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Australian Indigenous Law Reporter |
Court and Tribunal Decisions- New Zealand
Court of Appeal of New Zealand (Elias CJ, Gault P, Keith and Anderson JJ and Tipping J)
19 June 2003
Maori customary land — whether Maori Land Court has jurisdiction to hear claim to foreshore and seabed — effect of transfer of sovereignty on existing property rights — whether once contiguous land above high water mark has lost status of Maori customary land any Maori customary property in foreshore is extinguished — whether statutes extinguished any Maori customary property below the high water mark — whether the common law and legislation treated survival of Maori customary interests in the foreshore and seabed differently to those above the high water mark — whether foreshore and seabed are ‘land’ for the purposes of Te Ture Whenua Maori Act 1993 (NZ) — content of customary property — extinguishment of customary property
The Maori Land Court has jurisdiction under Te Ture Whenua Maori Act 1993 (NZ) to determine whether land is Maori customary land and make status orders to that effect. The Maori Land Court has an exclusive jurisdiction to investigate title to Maori customary land and to grant an order vesting a fee simple title in those found to be entitled to it. The effect of such an order is to change the status of the land to Maori freehold land. Few pockets of Maori customary land above the high water mark remain in New Zealand.
Ngati Apa and other iwi (tribal groups) applied to the Maori Land Court for declaratory orders that foreshore and seabed land in the Marlborough Sounds, in the northern part of the South Island, is Maori customary land, from the high water mark to the limits of New Zealand’s territorial sea. If successful, they further sought an investigation of the title to such land. If not successful, they sought a declaration that the Crown holds the land in a fiduciary capacity for their benefit under s 18(1)(i) of Te Ture Whenua Maori Act 1993.
The Attorney-General and other non-Maori parties objected in the Maori Land Court that the applications could not succeed as a matter of law. They relied on various legislation as having extinguished customary property, and also on the decision of the Court of Appeal in In Re the Ninety-Mile Beach [1963] NZLR 461.
Judge Hingston of the Maori Land Court ruled that the legislation relied on was not effective to extinguish any customary property which the applicants might otherwise establish. The Attorney-General and other non-claimant parties appealed to the Maori Appellate Court which then stated a case for the opinion of the High Court in the form of eight questions.
In Attorney-General v Ngati Apa [2002] 2 NZLR 661, Ellis J held that land below the low water mark in New Zealand is beneficially owned by the Crown at common law and was declared to be so owned by s 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 and s 9A of the Foreshore and Seabed Endowment Revesting Act 1991, and that therefore it could not be Maori customary land. He accepted that the Maori Land Court had jurisdiction to inquire whether the foreshore between the high and low water marks was Maori customary land. He also, however, applied In Re the Ninety-Mile Beach in holding that any Maori customary property in the foreshore had been extinguished when contiguous coastal land had lost the status of Maori customary land, due to Crown purchase or a vesting order made by the Maori Land Court.
The Maori parties appealed to the Court of Appeal against Ellis J’s decision.
1. Per Elias CJ, Gault P, Keith and Anderson JJ and Tipping J: The Maori Land Court has jurisdiction to determine the status of the foreshore and seabed [91], [124], [182], [216].
2. Per Elias CJ, Gault P, Keith and Anderson JJ and Tipping J: The transfer of sovereignty in 1840 did not also vest in the British Crown the full beneficial ownership of New Zealand. Customary rights continue to exist at common law as a burden on the Crown’s radical title (or, per Gault P, the equivalent of radical title in the statutory context of Te Ture Whenua Maori Act 1993) until lawfully extinguished [13], [102], [139], [183].
3. Per Elias CJ: There is no presumption against private ownership of land on the margins of the sea or land covered by sea and in favour of Crown ownership [50].
4. Per Elias CJ, Gault P, Keith and Anderson JJ and Tipping J: The foreshore and seabed can be ‘land’ for the purposes of Te Ture Whenua Maori Act 1993 [55], [110], [179], [188].
5. Per Elias CJ, Keith and Anderson JJ and Tipping J: The content of customary interests is a question of fact and may range from limited use or occupation rights up to exclusive ownership equivalent to a fee simple [31], [144], [184].
Per Elias CJ: Query does the Maori Land Court have jurisdiction to recognise customary interests which fall short of exclusive ownership [46]?
