|
|
[Home] [Help] [Databases] [WorldLII] [Feedback] |
|
Australian Indigenous Law Reporter |
Court and Tribunal Decisions – New Zealand
Maori Appellate Court of New Zealand, Te Waipounamu Registry
(Durie CJ, Smith DCJ, Carter and Isaac JJ)
19th October 1998
Maori customary title to foreshore and seabed pursuant to ss. 131, 18(h) Te Ture Whenua Maori Act 1993 (NZ) – Customary title to foreshore – Interpretation of Re The Ninety Mile Beach [1963] NZLR 461 – Extinguishment of customary title – Customary title to seabed – Interpretation of s. 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1997 (NZ) – Sovereignty of title in offshore of similar import to radical title of the common law – Customary rights not extinguished by statutory assumption of sovereignty.
Jurisdiction of the Maori Land Court and Appellate Court – Specialist nature of Courts – Expertise in factual inquiry regarding Maori land – Jurisdiction of Maori Land Court to determine what land is customary land under s. 129 Te Ture Whenua Maori Act.
Evidence – Appropriateness of preliminary determination of law before factual inquiry as to existence of Maori customary rights.
The current decision is an appeal against a preliminary determination of the Maori Land Court in respect of an initial claim by eight Maori hapu from the South Island of New Zealand. The initial application sought orders declaring the foreshore and seabed of the Marlborough Sounds to be either customary Maori land or held by the Crown in a fiduciary capacity; and for an investigation of relative interests in the land.
The Lower Court dealt only with the issue of the status of the land, treating the foreshore and seabed separately. Determinations of law were made in the absence of a factual inquiry by assuming the existence of Maori customary rights.
(a) Foreshore – The Lower Court distinguished Re The Ninety Mile Beach [1963] NZLR 461 and held, "[w]hen the Marlborough Sound Maori were separated from their customary lands adjacent to the foreshore by purchase, the customary rights to the foreshore not included in the sales or not having been expressly extinguished since sale by an Act or other statutory instruments still remain."
(b) Seabed – The Lower Court found that prior to 1965 the assumption of sovereignty did not extinguish customary rights as the common law did not recognise title to the seabed at that time. In examining the later statutory assumption of sovereignty and the application of s. 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1997 (NZ), the Court applied the reasoning in Mabo v Queensland [No. 2] [1992] HCA 23; 175 CLR 1 and Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 to find that such assumption of sovereignty was in the nature of "a radical title of the common law and the customary rights, (if any), still remain."
Appeals were lodged by seven parties, with all appellants arguing that the lower court erred in its interpretation of Ninety Mile Beach or in failing to state a case to the High Court for clarification of the correctness of that case. The other major ground of appeal was the interpretation of s. 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act.
It would be premature to state a case to High Court regarding interpretation of Re the Ninety Mile Beach before any factual inquiry. Dissatisfaction with Re the Ninety Mile Beach had occurred, in part, due to an unsatisfactory evidential inquiry in that instance. A factual inquiry was required to prevent a repetition of similar problems and to ensure that an adequate factual matrix was available to the High Court to consider the principles of law involved if a case was to be stated.
Hearing of the appeal was adjourned pending the taking of evidence in the Maori Land Court to establish what land in Marlborough Sounds, if any, was customary Maori land. That evidence, to be provided by the lower court without any findings at law, is to be submitted to the Maori Appellate Court to determine whether a case should be stated to the High Court.
The court considered, without deciding, whether the case to be stated should be confined to the issue of the correctness of the interpretation of Re the Ninety Mile Beach case or wider grounds including the seabed.
Any case stated, whilst having an impact upon public law, also has a genesis in customary law. The above courts can offer specialist expertise in customary law. Therefore, establishment of the factual matrix to support a case stated is best undertaken by the Maori Land Court. Evidence should then be remitted to the Maori Appellate Court for consideration as to whether a case should be stated, and the nature of that case.
The Court also considered preliminary matters of the right of appeal of Te Rananga O Muriwhenua and held that the runanga had a particular interest in the challenge to Re the Ninety Mile Beach as that tribe was bound by that decision.
The Court noted that no formal leave had been sought under s. 37(1) Te Ture Whenua Maori Act 1993 (NZ) by the applicants in the Lower Court.
Application was made to the Maori Land Court by eight hapu from the northern part of the South Island seeking orders in respect to the land specified in the application, but described for the purpose of this decision as the seabed and foreshore of the Marlborough Sounds and the waters relating thereto, as follows:
1. An order under ss. 131 and 18(h) of Te Ture Whenua Maori Act 1993 (NZ) (the Act) declaring that the land is customary Maori land; or
2. An order under s. 18(1)(i) of the Act declaring that the land is held by the Crown in a fiduciary capacity; and
3. An order under s. 132 of the Act that an investigation be carried out as to the relative interests of the applicants in the land; and
4. Costs and all such other orders that the Court thinks just.
The Court directed that it would deal first with the application under ss. 18(1)(h) and 131 of the Act as to the status of the land concerned. It further indicated that, on the basis of the acceptance by the Crown and other objectors that Maori held customary right/title to the foreshore and seabed at the time of the signing of the Treaty of Waitangi, it would enquire into whether those rights/title have since been extinguished. The matter was heard at Nelson on 30 and 31 October 1997 and dealt with legal submissions only, no formal evidence being presented. On the 22nd December 1997 the Court delivered a preliminary determination at the same time granting leave to the parties to appeal in accordance with the provisions of s. 59(1) of the Act.
