Te Tai Haruru Journal of Māori and Indigenous Issues

²⁵ See Hinde, McMorland and Sim, Land Law in New Zealand, Butterworths,

Wellington, 1997, 30-33.

²⁶ Boast, supra n9 at 27.

²⁷ New Zealand Education Department, supra n24. The meaning of “tino rangatiratanga” has been strongly contested since it was expressed in Article

2 of te Tiriti o Waitangi (the Maori text) in 1840.

²⁸ N Tomas, “Land, Sovereignty and Tino Rangatiratanga”, in Work in Flux,

Greenwood et al ed., University of Melbourne, Australia, 1995, 32.

specifically referring to mana whenua, believes that while mana has a variety of meanings, with respect to land it means:²⁹

... the superior power or prestige and intimacy of association which a tribe possesses with regard to its territory as compared with the relation of other tribes to it. The possession of mana over the land is correlated with supreme right of ownership, though not with mere occupation.

That Firth’s definition would equate mana whenua to the highest form of ownership in land is further evidenced by his statement that “the native conception of mana in relation to land is thus most nearly akin to the idea of sovereignty”.³⁰ “Sovereignty” is a difficult concept to define. Unfortunately, Firth does not elaborate on the precise nature of the rights that attach to his idea of sovereignty. Malcolm Shaw believes that it is about the legal supremacy of internal governmental institutions on the one hand, and the state as a legal person in an external international sense on the other.³¹

I see mana whenua as being connected to both sovereignty as discussed by Firth and the absolute authority or autonomy put forward by Tomas and the New Zealand Education Department. In fact, sovereignty and absolute authority are similar in that both denote absolute control over territory.

Within the English common law, “sovereignty” is not a concept that directly equates to “fee-simple ownership”. Sovereignty is a wide reaching concept of public international law that concerns state selfhood³², whereas fee-simple is a concept specific to private land law. Thus, a right in fee-simple is not on par with sovereignty in terms of its reach. Also, while fee-simple ownership tends toward being both individualistic and private, sovereignty tends to invoke a broader range of widely held political considerations.

Another consideration is that the exclusive possession of land that attaches to the notion of fee-simple ownership does not coalesce easily with Maori custom law. Land was held communally under Maori custom law. While certain individuals may have been granted particular rights to certain areas, these rights were generally not

²⁹ Firth, supra n6 at 391.

³⁰ Ibid at 392.

³¹ M Shaw, International Law, Cambridge University Press, New York, 1997, chapter 1.

³² Ibid.

viewed as being to the exclusion of the rest of the iwi or hapu.³³ Further, it was common for iwi or hapu to transfer specific user-rights to other groups.³⁴ Boast submits that it would be more correct to view the holder of these rights, whether individual, hapu or iwi, as owning “rights in the land”, rather than “ownership of the land”.³⁵ Thus, the holder owns the “right” and not the land. His statement that:³⁶

... these competing claims of rights coupled with the intricate system of overlapping and intersecting rights held by the members of different kinship groups, makes it difficult to say who “owned” the land

could be viewed (perhaps incorrectly) as reading down Maori rights to land. It is natural, and if Quine is right perhaps even inevitable, that non-Maori will use a fee-simple framework of reference when evaluating land tenure under Maori custom law. Given this, Boast’s submission that Maori have “user-rights” to the land could lead to further diminution of Maori entitlements because no indication is given as to the inherent content or regulatory force attaching to these rights.³⁷ If mana whenua is about absolute authority or sovereignty then the rights that attach to it must not be subjected to any greater rights. The danger of Boast’s “user-rights” definition is that it potentially undermines the supremacy aspect of mana whenua. Even if the term “absolute user-rights” was employed to emphasise that these user-rights are not subject to any greater rights of possession, I believe that “sovereignty” is still the better term because, within an English legal framework of thinking, it includes greater regulatory authority.