Per Gault P: Interests such as usufructuary rights are not interests which come within the provisions of Part VI of Te Ture Whenua Maori Act 1993, governing the jurisdiction of the Maori Land Court [106].
6. Per Elias CJ: Maori customary property can be extinguished only by consent or in accordance with statutory authority: by sale to the Crown, through investigation of title through the Land Court and subsequent deemed Crown grant, or by legislation or other lawful authority [85].
Per Gault P, Keith and Anderson JJ and Tipping J: Extinguishment of Maori customary interests requires a clear indication of intention [113], [148], [185].
7. Per Elias CJ, Keith and Anderson JJ and Tipping J: The investigation and grant of coastal land by the Maori Land Court did not of itself extinguish any customary property in contiguous land below the high water mark. The question of whether investigation and grant of coastal land extinguished customary property in the adjoining foreshore or seabed is one of fact and (per Elias CJ) whether the sea was used as a boundary is a relevant but not decisive consideration. In Re the Ninety-Mile Beach [1963] NZLR 461 not followed [88], [157], [204].
Per Gault P: Whether the investigation and grant of coastal land by the Maori Land Court extinguished any customary property in contiguous land below the high water mark is a question of fact, a decisive consideration being whether the land was claimed as bordering the sea [121].
8. Per Elias CJ, Keith and Anderson JJ and Tipping J: The general prohibition on grants of the foreshore and seabed in s 150 of the Harbours Act 1950, and in its predecessor provision in the Harbours Act 1878, was neither a bar to the exercise of jurisdiction by the Maori Land Court nor did it extinguish Maori customary property. In Re the Ninety-Mile Beach [1963] NZLR 461 not followed [60], [154], [197].
9. Per Elias CJ, Gault P, Keith and Anderson JJ and Tipping J: The deemed vesting in the Crown of the seabed and its subsoil below the low water mark under provisions of the Territorial Sea and Fishing Zone Act 1965 and its successor, the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977, (defining the territorial sea of New Zealand at three and then twelve nautical miles respectively) did not extinguish Maori customary property in those areas [63], [113], [160], [203].
10. Per Elias CJ, Gault P, Keith and Anderson JJ and Tipping J: The prohibition on grants of foreshore and seabed land in section 9A of the Foreshore and Seabed Endowment Revesting Act 1991 is to be interpreted as not applying to Maori customary land in light of subsection 2(2) of the Foreshore and Seabed Endowment Revesting Act 1994 (and per Elias CJ even independently of s 2(2)) [73], [116], [117], [170], [202].
Per Tipping J: It is, however, difficult to see how the Maori Land Court could justify making a vesting order leading to a provisional Land Transfer title, in light of the Foreshore and Seabed Endowment Revesting Act 1991 [202].
11. Per Elias CJ, Gault P and Tipping J: The Resource Management Act 1991 may restrict the activities of those holding Maori customary property but it does not necessarily extinguish those interests [76], [123], [192].
14. Maori customary land is defined by Te Ture Whenua Maori Act as land that is ‘held by Maori in accordance with tikanga Maori’ (s 129(2)(a)). In earlier Maori land statutes since 1862 it was defined as lands ‘owned by Natives under their customs or usages’. Such property is not the creation of the Treaty of Waitangi or of statute, although it was confirmed by both. It was property in existence at the time Crown colony government was established in 1840.
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17. In British territories with native populations, the introduced common law adapted to reflect local custom, including property rights. That approach was applied in New Zealand at 1840. The laws of England were applied in New Zealand only ‘so far as applicable to the circumstances thereof’. The English Laws Act 1858 later recited and explicitly authorised this approach. But from the beginning the common law of New Zealand as applied in the courts differed from the common law of England because it reflected local circumstances.
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19. While the content of customary property differed in other colonies, the principle of respect for property rights until they were lawfully extinguished was of general application. In New Zealand, as is explained below, land was not available for disposition by Crown grant until Maori property was extinguished. In the North American colonies land occupied or used by Indians was treated as vacant lands available for Crown grant. Even so, as the Supreme Court of the United States in Johnson v M’Intosh (1823) 21 US (8 Wheaton) 543 held, the Crown’s interest and any grant made by it of the land was subject to the native rights (at 574, 603 per Marshall CJ). They were rights at common law, not simply moral claims against the Crown (at 603):
It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right.
