Sir Douglas does a very neat Q&A in the Herald. Extracts:
What are customary rights and a customary title?
The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived.
These are common law rights. Not rights under the Treaty of Waitangi. Not rights due to signing a UN convention.
Is a customary title like my freehold title?
No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.
So freehold title comes from the Crown, customary title from commnal indigenous customary use of the land.
Do Maori have to prove a customary title or is it theirs by default?
Maori have to prove it exists by demonstrating on the balance of probabilities that an iwi was in exclusive possession of the land at 1840 and have continued to practise customary activities on it ever since. In Australia a spiritual association may suffice.
And this was the stupid thing about Labour’s panic. Not that many areas would be able to have customary use proven.
How is a customary title lost?
Once proved to exist, a customary title can be lost by abandonment, by surrender to the Crown, or by extinguishment by Parliament. While it is a customary title it is inalienable.
Abandonment is similar to a failure to exercise ahi kaa. If extinguished by statute the intention to extinguish must be clear and usually some compensation is due.
So it can only be removed by explicit legislation, and up until Labour’s law this had not happened.
Is it possible iwi could establish a customary title to the foreshore or seabed?
It would be very difficult for any iwi to show that in 1840 they were in exclusive possession of the seabed, particularly as much of it was not under New Zealand’s jurisdiction until long after that. Nor is it likely they could show they have maintained possession of the seabed close to shore since.
It’s possible there may be remote areas of foreshore from low to high watermark where it could be proved.
Again there was no need for Labour to legislate.