Notwithstanding this, in terms of alienation, Boast states that a holder of land had full discretion to grant rights to other hapu and iwi, and to decide what conditions attached to the grant.³⁸ Asher and Naulls posit that the hapu or iwi held a veto right to prevent land being passed outside the iwi indefinitely.³⁹ According to Andrew Erueti, while rangatira (leader/s) had authority to give other hapu or iwi user- rights, they did not have authority to transfer absolute ownership to

³³ Boast, supra n9 at 28; Firth, supra n6 at 377.

³⁴ Ibid; Asher, supra n15 at 5.

³⁵ Boast, supra n9 at 28-29.

³⁶ Ibid.

³⁷ Ibid.

³⁸ Ibid at 28.

³⁹ Asher, supra n15 at 5.

the land.⁴⁰ Firth adds that rangatira could not transfer the land in its entirety unless the hapu or iwi consented.⁴¹

In summary then, “mana whenua” is comprised of the two elements outlined above. First, “whenua” relates to the source and heart of one’s identity and, as such, is of paramount importance to Maori. Second, “mana whenua” denotes sovereignty or absolute authority over the land. The terms “user-rights” and “absolute user-rights” do not adequately capture this meaning. “Sovereignty” provides a closer approximation.

PART II - RECOGNITION OF MANA WHENUA WITHIN THE NEW ZEALAND LEGAL SYSTEM

It is arguable that mana whenua does, in an indirect way, give rise to a cause of action in the Maori Land Court and the Waitangi Tribunal where Maori custom law has been included in the statutes that establish and regulate both bodies, as well as in the Resource Management Act 1991. However, outside these areas, mana whenua is not yet recognised as giving rise to a direct cause of action in New Zealand courts.

According to Blackstone, the English common law is comprised of three groups of laws: (1) general universal rules; (2) particular laws for the courts; and (3) laws of a “particular custom which for the most part affect only inhabitants of particular districts”.⁴² Mana whenua, being Maori custom law affecting the inhabitants of different areas of Aotearoa, fits within this third category. When English-based law was introduced in 1840, it became part of the law applicable from that time within Aotearoa. The New Zealand Law Commission includes Maori principles as an essential part of the pre-existing custom law covered by the Doctrine of Aboriginal Rights, stating: ⁴³

aboriginal rights and titles are continued as a matter of law after a declaration of sovereignty and the imposition of English law

⁴⁰ Boast, supra n9 at 30.

⁴¹ Firth, supra n6 at 396.

⁴² Ibid; Blackstone, supra n5 at 67; Halsbury’s Laws of England, 4^th edn, Vol 12(1), Butterworths, London, 1998, paras 601, 602, 605 and 606.

⁴³ NZ Law Commission, supra n24 at para 47.

throughout a particular territory”, irrespective of the means of acquisition.

For custom law to be legally recognised in accordance with Blackstone’s third category, Halsbury’s Laws of England states that it must be: (1) immemorial; (2) reasonable; (3) certain, and (4) continued without interruption since its origin.⁴⁴ Several cases demonstrate the use of this category when dealing with the rights of indigenous peoples within the British Commonwealth. They include Mullick v Mullick,⁴⁵ in which the Privy Council held that “a Hindu idol, according to long established authority, founded upon the religious customs of the Hindus, and the regulations thereby by courts of law, is a ‘juristic entity’”, and Le Tagaloa Pita et al v AG⁴⁶ in which Cooke P held that the Samoan Constitution must be read by reference to traditional settings. Guerin v R,⁴⁷ a decision of the Supreme Court of Canada, and Mabo v State of Queensland,⁴⁸ a decision of the High Court of Australia, are more recent examples concerning pre-existing native land rights which show that the courts are capable of construing Blackstone’s third category flexibly.

Although Tomas views Maori custom law as a separate “indigenous” source of law that is self-complete, the “imported” New Zealand legal system does not currently recognise any competing system, as such. Instead, for Maori custom law principles to be considered valid and enforceable under New Zealand law they must fit within the framework of Blackstone’s analysis, and, if they are to have any concrete outcome in terms of legal rights, be supported by proof sufficient to satisfy the Halsbury’s tests.

