Marine Policy 35 (2011) 85–94

Contents lists available at ScienceDirect

Marine Policy

0308-59

doi:10.1

n Corr

E-m

journal homepage: www.elsevier.com/locate/marpol

New Zealand’s Treaty of Waitangi and the doctrine of discovery:Implications for the foreshore and seabed

Randall Bess n

Ministry of Fisheries, PO Box 1020, Wellington, New Zealand

a r t i c l e i n f o

Article history:

Received 12 July 2010

Received in revised form

23 August 2010

Accepted 23 August 2010

Keywords:

Indigenous people’s rights

Colonisation

Treaties

Foreshore and seabed

New Zealand

7X/$ - see front matter & 2010 Elsevier Ltd. A

016/j.marpol.2010.08.007

esponding author. Tel.: + 64 4 819 4621; fax:

ail address: randall.bess@fish.govt.nz

a b s t r a c t

Since the advent of Western European exploration questions have been raised about the legality and

morality of claims to new territories and the ensuing, often brutal colonisation patterns. The doctrine of

discovery justified the acquisition of territories by conquest or other means. By the 19th century British

common law included the doctrine of continuity, which recognised that the property rights of the

indigenous people survived after the Crown acquired sovereignty over their territories. The Crown used

a general treaty of cession and protection as the instrument for gaining sovereignty. In the context of

Western European colonisation, this article discusses the statutory and judicial recognition of New

Zealand’s Treaty of Waitangi 1840 and native title to land. The ensuing discussion highlights statute and

judicial decisions that depart from the Treaty and are unique within the British colonies. This article

also discusses the settlement of Treaty-based claims to land and fisheries and the current debate

regarding ownership of the land along the seacoast and beneath the sea. The article contributes to the

broader discussion on indigenous rights.

& 2010 Elsevier Ltd. All rights reserved.

1. Introduction

The early approach to colonising new territories had its roots inthe medieval Catholic Church’s efforts to impose the authority of thePope over non-Christian heathens and infidels who occupied theMiddle Eastern Holy Lands. Justifications of Papal authority andsubsequently the sovereign authority of European nation-statesembodied the doctrine of discovery. This doctrine held that WesternEuropean ‘discoverers’ had the right to claim new territories, theindigenous people were subject to European authority, and protec-tion of European interests could justify the use of force of arms [1].

By the early 19th century British colonial policy was stronglyinfluenced by a humanitarian movement to improve the condi-tions of the indigenous people in the British Empire [2]. Thismovement led to the doctrine of continuity, which held that achange of sovereignty on cession did not affect indigenouspeople’s property rights. The doctrine of aboriginal, customaryor native title recognised indigenous people’s legal right to theirland. Numerous treaties gave effect to these rights. Treatyprocesses were largely devised to provide both indigenous peopleand colonists with rights and responsibilities and to set groundrules for their future interactions with the land and resources [3].However, settlers’ greed for control of land led to statutory and

ll rights reserved.

+ 64 4 819 4208.

judicial subversion of the legal protections awarded to indigenouspeople through treaties [4].

This article discusses the legal and moral arguments that havebeen used historically to legitimise subjugation of indigenouspeople and appropriation of their land and fisheries. In the NewZealand context, these arguments diverge from the doctrine ofnative title and the guarantees provided to Maori, the indigenouspeople, by the Treaty of Waitangi 1840. This article discusses thesettlement of Treaty-based claims and the current debateregarding ownership of the land along the seacoast and beneaththe sea, a debate that has been troublesome throughout NewZealand’s legal history [5]. This article does not reflect the view ofthe Ministry of Fisheries.

There has been considerable controversy over the Foreshoreand Seabed Act 2004 enacted by the previous Labour Party-ledgovernment. The 2004 Act is a resource nationalisation statutethat vested ownership of the foreshore, the inter-tidal zone, andseabed in the Crown. The 2004 Act also removed court jurisdic-tions over the foreshore and seabed and set up new jurisdictionsto hear claims of territorial customary rights but without vestingownership over any part of the public foreshore and seabed.

