer)Jt was explained by the Privy Council inM anu Kapua v Para Haimona [1913] AC 761 af765:fuar to th e . ,g rau,Und thegmteceden t p roceed ings th_tLllID.._d_jJL~51iml_~MkLb~Jh~Wsunder their customs and usage~ and th es e appea r oo t iQJm. 'L~_ im : :~M i .g~ . sJh~ lm lc t__b.ag_Jl~Y~ ! '- ' .b~~n~ ~ m w u . ,_ . t .l M ; L r n d i & a l ~ . lo . .t h e . . .d a t ~ Q [ fu e _ _ g m n t ,_ . : v _ v s t~ Q _ i n , _ t h e _ C . r _ 9 J Y l l ._ IsubjecUQ 1h~burden of1J1s;na;tiYg QYs iQnw: ,x title tp_Q&Ypa.ru;y.[22] InJPmjhana . Karokai x.S.olifilm.-fi1mem/ (19.12) 32 .NZLR ruthis Court r ej ec te d a nargpment that na.tive title w a s not recognisable in law.It held that the applicants could not be

prevented from applying to the Native Land Court for investigation of their title to the bed ofLake Rotorua unless it was shown that native title had been extinguished by Proclamation,cession of the owners-or Crown grant (at 345 per Stou.t cr, 348 per Williams J, at 351 perEdwards J, at 356 per Chapman J).Whether there may beseparate property in the bed of a lakewas to be determined according to native custom and usage (per Edwards J at 351).Cooper J at352-353, after pointing to the definition of Crown lands in the Land Act which excludedcustomary lands, concludedCustomary lands owned by Natives which have not been ceded to His Majesty or acquired from theNative owners on behalf of His Majesty cannot, in my opinion, be said to be land vested inHis Majesty by right of his prerogative.!t is true that~ technically. the !tg&estat.e__is~,but this legal estate is Mid subje-tttQ ~ .Ji gh t9 i~ ,ti Y ( ."X ~ !;Q g! 1i?:~ ~ p 'y _1 h~ _ _~r.9wn, to t b . e

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n'-J.n.1. 1..tU"1., l'1jU,M..I..1.~...vn.l~, (X. Vl"-0 V1 " 1 . . . 1 1 L lli.U .lDU .I . RU..)l OCV!\.LI lLUV.J J 1"/ r~t: :;I UI ,possession and ownership of the customary lands which they have not ceded to the King, and whichHis Majesty has not acquired from them.[2 3] T he New Zealand courts had not always held to this view. In W i P a r a tq J Z _ B i S _ } _ ]_ Q J 2 _ Q / ]Y ? 1 l i . ' l g t9 l JPrendergast CJ, delivering th e judgment of the Full Court comprising himself and Richmond J,held that the rule of the common law that native customary property survived the acquisition ofsovereignty had no application to the circumstances of New Zealand.Maori had, he considered,insufficient social organisation upon which to found custom recognisable b y the new legalorder.In such circumstances, he said (at 78)the supreme executive Govennnent must acquit itself, as best it may, of its obligation to respectnative proprietary rights, and of necessity must be the sole arbiter of its own justice.Its acts in thisparticular cannot be examined or called inquestion by any tribunal, because there exist no knownprinciples whereon a regular adjudication can be based.In Wi Para1fl i t was h~ cO..1!!1_wefrequired tQJ!1mK_lb1lUh~Cr9wnl !ad_prQP~!: ly_respected its Q b li g a ti Q n s a n d cQ1!Ldwt9.!!?stiQ!).tJ~_tiQ!.1__.[ 24 ] T l1~_P r iyy COlllPg rejected this .M rnIQ ~ ~ _ say in g in N ireaha Tam aki v ~akeut21-lli.:Jhat i t.~,~t


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Jurisprudence (6th ed., 1920) 495):When w e say that certain lands b elong to or have b een acquired by the C row n, w e m ay m ean eitherthat they are the territory of the Crown Or that they are the property of the Crown. The firstconception pertains to the dom ain of pub lic law . the second to that of private law.T er ri to ry i s thes ub ject-m atter of th e righ t of sovereignty or imper ium, w hile prop erty is the sub ject-m atter of theright of ow nership or dominium. T hese tw o rights m ayor m ay not co-ex ist in the C roV iIU n respect ofthe sam e area.L and m ay b e held by the C row n as terr itory b ut not as property , or as property b ut notas t er r it ory ~or in both rights at the same time.As property, though not as territory, land may b e heldby o ne s ta te within th e domin io ns of another. Th is d is ti nc ti on b e tw e en territorial sovereignty an do wnership i s to s om e ex tent o bscured by th e f eu da l c ha ra cte ri sti cs o f th e B r iti sh c on sti tu ti on .I naccordance with the principles of feudal law all E ngland w as orig inally not m erely the terr ito ry b uta ls o th e property of the C row n; and even w hen granted to sub jects , those grantees are in legal theoryme r ely t en an ts in perpetui ty of the C row n, the legal ow nership of the land rem aining ves ted in theC row n.S o, in acco rd an ce w ith this princip le, w hen a new colo nial p oss es sion is acquired b y theC row n and is governed by E nglish law , the ti tle so acquired is not m erely terr itorial, b ut alsoproprietary . W hen N ew Z ealand b ecam e a B ritish possession, it b ecam e not m erely the C row n'sterri tory , b ut also the C row n's p ro perty , imperium and dominium b ei ng acqui red and heldconcurrently.Salmond him self m ay have taken the view that the Crown's p ro prietary interest w as b urdened b ynat ive title. as Frame suggests (A Frame Salmond, Southern Jurist (1 99 5, We lli ng to n) 1 25 -1 26 ).B u the view ed such b urden not a legal one b ut as a political ob ligation for Parliam ent to address.[28] S ir K en neth R ob e rts - W r ay in his 1966 b ook Commonwealth and Colonial Law at 626conunents of Salm ond's view of the effect of the introduction of the common law and Englishsy stem s of land ten ure that:This reasoning does not take into a cc ou nt th e v ital r ule th at, when English law is in force in aColon y; ei ther b ecau se i t is im ported by settlers or because it i s in troduced by legislation. it is to b ea pp li ed s ub j ec t to local ci rcum stan ces; an d, i n con sequence, E nglish law s w hich are to b e explain edmerely by E nglish so ci al or p oli tical con ditions have no operatio n i n a C olony .T his "vital rule" of the common law (earlier applied in R v Symonds) w as m ade explicit in N ewZealand by the English L aw s A ct 185KBy it, English law w as part of the law of New Zealand w itheffect from 1840 only "so far as applicab le to the circum stances of N ew Z ealand! ' (s l).[29] M ore recently , th e effect of the radical ti tle acqui red b y the C row n w ith sovereignty has beencons idered b y this C ourt in Te Runanga 0 Muriwhenua v Attorney-General [19 90] 2 N ZLR641 and Te Runanganui 0 Te Ika Whenua Inc Society v Attorney-General [1994] 2 N ZL R20.The position w as res tated b y C ooke P for the C ourt in Te Ika Whenua at 23-24;On the acquisition of the territory, whether by settlement, cession or annexation, the colonisingpow er acquires a radical or underly ing title w hich goes with s ov er ei gn ty . Wh ere th e c olo ni si ng p ow erhas b een the U nited K ingdom , that ti tle ves ts in the C row n.B ut, at least in the ab sence of s peci alc ir cumsta nc es d is pla ci ng th e p ri nc ip le , th e r ad ic& t itle i s_ ? .! lh lf ~ tto th e e xi tjM .lli !tiY ~ .J ig hts .T h eya re u sua ll y , although n ot i nv ar iab ly , c ommu na l o r c olle cti ve.It ha s been a u t b ru : i1 a t jy r ly _ M j _ Q _ t h l !U h e yEanJlot Q~_;Jl : t inguishedJill least ! ! . l !!!!lg_2ue ac e) o th ,e rw i s e th an b .Y .thL :g -~ ~ , " "g.Q!1sent .of. th$; .J1~1ive.occupi~ _ and then only to the C row n and in s tr i ct co roQl iance ~th the_ grov~ ion s of an y rekY..W1tmIDltes.It was so s tated b y Chapman J in R v Symonds (1847) N ZPC C 387,390, in a passage laterexp ress ly adop ted b y th e Privy C ouncil, in a judgm ent delivered b y Lord D avey, in Nireaha Tamakiv Baker (1901) N ZPC C 371, 384 .. .