20. The Privy Council on an appeal from Canada in St Catherine’s Milling and Lumber Co v The Queen (1888) 14 App Cas 46 described the Crown’s ‘substantial and paramount estate’ as encumbered by the rights of the Indian inhabitants. The Crown only received ‘a plenum dominium’ (full ownership, combining legal title and beneficial entitlement) when the Indian title was surrendered or otherwise extinguished.
21. Similarly, in New Zealand, the Crown’s notional ‘radical’ title, obtained with sovereignty, was held to be consistent with and burdened by native customary property (R v Symonds, Lundon and Whitaker’s Claims, and Nireaha Tamaki v Baker).
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23. The New Zealand courts had not always held to this view. In Wi Parata v Bishop of Wellington Prendergast CJ, delivering the 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 of sovereignty had no application to the circumstances of New Zealand. Maori had, he considered, insufficient social organisation upon which to found custom recognisable by the new legal order. In such circumstances, he said (at 78)
the supreme executive Government must acquit itself, as best it may, of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice. Its acts in this particular cannot be examined or called in question by any tribunal, because there exist no known principles whereon a regular adjudication can be based.
In Wi Parata it was held that the courts were required to assume that the Crown had properly respected its obligations and could not question its actions.
24. The Privy Council rejected this approach, saying in Nireaha Tamaki v Baker at 577–8, that it was ‘rather late in the day’ for it to be argued in a New Zealand court that there is ‘no customary law of the Maoris of which the Courts of law can take cognizance’:
The legislation both of the Imperial Parliament and of the Colonial Legislature is consistent with this view of the construction and effect of the Native Rights Act, and one is rather at a loss to know what is meant by such expressions as ‘Native Title’, native lands’, ‘owners’, and ‘proprietors’, or the careful provision against sale of Crown lands until the Native title has been extinguished, if there be no such title cognizable by the law and no title therefore to be extinguished.
25. Although the reasoning in Wi Parata was rejected by the Privy Council, it continued to influence thinking in New Zealand. In particular, the Crown continued to argue in litigation that, through the acquisition of sovereignty, all land in New Zealand became owned by it. It was the argument of the Solicitor-General in In Re the Ninety-Mile Beach at 403. According to the argument, the Crown’s Treaty obligation to protect Maori customary rights of occupation was a moral duty, not a legal one, discharged when the Crown granted title to the Maori occupiers. Only then could the courts give effect to a property right. Before Crown grant no customary property rights could be recognised because to do so would be to question the sovereign power. Thus in the ‘Protest of Bench and Bar’ (reported at (1903) NZPCC 730), made in response to the decision of the Privy Council in Wallis v Solicitor-General (1903) NZPCC 23, Stout CJ asserted at 732 that ‘All lands of the Colony belonged to the Crown, and it was for the Crown under Letters Patent to grant to the parties to the Treaty such lands as the Crown had agreed to grant’.
26. The error in this approach was, as Cooper J in Tamihana Korokai v Solicitor-General suggested, its equation of sovereignty with ownership (conflating imperium and dominium).
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31. Any property interest of the Crown in land over which it acquired sovereignty therefore depends on any pre-existing customary interest and its nature, as the Privy Council in Amodu Tijani v Secretary, Southern Nigeria held. The content of such customary interest is a question of fact discoverable, if necessary, by evidence (Nireaha Tamaki v Baker at 577). As a matter of custom the burden on the Crown’s radical title might be limited to use or occupation rights held as a matter of custom (as appears to be the position described in St Catherine’s Milling and Lumber Co v The Queen and as the Tribunal in William Webster’s Claim seems to have thought might be the extent of Maori customary property). On the other hand, the customary rights might ‘be so complete as to reduce any radical right in the Sovereign to one which only extends to comparatively limited rights of administrative interference’ (Amodu Tijani v Secretary, Southern Nigeria at 410). The Supreme Court of Canada has had occasion recently to consider the content of customary property interests in that country. It has recognised that, according to the custom on which such rights are based, they may extend from usufructory rights to exclusive ownership with incidents equivalent to those recognised by fee simple title (see, for example, Delgamuukw v British Columbia [1997] 3 SCR 1010 at paragraphs 110–19 per Lamer CJ).
