9.51 New Zealand jurisprudence also recognises a distinction between exclusive and non-exclusive rights—usually termed territorial or non-territorial aboriginal title. Each of these is given distinct form by legislation.
9.52 From the outset of formal British colonisation, the settlement of New Zealand proceeded on the basis that beneficial ownership of land remained with Maori and that customary title had to be extinguished by purchase prior to alienation to third parties. However, by the late 19th century there was little Maori customary land left in New Zealand—a result of pre-emptive purchases of land by the Crown, as well as the conversion of customary title to Maori freehold land. The result was that while several court decisions recognised that rights to Maori land could be recognised at common law, there was in practice no land onshore left to claim by way of native or aboriginal title.
Recognition of aboriginal title
9.53 In the mid-1980s debate arose about the availability of aboriginal title claims in New Zealand. In 1986, Maori customary rights were successfully pleaded as a defence to a charge of possessing undersized paua in tidal waters. In Te Runanga o Muriwhenua v Attorney-General and Te Runanganui o te Ika Whenua v Attorney-General, Cooke P of the Court of Appeal confirmed that aboriginal title was part of the common law.
9.54 Cooke P, referring to cases including Mabo [No 2], held that the Crown’s radical title was subject to native rights, that these are generally, but not invariably communal, and the nature and incidents of aboriginal title are matters of fact dependent on the evidence in any particular case. He noted that they could only be extinguished by the free and informed consent of the holders of the title, although they could be compulsorily acquired with adequate compensation.
9.55 While other cases throughout the 1990s and early 2000s also mentioned the existence of aboriginal title, the first decision to significantly address this matter was the 2003 Court of Appeal decision in Ngati Apa v Attorney-General (‘Ngati Apa’). The matter before that Court was not a claim for aboriginal or native title. Rather, the issue in the case was whether the Maori Land Court had jurisdiction to investigate areas below the high water mark. It required a determination as to whether, as a matter of law, Maori customary title could exist with respect to the foreshore and seabed.
9.56 As the matter before the Court was a narrow jurisdictional point, the decision gave little guidance as the nature of aboriginal title, or how it was to be established. The Court of Appeal confirmed that the Crown is not the source of aboriginal title. According to Elias CJ, ‘[t]he Crown has no property interest in customary land and is not the source of title to it’. The Crown did not acquire full and absolute dominion at the point of sovereignty, but rather radical title. In particular, the Crown did not acquire ownership of the foreshore by prerogative, as that rule was displaced by local circumstance. Radical title was further extended to include the seabed.
9.57 The existence and content of customary property is determined as a matter of the custom and usage of the particular community. These are questions of fact, which may be referred for determination to the Maori Appellate Court. Beyond this, the Court gave little further direction as to the nature and content of aboriginal title, although the Court unanimously noted that native property continues until lawfully extinguished, and that the onus of proof of extinguishment lay on the Crown.
9.58 As in Australia following the Mabo [No 2] decision, the decision in Ngati Apa prompted a legislative response: the Foreshore and Seabed Act 2004 (NZ) (‘Foreshore and Seabed Act’).
9.59 In the context of this Inquiry—which recommends reform to the test for establishing native title under the Native Title Act—the history of legislation relating to customary rights is instructive. The Foreshore and Seabed Act was repealed and replaced in 2011 by the Marine and Coastal Areas (Takutai Moana) Act 2011 (NZ) (‘Takutai Moana Act’). A central reason for this reform was concern about the restrictive thresholds for recognition of customary rights.
The Foreshore and Seabed Act 2004 (NZ)
9.60 The Foreshore and Seabed Act was considered to have codified the common law, and to have been guided by overseas jurisprudence as to the tests for customary rights. The Act went considerably beyond the brief descriptions of aboriginal title in Ngati Apa, introducing two types of claims:
non-exclusive customary rights orders (non-exclusive rights); and
territorial customary rights (exclusive rights).
9.61 The Foreshore and Seabed Act legislatively extinguished all aboriginal title, and replaced the inherent jurisdiction of the High Court with a statutory jurisdiction based on the provisions of the Act.
9.62 The requirements to establish both kinds of claims reflected an amalgam of Canadian and Australian law relating to Indigenous rights and interests in land and waters. The two types of claims may be considered analogous to the Canadian distinction between aboriginal rights and title.