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[3 0] T h e r ad ic al title of the C row n is a technical and notional concept.It is not incons is tent w ithcommon law recognit ion of native property, as R v Symonds, Manu Kapua v Para Haimonaand N ireaha Tam aki v B aker make clear.Brennan J descr ibed such radical title in Mabo v Stateof Queensland (No.2) (1992) 175 CLR 1, 50 asmerely a lo gical p os tulate re qu ired to support the doctrine of tenure (w hen the Crown ha s exer c is edi ts s ov er ei gn p ow e r to g ra nt a n i nte re st in land) and to support the plenary ti tle of the C row n (w henth e Crown has exercised its sovereign power to appropriate to itself ownership of parcels of landw i th in th e C rown's te rr ito ry ).[311Any property interest of the C row n in land over w hich i t acquired sovereignty therefored ep end s o n an y p re-ex isti ng cu stomary i nteres t an d its nature, as the Privy C ouncil in AmoduTijani v S ec re ta ry , S ou th ern N ig e ria held. T he content of such customary i nte re st i s a q ue sti ono f fa ct d is co ve ra ble , i f n ec es sa ry ; b y evidence (Nireaha Tamaki v Baker at 577).As a matter ofcustom the b urden on the C row n's radical title m ight b e lim ited to use or occupation rightsheld a ..s a m atter of custom (as appears to b e the pos i tion describ ed in S f Ca th er in e IS Millingand Lumber C o v The Queen and as the Trib unal in W illia m W e bster's C la im seem s to haveth ough t m i gh t b e the extent o f M aor i c us tom ar y property).On the o th er h an d, th e c us tom ar yrights might "b e so com plete as to reduce any radical r ight in the Sovereign to one w hich onlye xte nd s to c omp ar ati ve ly limi te d r ig hts o f a dm i ni str ati ve i nte rfe re nc e" (Amodu Tijani vSecretary, Southern Nigeria at 410).The Supreme Court of Canada has had occasion recentlyto con sid er the co nten t o f c us tom ary p ro perty i nteres ts i n that c ou ntr y.It h as r ec og ni se d th at,according to the custom on w hich such rights are b ased, they m ay e xte nd fr om J !s ufr uc to ~ri ghts to e xclu si ve owne rsh ip w ith incidents e qu iv ale nt to th os e r ec ogni se d by fe e s im p le ti tle( see, for example, Delgamuukw v British Columbia [1997] 3 SC R 1010 at paragraphs 110-119pe r L am er C J).[3 2] T he e xi ste nc e a nd c on te nt clygpm'YY WO _ J I , ~ r J x _ _ i s determin~d.as amattg Qfthe custQm a r u , i

ysage clthe particular community (Tamihana Komlwl~.I;;;{&mr.fJl.M_lli...per Edwac lsJ)..Illii f '. Q r emQY& .dD .l Jb ts J} j! 2 ..:th.e.jmiss;lkti_Q!1.o.[th~.gep~alCourts in res pect o fM ~ ori am ! th ei r Q ro~ ID ' .:\ had earli er dec lared a s m uch i n~ 4 :

The A ct enab led the general courts to ob tain the opin ion of the N ative Land C ourt on m atters ofcustom an d usage.Provisions to similar effect to permit the general courts to refer questions of Maoricu stom and u sa ge to th e Maori Land C ou rt w ere co nti nued i n th e s ucces si ve M ao ri la nd legi slati on(N ative L and A ct 1909 s91; Native L and A ct 1931 s119; M aori A ffairs A ct 1953 s161(2)).[3 3] V is co unt H ald an e in Amodu Tijani v Secretary, Southern Niger ia em phasised at 404 thata sc er ta inm en t o f th e r ig ht according to native c us tom "i nv olv es th e study of the history of thepa rt icu la r communi ty and i ts us ag es i n eac h case ",H e reco gni se d at :! Q.4th eneed for .@!ionin.~ly!!!gJ:nglis~ legal concept s to _E i ! _ ti vePIopeOYinte~~\$,JJ2eqk~!llLQI!D~necessity fo:(.

" s s : . . t t i n g r id o f th e a ss ump tj og that..tlKP~ ~Jlmm :ally :.l1[e..~ Jfp_ in j:Q _ _s.tate$.,c o:g ce iv ed a s c re atu re s o f inherent legJ!l.m:i!!~'. T he danger of such assum ption cuts b othways:it may b e di sm iss iv e.of cus tom ary in teres ts less tha n reco gn isab le E ng lis h legal es tates ;and it m ay cause lesser custom ary interes ts to b e inflated to conform with f am i li a r legal e st at es .[3 4J T he exten t of any cu stomary p rop erty in fo res ho re an d seabed i s n ot b efo re u s.F or p res en tp ur po ses w hat m atters is th at the cus tomary ri ghts o f th e native community continued atcommon law to e xi st u nti llaw fu Ily e xti ng ui sh ed . P ro pe rty r ig hts may b e a b ro ga te d o r r ed efi ne dth rou gh law fu l ex erci se o f th e sovereign pow er.B ut in N ew Zealand the b asis of conferral of

prerogative power and later successive lands legislation, b o th th at relating to Maori land and

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that relating to general and Crown lands. is consistent with the continuation of Maoricus toma ry i nte re sts in land.[35] Thus, th e Letters P atent of 1840 setting up governm ent in N ew Z ealand authorised the

Governor to make grants of the waste lands of New ZealandProvided Allf.~ .1b.ill~l!Ll&w~pate!1.t containeil~hall ~t;~tQI.,be c on str ue d t9affect me rights of ally abor ig inal natives of the said Colony of New Z e : ? l@ .A . tQ.!h~. .~~!YCll.o_g_c.!:!l?ill..wnr enjoyment in their own p~rs,Q!!hQl!!_the..nersons of1p.ei.!'_.4~sc~.ng~:~:t~~f.anz.Lands.in,th~ W _ d....Co lonyow actually occupied or enjoyed b y such natiY~_$.[ 36 ] The LmQrums Qrdinance 1 84 1 co nfi nn ed th e ex clu si y~ lxoo righ~_emptiQniu.1h~_Crown. Such p r e -e m p t io o w a s e x p l i c a b l e only in tenns o f reC.Qgni:tiillLQL~i,s,t .i.p.g-prQPrny .

r i g h , t j _ a cc or di ng to Maor i custom.[37] New Zealand was never thought to be terra nullius (an important point of distinction from

Ausrraliaj.From the beginning of Crown colony government, i t was accepted that the entirecountry was owned by Maori according to their customs and that until sold land continued tobelong to them (see the opinions as to th e nature of native tenure collected in 1890 NZPP G 1 ,a nd th e a uth or iti es cited to the sam e effect b y Stout C J in Tamihana Koroka i v Solicitor-General at 3 41 ).O ri gi na lly C rown p urc ha se s were required to extingui sh M aori ow nership andfree the lan d for settlement under s ub s equ en t C rown g rant.S u b s equ en tly , statutes providedauthority for other modes of extinguishing Maori customary title.

[38] The land became subject to the disposing power of the Crown by Crown grant only oncecustomary ownership had be en law fu lly exti n gu is h ed .I n R v Symonds Martin C J at 394 said ofthe 1841 Ordinance that it

e ve rywhe re a ss umed that where the nativ e ow ners have fai rly and f re ely p ar te d wi th th ei r lan ds th esam e at once vest in the C row n, and become sub ject w holly to the d ispos ing pow er of the C row n.[3 91 S im i la rly ~ u nd er s uc ce ss iv e L an d A cts b e gi nn in g with t he I i llQe ri ! tl Was t e L~4_~ , .b -s j _~_4~1

l.tWd was able to be disJ?.Q.s~ of by the Crown only when freed from M4Pri p r Q Q r l~ 1 J . ! rY_interest.Sq to o, w hen thy New Z.aland~e~1~~.F.,~_~_m,p9$m:..e,.Q_hla_S_2_!g.lJlAke l aw.s_fQIth e sale of w as te lands they w ere dd1~_1l$JbQS_elands ''w herein the ti tle of N ati ves s hall b e_extinguished" (s72 of the New Zealand Const itut ion Act 1852).The Lam!Act 1877 d ef in ed th e"demesne lands of the CrQ~" (e sta te s i n ~ ~ i c! Lco uld b e g ran te ~ by the C row n) as "all landsv es ted i n Her Majestr wh er ei n th e ti tle ofJb.~aborigina1 imm.mtm1tliLa;.J2~J~n~nguished"(s5).After the establishment of the Native Land Court (effectively from 1865)the principal manner in which customary title was extinguished was through the operation ofthe C ourt in investigating own er sh ip a nd granting f reeho ld t it le s .

