[Home] [Help] [Databases] [WorldLII] [Feedback]
	Australian Indigenous Law Reporter

Court and Tribunal Decisions – New Zealand

Re Marlborough Sounds Foreshore and Seabed Decision of the Maori Land Court

High Court of New Zealand

22 June 2001

(2001) 4 NZ Conveyancing Cases 193, 399

Maori Land Court jurisdiction — customary land — native title — whether customary land under the Te Ture Whenua Maori/Maori Land Act 1993 (NZ) can include seabed and foreshore — extinguishment of customary title

Facts:

Eight Maori tribes applied to the Maori Land Court (the MLC) for a determination that the seabed and foreshore of the Marlborough Sounds are ‘Maori customary land’ and that it should be vested in them as Maori freehold land under the Te Ture Whenua Maori/Maori Land Act 1993 (NZ) (the Act). It was agreed that the legal question (of whether Maori customary land under the Act can include the seabed and foreshore) should be answered first. The MLC decision proceeded on the basis that there were in fact such existing customary rights prior to 1840 (the Treaty of Waitangi). The MLC judge held that there had been no express extinguishment of customary title to the foreshore or seabed; therefore, any customary title rights still remained. The foreshore and seabed thus remained as land within the jurisdiction of the MLC. The Maori applicants wanted the MLC to then enquire into the factual position. The Attorney-General appealed on the question of law to the High Court.

Held, upholding the appeal:

1. Land down to the low water mark (the foreshore) can be Maori customary land but only where the contiguous dry land is still Maori customary land. When Maori customary title to the dry land has been extinguished, the issue becomes whether the title issued included the foreshore or not; the status of the foreshore could not be examined as a separate issue. Re Ninety Mile Beach [1963] NZLR 461 (CA) applied.

2. The seabed cannot be Maori customary land under the Act. The MLC thus lacked jurisdiction over it. The bed of the territorial sea and internal waters is vested in the Crown under the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 (NZ) s 7, which deems the seabed ‘to be and always to have been vested in the Crown’.

3. Obiter: the findings do not preclude Maori from establishing customary rights over the foreshore, seabed and waters over them short of a right of exclusive possession. R v Keyn (1876) 2ED 63 and The Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 discussed.

Note:

This High Court decision has been appealed to the NZ Court of Appeal. Arguments were heard in July 2002.??