Government Studies Court Finding on Foreshore and SeabedAttorney-General
The Attorney-General, Hon D.A.M. Graham, said today that an interim decision from the Maori Land Court on Maori legal interests in the foreshore and seabed in the Marlborough Sounds raises a number of complex legal and constitutional issues.
'Judge Hingston's decision is important to both the Crown and Maori and therefore the full implications must be considered carefully,' he said.
The Judge found that customary rights to the foreshore remain, unless the coastal land had passed through the Maori Land Court or the foreshore was expressly included in sales and had not been expressly extinguished since sale at any time by statute. He also found that rights to the seabed may not have been extinguished.
The Judge granted leave to appeal his interim decision to the Maori Appellate Court.
Mr Graham said Judge Hingston's decision is an interim decision which has no immediate effect.
'Existing rights relating to private property and public access will not be affected by the interim decision,' he said.
'The Coalition Government will now carefully consider whether to review the decision in a higher court or whether legislation is desirable.
'The Government will carefully consider these issues and options before deciding on an appropriate course of action before the right of appeal expires on 22 February, 1998.'
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KEY POINTS IN MARLBOROUGH SOUNDS DECISION
On 22 December 1997, Judge Hingston of the Maori Land Court will issue his decision on an application for Maori customary title to the foreshore and seabed of the Marlborough Sounds. The application was made by Te Tau Ihu a Maui, a confederation of the eight tribes of the north of the South Island.
The application sought a determination under s 131 of Te Ture Whenua Maori Act 1993 (the Maori Land Act) that the foreshore (land below mean high tide) and seabed were Maori customary land.
The Maori Land Court hearing, which was held in Blenheim on 30-31 October, was a preliminary hearing to establish whether customary title had already been extinguished by operation of law. In particular it considered whether sale of the adjacent coastal lands to the Crown in the 1840s and 1850s passed title to the foreshore and whether legislation affecting the foreshore and seabed had the effect of extinguishing any customary title.
The Judge made a provisional determination that customary title may still exist. He, however, granted leave for the parties to appeal his decision to the Maori Appellate Court if they wished to contest his findings of law. He also indicated that there could be no findings that customary title still existed until the evidence had been heard. This evidence would examine whether the deeds of sale of land included foreshore and whether there was any express legislation which related to the foreshore and seabed. Therefore, further hearings are required to establish whether any Maori customary title in fact exists.
In his judgment, Judge Hingston examined the reasoning of the Court of Appeal in the Ninety Mile Beach case  NZLR 461. He held that he was bound by that case insofar as it held that, when the Maori Land Court had investigated title to coastal lands, the foreshore between high and low water marks passed to the Crown. That case did not however examine what happened when land was sold directly to the Crown.
He noted however that s 147 of the Harbours Act 1878 (later s 150 of the Harbours Act 1950) had been repealed since the Ninety Mile Beach decision, so the Court of Appeal's findings that the Maori Land Court was precluded from granting foreshore titles no longer applied.
Although bound by the Ninety Mile Beach decision, the Judge did not agree with its rationale. He noted the development of Treaty jurisprudence in the last decade, and thought a higher Court may think differently today. He was also bound by s 17 of the Te Ture Whenua Maori Act to promote the retention of Maori lands in Maori hands.
In relation to the seabed, Judge Hingston found that s 7 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 did not extinguish customary title. Section 7 vests title to the seabed in the Crown, "subject to the grant of any estate or interest". Judge Hingston held that as the Crown did not have common law title to the seabed, its own title being dependent on statute, the title vested in it was simply radical title - that is the underlying title which the Crown has over all land in New Zealand.
Radical title did not extinguish any pre-existing customary title which Maori had through their occupation of New Zealand prior to 1840. The Judge did not go on to consider whether customary title could be a "grant" as anticipated by s 7. He also held that his duty under s 129(2)(a) of Te Ture Whenua Maori Act was to consider whether land was held under 'tikanga Maori', not whether it was recognised by common law.