9.63 A territorial rights claim required relevantly, that the claimants show exclusive use and occupation of a particular area, and that the use and occupation be ‘substantially uninterrupted’ since 1840. The Act expressly limited the evidence of exclusive use and occupation to physical activities and uses.
9.64 A determination of territorial customary rights did not provide a legally enforceable right, but entitled the applicants to an order referring the matter to the Attorney-General and the Minister for Maori Affairs. This essentially gave a right to negotiate an agreement for some form of redress in recognition of the finding of the Court.
9.65 A customary rights order required the claimants to show a use, activity or practice, integral to ‘tikanga Maori’(Maori customary values and practices), which had been carried on in a ‘substantially uninterrupted manner’ since 1840. Section 51(1) further stated that ‘an activity, use, or practice has not been carried on, exercised, or followed in a substantially uninterrupted manner if it has been or is prevented from being carried on, exercised, or followed by another activity authorised by or under an enactment or rule of law’.
9.66 The Act also recognised that the activities, uses or practices might include a commercial component. The effect of a customary rights order was to allow the activity, use or practice to be undertaken, and to be protected in accordance with the provisions of the Resource Management Act 1991 (NZ).
9.67 The Foreshore and Seabed Act was a significant source of controversy and concern for Maori. By 2009, no claims had been brought under the Act, and in that year, a Ministerial Review Panel recommended its repeal. The panel determined that the Act was discriminatory because it removed the ability of Maori to have their claims adjudicated by the common law. Rather they were required to have their claims judged against the definitions in the statutory provisions which ‘imposed extremely restrictive thresholds for the recognition of customary rights’. The Panel considered that the Act discriminated on the grounds of race and contravened the Bill of Rights Act 1990 (NZ).
The Marine and Coastal Areas (Takutai Moana) Act 2011 (NZ)
9.68 The Takutai Moana Act replaced the Foreshore and Seabed Act. The later Act seeks to balance the rights of Maori and non-Maori in the foreshore and seabed. Section 6 specifically ‘restores and gives legal expression to those rights extinguished by the Foreshore and Seabed Act.’ However, the Act excludes the jurisdiction of the Court to hear and determine any aboriginal rights claim and replaces it with the statutory jurisdiction given under the Act.
9.69 The Takutai Moana Act provides for two claims:
protected customary rights (non-exclusive rights); and
customary marine title (exclusive rights).
9.70 These essentially mirror those available under the previous Foreshore and Seabed Act. However, the tests have been simplified.
9.71 Claims are filed with the High Court. Alternatively, customary marine title and protected customary rights may be recognised by an agreement made with the Crown. In addition, the Act recognises a ‘universal award’ of ‘mana tuku iho’. This is the relationship ‘iwi’ (peoples or nations) have with the foreshore and seabed in their ‘rohe’ (territory) and applies without the need for a claim of any other kind. It entitles Maori to participate in conservation processes under the Act. While it is difficult to make comparisons, ‘mana tuku iho’ could be likened to the right that Aboriginal and Torres Strait Islander peoples have to speak for country.
9.72 A protected customary right is a right that has been exercised since 1840 and continues to be exercised in accordance with tikanga, regardless of whether it continues to be exercised in exactly the same manner, or a similar way, or evolves over time. Iwi or ‘hapu’ (clans or descent groups) may derive commercial benefit from exercising protected customary rights.
9.73 There are three significant changes from the earlier Foreshore and Seabed Act. First, the Act no longer equates such a right with a ‘use, activity or practice’—rather, simply using the term ‘right’. Secondly, the requirement for the right to have been exercised in a ‘substantially uninterrupted manner’ has been removed. Thirdly, the provision specifically allows for evolution or adaption over time.
9.74 The exclusive rights provisions under the Takutai Moana Act require that a particular part of the marine and coastal area be held in accordance with tikanga and that the claimant group has exclusively used and occupied it from 1840 to the present day without substantial interruption. Unlike the previous Foreshore and Seabed Act, the outcome of this claim is a recognition of customary marine title, rather than a right to negotiate an agreement for redress. The new Act also specifically allows for customary transfer of rights between iwi or hapu.
9.75 Certain rights are conferred by, and may be exercised under, a customary marine title order. These include:
a right to permit or not permit applications for new resource consents, with limited exceptions;
a right to give or withhold permission for conservation activities;
a right to the protection of wahi tapu;
the ownership of minerals other than petroleum, uranium, silver, and gold;
the right to create a planning document; and
the prima facie ownership of taonga tuturu (Maori cultural or historical objects).