In mid-2010 the National Party-led government announcedthe 2004 Act will be repealed and replaced with legislation thatrestores the ‘basic human right’ Maori have to access the courts toseek customary title. However, Crown ownership of the foreshoreand seabed will be replaced with a non-ownership ‘publicdomain’, except for those areas already in private ownership.This non-ownership model will protect public access and ensure

R. Bess / Marine Policy 35 (2011) 85–9486

the foreshore and seabed cannot be sold. Despite a customary titlebeing ‘territorial’ there will be no facility to convert it to afreehold title. The replacement legislation will also establish waysthe Crown can recognise and provide for non-territorial custom-ary interests. Since the New Zealand public has a longstandingtradition of public access to the seacoast, many eagerly awaitfurther details about the replacement legislation.

To fully appreciate the foreshore and seabed debate, it is importantto place it in the context of Western European colonisation, eventsthat led up to and subsequent to the Treaty of Waitangi and theinherent tension between the different branches of government.

The first section of this article outlines Western European viewsof indigenous people since the advent of the age of discovery. Thissection also discusses colonisation in New England and Britishcommon law with respect to ownership of the terrestrial landand land along the seacoast and beneath the sea. The secondsection discusses New Zealand colonisation, the Treaty of Waitangi,statutory and judicial recognition of the Treaty and native titleand the settlement of Treaty-based claims to land and fisheries.The final section outlines the current debate over ownership of theforeshore and seabed, which gives credibility to the view that theprecepts of the doctrine of discovery have remained powerful andpersuasive in New Zealand.

2. Historical overview of colonisation

During the age of discovery, from the early 4th century,Western Europeans generally accepted that the world was theproperty of God, and the Pope was God’s delegate on earth [6].The crusades from the 11th to 13th centuries were justified by theperception that the ruling infidels should be replaced withChristians subject to the Pope [7]. By the 13th century the Papacywas unchallenged in the control of spiritual affairs in WesternEurope. The church espoused the concept of indivisible unitythrough the early Greek notion of divine natural law, which wasregarded as a set of guiding principles residing in nature andcommon to all living things. Natural law was viewed as the basisfor right conduct and reasonableness that all mankind shared. Inthe 13th century Pope Innocent IV pronounced that Christians andnon-Christians alike had the right to own property and to exercisepolitical authority in their own land, so long as these rights wereexercised in conformity with natural law [6].

Between the 15th and 18th centuries the divide between churchand state widened. As the Church’s authority disintegrated, positivelaw based on the authority of power became the legitimising force[8]. Human reason and the physical laws of nature largely replacedthe concept of divine natural law [9], though it remained a strongforce for the subjugation of indigenous people. European nation-states asserted their sovereignty by colonising new territorieswithout regard to Papal assent and exercised their power throughtreaties about encroachment into each other’s claimed territories.Treaties were considered valid only if made between nation-statesrecognised by the European community. Treaties could be enteredinto with non-European nation-states, so long as they were ‘tacitlyor expressly civilised’ [10]. Green and Dickason [6] consider thatwhat became known as the doctrine of discovery was based onthree main arguments that legitimised the subjection of theindigenous people in newly discovered territories; where oneargument failed, another could be used in its place.

First, the new territories were considered unoccupied, terranullius, which legitimised Europeans having rights to claim whatthey had ‘discovered.’ Since land should be cultivated, those whomerely ‘roamed’ the land were taking up more than their shareand could be lawfully restricted. Furthermore, the indigenouspeople were viewed as sub-humans, barbarians or savages who

lived in uncivilised society and were thus incapable of havinglegal rights of land ownership. Since the indigenous people wereconsidered to be naturally inferior and beyond the reach ofnatural law, European domination through the slave trade andexploitation of labour was considered consistent with the naturalorder of things.

Second, the indigenous people were obliged to receive theambassadors of the Pope and those of the Protestant Monarchsafter the reformation, as well as the trade expeditions andcolonists. Europeans considered they had a Christian duty tospread the word of the gospel and a moral and legal obligation toend the cannibalism and human sacrifices practiced by some ofthe indigenous people.

Third, any resistance or hostility to European presence couldbe met with force of arms, which justified fortifications and pre-emptive military actions to ensure the safety of Europeans. In theevent that some conceded that European military campaignsagainst the indigenous people were unjust, the uninterruptedpossession of new territories alone could legitimise previousseizers by conquest.