The orthodox position under New Zealand law is that the only protection afforded to Maori custom law principles such as mana whenua is by way of statute, “customary title,” as defined under Te Ture Whenua Maori Act 1993, or via the “doctrine of aboriginal title” which is sometimes also referred to as “customary title”.

The Ngati Apa Claim To The Seabed And Foreshore In The Marlborough Sounds

⁴⁴ Halsbury’s, supra n42 at para 606.

⁴⁵ (1925) LR 52 Ind App 245, 250

⁴⁶ [18 December 1995] CA, Western Samoa, CA 7/95.

⁴⁷ (1984) 2 SCR 335.

⁴⁸ [1992] HCA 23; (1992) 175 CLR 1.

Ngati Apa claim that they have mana whenua over the seabed and foreshore of the Marlborough Sounds. They assert that these resources are a source and essential aspect of their identity, that they traditionally had authority or absolute user-rights over those resources, and that their authority should be legally recognised. They are particularly concerned about the Government issuing private licences to third parties under section 12(1) and (2) of the Resource Management Act 1991, thereby excluding Maori from these areas.⁴⁹

In 1997 Ngati Apa sought declaratory orders from the Maori Land Court that the seabed and foreshore in the Marlborough sounds was Maori customary land “held by Maori in accordance with tikanga Maori” under section 129 (2)(a) of Te Ture Whenua Maori Act 1993, (“the Act”). Further, Ngati Apa argued that title should be investigated under section 132 of the Act.⁵⁰ In the alternative, the claimants sought a declaration that the Crown holds the land in a fiduciary capacity for their benefit under s 18(1)(i) of the Act. The Crown argued that the claimants could not be successful because customary title to the seabed and foreshore had been extinguished by case law and legislation.⁵¹

Judge Hingston, giving an interim decision in the Maori Land Court, distinguished In re the Ninety-Mile Beach⁵² and held that legislation had not extinguished customary title. The Attorney-General and others appealed to the Maori Appellate Court, which granted leave for the decision to be heard in the High Court. Ellis J in the High Court⁵³ held that the Maori Land Court did have jurisdiction under the Act but declared that the land below high water mark was beneficially owned by the Crown at common law and was further declared to be so by section 7 of the Territorial Sea Contiguous Zone, and Exclusive Economic Zone Act 1977, and section 9A of the Foreshore and Seabed Endowment Revesting Act 1991. Thus it

⁴⁹ F McLeod, “Maori customary title to the foreshore and seabed and the allocation of coastal permits under the Act”, Resource Management Bulletin, (1998 BRMB 101).

⁵⁰ The Maori Land Court and High Court can make status orders under s131(1)

that the land is Maori customary land. Once a status order is made, the Maori Land Court has exclusive jurisdiction under s132 to investigate title, and it may make a vesting order under s132(4). The effect of a vesting order is that the land’s status changes from customary land to Maori freehold land.

⁵¹ [1963] NZLR 461.

⁵² Maori Land Court, 22A Nelson MB 1, 22 December 1997; noted in Maori LR Dec 97/Jan 98, 4; [1998] NZ Law Review 485.

⁵³ [2002] 2 NZLR 661.

could not be, or have been, Maori customary land.⁵⁴ Instead it was held that the Crown was the beneficial owner of the seabed and foreshore.

I question how the Crown could become the “beneficial owner” of the seabed and foreshore for Maori in the traditional sense, without there first being a splitting of legal and beneficial interests.⁵⁵ If there had been a splitting of legal and beneficial interests, Ellis J is silent as to how this has occurred.

Ngati Apa appealed the decision. Thus, the Court of Appeal had to determine whether the Maori Land Court had jurisdiction to determine whether the claimants had customary title to the seabed and foreshore.