In its decision the Court commenced from the premise that "it is assumed that there were existing Maori customary rights prior to 1840". It also acknowledged that there had been no evidential inquiry to establish that there were such rights, since the investigation would entail extended hearings and it was considered that the legal question was best determined before such a lengthy inquiry.
The learned Judge dealt with the matter under two headings first, the foreshore, and at 22A Nelson Minute Book folio 4 found:
When the Marlborough Sound Maori were separated from their customary lands adjacent to the foreshore by purchase, the customary rights to the foreshore not included in the sales or not having been expressly extinguished since sale by an Act or other statutory instruments still remain.
The Court is aware that there may have been express extinguishment of some of the foreshore but clarification of this must wait presentation of evidence.
The second part of the decision related to the seabed and at 22A Nelson Minute Book folio 10 the Court found:
I am of the opinion (as mentioned above) that a sovereignty title of similar import and characteristics to the radical title of the common law passed and the customary rights (if any) still remain.
The above issues involved the Court in a consideration of the Court of Appeal decision in Re the Ninety Mile Beach [1963] NZLR 461 and the interpretation of s. 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1997 (NZ).
Appeals were lodged against the decision of the Court by the seven bodies mentioned in the heading hereto. Without exception all stated in their grounds for appeal, inter alia, that the lower Court erred in its interpretation of the Ninety Mile Beach case decision and its application to the matter and/or in failing to state a case to the High Court requesting clarification of the correctness or otherwise of the principles expounded in that case. Most also disputed the interpretation placed on s. 7 referred to above.
The Appellate Court gave notice first that it would hear as a preliminary matter, argument as to whether a case should be stated to the High Court to test the application of the Ninety Mile Beach decision but later amended this direction to hear argument to determine:
1. should a case be stated for the opinion of the High Court; and if so
2. the nature and substance of that case to be stated.
The appeal was then to be adjourned to a later date for the hearing of the substantive appeals.
The Maori Appellate Court sat on the 11th May 1998 to hear submissions.
As a preliminary matter the Maori Appellate Court was required to rule on the status of Rima Edwards/Te Runanga O Muriwhenua and the rights of that party to be heard on appeal or on the question of the case stated.
After hearing submissions from Mr Radich, counsel for the Marlborough District Council, challenging the right of Te Runanga O Muriwhenua to appear, and Mr Dawson in support of Te Runanga O Muriwhenua's appearance, this Court ruled that Rima Edwards/Te Runanga O Muriwhenua had a particular interest in the challenge to In Re the Ninety Mile Beach case sufficient to be materially affected to a greater extent than the public at large. Therefore, in terms of ss. 58(2) or 59(2) of the Act, the runanga was entitled to be heard. That greater interest is exemplified if one considers that Muriwhenua are bound by the Ninety Mile Beach decision through the doctrine of stare decisis as opposed to other coastal tribes who may argue against or distinguish that decision. If there is to be any reconsideration of that decision it is most appropriate that Muriwhenua be represented.
Counsel for the respondent argued against the Maori Appellate Court stating a case on any matter to the High Court, while counsel for Te Atiawa Manawhenua Ki Te Tau Ihu Trust advocated, as did counsel for Muriwhenua, that any case stated should be limited to questions relating to the Ninety Mile Beach decision of the Court of Appeal. All other counsel pressed for a case to be stated on much wider grounds including questions relating to the seabed.
During submissions it appeared generally accepted that much of the dissatisfaction arising from the Ninety Mile Beach decision was caused by the inadequacy and inaccuracy of evidence available to the Court determining the question at that time.
The Solicitor-General on behalf of the Crown at para. 39 of his submission submitted that the question at stake raised fundamental issues as to the ownership of New Zealand resources and the status of customary law in New Zealand and went on to say:
It is important that these issues be examined by the highest Courts in New Zealand, drawing on both the common law and international law. Once those Courts have established the parameters of customary law in New Zealand, it will be appropriate for the Maori Land Court to consider whether specific areas are held as customary land in accordance with tikanga Maori.
Whilst this Court is in sympathy with the Crown submissions the concerns expressed by Ms Ertel that the referral of a case stated at this point of time is premature has considerable merit. If a Court is to deliberate on and answer any questions referred by way of a case stated, then to ensure that there is no repetition of the purported problems arising from In Re the Ninety Mile Beach that Court should have before it at least a resume of the facts, sufficient to apprise it of the position pertaining. There are no facts to bolster a case stated at this stage.