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34. The extent of any customary property in foreshore and seabed is not before us. For present purposes what matters is that the customary rights of the native community continued at common law to exist until lawfully extinguished. Property rights may be abrogated or redefined through lawful exercise of the sovereign power. But in New Zealand the basis of conferral of prerogative power and later successive lands legislation, both that relating to Maori land and that relating to general and Crown lands, is consistent with the continuation of Maori customary interests in land.
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37. New Zealand was never thought to be terra nullius (an important point of distinction from Australia). From the beginning of Crown colony government, it was accepted that the entire country was owned by Maori according to their customs and that until sold land continued to belong to them (see the opinions as to the nature of native tenure collected in 1890 NZPP G1, and the authorities cited to the same effect by Stout CJ in Tamihana Korokai v Solicitor-General at 341). Originally Crown purchases were required to extinguish Maori ownership and free the land for settlement under subsequent Crown grant. Subsequently, statutes provided authority for other modes of extinguishing Maori customary title.
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40. The Native Lands and Maori Lands Acts from 1862 until enactment of Te Ture Whenua Maori Act 1993 were a mechanism for converting Maori customary proprietary interests in land into fee simple title, held of the Crown. Only such land could be alienated by the Maori owners to private purchasers. The explicit policy of the legislation was ‘to encourage the extinction of such proprietary customs and to provide for the conversion of such modes of ownership into titles derived from the Crown’ (Preamble to the Native Lands Act 1865). The statement is further legislative acknowledgement that Maori customary property is a residual category of ownership not dependent upon title derived from the Crown.
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45. Under Te Ture Whenua Maori Act a vesting order obtained under s 132 continues to change the status of customary land to Maori freehold land. But the Maori Land Court may now make a declaration of status of customary land under s 131 without that consequence. The current legislation is therefore no longer an inexorable mechanism for conversion of customary land into freehold land.
46. It is not clear to what extent the new jurisdiction equips the Maori Land Court to recognise interests in land according to custom which do not translate into fee simple ownership. In New Zealand, the common law recognition of property interests in land under native custom is little developed. That may have been in part because of the success of the Maori Land Court in converting occupation interests in land into estates in fee simple. The 1894 legislation (making freehold title the inexorable outcome of a successful application to the Court) may have stifled the apparent early willingness of the Court, described by Judge Fenton in his evidence to the Native Affairs Committee in 1890 and referred to in his judgment in the 1870 Kauwaeranga case (reprinted in A Frame ‘Kauwaeranga judgment’ (1984) 14 VUWLR 227), to recognise lesser interests by way of easements or other mechanisms known to English law. They might better have approximated some customary interests. Lack of development may be in part because, following the enactment of s 88(1) of the Native Land Act 1909, there has been limited 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 the Native Rights Act 1865). It may be because between 1909 and the enactment of Te Ture Whenua Maori Act in 1993 the legislation prevented customary title to land being available or enforceable ‘in any Court’ against the Crown (s 84 Native Land Act 1909; s 112 Native Land Act 1931; s 155 Maori Affairs Act 1953). For present purposes it is enough to note that any property interests in foreshore and seabed land according to tikanga may not result in vesting orders leading to fee simple title and that the Maori Land Court may not be the only forum available for recognition of such property.
47. What is of significance in the present appeal is that New Zealand legislation has assumed the continued existence at common law of customary property until it is extinguished. It can be extinguished by sale to the Crown, through investigation of title through the Land Court and subsequent deemed Crown grant, or by legislation or other lawful authority. The Maori lands legislation was not constitutive of Maori customary land. It assumed its continued existence. There is no presumption of Crown ownership as a consequence of the assumption of sovereignty to be discerned from the legislation. Such presumption is contrary to the common law. Maori customary land is a residual category of property, defined by custom. Crown land, by contrast, is defined as land which is not customary land and which has not been alienated from the Crown for an estate in fee simple. The Crown has no property interest in customary land and is not the source of title to it. That is the background against which the arguments based upon In Re the Ninety-Mile Beach and the legislation said to vest ownership of the seabed and foreshore in the Crown must be assessed.
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57. The first question is whether Parliament has extinguished any property rights which Maori may be shown to have had. For the reasons given below, I do not consider that the legislation relied upon here has that effect. Other legislation will remain to be considered if any customary rights are established but those matters are not at present before us. It may well be that any customary property will be insufficient to permit a vesting order with the consequence of fee simple title. But that does not seem to me to be a reason to prevent the applicants proceeding to establish whether any foreshore or seabed has the status of customary land. I consider that the Maori Land Court has jurisdiction to entertain the application.