The “Ngati Apa” Court of Appeal Decision

In the Court of Appeal, Elias CJ was careful to emphasise that the Court was deciding only the preliminary question of whether the Maori Land Court had jurisdiction to determine whether the claimants had “customary title” as defined by the Act and not the secondary question as to whether they had in fact established customary title: ⁵⁶

... the significance of the determinations this Court is asked to make should not be exaggerated ... the outcome of this appeal cannot establish that there is Maori customary land below high water mark ... . Whether or not the appellants [the claimants] will succeed in establishing in the Maori Land Court any customary property in the foreshore and seabed lands ... remains conjectural.

The Court of Appeal unanimously held that the court’s ability to establish whether customary title to the seabed and foreshore had been extinguished, remained extant.⁵⁷ That mana whenua, as part of customary law, was also preserved is supported by Tipping J’s reasoning that “Maori customary title is no different from any other

⁵⁴ Ibid.

⁵⁵ Per Lord Browne-Wilkinson, Westdeutsche Landesbank Girozentrale v Islington Borough Council [1996] UKHL 12; [1996] AC 669 (HL).

⁵⁶ Per Elias CJ, Ngati Apa v AG [2003] NZCA 117; [2003] 3 NZLR 643, para 7-8.

⁵⁷ A full bench of five judges heard this case. The decision comprises 4 separate judgments each of which reaches the same conclusion.

common law interest which continues to exist unless and until it is lawfully abrogated”.⁵⁸

What then is the interest preserved? Having been incorporated into New Zealand law, mana whenua retains neither its purity nor its supreme strength as a principle of Maori custom law. In the process of incorporation, it became less than sovereign and no longer absolute. Maori customary law under Te Ture Whenua Maori Act is re-aligned in accordance with the doctrine of aboriginal title to fit within the parameters of the New Zealand legal system. Thus, it is a fallacy to equate mana whenua as it is recognised by Maori custom law with mana whenua as it is recognised by New Zealand law.

The doctrine of “aboriginal title” is not derived from any rights Maori have under Te Tiriti o Waitangi/the Treaty of Waitangi. Neither is it derived from the wholesale application of English common law into the Aotearoa (pre-colonial) and New Zealand (colonial) jural contexts. Aboriginal title is the product of mixing politics and law to produce a practical doctrine of constitutional law which accepts imperial expansion into foreign territories and legitimates the establishment and imposition of the new governing institutions over any prior inhabitants or governing institutions.⁵⁹ What is essential to note is that in this process, and despite Maori having pre-existing and indigenous status, the “legality” of mana whenua and any other Maori legal principles becomes reliant on the New Zealand courts for recognition and enforcement. Probably the clearest enunciation of the nature of aboriginal/customary title to date is found in the 1994 Court of Appeal decision of Te Runanganui o te Ika Whenua Inc Society vAG,⁶⁰ in which it was stated:⁶¹

... on the acquisition of the territory [New Zealand] ... the colonising power acquires a radical or underlying title which goes with sovereignty. Where the colonising power has been the United Kingdom, the title vests in the Crown. But ... the

⁵⁸ [2003] NZCA 117; [2003] 3 NZLR 643, para 185.

⁵⁹ Ibid.

⁶⁰ [1993] NZCA 218; [1994] 2 NZLR 20.

⁶¹ Per Cooke P[1993] NZCA 218; , [1994] 2 NZLR 20, 23-24. This position is consistent with the law in other countries where English common law was introduced. Inter alia

(1) Marshall CJ in the United States Supreme Court in Johnson v M’Intosh (1823) 21 US [1823] USSC 22; (8 Wheaton) 543, 574, 603, held that the Crown’s interest in land was charged with the Natives right to possession. (2) The Privy Council, on appeal from Canada, in St Catherine’s Milling and Lumber Co v The Queen (1888) 14 App Cas 46, held that the Crown’s estate “is encumbered by the rights of the Indian inhabitants”.

radical title is subject to the existing native rights ... . It has been authoritatively said that they cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers, and then only to the Crown and in strict compliance with the provisions of any relevant statute.

However, the Court unanimously agreed that a future Act of Parliament could successfully extinguish title to the seabed and foreshore.⁶² Tipping J stated that customary title could be extinguished by:⁶³

... 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 Ture Te Whenua Maori Act, no court having jurisdiction in New Zealand can properly extinguish Maori customary title.