However, there were many Europeans who objected to thedoctrine of discovery. For example, in 1532 the SpanishTheologian, Francisco de Vitoria argued that through natural laweven heretics and sinners had rights to property. Furthermore, thePope had no spiritual power over the indigenous people in newlydiscovered territories, which dismissed any Papal grant toappropriate their lands by conquest or discovery. Vitoria con-sidered the indigenous people to be the ‘true owners’ of theirlands, and that their failure to accept the authority of the Popewas not grounds for waging war and confiscating their lands andpossessions [1]. Although Vitoria had argued that the precepts ofreason applied to the indigenous people, he considered their‘repulsive differences and morbid tastes’ could make themcontrary to natural law, which ultimately provided a more refinedargument for colonial oppression [11].

2.1. New England colonies

Beginning in the early 17th century, British settlements in NorthAmerica were largely based on Vitoria’s argument that the consentof the indigenous people was required to acquire land [10]. Whilemany believed the lack of agricultural practices in the New Worldmeant the indigenous people lacked any legal rights to land, theirformidable military strength was undeniable. The seizure of landwould have required an enormous cost in both money and Britishlives [2]. However, the ongoing prospect of settler encroachmentonto tribal land and frequent fraudulent land purchases led to theRoyal Proclamation of 1763 by King George III. This Proclamationprohibited encroachment onto certain tribal lands and privatepurchases of land from the Indians. The prohibition on private landpurchases provided the British with monopsony power to drivedown the land purchase price [12].

After declaration of the United States, the Federal Governmentcontinued the policy of purchasing native land. In 1788 theFederal Government signed its first treaty with an Indian tribe,which guaranteed them all of their territorial rights. However,Congress had already gained sole and exclusive rights to regulatethe trade and management of all Indian affairs under Article IX ofthe Articles of Confederation. Subsequent treaties guaranteedthe tribes undisturbed possession of their lands. However,Indians could not deal directly with other nation-states, and theyhad to become dependent wards under federal protective custody,which severely restricted tribal sovereignty. Many of thesetreaties also provided a federal pre-emptive right to purchasetribal land [1].

R. Bess / Marine Policy 35 (2011) 85–94 87

In 1823 the court in Johnson v M’Intosh [13] heard conflictingclaims to some of the same land. This case was considered in lightof the doctrine of discovery even though it had been regarded asincreasingly archaic [14]. The court decision declared the FederalGovernment, as the discovering nation, to have exclusive right toextinguish Indians’ interest in native land either by purchase orjust war [12]. Indian title to land was defined solely as ‘occupancy’with rights of possession and use. The decision reinforced federalpower to regulate Indian affairs as a matter of domestic law,which restricted Indians governing themselves as independentnations [1]. The decision proved to be the basis for subsequentcourt decisions that denied tribes just compensation for lands thatwere seized, which then supported the Congressional decision toenact the Indian Removal Act 1830. This Act granted the Presidentof the United States the power to ‘exchange’ tribal land east of theMississippi River for land west of the Mississippi River that led tomillions of acres of farmland being made available for settlers. ThePresident signed treaties to remove almost 50,000 Indians toIndian Territory in eastern Oklahoma. Most of the Indians wereremoved by force, which led to thousands dying en route, and theremoval becoming known as the Trail of Tears.

2.2. British common law

The origins of British common law were referred to ascustomary law that comprised local customs and practices thatthe English courts had reason to discover, enunciate or clarify. Thecourts considered the existence of a custom to be a question offact, which must be proved in each case before the courts can takejudicial notice of it. In time a distinction was made betweencommon law and customary law. The latter came to refer to theunwritten laws and legal system of a non-state society that wereclosely linked with societal customs and practices [15].

With respect to land ownership, common law was based on thebelief that after the Norman Conquest in 1066, the King becamesole lord of all the land in England and rewarded his followers bygranting land to them. These Crown grants brought about privateproperty law that strongly protects freehold title to land and thetransfer of title [5]. Common law came to recognise indigenouspeople’s rights to their land, referred to as aboriginal, customary ornative title. Native title was recognised as originating in thecustomary law of the indigenous people of a territory. Customarylaw determined the content of native title with respect to theprecise rights protected, the claims to such rights by descentgroups, and rules about succession and transfer by marriage [15].