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61. As is indicated more fully below at paragraphs [77] to [89] I am of the view that the approach taken by Turner J in the Supreme Court and by the Court of Appeal in In Re the Ninety-Mile Beach can be explained only on the basis that they were applying the approach taken in Wi Parata v Bishop of Wellington. On that approach Maori property had no existence in law until converted into land held in fee of the Crown. Until then it was assumed to be Crown property, as the references in the judgments of North J (at 474) and TA Gresson J (at 480) to ‘disposal’ of the foreshore suggests. For the reasons already given, such view is contrary to the common law and to successive statutory provisions recognising Maori customary property.
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90. For the reasons given, I am of the view that the appellants must be permitted to proceed with their applications to the Maori Land Court. I consider that it is appropriate to answer only the first question posed for determination, and then in terms slightly different from the wide way in which it was worded. The subsequent questions depend on the facts. Any answers given would be so heavily qualified as to be unhelpful and perhaps misleading. Depending on the facts, consequential questions of law may arise which may not be adequately anticipated. It is not possible therefore to answer what the law of New Zealand may be in the circumstances. Abstract answers will lack necessary context. I decline to attempt answers except to the first question.
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103. In the course of argument counsel were anxious to distinguish between aboriginal title at common law and Maori customary land under the Act. While I understand the reason for that, I prefer to reserve the question of whether it is a real distinction insofar as each is directed to interests in land in the nature of ownership.
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105. By s 41 Te Ture Whenua Maori Act a vesting order made by the Maori Land Court under s 132 in favour of the ‘owners of the land’ as determined according to tikanga Maori (or trustees therefor) and transmitted to the District Land Registrar (s 139), upon registration has the effect of vesting the land in the persons named in the order ‘for a legal estate in fee simple in the same manner as if the land had been granted to those persons by the Crown’.
106. That consequence necessarily informs the interpretation of the words ‘land’ and ‘owners’ in the preceding sections. Under this Part of the Act we are concerned with land capable of supporting an estate in fee simple and ownership interests capable of conversion to registered estates under the Land Transfer Act. Interests in land in the nature of usufructuary rights or reflecting mana, though they may be capable of recognition both in tikanga Maori and in a developed common law informed by tikanga Maori, are not interests with which the provisions of Part VI are concerned. The requirements of the statute must be met before the point is reached that calls for consideration of tikanga Maori. It is for this reason that, even if we hold that the Maori Land Court has the jurisdiction contended for, I have real reservations about the ability for the appellants to establish that which they claim. But that, of course, would be for the Maori Land Court.
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Private property in marine areas under the common law in British and colonial territories
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136. The colonising extension of the British Empire and of other European empires raised the issue whether property held at the time of the imperial expansion was to be recognised. Answers appear in Vattel, the judgment of Chief Justice Marshall for the United States Supreme Court in Johnson v M’Intosh 8 Wheaton 543; 5 US 503 (1823) and the account by Chancellor James Kent in his Commentaries on American Law (1826–30) (on which HS Chapman J drew in Queen (on the prosecution of C H McIntosh) v Symonds (1847) NZPCC 387) of the principles, decisions and practices in the American colonies and later in the United States (see para 142 below). While the European nations asserted their sovereignty over the new colonies against other European nations and asserted their dominion, they recognised a qualification to the consequences of the latter. As Chief Justice Marshall put it in 1823 in Johnson v M’Intosh (at 505):
While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.
137. That recognition of existing native rights when colonies were settled was closely paralleled by the recognition of existing property rights when sovereignty was transferred by cession or even by conquest. Again we have the authority of that great Chief Justice speaking on this occasion of the continuity of title, originally conferred in Florida by Spain, after the cession by the King of Spain to the United States by treaty of 1819 of Spanish territories in America, including Florida:
It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do no more than displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory.