Tipping J’s reasoning that “a competent court” could, in certain circumstances extinguish customary title is open to debate. I have not been able to find any precedent to support it, and believe that a competent court could not extinguish customary title, because if the court rather than the Crown could remove customary title it would mean that the relationship would always be subject to third party intervention. Furthermore, if the court is able to set aside a legal relationship of the Executive (or Crown), it will violate the constitutional separation of powers. The courts have consistently asserted that the onus of proving that customary title has been extinguished rests with the Crown.⁶⁴ While this statement does not suggest that only the Crown through Parliament can remove customary title, it does suggest that the Crown should be the only body because it bears the onus of proof.

A less radical interpretation of Tipping J’s comments is to read them as meaning that, in the process of interpreting the law, a court may hold that aboriginal title has been extinguished. Ngati Apa shows that the standard to be met before statutory extinguishment can occur is extremely high. In order for the Crown to extinguish customary title, it must demonstrate a “clear and plain” purpose⁶⁵ or “make its

⁶² N Tomas and K Johnston, “Who Owns the Foreshore and Seabed of Aotearoa?”, [2003] NZ Law Review, 462.

⁶³ Ngati Apa, supra n56 at para 185.

⁶⁴ R v Sparrow [1990] 1 SCR 1075,1099; Mabo v Queensland (1988) 166 CLR 186, 213-214; Te Runanga O Muriwhenua v AG [1990] NZCA 7; [1990] 2 NZLR 641, 655.

⁶⁵ Per Keith J and Anderson J, Ngati Apa, supra n56 at para 148.

intention crystal clear”.⁶⁶ Tipping J stated that, in the absence of express words, a “necessary implication” could extinguish customary title.⁶⁷ As to the meaning of “necessary implication”, Tipping J cited dicta of Lord Hobhouse in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax⁶⁸:

... it is one which necessarily follows from the express provisions of the statute construed in their context ... a necessary implication is a matter of express language and logic not interpretation”. (emphasis added)

With respect, an implication is not a matter of express language but is a matter of construction by reading in words that are not themselves contained in a document. If “[a necessary implication] follows from the express provisions”, it is indeed a matter of interpretation external to the document. The Court of Appeal in Ngati Apa held that the legislation⁶⁹ referred to had not extinguished customary title to the seabed or foreshore.

Finally, the majority held that the 1963 decision of In re the Ninety- Mile Beach⁷⁰ had been wrongly decided. That decision held that if the land contiguous to the foreshore had lost the status of customary land, then Maori had also lost title to the foreshore. Tipping J, in accordance with Blackstone’s third category, states that In re the Ninety-Mile Beach did not begin from the correct starting point, that Maori customary title was part of the common law from the time English sovereignty was proclaimed.⁷¹

In summary, the Court of Appeal held that: (1) the Maori Land Court had jurisdiction to decide on customary title to the seabed and foreshore; (2) Maori customary title to the seabed and foreshore had not been extinguished by case law or by legislation; and (3) the decision of In re the Ninety-Mile Beach had been wrongly decided.

⁶⁶ Per Tipping J, ibid at para 185.

⁶⁷ Ibid.

⁶⁸ [2002] 2 WLR 1299, 1131. This dicta was adopted as authoritative by the

Privy Council in Russell McVeagh v Auckland District Law Society [19 May 2003] PC 34/02.

⁶⁹ Namely the following enactments: Harbours Acts 1878 and 1950; Territorial Sea and Fishing Zone Act 1965; section 7 of the Territorial Sea, Contiguous

Zone and Exclusive Economic Zone Act 1977; sections 9 and 9A of the Foreshore and Seabed Endowment Revesting Act 1991, and the Resource Management Act 1991.

⁷⁰ [1963] NZLR 461.

⁷¹ Ngati Apa, supra n56 at para 204.