[ 40 ] The Native Landsand M aori Lands A cts from 1862until enactm ent ofTe Ture W henua M aoriAct 1993 were a mechani sm for converti ng Maor i customary proprietary interests i n la nd intofee sim ple title, held of the C row n.O nly such lan d c ou ld b e a li en ate d by th e Maori ow ners toprivate purchasers.The explicit policy of th e legislation was "to encourage the extinction ofsuch proprietary customs and to provide for the conversion of such modes of ownership intotitles derived from the C row n" (P ream b le to the N ative Lands Act 1865).T he s tatem ent isf ur th er le gi sl at iv e a cknow l edgemen t that Maori customary property is a res idual catego!), ofownership not dependent upon title derived from the Crown.

[41] F rom the enactm ent of the Native Lands Act 1909, Maori owners have been prevented fromtaking action in the courts for recovery of possession of customary land or to prevent or claimdamages for trespass to such land (Native Land Act 1909 s88; Te Ture Whenua Maori Act1993 814).Only the Crown can brmg such proceedings to court on behalf O f the beneficialownersJn such proceedi.:t;J._g_~he land is "deemed" to_.be Crown land 'Within th e meaning of the1&W.Ac t 1948.F or present pu.r,pQS~.the fact ,thatSy~hJ.1fu1miD .gfQt]imi:tgd_PJJnlQm::& jS ..

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~cessary empbasises~thal custolU.oo::land is p~rec.Qg_.nis~4J"I_y.Ne\Y_ZealA1ld..law_wbiQ.l;Us119towned by the Cro\VIl.[42] Under successive Maori land statutes, an order vesting title in Maori owners after investigation

by the Court changed the status of customary land into freehold land 0.0 longer held according,to Maori custom but in fee of the Crown. Thus, under s46 of the Native Lands Act 1865, aCrown grant could be obtained by Maori after investigation of title by the Land Court. SuchCrown grant was as effectual "as if the land comprised therein had been ceded by the nativeproprietors to Her Majesty".Similar provisions have been continued in all succeeding MaoriLand legislation.Under Te Ture Whenua Maori Act a vesting order registered with the DistrictLand Registrar transforms ownership into a legal estate in fee simple "in the same manner as ifthe land had been granted to those persons b y the Crown" (s141(1)(b. It was made clear insuccessive statutes from 1909 that no Crown grant can be questioned in any court on the basisthat the Maori customary title in the land has not been extinguished.

[43] From 1873 legislation permitted customary title to be cleated away b y Proclamation or b ydetermination by the Court that land had been ceded to the Crown.In such cases it vested"absolutely as g~1Jl.esnelands ofthLCrown~freed and discharged from all Native titles,customs or u sa ge s" (s s7 5~ 71, and 105 of the Native Land Act 1873).As indicated at paragraph(39J above, the 1.877Land Act, consistently with this approach, defined the '~desmesne lands of.the Grown" as those lands veste~inHer Majest.Y:.wherein the :ti!k_ofthcaborigig.al.bi1mt~.bas been extinguisht:;d". .[44] Before 1894, it was possible forthe ownership of land held according to Maori custom to beascertained on application to the Native Land Court without also obtaining a vesting orderchanging i ts status from land held in accordance with custom to land held in fee of theCrown. But from enactment of the Native Land Act 1894 until enactment of Te Ture\VhenuaMaori Act 1993 investigation of title of customary land automatically resulted in theconversion of customary ownership into Maori freehold land, held in fee of the Crown asthough by Crown grant.

[45] Under Te Ture Whenua Maori Act a vesting order obtained under s132 continues to change thestatus of customary land to Maori freehold land.But the Maori LandCourt may now make adeclaration of status of customary land under s131 without that consequence. The currentlegislation is therefore no longer an inexorable mechanism for conversion of customary landinto freehold land.

[46] Itis not clear to what extent the new jurisdiction equips the Maori Land Court to recogniseinterests in land-according to custom which do not translate into fee simple ownership.In NewZealand, the common law recognition of property interests in land under native custom is littledeveloped.That may have been in part because of the success of the Maori Land Court inconverting occupation interests in land into estates in fee simple. The 1894 legislation (makingfreehold title the inexorable outcome of a successful application to the Court) may have stifledthe apparent early willingness of the Court, described b y Judge Fenton in his evidence to theNative Affairs Committee in 1890 and referred to in his judgment in the 1870 Kauwaerangacase (reprinted in A Frame "Kauwaeranga judgment" (1984) 14 VUWLR 227), to recogniselesser interests by way of easements or other mechanisms known to English law.They mightb e tte r h av e approximated some customary interests.Lack of development may be in partbecause, following the enactmentofs88(l) of the Native Land Act 1909, there has beenlimited opportunity for Maori to apply to the High Court for protection of customary property(despite the jurisdiction of that Court earlier acknowledged "for the avoidance of doubt" by theNative Rights Act 1865).It may be because between 1909 and the enactment ofTe TureWhenua Maori Act in 1993 the legislation prevented customary title to land being available orenforceable vin any Court" against the Crown (s84Native Land Act 1909; s1l2 Native LandAct 1931;5155 Maori Affairs Act 1953).Forpres~ntpurposes it is enough to note that anyproperty interests in foreshore and seabed land according to tikanga may not result in vestingorders leading to fee simple title and that the Maori Land Court may not be the only forumavailable for recognition of such property.

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..

[47] "Whatis of significance in the present appeal is that New Zealand legislation has assumed thecontinued existence at common law of customary property until it is extinguished.It can beextinguished by sale to the Crown, through investigation of title through the Land Court andsubsequent deemed Crown grant. or by legislation or other lawful authority. The Maori landsle gi sla ti on was not constitutive of Maori c us tomar y la nd .I t assumed its continued existence.There is no presumption of Crown ownership as a consequence of the assumption ofsovereignty to be discerned from the legislation. Such presumption is contrary to the commonlaw.Maori customary land is a residwM_~Q[y 9f.l2I9Mm~ defj_Q.~.:.tQy_~g~t9~.Cro-wnand,b y contrast, is defined as land which is not customary land and which has not been alienatedfrom the Crown for an estate in fee simple. The Crown has no property illterest in customaryland and is not th e s ou rc e of ti tle tu i t.T ha t i s th e b ac kg ro un d against w hi ch ffie argumentsbased upon In Re the Ninety-Mile Beach and the legislation said to vest ownership of theseabed and foreshore in the Crown must be assessed.

[48] It is accepted b y the Solicitor-General in his submissions that inNew Zealand the C row n hadno property in what was described in submissions as "ordinary land" (land above high watermark) until it first validly extinguished the proprietary interests of Maori. Itwas only whennative proprietary interests were extinguished that the land became part of what Martin CJ in Rv Symonds at 396 called "the heritage of the whole people".!t is argued however that theposition is otherwise in relation to foreshore and seabed lands-The difference in approach toforeshore and seabed is said to arise both at common law and because of legislation vestingsuch lands in the Crown.In addition~ i t is argued that the statutory language ofTe Ture WhenuaMaori p recludes i ts j uri sd icti on i n relation to-foreshore an d s eab ed because fuose areas ar e notproperly to be understood as "land'LAgainst the background described, I now address thesearguments.

Ownership of foreshore and seabed at common law[49] Any prerogative of the C rown as to property in foreshore and seabed as a matter of Englishcommon law in 1840 cannot apply in New Zealand if displaced by lo cal circumstances.Maoricustom and usage recognising property in foreshore and seabed lands displaces any English

C rown Prerogative and is effective as a matter of N ew Zealand law, unless such propertyinterests have been lawfully extinguished. The existence and extent of any such customaryproperty interest is determined in application of tikanga.That is a matter for the Maori LandCourt to consider on application to it or on reference b y the High Court. Whether any suchinterests have been extinguished is a matter of law.Extinguishmentdepends on the effect of thelegislation an d actions relied upon as having th at effect.A t th is s tag e i t can only b e consideredagainst an assumption that the appellants will succeed in establishing property interests as amatter oftikanga.Other legislation (s uch as the Ireg!y_Qf Wai tang i (F i she ri e s _ .r .J_ ,i _mV~~ttl@_m~nlj\ctJ,m)may limit the1~~effipacy of such property. Whether such limits applyto any property cannot sensibly be considered in advance of findings as to the existence andincidents of any customary property.

