I over-stated things in that blog post when I said the Court of Appeal has determined the test for customary title to be exclusive use and occupation. A number of commenters and bloggers pointed this out, and I was planning to do a clarifying post. Mark Solomon’s response does that for me. His response:
Tēnā koe David
I read with interest your comments on the 1st December Herald coverage of the Ngāi Tahu submission to the Māori Affairs Select Committee, posted on Kiwiblog on the same day, and would like to offer alternative perspectives on a couple of the points you made.
You suggested “The test required for customary title is not designed by politicians – it is the test that the Court of Appeal said was required under the law”. This is not my understanding of the 2003 Court of Appeal decision in the Ngāti Apa case. That decision dealt with a preliminary issue as to whether the Māori Land Court had jurisdiction to hear claims of continuing customary title in respect of foreshore and seabed. The Court’s deliberations focused on two main issues: whether foreshore and seabed was “land” for the purposes of Te Ture Whenua Māori (the Māori Land Act) and whether any historical Acts of Parliament or other legal principles had effected a blanket extinguishment of customary title to foreshore and seabed. The Court answered the first of these questions ‘yes’ and the second ‘no’.
While the Court went on to speculate as to the difficulties iwi and hapū might have in establishing customary title, it made it clear that only factual enquiries by the Māori Land Court in relation to specific areas of foreshore and seabed could resolve the matter. The only statutory test that the Court could apply to such enquiries was whether the land in question was held by iwi/hapū “in accordance with tikanga Māori” (s129(2)(a) Te Ture Whenua Māori). Had such enquiries been allowed to occur, case law would no doubt have developed in relation to the application of that test, but the Foreshore and Seabed Act 2004 (and the current Bill, if it becomes law), effectively barred the development of such case law, in favour of tests prescribed by Parliament.
The Ngāi Tahu position – that tests for customary title should be based on tikanga Māori (and not include concepts foreign to that tikanga, such as exclusion) – is therefore consistent with the legal position prior to the 2004 Act. It is also consistent with the general principle of the common law that the customary rights of indigenous peoples should be determined in accordance with the customs and norms of those peoples.
I was also concerned by your suggestion that Ngāi Tahu’s withdrawal of support for the Bill (unless the tests it contains are substantially amended) is inconsistent with earlier support for the developing Crown Policy that I expressed as Chair of the Iwi Leaders’ Group. After meeting with the Prime Minister, Attorney-General and other senior Ministers immediately prior to final Cabinet decisions on the Crown policy in mid-June, the Iwi Leaders’ Group was encouraged that the Government was moving in the right direction. In the wake of that meeting, we issued a media release in which Tukoroirangi Morgan said “We have reached agreements on important matters of principle, that provide a strong foundation for further work,” and I recorded “We still need to see further detail before being able to report back to our people, and make a final determination on the proposal.”
Sadly, when we saw the detail of the Bill (several weeks later), Ngāi Tahu was unable to continue to support the Crown proposal.
I trust that this has clarified matters. I would be happy for you to post this letter in full on Kiwiblog.
Te Rūnanga o Ngāi Tahu
It’s great to get a response focusing on the policy issues around the proposed law, and I stand corrected on the Court of Appeal decision.
At times I wonder whether the easier thing to do would be to simply repeal the Foreshore & Seabed Act, and not replace it with anything – ie let Iwi have their day in court. That would run the risk of Iwi gaining fee simple title, and I also note that the Ministerial Review Group recommended against it stating:
Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Maori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.
I do wonder if a reconciliation is possible? The Coastal Coalition claims that the proposed replacement law gives Iwi too much in terms of access to resources. Some Iwi are saying the barrier for proving customary title has been set too high. Is a reconciliation of those positions possible?
As far as I can see, there are four potential outcomes:
- The Maori Party remain supportive of the new law as an improvement on the old law, and it passes pretty much in its current form.
- The proposed law is changed to take account of concerns from Coastal Coalition. Impossible to imagine the Maori Party would remain supportive of such a law, which means it won’t pass.
- The proposed law is changed to make it easier for Iwi to claim customary title. My understanding is that the Government is 1000% immovable on this issue, and has communicated that at every opportunity.
- The proposed law is dropped, and the Foreshore & Seabed Act remains in force.
No 2 and No 3 are both highly highly unlikely in my opinion. No 2 is a suicide note for the Maori Party and No 3 could be a suicide note for National.
So in reality it may be a binary choice between No 1 and No 4.