The doctrine of continuity recognised that the property rights ofthe indigenous people survived after the Crown acquired sover-eignty over their territory. In the absence of the Crown taking landby act of state, native title to land was not extinguished [16].Similarly, the common law doctrine of Crown pre-emptionrestricted native title so that land could not be transferred or soldto anyone other than the Crown. The transfer or sale of native titleextinguished the customary right to the land [15].

With respect to fisheries, after the Magna Carta in 1215 theSovereign ceased to grant rights to inshore tidal fisheries. Whenprivate rights were no longer granted, the concepts of commonproperty and public rights of fishing increasingly prevailed.England, like most other European states, ceased its claims tohigh seas sovereignty and exclusive rights over ocean fisheries,but continued to claim the freedom of navigation [17]. By the 17thcentury the territorial sea was commonly defined as the range of ashore-based cannon, the limit of vision on a fine day or one league(3 nautical miles) [5].

In common law the foreshore, the beds of tidal rivers and theterritorial seabed were presumed to belong to the Crown, in the

absence of evidence to the contrary. This presumption was notdifferent than presuming all land originally belonged to theSovereign. However, the foreshore and seabed are different fromother land in that they are unoccupied except where there arepiers, retaining walls or other structures, and on that basispresumed to have remained in Crown holdings. The foreshore andseabed could be privately owned, subject to the public right ofnavigation and fishing, but in most cases a claim to a portion ofeither had to be substantiated with evidence of a Crown grant[18]. The issue in post-colonial states, such as New Zealand, iswhether or not a prerogative interest in common law translatesinto a proprietary title for the Crown in light of the common lawdoctrine of native title [19].

2.2.1. Tikanga

Customary law in New Zealand is commonly referred to astikanga [20]. Tikanga evolved since settlements of easternPolynesians began around 800–1200 AD. Maori view tikanga asserving a broader function than maintaining the law, as it includesall aspects of human behaviour, including matters of spirituality,religion and morality [21]. Offences against tikanga were oftenconsidered immoral and in breach of the code laid down bytupuna (ancestors) and the creator gods. While Maori societylived by common fundamental values, tikanga was flexible andadaptable to different circumstances [21].

According to Maori custom, no one individual or kinship groupowned land to the exclusion of other levels of kinship or thosewho lived on adjacent land. Different levels of kinship exerciseddifferent rights in the same area [22]. The rights to specificresources, such as fishing rights, were commonly transferred toindividuals and groups through gifting and inheritance. It wascommon for an area to be subject to various intersecting andcompeting rights, which made it difficult to discern who ownedthe land, lakes, lagoons, rivers and the open sea [21]. There isabundant evidence that Maori, like other Polynesians, greatlyvalued some tidal and seabed lands and subjected them tocomplex customary rules for allocation and management [5].

3. New Zealand colonisation

Britain began to settle New Zealand in the 1810s. Thesesettlements assisted several Maori to travel within the BritishEmpire and gain an understanding of the extent of British power.Maori adapted to settlement life by becoming industrious invarious trades and agricultural methods. Many Maori traded theirgoods and produce, including seafood, in Sydney markets. Theirtrading ventures and travel led to the possession of muskets thatwere used to settle old scores between them during the 1820s and1830s. In 1814 the Anglican Church Missionary Society firstsponsored a missionary enterprise in New Zealand [23]. Themissionaries viewed their stations as ‘islands of civilisation’surrounded by heathen beliefs and practices. Missionaries tookgreat interest in conveying to their new converts the evils ofpolygamy, which was regarded as a sign of chiefly status, andcannibalism, which was largely confined to ceremonial banquetsof slain enemies [24].

As settlements expanded, Maori had to contend with attempts atunscrupulous purchases of their land. There were Sydney-based landspeculators who saw opportunities should New Zealand becomeannexed by Britain or the United States [25]. At that time Britishcolonial policy began to change in response to previous colonialunrest and rebellion. The solution was to prefer colonies to be self-governing but with limits placed on colonial legislatures [26].However, this preference proved difficult to implement in NewZealand, as colonial officials were overworked and continued to

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encounter increased demands for official action [25]. The imperativefor these officials was to develop policies that provided land forsettlements [27]. In 1831 the anarchic conditions caused severalMaori chiefs to make their first of many appeals for Britishguardianship of their land and other possessions [25]. In 1833 aBritish Resident was appointed, though insufficiently resourced, toprevent ‘outrages’ against Maori, protect ‘legitimate’ traders andsettlers and apprehend convicts that had escaped from Australia [28].