Proving Customary Title

Until legislation is passed to prevent it happening, the Ngati Apa decision enables the claimants to bring a case before the Maori Land Court. Regardless, in order for claimants to have their customary title to the seabed and foreshore recognised, they must first overcome the hurdle of proving their entitlement.

Former Attorney General and Minister in charge of Treaty Negotiations, Douglas Graham, has proposed an amended five-part Halsbury-type test under which claimant groups must prove the following elements on the balance of probabilities:⁷²

1. exclusive possession at the time the Crown acquired sovereignty; and
2. continuing possession up to the present time; and
3. continuation of customary practices; and
4. maintainence of a physical link with the land; and
5. that the claimants’ practice has not been abandoned (because once abandoned it is lost permanently).

This is an extraordinarily difficult test to satisfy because it requires the claimants to show, for example, that they have used resources in the sea and foreshore since the time of English colonisation, and that this practice has never been abandoned. It pays no regard to the effects of colonisation or to any Crown actions based on the erroneous view that it held an unburdened title to the seabed and foreshore. As the Crown has issued private licences to many areas,⁷³ many customary practices have been forcibly abandoned. The test breaches equitable principle preventing anyone relying on their own prejudicial actions or a mistaken interpretation of the law. Instead it establishes both as legitimate bases for preventing many future applicants gaining their rightful legal entitlements.

⁷² D Graham, The Legal Reality of Customary Rights for Maori, Stout Research Centre, Victoria University of Wellington, Wellington, 2001, 7-9. Graham does not suggest that this test is specifically designed to resolve the seabed and foreshore issue even though it contains some of the “standard requirements” set out by the courts as being necessary to prove customary ownership under early native land legislation and English common law.

⁷³ These have been granted under sections 12(1) and (2) of the Resource

Management Act 1991, legislation allowing foreshore and seabed exploitation for commercial purposes and various fisheries legislation prohibiting Maori access to their resources.

Even if the Maori Land Court establishes that claimants do in fact have customary title under section 131 of Te Ture Whenua Maori Act 1993, the Maori Land Court has a discretion as to whether to vest title to Maori freehold land under section 132. Tipping J suggests that, for policy reasons, the Maori Land Court may decide not to vest the land in the claimants.⁷⁴ If the land is found to be customary land, however, but is not vested in the customary owners, it is uncertain how the land would be administered. Further, Gault P,⁷⁵ and to a lesser extent Elias CJ,⁷⁶ suggest that if the customary interest is established, this may consist of an interest of a different, and quite possibly lesser type, than is capable of being registered under the Land Transfer system. The Maori Land Court may not be able to give legal effect to it because the principle of the Act is to enable Maori customary land to be brought under the Land Transfer system,⁷⁷ and the Land Transfer Act does not presently recognise such interests. Also, since the interest is in the sea the type of interest able to be recognised may be constrained by other legislation⁷⁸ and private grants to other users.

Implications For The Future Application Of Mana Whenua

Tomas and Johnston believe that the real difficulty of recognising customary title is that of working out the incidents of ownership.⁷⁹ They note that, in accordance with Halsbury’s, there is no prima facie public right of passing along the seabed and foreshore that would compete against the claimants’ mana whenua interest, unless legally effective public rights have been granted.⁸⁰ In England, Halsbury’s rebuttable presumption is that the seabed and foreshore is prima facie

⁷⁴ Ngati Apa, supra n56 at para 196.

⁷⁵ Ibid at para 106. His Honour notes: “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 [of the Act] are concerned”.

⁷⁶ Ibid at para 10.

⁷⁷ Ibid at para 104.

⁷⁸ See for example the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

⁷⁹ Tomas and Johnston, supra n62 at 1.

⁸⁰ Halsburys, supra n42 at paras 9 and 18. At para 9: “the public has no right of passing along or across the foreshore, except in the exercise of the rights of

navigation of fishery, or in respect of lawfully dedicated right of way from one place to another over the foreshore; there is no right of stray or recreation use”.

vested in the “common right of the Crown, unless it has passed to a subject by grant or by possessory title”.⁸¹ However, the circumstances which give rise to the English common law presumption are not the same as exist in Aotearoa/New Zealand where Maori have a legitimate pre-existing claim based on mana whenua over the foreshore and seabed.

