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Published: 21 July, 2004
Pages: 48

Introduction

This paper attempts to deal with a particular aspect of the law relating to the foreshore and seabed, specifically current developments relating to New Zealand statute law generally the Maori Land Court in particular. Implications relating to the common law and the jurisdiction of the High Court will be dealt with by Dr McHugh. The developments that will be focused on are:

• The Court of Appeal’s decision in Ngati Apa v Attorney-General, released in June 2003;
• The particular implications of the decision for other nationalised natural resources (geothermal energy, for instance);
• The Waitangi Tribunal’s Foreshore and Seabed Report;
• The options available to the Maori Land Court in existing law
• Current proceedings in the Maori Land Court, notably Judge Wickliffe’s decision released on 2 April 2004 (the latest development being judicial review proceedings filed by the Crown); and
• The effects of the Foreshore and Seabed Bill 2004 on the jurisdiction of the Maori Land Court.

While the division between the statutory jurisdiction of the Maori Land Court and the open-ended common law jurisdiction of the High Court seemed to us to be the best way to divide up the subject, nevertheless the distinction is not entirely clear-cut. The Court of Appeal’s decision in Ngati Apa v Attorney-General was ostensibly concerned with the Maori Land Court’s jurisdiction only, that is, whether the Maori Land Court has the power under its existing statutory jurisdiction to investigate titles to the foreshore and the seabed. However in reality this issue was largely connected with the common law, including ordinary real property law and the law of native or aboriginal title. The Maori Land Court could only have such a power if the foreshore and seabed did not belong to the Crown in dominium – or, to put the same point in a different way, that it did not have the status of Crown land under the Land Act 1948.

Another area of overlap, as will be seen, is that in all likelihood the tests that would have applied in the Maori Land Court and in the High Court as to whether such a title exists in any given case – assuming, for the purposes of analysis, no alteration of the existing law by statute – are likely to be the same or at least very similar. This is so despite the fact that the High Court’s jurisdiction would be derived from statute and that of the High Court from the common law. This point is returned to below.

It is important for the purposes of further discussion that some basic definitions are traversed (my apologies to those for whom this is all rather basic) It is vital that the concepts of “Maori freehold land”, “Maori customary land”, the “foreshore” and the “seabed” be understood clearly. The first two cannot be grasped without some consideration of what the Maori Land Court is and what it does. For good measure, as there seems to be considerable confusion on the point, the concept of the “Queen’s chain” will be clarified at the outset as well, although technically it has nothing to do with either the foreshore or the seabed.

The concept of “Maori land” in New Zealand law is jurisdictional: it is land that is subject to the jurisdiction of the Maori Land Court. The Court is a court of record with binding powers. Its principal jurisdiction is over Maori customary land and Maori freehold land. The former is defined as land held “by Maori in accordance with tikanga Maori”; the latter as land “the beneficial ownership of which has been determined by the Maori Land Court by freehold order”. It is the latter category which is normally of most practical importance. The main function of the Land Court in the 19th century was to convert land from customary title to freehold title – indeed, so successful was the Land Court in this exercise that it has been assumed, until recently, that there was no Maori customary land in existence any longer and that that part of the Maori Land Court’s jurisdiction was in effect spent. (That did not mean that the Court had run out of things to do, as it were: it is a very busy institution but is now mainly concerned with matters of Maori freehold land management and administration). Finally it needs to be emphasised that Maori freehold land, although having its own controlling statute, is also subject to the Land Transfer Act 1952: the usual rules of indefeasibility apply and should the records of the Maori Land Court conflict with a Land Transfer Act certificate of title for the same parcel the latter will prevail.

As to the “foreshore”, that is simply the inter-tidal zone, between high-water mark and low-water mark. At common law that meant – to cite Halsbury – “that portion of the realm of England which lies between the high-water mark of medium tide and low-water mark”. This was also how “foreshore” was understood in Ngati Apa v Attorney-General and how it is defined in the Crown Grants Act 1908. More recent statutes, however, including the Conservation Act 1987, the Foreshore and Seabed Revesting Act 1991, the Resource Management Act 1991 and, now, the current Foreshore and Seabed Bill 2004 all define the foreshore more expansively, moving the “foreshore” up the beach to the line of mean spring tides. This is said to be more in accordance with the public understanding of what the ‘foreshore’ is; it also fits more with modern standardised hydrographic practice.