[50] On behalf of the Attorney-General, however, it is contended that "the legal assumption of anoriginal native title over the surface of New Zealand has always ended where the land ends andthe sea begins".1his amounts in substance to the argument addressed to the Court in Re theNinety-Mile Beach that there is a presumption against private ownership of land on the marginsof the sea or land covered by it and in favour of Crown ownership. The Court did not accept thecontention in relation to foreshore land, and the Solicitor-General in the present case is contentto limit it here to seabed land.In addition to the common law as a source of such presumption,it is suggested that it arises inherently because of the different qualities of foreshore and seabedfrom land on shore and because of the public interest in navigation, recreation, and other usewhich makes private property interests somehow unthinkable.

[51] niere are a number of responses.In the first place. as the review undertaken in the judgment ofKeith and Anderson 11demonstrates, interests in the s oi l b elow low water mark were known

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t\l\JA U Ar1\., t'l\Jf\ lll"!o.UfU 1-\., C4UK;:' VJ\.l i.e J . AU Inu 1KUi:)1 OCUK.;) lLVV_jJ-.. rage D 0l"+:1

und er the law s of Eng lan d.T he y i nc lu de d i nte re sts w hi ch h ad a ri se n by cus tom andusage.Many such i nte re sts w e re created by C row n g ran t i n N ew Z ealand.In deed, th e W aitangiT ri bu nal i n the Manukau Harbour Report (1985, W ai8) at 35 refers to a C row n grant atW h atapak a w hich, in con verti ng M ao ri custom ary title in to freehold title, included a pip i b anki n the M anuk au H arb our.S uch prop erties are su bject to pu bli c ri ghts of nav igation and oth erregulat ion. The Gold F ield s A ct Amendment Act 1868, the Shortland Beach Act 1869 and theT ham es H arb our B oard A ct 1876 _ ill..1. g11 BL llleg islativ e a~loo.owledgement that there m(!y_1~.~_Maor i us tomaz y la nd s ly iu g_ b elow h ig h w ate r m a rk ,A lth ou gh it w as sug gested in argum entthat these A cts m ust have b een confined to foreshore land ab ove low w ater m ark, their tenusd o n ot s ug ge st an y s u ch lim i ta ti o n.Mo re impor ta nt ly , it i s di fficult to understand w hy ane nti re ly d if fe re nt p ro pe rty r eg ime would n ec es sa ri ly apply on the one hand to the pip i b ank atW hatapaka or the patik i grounds at K auw aeranga, and on the other to the hapuk a grounds ofthe Hauraki Gulf des cri bed b y Chief Judge Fenton (see paragraph [52] below) or the reefsdescribed in th e Motunui-Waitara decis i on o f th e Waitangi T rib unal (1989, W ai 6)_

[52] Fenton's evidence to the N ative A ffairs C omm ittee of the H ouse of R epresentatives on June1 8, 1 88 0 i s i ns tru cti ve (a b ov e, p ar ag ra ph [9 ]).H e was as ke d to d is cu ss th e co nti nu in gcomplaints by Maor i a b ou t i nte rf er en ce with th eir fi sheries an d p ip i b ed s.F enton d id no trem em b er ever having a case dealing w ith interests b elow low w ater m ark, although he thoughtit quite poss ib le that such exist":I rem em b er there is a rock to the N orth of W aiheke w hich is a great fishing ground for w hapuka, andI am aw are that the N gatipoa defended that ground against attacks from the N orth .! cannot say thatthe C ourt has decided that case, or that i t has decided a ny s uc h.Judge F enton had never decided a case ab out the b each rather than ti da l r iv er s a nd mudf la ts .H edoub ted such property b ut "should not lik e to say decidedly" w hat the p os iti on m i gh t b e .Inparticular, he referred to "a valu ab le shell fis hery o n the W est C oast b etw een H ok ianga and Kaiparacalled T oheroa, w here the nati ves ob tain a large clam ."T hat fishery is of great value to them, b ut w hether they have ever exercised rights of property to theexclusion of others I do not know , b ut that is the essence of thei r ti tle accord ing to m yj ud gmen t.T he y mu st p ro ve e xclu si ve u sc .Judge Fenton confirmed that claims to fisheries or pip i b eds would b e heard "as w ell as a claim todry land" b y the C ourt.[53] It i s n otab le that Jud ge F enton di d n ot fi nd any thi ng i ncon gruo us ab ou t prop erty i nterests info re sh or e o r s eab e d.In th e Kauwaeranga j u dgment ( con ce rn ed with fo res ho re land on ly ) h eexp res sed some dou bt w hether su ch interes ts w ou ld s up port a freeho ld interest i n the so il ratherthan an easem ent. B ut, as his evidence to the Native A ffairs C omm ittee m ak es clear, an yp roperty i nterests i n fores hore and seab ed w ou ld b e determ in ed acco rd in g to w hat h e called

"Maori Common L aw ".[ 54 ] Th e p ro pe r starting point is not with assum ptions ab out the nature of property (w hich, as w asr ec og ni se d i n Amodu T ija ni,rn ay b e culturally skewed i f th ey i f th ey are "co nceiv ed asc re atu re s o f i nh er en t le gal principle'). b ut with the facts as to n ati ve property.T he nature ofM aori cus tom ary in terests i s , as the P rivy C ouncil said in Nireaha Tamaki v Baker a t 577 ," 'e m ie r K n ow n to la~ ! !~ coverab le b y them Oy evidence"_The jurisdictional objection that "land" in Te Ture Whenua Maori Act excludes sea areas

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consistent with foreshore an d seabed ing " la ru ;l" (t hWh th ey fit readily within the descript ion~Ithesolid portion ofthe.arth's surface" when cQll~ed Eith '\vater').As a matter ofla ng ua ge (a s opposed to legal tr ea tment o f p ro pe rty ) Im unab le to draw a distinction b etw eenlake beds or r iver beds and seabed. Both lake beds and river beds have been th e subject ofclaim s to the M aori L and C ourt w ithout jurisdictional i m ped im en t, as Tamihana Korokai vSolicitor-General, th e Omapere Lakes decision o f J ud ge A ch es on in th e Maori Land Court of 1August 1929, and InRe the Bed of the Wanganui River [1955] NZLR419 (CA) and [1962]NZLR 600 (CA) illustrate. As already indicated, I a lso find it difficult to understand whyseabed an d f or es ho re s houl d b e separately treated fo r th e purpose of the ju r isdic tion of theMaori L an d Cou rt.It may be th at p rope rty i nte re sts according to Maori custom are les s easi lyshow n as a m atter of fact in relation to s eab e d r ath er than foreshore (just as it m ay b e easier toestablish occupation and exclusion of others in relation to dry land than to foreshore ).Butproperties in both were not considered by Judge Fenton to be unthinkable.Indeed he was ableto identify areas below low water m ar k in respect of which property i nte re st s m ight well haveb een estab lished as a matter of Mao ri c us tom.Much legislation concerned with "land;' appliesto seabed an d foreshore (a s the certificates of title to Harbour Boards and loca l authorities inth e Marlborough Sounds illustrate).

[56U JL~n:whet!ler.fu~~ill!:.~J!Q~,9fjYrigljt.!Q.1l1~~PX9J?~!b:_. l: g I ~ ~ 4 . .l ? Y , K u . :~ . ! .~ ! s ~ ! l _ g . ~ h ~ ~ ~ ~Parliament can have intended to penuit recognition of or to create prope~ in the seabed under tl i~ j 2 2 i A ~ i T h _ ! iM OO _ r iLW ; d ;i ~ g i ; l ; t i o ; ; - ~ " ~ e ~ ~ ~ t ; ; ; ; n c o n s t i t u t l v ef c u s t o l i i i i l Yp r o p e r t y . Ithe M aori L and C ourt does not have jurisdict ion, the ascertainment of any property interestswill have to be under ta ken by th e High Cour t (w h l~ t rJ .aY r ef er questions of tikanga for the ~2 l! ! !! k ?g _ of th e Maor i L an d Co ~ ).T ha t does not seem a sensible orintended resliIt"'-

[57] Th&iirst quemimlj_u~li run.~n.t has ~x ti ng4i sh ed any property ri ghts w hich M aQ ri m ayb e OOW to. hayebad.F or t he reasonsg iy_en b r l Q w . idQ not consider tha~ j~&lat iQn [vllil9upon here.has that effect.Other legislation will remain to be considered if any customary rightsare established but those matters are not at present before us.It may well be that any customaryproperty w ill b e insufficient to perm it a vesting order with th e consequence of fee sim pletitle.But that does not seem to me to b e a reason to prevent t he app li cants p ro ce ed ing toestabl ish whether a n y foreshore o r s eab e d has the status of customary land.I consider that theMaori Land Court has jurisdiction to entertain the application.