Overseas cases in which customary title has been recognised suggest that proving “ownership” of foreshore and seabed is a question of fact in each case. A spectrum of different rights have been established ranging from a right to mere occupation,⁸² to a right that relegates the Crown’s radical title “to a comparatively limited right of administrative interference”.⁸³ Viscount Haldane in Amodu Tijani v Secretary, Southern Nigeria⁸⁴ stated that establishing the nature of the right “involves the study of the history of the particular community and its usages in each case”.

Some incidents of title have been recognised under New Zealand law. Fenton CJ, when discussing customary title to mudflats, acknowledged the possibility of absolute ownership but awarded rights similar to a “privilege or easement” for policy reasons.⁸⁵ Further, when the Maori Land Court vested rocky outcrops off Great Barrier Island in Ngati Rehua, it vested the land in the resident iwi “as kaitiaki for themselves and, in accordance with the tikanga of whanaungatanga”.⁸⁶

Likewise, if future claimants are to establish customary title, it will be a question of fact in each case whether it exists and a question of law what its incidents are.

⁸¹ Ibid at para 9.

⁸² St Catherine’s Milling and Lumber Co v The Queen (1888) 14 App Cas 46, and the William Webster Claim (reproduced in FK Nielsen, American and

British Claims in Arbitration, Government Printing Office, Washington DC, 1926).

⁸³ Amodu Tijani v Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399, 410. Further, the Supreme Court of Canada in Delgamuukw v British Columbia [1997] 3

SCR 1010, para 110-119, held that such a right may be anything from usufructory rights to exclusive ownership.

⁸⁴ [1921] UKPC 80; [1921] 2 AC 399, 404.

⁸⁵ Kauwaeranga (1884) reported in A Frame, “Kauwaeranga Judgment” (1994) 14 VUWLR 227, 241.

⁸⁶ Application by John Di Silva, 23/2/98, Maori Land Court, Taitokerau

District, 30.

CONCLUSION

As stated in Part I of this essay, there are two important aspects of mana whenua. One of these is individual and group identity, which is tied to particular areas of land by specific tikanga. This can be extended to areas of foreshore and sea as well, even if the legal definitions under New Zealand law mean that it has to be artificially construed as a right to land. Hapu and iwi group identity is not restricted to areas that are held in fee-simple title by Maori, but is tied to a territoriality that is unconstrained by physical possession or ownership. Since 1840, iwi territoriality has stabilised, although disputes regarding boundaries and representation of groups are now major issues facing Maori. That hapu and iwi identity is linked to territoriality has already been recognised by the Crown in its dealings with Maori over fisheries resources and legislatively, under the Resource Management Act 1991 and other legislation.

The second important aspect of mana whenua identified is its sovereign regulatory power or “autonomy” under Maori custom law. Mana whenua, in compliance with Blackstone’s third category, is part of New Zealand law. However, legal orthodoxy shows that on integration into the New Zealand legal system it is subsumed beneath western foundational political/legal principles such as the “undivided sovereign” and also becomes subject to New Zealand governmental processes, including those of Parliament and the courts. The unavoidable consequence of this is that it then becomes realigned to fit English common law ideas about customary rights, the strictures of Halsbury’s tests and any derivatives of those tests.

Although mana whenua has limited recognition under New Zealand law, it remains a fully autonomous concept under Maori custom law, as recognised and supported by practices carried out by Maori. Furthermore, while there is legislative inclusion of mana whenua in a number of statutes,⁸⁷ it remains only a consideration to be taken into account, and does not give rise to a substantive and recognised legal cause of action. I believe that, in order for mana whenua to have stronger force under New Zealand law, the regulatory authority that attaches to it under Maori custom law must be legally acknowledged and recognised. Otherwise, it will remain an ephemeral concept of limited consequence outside of Maori communities.

⁸⁷ See for example section 8 of the Resource Management Act 1991.