9.76 The first claims under the Takutai Moana Act are due to be heard by the High Court in 2015. A number of applications for customary marine title and protected customary rights through recognition agreements with the Crown have also been lodged.
Foreshore and Seabed Act 2004 (NZ); Marine and Coastal Area (Takutai Moana) Act 2011 (NZ).
For a consideration of the position in Australia, see Ch 2.
Shaunnagh Dorsett, ‘Aboriginal Rights in the Offshore: Māori Customary Rights under the Foreshore and Seabed Act 2004 (NZ)’ (2006) 15 Griffith Law Review 74, 76.
Compensation may be available for loss and alienation of tribal lands through a claim made to the Waitangi Tribunal. The Tribunal investigates claims by Maori that they have been prejudiced by law, policy, act or omission of the Crown and that such law, policy, act or omission is inconsistent with the principles of the Treaty of Waitangi: Treaty of Waitangi Act 1975 (NZ) ss 5–6; Office of Treaty Settlements, Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (‘‘Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown’’).
McHugh, above n 1, 27; Richard Boast, ‘Treaty Rights or Aboriginal Rights?’  NZLJ 32; PG McHugh, ‘Aboriginal Title in the New Zealand Courts’ (1984) 2 University of Canterbury Law Review 235.
Te Weehi v Regional Fisheries Officer  1 NZLR 680.
Te Runanga o Muriwhenua v Attorney-General  2 NZLR 641; Te Runanganui o te Ika Whenua v Attorney General 2  2 NZLR 20.
Te Runanganui o te Ika Whenua v Attorney General 2  2 NZLR 20 5–6.
Ngati Apa v Attorney-General  3 NZLR 643.
Ibid; Dorsett, above n 70.
Paki v Attorney-General  NZSC 118 .
Te Ture Whenua Maori Act 1993 (NZ) s 61.
Ngati Apa v Attorney-General  3 NZLR 643  (Elias CJ),  (Gault P), – (Keith and Anderson JJ),  (Tipping J).
(16 November 2004) 621 NZPD.
Foreshore and Seabed Act 2004 (NZ) ss 50–51.
Ibid s 32.
Ibid ss 10, 50.
Ibid s 32(2).
Ibid s 32(3).
Ibid ss 36–37.
Ibid s 50(1)(b)(ii).
Ibid 52(2), (3).
Dorsett, above n 70, 74–75.
Ministerial Review Panel, Pākia Ki Uta Pākia Ki Tai: Report of the Ministerial Review Panel – Ministerial Review of the Foreshore and Seabed Act 2004 – Vol 1 (30 June 2009) 12; see also Marine and Coastal Area (Takutai Moana) Act 2011 (NZ) preamble.
Ministerial Review Panel, Pākia Ki Uta Pākia Ki Tai: Report of the Ministerial Review Panel – Ministerial Review of the Foreshore and Seabed Act 2004 – Vol 1 (30 June 2009) 139.
Marine and Coastal Area (Takutai Moana) Act 2011 (NZ) s 98(4).
Ibid ss 94–95.
Ibid s 4.
Western Australia v Ward (2002) 213 CLR 1, .
The High Court may refer questions of tikanga to the Maori Appellate Court, or appoint a ‘pukenga’ (court expert) with knowledge of tikanga: Marine and Coastal Area (Takutai Moana) Act 2011 (NZ) s 99.
Ibid s 51.
Ibid s 52(4)(b).
See Ch 8 for a discussion of the relationship between rights, uses and activities.
See Ch 5 for consideration of the requirement for ‘substantially uninterrupted’ continuity in proof of native title in Australia.
See Ch 5 and Ch 8 for a consideration of the relevance of evolution and adaptation in Australian native title law.
Marine and Coastal Area (Takutai Moana) Act 2011 (NZ) s 58(1).
Ibid ss 58(1)(b)(ii), 58(3). See Ch 5 for a discussion of customary transfer in the Australian context.
Ibid s 62.
A full list can be found at Ministry of Justice, Marine and Coastal Area Act Applications <http://www.justice.govt.nz/treaty-Settlements/office-of-Treaty-Settlements/marine-and-Coastal-Area-Takutai-Moana/current-Marine-and-Coastal-Applications#notified>.