138. Chief Justice Marshall went on to say that the treaty of cession conformed with this general principle. The cession to the United States ‘in full property and sovereignty, [of] all the territories which belong to [the King of Spain]’ in the area in question passed sovereignty and not private property; United States v Percheman 7 Peters 31, 86–87; 10 US 393, 396–397 (1833). As Professor D P O’Connell noted in his discussion of acquired rights in his leading work State Succession in Municipal Law and International Law (1967) vol 1, 241, the survival of rights created under the previous system is inseparably connected with the survival of law. If the earlier legal order completely collapses acquired rights lapse. Accordingly, if the successor treats the law as abrogated – perhaps by invoking the Act of State doctrine – the acquired rights will lapse with that law. But the laws and usages of nations, according to Marshall and O’Connell, were to the contrary. We now turn to the New Zealand situation.
139. From the outset, the situation in New Zealand conformed, in principle at least, with those long established laws and usages. The Treaty of Waitangi, after providing for the cession of sovereignty or kawanatanga in its first article, in its second ‘confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; ...’. According to the translation of the Maori text of the Treaty, prepared by Professor Sir Hugh Kawharu, commonly used in the Courts, the Queen ‘agrees to protect [ka wakarite ka wakaae] the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship [te tino rangatiratanga] over their lands [wenua], villages [kainga] and all their treasures [ratou taonga katoa].’ The Treaty clearly distinguishes in those two articles between imperium and dominium, a matter emphasised, as the Chief Justice shows, by the Anglo-American Claims Tribunal in 1925, in its decision written by the great American jurist, Professor Roscoe Pound, in the William Webster case (Fred K Nielsen American and British Claims Arbitration (1926) 537; 20 AJIL 391; 6 UN Reports of International Arbitral Awards 166 (1955)).
140. To repeat, that recognition and guarantee in a treaty of cession of sovereignty, to adopt that Tribunal’s characterisation of the Treaty of Waitangi, of existing proprietary rights conformed with extensive law and practice of the time. New Zealand legislation, from the outset, also recognised and provided for the protection of rights in respect of land confirmed and guaranteed by the Crown in article 2 of the Treaty, as the Privy Council said in Nireaha Tamaki v Baker (1901) NZPCC 371, 373. In addition to doing that, the Lands Claim Ordinance (Sess 1, No 2) of 9 June 1841 declared unappropriated lands to be Crown lands or Domain lands – reflecting the Crown’s dominium or domain rather than its imperium or empire, the latter in general being a matter between States which in the normal course does not require regulation through national law:
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147. The native property or title or right can of course be extinguished, as H S Chapman J recognised in Symonds in the passage already quoted (para 142 above) and by Chancellor Kent in his Commentaries, when elaborating on the (British) colonial and later American practice and decisions. In 1912 the United States Supreme Court (in a taxation context) stated a related principle of interpretation in this way:
But in the Government’s dealings with the Indians, the rule is exactly the contrary [of the rule that exemptions from taxation are to be read strictly]. The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United Sates, are to be resolved in favor of [Indian nations] (Choate v Trapp 224 US 665, 674–675 (1912)).
148. The protective approach adopted in the earlier American and Privy Council authorities is to be seen in more recent rulings of the Supreme Court of Canada, the High Court of Australia and this Court : the onus of proving extinguishment lies on the Crown and the necessary purpose must be clear and plain (eg R v Sparrow [1990] 1 SCR 1075, 1099, Mabo v Queensland [1988] HCA 69; (1988) 166 CLR 186, 213–214 (see also 195, 201, 241) and Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 64, 111, 195–196 (referring to Central Control Board (Liquor Traffic) v Cannon Brewery [1919] AC 744, 752) and Te Runanga O Muriwhenua v Attorney-General [1990] 2 NZLR 641, 655).
149. In the last case, this Court stressed that
in interpreting New Zealand Parliamentary and common law it must be right for New Zealand courts to lean against any inference that in this democracy the rights of the Maori people are less respected than the rights of aboriginal peoples are in North America (655).
See also Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, 691–692.
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183. When the common law of England came to New Zealand its arrival did not extinguish Maori customary title. Rather, such title was integrated into what then became the common law of New Zealand. Upon acquisition of sovereignty the Crown did not therefore acquire wholly unfettered title to all the land in New Zealand. Land held under Maori customary title became known in due course as Maori customary land. So much is established by the judgment of the Chief Justice whose discussion I will not seek to emulate.
184. It is also important to recognise that the concept of title, as used in the expression Maori customary title, should not necessarily be equated with the concepts and incidents of title as known to the common law of England. The incidents and concepts of Maori customary title depend on the customs and usages (tikanga Maori) which gave rise to it. What those customs and usages may be is essentially a question of fact for determination by the Maori Land Court.