Area-specific legislation vesting foreshore or seabed in the Marlborough Sounds[5 8] T he questions posed by the Maori Appellate C ourt ask w hether nine A cts said to vest areas ofth e Marlborough S ou nd s i n h ar b ou r boards, lo ca l au th or iti es a nd o th er persons extinguish an yMaori c us tomar y ti tle to th e foreshore and s eab ed i n those areas .T here seem s no a rgumen t t ha t;if the legislation confers freehold interests, it extinguishes an y pre-existing Maori customaryproperty rights inconsistent with such in te res ts .The terms of the legislation were not howeverth e subject of argument.And i t is artificial to consider the question further in the absence ofi de nti fi ca ti on o f a ny customary property.I consider i t preferable to av oid answ eri ng the

question in its terms) while indicat ing that any customary property in the areas vested seemsunlikely to survive.The Harbours Acts 1878 and 1950[59] InIn Re the Ninety-Mile Beach th e C ou rt of Appeal affirmed the decision i n the Supreme Courtof Turner J that from 1878 the Harbours Act deprived the Maori Land Court of jurisdiction toinvestigate land below high water mark. The provision o r ig ina ll y in troduced in the HarboursA ct 1878 w as replaced with an equivalent r es tr ic ti on o n disposal b y C rown g ra nt b y s 1 50 of

th e Harbours Act I 9 55 .It provided:N o part of th e shore of the sea or of an y creek, bay ~ann of the SCi:!, or navigable river communicating

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therew ith, w herein so far up as the tide flow s and re-flow s, nor any land under the sea or under anyn av ig ab le ri ver, ex cept as m ay alread y h ave b een au th ori sed by or under any Act or Ordnance, shallb e leased , convey ed, granted or disposed of to any H arb our B oard, or any other b ody (w hetherin corp orated or n ot), or to an y person or persons w ithout the special sanction of an A ct of th eGene ra l A s semb ly .[ 60 ] Such l eg i sl ati o n, by i ts ten us , app li ed to fu tu re gran ts .It d id not d is tu rb a ny e xi sti nggran ts .Ind eed, su bstantial areas of seab ed an d fo resh ore had alread y p ass ed i nto the o wners hi pof H arb ou r B oard s and priv ate i nd iv id uals b y 1 87 8.1 a gr ee w i th th e c on clu si on illJ < ei th a nd,AndersOn JJ tha t the leg i slat ion cannot RrQ]_erlybe_Qonst rued to have confiscatory.~ lthough a sub sequent ves ting order after investigation under the M aori A ffai rs Act1953 w as H deem ed"~ C row n gran! is162)= that w as a convey ~l! & _ c! evice only and aQ F ed p yQ.erat ion of law.It .~as no t ~_ .gmJ!Lby e](~sut ive ~_ t iQ)J,_()ft ly. .. .mJ.~lLgrl .Urts .Jmmrown bnd wereprec1ud~.d.for th e futu re Qy_ t ~ l es i sl ati o n.Mo re impo rta n tl y. fu_eterms o f s 15 0 a re i n,lli ksUlli l~tQ ,~ ffe~ ~ _ xpr_ om iation of' "[61] A s i s i nd icated m ore fully b elow at paragraphs [77] to [89] I am of the view that the approachtaken by Turner J in the S uprem e C ourt and by th e C ourt of A ppeal in In R e th e N in ety-M ileBeach can be exp la i ned only on the b asis that they wer e a pp ly in g th e a pp ro ac h taken in w:Par ata v B is ho p o f W e llin g to n.C n i that approach M aori property had no existence in law until

converted into land held in fee of the Crown.Unt i l then it was assum ed to b e C row n property ,as th e references in the j ud gm en ts o f N orth J (at 474) and T A G resson J (a t 4 80 ) to " di sp os al"of the f or es ho re s ug ge sts .F o r th e r ea so fl$ _ alte ad y g iv en , sucltyiew i s con'trID to th e commonJaw a n d to s u c c e s s i v e . .. s ta w t Q r y -P tQyts io t l r~0 . .@i~J .ng_M~QI.~ t0 ! l l lYP!Q.2eff i ' .Territorial Seas Acts[62] B oth the Territorial Sea and F ish ing Z one A ct 1965 and the I ~ J t _ i t Q t i il l_ . s . ~ ~ , _Cont iguml5. ZOl}_~!UldExclusive EconQmi9..2.(me A ct 1277 deem the seab ed and its sub so il from the low w aterm ark to the lim its of the terr i to rial sea (3 m iles and 12 m iles respectively in the tw o A cts) to"b e and a lways to have b een ves ted in th e C ro wn ".E xi stin g g rants m ad e b efo re and after the

A ct are specif ically preserved.[6 3] N o e xp ro pr ia to ry p ur po se inthe A ct in relation to M aori property recognised as a m atter ofcommon law and statute can b e p rope rly r ead i nto th e le gi sla ti on .It i s principally concernedwith m atters of sovereignty , not property .I agree w ith the reasons g iven in the judgm ent ofK ei th a nd A nd er so n JJ.T he lang uage o f deem ing , th e pres ervati on of exi stin g p ropertyinterests , th e com patib ili ty of rad ical ti tle in the C row n and M aori customary p ro pe rty , a nd th eab sence of any d ir ec t i nd ic ati on o f i nte nti on to e xp ro pr ia te m a ke i t im pos si ble to con strue th elegislat ion as e xti ng ui sh in g s uc h property.Section 9A Foreshore and Seabed Endowment Revesrmg Act 1991[64] A s i ts long title explains, the F oreshore and S eab ed E ndowm ent R eves ting A ct 1991 was one" to r ev ok e ce rta in e nd owme nt o f foreshore and seab ed , and re-vest those endowm ents in theC row n" .W i th s ome e xc ep ti on s, u nd er s5 of the A ct all land form erly ves ted in harb our b oardsor local au thori ties is re-ves ted in the C row n "as if i t had never b een alienated from the C row nand free from all subsequen t t rus ts , r es er va ti on s, r es tr ic ti on s a nd c on di ti on s't.O n th e r eq ues t o ft he M in i ste r any certifi cates o f ti tle i n exi stence w ere cancelled u nd er th e autho rity ofs 8.[65] Sect ion 9 provided for certifi cates ofti tle to b e re-i ss ued at th e M in is ter 's requ est.A s o ri gi nallyen acted , th e legi slati on con tai ned n o res tr i cti on o n fu tu re ali enatio n b y th e C row n eq ui valent tothat earlier co ntai ned i n s 15 0 of the H arb ours A ct 1950.S ection 150 of th e H arb ours A ct w asho wever repealed b y 53 62 of th e R e ource M ~ ,.n~ _ g~m entA ct1 991 o n 1 O ctob er 19 91 .T herem oval of the res tr iction on alienation of seab ed and tidal land seem s not to have b een

appreciated. S ection 9A of the F oreshore and S eab ed E ndowm ent R eves ting A ct w as enacted in