The foreshore is a very substantial area, although I am uncertain how its exact acreage could ever be quantified. The inter-tidal zone is bigger on the west coast than on the east, and is most extensive on sandy beaches of the west coast such as on the west coast of Northland or Nelson. In other places, say rocky coasts on the eastern shores of the North Island, the foreshore will only be a few metres in extent or may exist vertically rather than horizontally.

The seabed is (the “is” will become “was” if the current Bill is enacted as it stands) is different: it is the area between low water mark and the outer limits of the Territorial Sea. The Territorial Sea and Fishing Zone Act 1965 deemed the area from low water mark to the three-mile limit “to be and to have always been vested in the Crown”, and this was extended to the current 12 nautical mile limit by s 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977. “Foreshore” is not specifically vested in the Crown in any statute. The seafloor lying beyond the territorial sea within the New Zealand Exclusive Economic Zone (EEZ) is not legally “seabed” in the sense that it does not lie beneath the territorial sea. Land within the territorial sea is part of the landmass of New Zealand and is fully within the purview of New Zealand common law and subject to the jurisdiction of the New Zealand courts.

Finally, there is the “Queen’s Chain” (so-called). To reiterate, the Queen’s Chain is neither foreshore nor seabed. It is in fact a category of Crown Land being land reserved from alienation at the time of the initial Crown grant. This practice derives from McKenzie’s great Land Act of 1892 and there will be no Queen’s Chain in existence for land based on grants before then (unless, perhaps, the practice of reserving a Queen’s Chain was applied by some of the provincial governments before the Abolition of the Provinces Act 1875).

How to characterise the foreshore and seabed issue? Much has been said in the media lately about ‘activist’ courts and judges, but with respect to the foreshore, at least – as opposed to the seabed – we are confronted with what is, in reality, a pure problem of law. It has been recognised since 1962 that the Crown cannot merely rely on its prerogative powers to claim title to the foreshore. With respect, once again, to the foreshore, there simply is no general legislative extinguishment of native title, if any, to this area. It is very hard to see what else the Court of Appeal could possibly have concluded. Moreover this legal problem has been known for many years: claims by politicians and officials that the whole matter has come out of a clear sky do not withstand scrutiny.

Oddly, perhaps, the closest parallel to the legal position of the foreshore and seabed is that of the royal metals, gold and silver, which under the Crown’s prerogative powers at English common law belonged to the Crown. Whether this prerogative entitlement transferred of and by itself to New Zealand was unclear. For many years the Crown acted as if it owned gold and silver in New Zealand, but recognising that that might not be enough, attempted to lay the matter to rest by statutorily nationalising – or expropriating, depending on one’s point of view – the royal metals in 1971. Politically that was realisable in 1971 – although it probably would not be now – and a similar approach to the foreshore has, in the present-day political configuration of our country, run into trouble.

A final preliminary point is that much of the debate around the issue has focused on questions of access to the foreshore and seabed. In fact, allowing the Maori Land Court to grant foreshore and seabed titles in a way which would protect rights of public access would probably not have been difficult and could have been achieved by simple amendment to the existing Maori Land Act. The real issues, from government’s point of view, probably have little to do with access. Much of the coast is in effect inaccessible now in those areas where private titles run to high water mark – the whole northern Waikato coastline from Aotea harbour north to Waikato heads has virtually no public access. The government has been willing to grant the Rotorua lakes in freehold to the Te Arawa and Lake Taupo to Tuwharetoa, subject to protecting public access, but has baulked at similar arrangements with regard to the foreshore and seabed: why? Politics and economics have much more to do with it. The coast is becoming a resource of ever-growing importance and is almost fantastically valuable. The example of petroleum indicates that governments are seldom willing to surrender control of valuable and strategic assets. Such reflections are for political and economic commentators and will not be pursued further in what will be a strictly legal discussion.

Authors

Author(s): Richard Boast, Dr Paul McHugh