The learned Judge in the lower Court, made it clear that his decision, headed "Interim Decision" was brought down in the absence of any evidential inquiry. At 22A Nelson Minute Book folio 4 following his determination in respect of customary rights relating to foreshores, as stated above, the learned Judge commented "the Court is aware that there may well have been express extinguishment of some of the foreshore but clarification of this must await presentation of evidence."
Again at 22A Nelson Minute Book folio 7 it is recorded:
Te Ture Whenua Maori Act gives the Maori Land Court jurisdiction to determine whether such land has the status of Maori customary land (S131/93). Once the Court so decides it has exclusive jurisdiction to investigate the title to the land and determine who are the owners (S132/93).
It is clearly incumbent upon the Tau Ihu Maori to prove to this Court that they hold the bed of Marlborough Sounds in accordance with tikanga Maori and if they so prove that this Court can then proceed to the next statutory step – the investigation of Title.
This Court accepts that it would be premature at this stage to state any case for consideration by the High Court in the absence of any factual matrix to which a Court charged with answering a case stated by this Court might refer. The application of principles of law often depend upon the facts and there is always the prospect that a party may wish to rely upon factual evidence to distinguish some precedent that might otherwise apply. In reaching this decision we are conscious of the findings of Anderson J, in Re Hauraki Maori Trust Board v Treaty of Waitangi Fisheries Commission [1995] NZLR 702 in which it was held first, that the Court should not prematurely or unnecessarily state a case, and secondly, that the essential merits of the plaintiff's case in public law can be exercised on the basis of assumptions. This Court has some reservations as to the latter statement in that any case stated in this present instance, whilst clearly having an impact upon "public law", must have its genesis in customary law, a matter which the Maori Land Court and Maori Appellate Court as a specialist Court should provide some guidance.
This Court believes that the factual matrix required to support a case stated could best be established through inquiry by the Maori Land Court charged with the duty of hearing the evidence contemplated by the lower Court to be taken for the purposes of establishing customary title to the land in question. That evidence, without any findings being made by the lower Court, should then be submitted back to the this Court for further consideration as to whether a case should be stated to the High Court. At that time the Appellate Court will reconvene to hear argument as to whether a case should be stated and if so the nature of the question(s) to be answered.
Accordingly, the Maori Land Court is now directed to conduct a full hearing of the application currently before it for the purposes of determining what land, if any, is customary land within the provisions of s. 129 of the Act and on completion of the hearing, and without making any determination, refer the evidence back to this Court.
This Court notes:
1. That in so far as the decision of the lower Court is recorded as an "interim" or "provisional determination" the appellants, for the purposes of s. 58(6) of the Act and the preservation of their respective rights of appeal from any final determination by the Court quite properly filed their notices of appeal, the substance of which will be considered when the hearing resumes.
2. There is one matter of concern to this Court which was adverted to during the hearing by the Chief Judge as presiding Officer, and that is the status of the applicants in the lower Court, now the respondents in the Appellate Court.
Section 37(1) of the Act provides that the Maori Land Court may exercise its jurisdiction in the application of:
(i) Any person claiming to have an interest in the matter; or
...
(iii) The Court may grant to any person body or association leave to make an application to the Court for the exercise of its jurisdiction where the Court is satisfied:-
(a) That a question of importance to the Maori people or any tribe or group of the Maori people is involved; and
(b) That, because of the standing of the proposed applicant among the Maori people concerned and the proposed applicants relationship to or connection with any land to which the application relates, it is appropriate that leave be granted.
A perusal of the record, minutes of the hearings, and judicial conference does not reveal that any such leave was sought or granted.
This Court acknowledges the assistance afforded by the various counsel appearing through their very extensive and erudite submissions. The failure of this Court to address each and every one of those submissions individually in no way detracts from the weight applied thereto or the extent of the assistance those submissions have afforded this Court. We congratulate all counsel on their submissions and thank them for their assistance.
The Appellate Court hearing is now adjourned sine die pending the taking of evidence as directed.
Consequent upon the appointment of His Honour Chief Judge Durie to the Bench of the High Court, he will no longer be available to preside over this appeal, and the Maori Appellate Court will be reconstituted.
Having read the decision to be delivered by Deputy Chief Judge N F Smith
I concur with the decision.
The Attorney-General
Solicitor-General J J McGrath QC, Counsel
Assisted by Helen Aikman, Counsel
Port Marlborough New Zealand Limited
Mr M J Hunt, Counsel.
Te Atiawa Manawhenua Ki Te Tau Ihu Trust
Ms K L Ertel, Counsel
Rima Edwards/Te Runanga o Muriwhenua
Mr J M Dawson, Counsel
Marlborough District Council
Mr P J Radich, Counsel
New Zealand Marine Farming Association Incorporated
Sir Geoffrey Palmer, Counsel
New Zealand Aquaculture Council Incorporated
Ms K Feint, Counsel
Te Tau Ihu Iwi
Mr J Williams, Counsel