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1994~apparently to remedy the oversight.[66] Section 9A is broader in reach than the lands re-vested in the principal Act because it reinstatesthe H ar bo urs A ct pr ov is ion which was of more general application.It reads:9A. Foreshore and seabed to be land of the Crown-(1) All1and that -(a)Either-(i) Is foreshore and seabed within the coastal marine area (within the meaning of the ResourceManagement Act 1991.o r(ii) Was foreshore, seabed, or both, within the coastal marine area (within the meaning of that Act)on the 1st day of October. 1991 and has been reclaimed (whether lawfully or otherwise) on or afterthat date.and(b ) Is for the tim e b eing vested in the Crown. b ut for the time being is not s et a si de for any publicpurpose or held b y any person in fee simple, -shall be land of the Crown to which this section applies and shall be administered by the Minister.butthe provisions of the ~and_Ac . tl _2 :1 .~shal l not apply to such land.(2) All land of the Crown to which this section appHes shall be held b y the Crown in perpetuity andshall not be sold or otherwise disposed of except -(a) Pursuant to the R . _ e . Q Y r 9 .~ . .M~i.!g_,ment Act 1991; or(b) By the authority ofa special Act of Parliament; or(c) By a transfer to the Crown. where the land will not be land to which the Land_~ct L24.8applies.(3) Subject to subsection (4) of this secrion=-(a) The Minister shall have and may exercise, in relation to land of the Crown to which this sectionapplies, all the functions, duties, and powers that the Crown has as owner of the land; and(b) In exercising such functions, duties and powers, the Minister shall manage all land of the Crownto which this section applies so as to protect, as far as is practicable, the natural and historicresources of the land.(4) Nothing in this s e c t i o n derogates from the Forest a n 4 _ _ . ! -l _ r ~ L F i r ~ ~.A ~ 1 _ 1 . 2 7 . 7 or the R~}our~_~Mana:emen t A ct 1 99 1.(5) The provisions of this section shall apply notwithstanding anything in section 4 of this Act.][67] The 1994 Amendment Act provided by 52(2):(2) Notwithstanding anything in s9A of the principal Act (as inserted by sub-section (1) of thissection), in relation to any land of the Crown to which that section applies, nothing in that sectionshall limit or affect -

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(a ) Any ag reem ent to sell, lease, li cence, or otherw ise dis pos e of th at land th at w as entered in tob efore the date of comm encem ent of that section, w here the disposal has not b een com pleted b eforetha t da te ;o r(b ) A ny i nte re st in that land held b y any person other than the C row n[6 8] T he C row n argu es that s9A effects a vesting of all foreshore and seab ed land in the C row n.B utthe sense of s9A is to set up a different reg im e for lands already "for the tim e b eing ves ted inth e Crown," according to whether or not they a re for es hor e a nd s eab ed la nd s.L an ds o f th eCrown which are foreshore and s ea b ed a re a dm i ni ste re d by th e Minister of Conservation anda re n ot s ub j ec t to the provis ions of the L and A ct 1948.Lands of the C row n w hich are ab oveforesh ore are s ub ject to the Lands Act 1948 and a re admin i st ered by the Commissioner ofC row n L ands .It is only in respect of the lands in foreshore and seab ed adm inistered b y th eM in is ter of C ons ervati on th at the o perativ e p art of s9A(2) a nd (3 ) (r es tr ic ti ng s ale o r d is po sa lan d conferring upon the Minis ter of Conservat ion pow er to exercise the functions of landowner) applies.[6 9] T he i dentification o fland of the C ro wn in s9A (1)(b ) as b eing land w hich is "for the tim e b eingves ted in the C row n, b ut fo r th e t ime be ing i s not set aside fo r any p ub lic p urpo se o r h eld fo rany person in fee simple" e ch oe s th e definition of "Crown land" in the L~ Act 1 94 8:whi ch i s

"land ves ted in H er M ajesty w hich is not for the tim e b eing set aside for any pu bli c p urpo se orheld by an y person in fee s imple't .Tbat L3ll..d.A_~Jefinition spec i fi cal ly excludes "any Maoriland"."Maori land" in tum is defined in term s of the M aori A ffai rs A ct 1953 to include"cus tom ary land or M aori freehold land" .A s M aori freehold land w ill b e land "held b y anyperson in fee sim ple" i t i s clearly excluded b y the wo rdi ng o fs 9A (1 )( b ).[70] T he argum ent for the C row n entai ls read ing s9A to effect an appropriation to the C row n ofM aori custom ary landin respect of foreshore and seab ed w hen no such appropriation is m adein the Laud A ct 1948.The language of s9A (1) is not capab le of b eing read as itself effecting av es ti ng o f la nd .I t simply ident ifies th e s ub ject of the op erative prov is ion s o f s9 A as fo res horeand seab ed w hich "is for the tim e b eing vested in the Crown". T hat is clearly not a reference tothe notional rad ical ti tle b ecause all land in N ew Z ealand is so ves ted for all tim e and the

r ef er en ce to " fo r_th e tim~ J ? ~ i n_ g ~ '.j ! l .QInRJ,:eh~nsiblef app&4 tu radical :titk..[71 ] In co ntex t, th e reference in s9 A(1) to lan d vested in the C row n land s defi nes th os e foresh oreand seabed la nd s wh ic h would otherwise b e av ai lab le fo r disposition as property of theC row n. S uch C rown land s ince the W aste Lands Acts of the m id 19 th century has alw ay s b eendefined to e xc lu de Maor i c us tomar y land, as the curren t L and A ct continues to exclude i t.

[7 2] T he p rinci pal A ct is desi gned to d iv ide re sponsib i l it ie s within g ov er nmen t fo r C rownla nd s. S ec ti on 9A r ei ns ta te s a nd r es ta te s th e restr icti on on d is pos ing o f foresh ore an d seab edlands of the C row n earlier found in th e H arb ours A ct.T he res tatem ent tak es accou nt o f th ema jo r r ea li gnmen t o f g ov er nmen ta l r es po ns ib i li ti es i n re la ti on to the coastli ne and is part of th epack age of statutes w hich in clud es the C on servati on A ct 19 87 and the Resoutce_Mi!!!~m~mA ct 19 91. B oth A cts con tain ack now led gem ents of the Treaty o f'W a ita ng i a nd th e relationshipof M ao ri w ith thei r land s, w aters an d other taonga. In that c on te xt, i t i s inconceivable th at s 9Awa s i nte nd ed to e ff ec t a n expropriation of M aori cus tom ary land.

[ 73 ] Read in context, i t is clear that s9A applies only to lands w hich are property of the C row n.Inconform ity w ith the L and A ct 1948 and the common law di scus sed ab ove, M aori cu stom aryla nd i s n ec es sa ri ly e xc lu de d.[74] O n the view I take it is unnecessary to consider the effect of s2(2) of the Amendm ent A ct.It i sfu rthe r cont inua tion that no exp ro pri atio n w as i nten ded b y P arli am ent.If (con trary to th e vi ewexpres sed ab ove) such ex prop riati on had b een ach ieved, I co nsi der that a M ao ri custom aryin terest w ou ld b e an i nteres t i n land pro tected b y s ub s ec ti on (2 ).

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[75J It w as argued on b ehalf of the N ew Z ealand M arine F arm ing A ssociation that the presentclaim s to ow nership of property in foreshore and seab ed are incons is tent w ith the controls ofthe coastal m arine area under the R esource M anagem ent A ct.It w as suggested that any M aoricus toma ry p roper ty interests amo un ti ng to r ig hts le ss than ownership can b e r ecogn is ed nowonly unde r th e s ta tu to ry r eg im e p ro vi de d by th e A c t.[7 6] T h e management of the c oa sta l m a ri ne a re a under the ResQ!l!CcManagS: . l1wntAct maysubstantially restrict the a cti vi ti es a b le to be undertaken by those with i nte re sts i n Maoricustom ary property -That is the case for all ow ners of foreshore and seab ed lands and indeed fora ll owner s of land ab ove high w ater m ark . T he statutory system of m anagem ent of naturalresources is not incons is tent w ith exis ting property r ights as a m atter of custom. Ib~ .Je_gis lat ion. do es n ot e ffe ct a m : . e xti ng ui shm en t o f s uc h property.Investigation oftit}e to land bounded by sea (In Re the Ninety-Mile Beach)[7 7] In In Re the Ninety-Mile Beach i t w as arg ued by th e C rown that, on the assum ption ofs ov er ei gn ty , th e C rown "by p rero ga ti ve ri gh t" b ecam e the Owner o f th e fo re sh or es inNewZ ealand. T his result w as said to follow from the fact that the comm on law had b ecom e "the lawof th e colon y u ntil ab ro gated o r m odi fi ed by o rd in an ce o r s ta tu te ".[7 8] Ne ith er No rth J nor T A G resson J (w ith w ho se s eparate ju dgmen ts G res son P co ncurred ) fo un di t n ec es sa ry to decide e xp li ci tly w h eth er th e c ommon law p re sumpti on i n r ela ti on to fo re sh or elands applied in New Zealand.North J at 470 was of the view that the case turned on thej u ri s di c ti on conf er red by legi slatio n on th e M ao ri L and C ourt.[T]he prerogative rights of the Crown to the foreshore is a thing apart from the q ue sti on o f thejurisdict ion which Parliament thereafter conferred on the M aori Land C ourts.[ 79 ] D e sp i te the indication that the case turned on a question o f s ta tu to ry in te rp r et ati on, it i s c le arth at th e premise upon w hich the Court b ased it s conclusions (b oth as to th e e ff ec t of th eHarb ou rs A ct an d the .effect o f i nv es ti gati on of title to la nd with the sea as a b oundary) w as an