185. It follows that as Maori customary land is an ingredient of the common law of New Zealand, title to it must be lawfully extinguished before it can be regarded as ceasing to exist. In this respect Maori customary title is no different from any other common law interest which continues to exist unless and until it is lawfully abrogated. In the case of Maori customary land the only two mechanisms available for such abrogation, short of disposition or lawful change of status, are an Act of Parliament or a decision of a competent court amending the common law. But in view of the nature of Maori customary title, underpinned as it is by the Treaty of Waitangi, and now by the Te Ture Whenua Maori Act 1993, no court having jurisdiction in New Zealand can properly extinguish Maori customary title. Undoubtedly Parliament is capable of effecting such extinguishment but, again in view of the importance of the subject matter, Parliament would need to make its intention crystal clear. In other words Parliament’s purpose would need to be demonstrated by express words or at least by necessary implication. As to what necessary implication means I refer to the words of Lord Hobhouse of Woodborough in R (Morgan Grenfell & Co. Ltd) v Special Commissioner of Income Tax [2002] UKHL 21; [2002] 2 WLR 1299, 1131. His Lordship’s statement was adopted as authoritative in the recent decision of the Privy Council in Russell McVeagh v Auckland District Law Society (P.C. Appeal 34/02 judgment 19 May 2003). This is what his Lordship said:
A necessary implication is not the same as a reasonable implication ... A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.
186. When a claim is made that a particular piece of land has the status of Maori customary land, the Maori Land Court must investigate the claim in accordance with the statutory provisions in that behalf. A claim may fail as a matter of fact but the Maori Land Court’s investigation into the facts must be allowed to proceed unless it can be shown beyond doubt that the land cannot, as a matter of law, have the status asserted for it. In my view it follows that in principle, and subject to any clear statutory indication of extinguishment, the question whether Maori customary title existed and continues to exist over the seabed and the foreshore is essentially a matter of fact which is both general and specific to the site in question. It is a question which necessarily involves an examination of tikanga Maori which is the ‘exclusive jurisdiction’ of the Maori Land Court: see s 132(1) of the Te Ture Whenua Maori Act.
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204. The decision in Ninety Mile Beach has stood for forty years. Furthermore, it must have been regarded as correctly stating the law by those responsible for subsequent legislation. Hence a cautious approach should be taken to the suggestion that the case was wrongly decided. That said, I am driven to the conclusion that it was. While the reasoning in the two principal judgments has internal logic and consistency, the problem is that they do not sufficiently recognise the appropriate starting point, namely that Maori customary title, and the associated status in respect of the land involved, became part of the common law of New Zealand from the start. As already noted, it was not a matter of the Crown granting customary title to Maori. They already held it when sovereignty was proclaimed and continued to hold it thereafter unless and until it was lawfully extinguished. As the Chief Justice has said, the contrary approach conflates sovereignty with absolute ownership. The Crown’s ownership is and never has been absolute in this respect. It is and always has been subject to the customary rights and usages of Maori as regards their lands.
205. Against that background it is difficult to see how a change in status of land above high water mark from Maori customary land to Maori freehold land should in and of itself lead to adjacent Maori customary land on the foreshore losing its status as such. That is the fundamental step in the reasoning of this Court in Ninety Mile Beach which I find problematic. I do not consider it to be justified on the a priori basis that in English law there is a difference, as the Solicitor-General put it, ‘where the land ends and the sea begins’. Whether that is so and, if it is, the extent to which the distinction between land and sea affects the present issue must be determined in accordance with tikanga Maori rather than the English common law. Tikanga Maori is to this extent part of the law of New Zealand.
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215. In essence I agree with what the Chief Justice has written about the Ninety Mile Beach decision. I have added some words of my own because of the considerable importance of the issue before us and the fact that this Court is now overruling a longstanding decision of its own. I have found that aspect one of considerable anxiety. I was initially hesitant but am now satisfied that the case for overruling Ninety Mile Beach is clearly made out. Once the necessary background is properly appreciated, there is force in Sir Kenneth Roberts-Wray’s view, mentioned by the Chief Justice, that Ninety Mile Beach represented ‘revolutionary doctrine’. While the case has stood for a long time, it is better in the end that the law now be set upon the correct path.
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