Monday, March 21, 2011

David Round: Customary rights claims lack validity

Canterbury University Lecturer in Law David Round believes the customary rights claims that underpin Chris Finlayson’s Marine and Coastal Area Bill have no validity in law. Here are his notes:
  • Finlayson's basic claim is that the 2004 Foreshore and Seabed Act overrules 164 years of common law development. This is not so. It is completely untrue that the law of New Zealand recognised these customary rights for 164 years.

    The Ninety Mile Beach Court of Appeal Case in 1963 held that these rights no longer existed, and that case came to that decision on the basis of the Harbours Act 1878 and the commonsense idea ~ repeated by one of the 2003 Court of Appeal judges, Gault J ~ that once the Maori Land Court had decided on title to dry land, that was an end of its jurisdiction, and there could be no other Maori owners to the foreshore. Where did they go when the tide came in?

  • The main point is that the 2004 Foreshore and Seabed Act does not overturn 164 years. The Ninety Mile Beach judgement made it quite clear that since the nineteenth century this 'common law right' simply did not exist. That was the universal understanding ~ and many Acts of Parliament were made assuming that this was the law.

  • It was only in 2003 that another court of appeal made a decision ~ a decision that was improper (because the Court of Appeal is usually under an obligation to follow its previous decisions) and political ~ and overruled the 90 Mile case.

    Only since 2003 has the 'common law right' Finlayson speaks of existed in our law. It was remade then by the judges. But even that Court of Appeal made it clear that it would only be in rare and remote cases that a Maori claimant would be successful.

  • Instead, we're now faced with the prospect that at least 10 percent of the Coast, and probably much more, will become private property.
In addition we have serious concerns over:

  • The introduction of private negotiations for claims and a lack of judicial scrutiny

  • The burden of proof being reversed so the Crown has to prove customary title does not exist rather than claimants having to prove that it does

  •  The use of 'tikanga' in the bill and the variation from place to place with the possibility that 'tikanga' will actually say that Maori still own a part of the foreshore and seabed even if other people visit it!

  • The exemptions of claimant groups from the RMA

  • The use of wahi tapu to exclude the public with no right of challenge as to the validity of the claims

  • The fact that John Key is trading away our coast as part of a deal with the Maori Party so he can stay in power after the next election.

  • And the fact that the 2004 Act only restored the longstanding 90 Mile status quo ~ in a very generous way, what's more! Leave it.


Anonymous said...


At the Foreshore and Seabed Meeting at Otaki on the 17th of April 2010, the Hon Christopher Finlayson, Minister for Treaty of Waitangi Negotiations, stated, "At the signing of the Treaty of Waitangi, Maori ceded sovereignty to Queen Victoria and New Zealand became subject to English law and the Magna Carta."

The First Article of the Treaty of Waitangi states, “Ko nga Rangatira o te Wakaminenga me nga Rangatira katoa hoki ki hai I uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani aka tona atu-te-Kawanatanga katoa o o ratou wenua”.

“The chiefs of the Assembly, and all the chiefs also who have not joined in that Assembly, give up entirely to the Queen of England forever all the Government of their land.”

The Chief’s gave up their entire Government/Native Lore to the Queen forever.

The Third Article of the Treaty states, “Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini-Ka tiakina e te Kuini o Ingarani hga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani”.

“This arrangement for the consent to the Government of the Queen. The Queen of England will protect all the Maoris of New Zealand. All the rights will be given to them the same as her doings to the people of England”.

The Chiefs agreed they would accept the same rights/laws as the people of England.

Countries around the world are accepting Customary Rights/Titles, but the Maori Chiefs gave up entirely to the Queen, their Government/Native Lore when they signed the Treaty of Waitangi in 1840 and accepted English Law, the same as the people of England.

There was no Customary Rights/Titles in English Law in 1840.

While New Zealand accepted the Declaration on the Rights of Indigenous People, it must be remembered, the Maori Chiefs in New Zealand gave up their Customary Rights/Titles when they signed the Treaty of Waitangi in 1840 and accepted the same rights as the people of England under English Law. No more – No less.

The Preamble of the Treaty, which is omitted from most publication today, states, “Nga wahi katoa o Nu Tirani e tukua aianei ki te Kuini”.

“All places/parts of New Zealand, which may be given up now or hereafter to the Queen”.

After the Treaty was signed, titles to land guaranteed in Article Two "to all the people of New Zealand" were issued under English Law to those that could prove ownership.
Any titles that include the foreshore and seabed must be honoured by the people of New Zealand but the foreshore and seabed, that remained in Crown ownership/trust cannot be acquired under Customary Rights/Title because the Chiefs gave up that right in 1840 when they signed the Tiriti o Waitangi.

One New Zealand Foundation Inc.

Anonymous said...

The mischievous notion that Maori “owned” land and associated resources they neither used nor occupied was a fiction propounded in the 1840s by the missionaries. They were well aware the Crown had little money for land purchasing. Their agenda was to keep secular, worldly settlers confined to already settled areas, ensuring missionaries remained the only European influence in the all-Maori hinterlands awaiting Christianisation.

The Crown was obliged to accept this misinformation because it lacked the troops to enforce its edicts against 100, 000 well-armed and potentially warlike Maori. Once Maori learned the Treaty supposedly gave them title to the entire land area of New Zealand and they could get money for it, each hapu became an instant "owner" of huge tracts of "waste land" adjoining its settlement(s). Naturally, this created multiple competing “ownership” claims.

To convey a clear title to subsequent purchasers and ensure incoming settlers went unmolested, the Crown found itself compelled to formally extinguish this Maori "ownership." In many early land purchases the Crown paid out anyone asserting a right to be paid.

The Native [now Maori] Land Courts were originally set up to deal with competing claims to the “waste lands.” "Ownership" typically went to whoever could spin the most convincing yarn about his remote ancestor travelling over the land centuries before naming natural features after parts of his body.

Had the missionaries not bogged it for the Crown, the "waste lands" and appurtenant rights would have simply been assumed by all to be vested in the Crown, to be held, managed, onsold, or otherwise used for the benefit of all New Zealanders, irrespective of race.

"Appurtenant rights" in the “waste lands” of course include those associated with the foreshore and seabed, which in any event fall outside the scope of any property rights purportedly reserved to Maori under the Treaty.

The English Treaty version at Article II refers to "fisheries." This is simply the right for Maori to go fishing and gather shellfish. Since Article III conveys to individual Maori “all the rights and privileges of British Subjects,” keeping the seabed and foreshore in public ownership clearly fulfils this requirement. This means Maori seabed and foreshore claims based on the proximity of former settlements to an area claimed must also fail.

Correctly interpreted, the Treaty establishes no justification for the privatisation to corporate iwi of what has been Crown (publicly) owned foreshore and seabed since 1840. The Marine and Coastal Areas Act 2011 doesn’t restore Maori property rights, but hands over to Maori tribal groups a new kind of property right in the foreshore and seabed (“Customary Title”) that never existed before.

New Zealand’s seabed and foreshore are resources that must remain vested in the Crown for the benefit of all New Zealanders, not passed to self-identified, self-interested, minority groups.