assum ption that the E nglish common law of tenure displaced cu stomary p ro perty in lan d u po uth e a ss ump ti on o f s ov er ei gn ty .[ 80 ] Tu rner J at fi rst instance ([1960] N ZLR 673 at 675) had expressed a view later repeated b y himin the C our t o f A ppe al i n In Re the Bed 0/ the Wanganui River [1 96 2] NZLR 600 th at, with thees tab lis hm ent o f B ri ti sh rule i n N ew Z ealand ,the w hole of its area b ecam e the property of the C row n, from w hom all ti tles m ust b e derived.A t 675 heal s o applied the common law presum ption that the C row n is enti tled to the foreshore unlessi t bas been the sub ject of Crown grant, citing Waipapakura v Hempton:T he pr in cip les of the common law g ov ern in g title to land b ecam e app li cab le to N ew Z ealandimmediately u po n the ass um pti on o f so ver eig nty h ere b y Que en V icto ri a; an d thes e ru les are s ti lla pp li cab le ex cep t i n s o far as th ey h av e b een ab ro gated by statute.[81] The review of a uth or ity u nd er ta ke n a b ov e s up po rts the o pi nio n o f S ir K en neth R ob erts- W ra ythat t hi s s ta tement is ')'evo lutio nary d octri ne" in ap plicati on to the circums ta nces o f N ewZealand.It was, how ever, affirm ed on appeal (at 468 b y N orth J and at 475 b yT A G resson J).[82] TA Gresson J at 475 explained the consequences of reception of the conunon law of tenure:F or th e purposes of th is case it is , I think, immaterial w hether sovereignty w as assum ed b y virtue ofthe Treaty of Waitangi in 1840, or by settlement or annexation before t hi s da te .In e i the r even t. _ a ft e. !. ,. .1840. all titles had to b e derived from the C row n, and it w as for : t i l l : Cm1Y ! ! . !Q .g~ i ne t he na tu re

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\ 1 \" -R O ~ t t d ,and ~ncidents of the title whlch it would confer.Furthermore, as Prendergast CJ pointed out when . J6ke;~s pe ak in g o f the position in }877 tn W i Parata v B ishop ot W:f!llington and Attorney-General (1877) 3NZ Jut (NS) SC 72;"It was for th e s up reme executive Government to a cqui t i ts elf a s best it may, ofits obligation to respect Native proprietary rights, an d of necessity it m ust b e the sole arb iter of itsown justice" (ibid, 78). .[83] The Native Land Acts on that basis were the discharge by the Crown of its moral obligation, asa matter of what North Jat 468 described as the "grace and favour" of the Queen, through the

provision of a mechanism to obtain a Crown grant. The Court found that the jurisdiction wasnot limited to land above high water mark (although North J remarked at 472 that it was likelyin con si de ri ng wheth er to grant a title to th e land that the Court would have "due regard ... tothe common law rule that the Crown was entitled to every part of the foreshore between highand low water mark").But the Court went on to hold that investigation of title and subsequentCrown grant determined the entire Maori interest, leaving no entitlement to a furtherinvestigation.After investigation, the land to the seaward side of the title granted through theNative L an d Cou rt (w he th er to high water or low water mark) "remained with the Crown, freedand discharged from the obligations which the Crown had undertaken when legislation wasenacted giving effect to the promise contained in the Treaty of Waitangi" (per North J at473).The investigation of title was "complete for all purposes".[84] This conclusion can only have been based on the premise that the Crown had acquired theproperty of land in New Zealand with its sovereignty. On no other basis could the land have"r emai ned w ith the Crown" after the jurisdict ion of the Court had be en exe rc is ed . The decis ionis llilderstandable only as a denial of any I~ al recog!lition to customaryprope!!y.Crown grantalone could be the basis of property recognisable in law. This reasoning was expressly appliedin the High Court in the present case in the passage quoted at paragraph [7] above.[851L!!gree with the further opinion of Roberts-Wray that the judgments represent e~~views".Th~ are not supported by authority. The applicable common law principle in thecircumstances of New Zealand is that rights of property are respected on assumption ofsovereignty. They can b e extinguished only by consent or in a cc or da nc e w i th statutoryauthority .They continue to ex is t un ti l extinguishment in accordance with law is

established.Any presumption of the common law inconsistent with recognition of customaryproperty is displaced by the circumstances of New Zealand (see Roberts-Wray, at 635).[86] The reasoning in In Re the Ninety-Mile Beach was based upon that accepted in Wi Parata. So,to o, w as th e re as on in g in Waipapakura vHempton, a case suggested to be of "dubiousauthority" by this Court in T e Run an g a (J Muriwhenua v Attorney-General at 654.The approachadopted in the judgment under appeal in starting with the expectations of the settlers based onEnglish common law and in expressing a preference for "full and absolute dominion" in theCrown pending Crown grant (paragraph [7] above) is also the approach of WiParata. Similarly, the reliance by Turner J upon English common law presumptions relating toown ers hi p of th e fo res ho re a nd seabed (an argument in substance re-runby the respondents inrelation to seabed in the present appeal) is misplaced. The common law as received in New

Zealand was modified by recognised Maori customary property interests.If any such custom isshown to give interests in foreshore and seabed, there is no room for a contrary presumptionderived from English common law.The common law of New Zealand is different.[87] As indicated above, the reasoning in In Re the Ninety-Mila Beach is contrary to R v Symonds;Re the Lundon and Whittaker's Claims Act 1871; Nireaha Tamaki v Baker; Manu Kapua v

Para Haimona; Amodu Tijani v Secretary. Southern Nigeria; Te Runanga 0 Muriwhenua In c vA tto rn ey -G e ne ra l; T e R un an g a 0 te Ikaw hen ua In c v Attorney-Genera; the Canad ian casesdealing with native title and property interests; and the majority judgments in Mabo vQueensland. In addition to the criticisms b y Roberts- Wray, the validity of the reasoning hasbeen doubted by a number of roodern writers and authorities.It is sufficient to refer to TheNew Zealand Law Comm is si on's P relimi nar y P ape rJh e T reaty of W aitang i and M aoriFisheries (1989, N ZLC PP9) at S ec ti on 1 5;RP Boast "In Re The Ninety M ile Beach

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R evis ited.T he N ative L and C ourt and the F oreshore in N ew Z ealand L egal H istory " (1993) 23VUWLR 145;FM Brookfield "The New Zealand Con sti tu ti on :T he S ea rc h fo r L eg iti m ac y" i n IKawha ru (e d.), WaitangitMaori and Pakeha Perspectives on the Treaty ofWaitangi (1 98 9) 1 0-12; and PO M cH ugh The Maori Magna Carta: New Zealand Law and the Treaty of Waitangt( 1991) 117-126 .I n my view , i t should not b e followed.[88] Just as the i n ve s ti g ati o n t hr ough the Maori L and C ourt of the ti tle to cus tom arY land could no~extinguish any customary property in contiguous land o n s ho re Mond its boundaries,}cons ider that an inves ti ation and rant of coastal land cannot extingu ish any pro erty heldU nder M aon cus tom m ands b elow hi w ater m ar .W hether there are sue ro erhes is amfi.tter fo ~ th e Ma or i L and Court t o inves tiga te in e rs t m stance as a gues ti ,on off anga.O nthe facts it m ay b e that w here the sea w as describ ed as the boundary fo r land so ld or in resp ectof W hich a vesting order w as ob tained, an inference can b e draw n that the cus tom ary interest ofthe seller or grantee is exhausted . T he term s of an y sale and the term s of an y a pp li ca ti on fo rves ting order m ay perm it such inference to b e draw n. T hat is a m atter of fact for the M aoriLand C ourt to consider.It m ay b e that the selling ow ners or the ow ners ab le to ob tain a vest ingorder had only a partial o r shared in teres t in contiguous foreshore and seab ed w hich m ade av es ti ng o rd er in them or a sale by them o f tho se areas in app rop riate.T hat co uld w ell b e thecase} for exam ple, i f the foreshore or seab ed property w as a tr ib al one and the contiguouspro perty s old or vested was based on the occu patio n o f a sm alle r fam ily g ro up . S uc h differences

in approach as a matter of custom and usage are referred to in Smith Maori Land Law (1960)89-94, draw ing on the judgm ents of the M aori L and C ourt. T hey are also r efe rr ed to i n o pi ni on son the nature of N ative tenure summ arised b y the report of A lexander McKay to th e N ati veM in is ter pub lished in 1890 N ZPP G 1 at l.Thus , M cK ay reported the "general consensus ofop in ion" to b e...that each Native had a right in common with the whole tribe o ve r th e d is po sa l of the land of thetr ib e, and an in di vi du al rig ht, su bj ect to th e tr ib al r i gh ts ,' to land u sed fo r culti vatio n o r for b ird -, rat-,or p ig -hu nri ng .B ut to ob tai n a s peci fic ti tle to lan d h eld incomm on there m ust b e som e addi tionalc ir cumsta nc e to s up po rt th e p re te ns io n, and the claim ants m ust b e ab le to sub stan tiate som e sort ofti tle to g ive them the preference over such land .[8 9J I t i s c on ce iv ab l e that valuab le tr ib al res ou rces (perh aps s uch as th e fores ho re of th e N inety -Mile Beach with its toheroa fi sh ery ) w ere n ot susceptible to su bd iv id ed o wn ersh ip , w hile th clan d u po n w hich hab itatio ns and culti vatio ns w ere si tu ated w as.A gai n, that is a m atter th eM aori Land C ourt w ould have to cons ider as a question of custom a nd u sa ge .B ut a n a pp ro ac hw hich precludes investigation of the fact of enti tlem ent according to custom b ecause of ana ss ump ti on th at c us tom i s d is pla ce d by a change in sovereignty or b ecause the sea w as used asa b oundary for individual ti tles on the shore is w rong in law .Conclusion[90] F or the reasons g iven, I am of the view that th e a pp ella nts mu st b e p erm itte d to p ro ce ed w iththeir applications to the M aori L and C ourt.I cons ider that it i s appropriate to answ er only thefirs t question posed for determ ination, and then in tenus s ligh tly d ifferent from the w ide w ay inwhich it w as w ord ed. T he s ub seq uen t q ues ti on s dep end o n th e facts .A ny an sw ers gi ven w ouldb e so heavily qualified as to b e unhelpful and perhaps m is lead ing. D e pending on the facts ,consequential questions of law m ay arise w hich m ay not b e adequately anticipated .It is notpossib le therefore to answ er w hat the law of N ew Z ealand m ay be i n thecircumstances.Abstract answers will l ack neces sary context.I decline to attemptan sw ers ex cep t to the first quest ion.Result

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[91] In accordance with the judgments of the Court, the appeal is allowed. The answer to Question 1is as follows:

What is the extent of the Maori Land Court's jurisdiction under Te Ture Whenua Maori Act 1993 todetermine the status of foreshore or seabed and the waters related thereto?The Maori Land Court has jurisdiction to detennine the status of foreshore and seabed. _[92] The first and second appellants are entitled to costs in the sum of $20,000 each, to be paid inequal shares by the four respondents.GAULTP[93] At its present stage, this case calls for determination only of a question of whether, at law,applications to the Maori Land Court cannot succeed. The appeal is against the judgment ofEllis J in the High Court delivered on 22 June 2001 and now reported at [2002) NZLR 661.[94] The appellants, certain iwi of the Northern part of the South Island encompassing theMarlborough Sounds, applied in the Maori Land Court for an order under sUI Te Ture

Whenua Maori Act 1993 declaring that certain land has the status of Maori customary land. Theland to which the application relates is described as:All that land (including the foreshore and seabed below mean high water mark and the waters relatedthereto) having as i ts landward boundary the mean high water mark and having as its seawardboundary the boundaries of the proposed Marlborough Sounds Resource Management Plan (publiclynotified 31 July 1995) Cape Soucis to Rarangi and thence to the point of intersection of the baselineof the Territorial Sea and the boundary of the Marlborough Sounds Resource Management Plan asdefined in the Proposed Plan Volume 3 Zoning Map 4).[95] The claim is essentially that the whole of the foreshore and seabed of the Marlborough Sounds,

extending to the limits of New Zealand's territorial sea, is Maori customary land as defined inth e Act.[96] To the extent that this first application is successful, the applicants seek secondly aninvestigation of the title to the land b y the Maori Land Court under s132 and an orderdetermining the relative interests of the owners of the land.[97] The immediately relevant provisions of the Act are 5s129, 131 and 132 in Part VI.129.All land to have particular status for purposes of Act - (1) For the purposes of this Act, allland in New Zealand shall have one of the following statuses:(a) Maori customary land:(b) Maori freehold land:(c) General land owned by Maori:(d) General land:(e) Crown land:(f) Crown land reserved for Maori.(2) For the purposes of this Act, -(a) Land that is held by Maori in accordance with tikanga Maori shall have the status of Maoricustomary land:(b) Land, the beneficial ownership of which has been determined by the Maori Land Court by

freehold order, shall have the status of Maori freehold land:

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(c) Land (other than Maori freehold land) that has been alienated from the Crown for asubsistingestate in fee simple shall, while that estat~ is beneficially owned by more than 4 persons ofwhom a majority are Maori , have the status of General land owned by Maori:( d) Land (other than M aori freehold land and General land ow ned b y Maori) that has been alienatedfrom the C row n for a subsisting estate in fee s imp le s ha ll have the status of General land:(e) Land (other t han Maori customary land and Crown land reserved for Maori) that has not beenalienated from the Crown for a subsisting estate in fee simple shall have the status of C r o w n

land: ,:~ "(f) Land (other than Maori customary land) that has not been alienated from the C r Q w ; r l f o i " asubsisting estate in fee simple but is set aside or reserved for the use or benefit of Maori shallhave the status of Crown land reserved for Maori .(3) Notwithstanding anything illsubsection (2) of this section, where any land had, immediatelybefore the commencement of this Act, any particular status (being a status referred to insubsection (1) of this section) by virtue of any provision of any enactment or of any order madeor any thing done in accordance with any such provision, that land shall continue to have thatparticular status unless and until it is changed in accordance with this Act.131. Court may determine status orland - (1) The Maori Land Court shall have jurisdiction todetermine and declare, by a status order, the particular status of any parcel of land, whether or notthat matter may involve a question of law.(2) Without limiting the classes of person who may apply to the Court for the exercise of itsjurisdiction, the District Land Registrar for the Land District in which any land is situatedmay apply to the Court for the exercise of its jurisdiction under this section in respect of thatland.(3) Nothing in subsection (1) of this section shall limit or affect the jurisdiction of the High Courtto determine an y quest jon relating to the particular status of any land-132. Change from Maori customary land to Maori fr eehold land by vesting order- - (1) TheMaori Land Court shall continue to have exclusive jurisdiction to investigate the title to Maori

customary land, and to determine th e relative interests of the owners of the land.(2) Every title to and interest inMaori customary land shall be determined according to tikangaMaori.(3) In any application for the exercise of the Court's jurisdiction under this section, the applicantmay specify ---:(a) The person or persons inwhom it is proposed the land shall be vested.and(b) Any trusts, restrictions, or conditions to which it is proposed the land shall be subject.(4) On any investigation of title and determination of relative interests under this section, th eCourt m ay make an order defining the area dealt with and vesting the land in -(a) Such person or persons as the Court may find to be entitled t o the land in such relative shares

as the Court thinks fit, or otherwise in accordance with the terms of the application;or(b) A Maori incorporation or a Maori Trost Board or trustees for Or on behalf of such persons,and on such terms of trust, and in such relative shares, as the Court thinks fit.[98] The definitions in 84 of't'Crown Land", "General Land", "Maori customary land" and "Maorifreehold land" simply refer to the status in terms of Part VI.That means the status identified ins129 or any changed status resulting from the application of other provisions of Part VI.[99] By 3129 all land inNew Zealand must have one of the statuses listed in thatsubsection.Subsection (2)~if intended to be comprehensive, leaves some difficult questions asto the status of some land not easily fitting the descriptions provided. The underlying intentionseems to be that once land has been vested in fee simple (i.e. a Crown grant has issued), solong as the estate subsists (whoever may own it) it cannot have the status of Maori customary

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land.That is co ns is ten t w ith the co nv entio nal app roach to nativ e title claim s.T hey areextinguished in respect of land that has been a

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