In 1835 a confederation of thirty-five Maori tribes signed aDeclaration of Independence, which sought to transform the tribalorientation to a confederation to govern Nu Tirene, the title for thenewly created state. The Declaration states that all sovereignpower and authority resides in the hereditary chiefs and heads ofiwi (tribes) in their collective capacity. The Declaration proposed aMaori legislature and a Parliament made up of the confederationof tribal chiefs. This new state would give expression to tikanga.While some consider the Declaration provided all the prospects ofNu Tirene becoming a new independent state [20], othersconsider its impetus was the ill-conceived action of the ambitiousBritish Resident to thwart French incursion. Britain recognised theDeclaration, and a flag was created and flown over shipsregistered under Nu Tirene [28]. However, the new state did notcome to fruition, and further appeals were made for urgent Britishintervention in response to claims that speculators had purchasedmost of the land from Maori for negligible prices [28]. Anothercause for concern was the prospect of an organised settlementcompany setting up an ad hoc republic with its own laws [20].

In 1839 an official for the New South Wales colonial govern-ment in Australia was issued instructions to seek Maori recogni-tion of British sovereignty over the whole or any parts of theislands that they would be willing to place under Crowndominion. The official was also given permission to annex theSouth Island by right of discovery, even though it was occupied byMaori and Captain James Cook arrived in 1769, well after theDutch explorer Abel Janszoon Tasman arrived in 1642 and namedthe islands Nieuwe Zeeland. There is also map text that refers tothe Portuguese explorer Hernando Gallego having discovered theislands in 1570 [29].

3.1. Treaty of Waitangi

The British official seeking Maori recognition of Crownsovereignty was instructed to deal fairly with Maori and toappoint a protector of their rights to land. Maori customary landwould be purchased by the Crown at fair prices, and all land titleswould be derived from Crown grants [25]. These instructionswere aligned to the Colonial Office’s response to growing publicconcern about the welfare of the indigenous people in the BritishEmpire. Religious groups at that time were pressuring Parliamentto reform British colonial policy to abolish slavery in the Empireand to cease treating Australia as terra nullius, which hadlegitimised the confiscation of aboriginal land [2].

A general treaty of cession and protection commonly usedthroughout the Pacific and elsewhere was to be the instrument forgaining Crown sovereignty [25]. There was little choice ofinstruments to be used, given that Maori outnumbered settlersfifty to one and they were well known for their military prowess[24]. In 1840 a treaty was drafted by colonial officials with theassistance of missionaries, none of whom had legal training andwho encountered difficulty in translating the English version intothe Maori language version [28].

The first article of this treaty states that Maori ‘cede to HerMajesty the Queen of England absolutely and without reservationall the rights and powers of Sovereignty y’ The second articlestates that the Queen guarantees Maori ‘the full exclusive and

undisturbed possession of their Lands and Estates Forests Fish-eries and other properties which they may collectively andindividually possess y’ The third article has the Queen extendto Maori ‘royal protection and imparts to them all the Rights andPrivileges of British Subjects’ [30]. Some commentators havereferred to a fourth article whereby an oral assurance was given atthe signing of the treaty that Maori ritenga (custom, includingreligion) would be protected alongside the Christian faith [31].

The language of this treaty shows that it did not address thetransfer of land, extinguishment of native title or the creation ofnative reserves though it did provide the Crown with a pre-emptive right to purchase Maori land [32]. The language in thesecond and third articles was almost identical to British treatiescommonly used in the 1820s in Africa. For example, an 1825treaty guaranteed the African signatories that they were to retain‘the full, free and undisturbed possession and enjoyment of thelands they now hold and occupy’ and gave ‘the protection of theBritish Government, the rights and privileges of British subjects’[10]. The New Zealand treaty was first signed at Waitangi in theNorth Island on 6 February 1840 by all those who had signed the1835 Declaration of Independence, as well as a few other chiefs,and then a piecemeal approach was taken to acquiring over fivehundred signatures on numerous copies of the Treaty, most ofwhich were the Maori language version [28].

There remains disagreement over what was ceded andprotected in signing the Treaty of Waitangi [33]. It is possiblethat those who signed the Treaty might not have had a fullunderstanding of its meaning in the English version. It is alsopossible that those who opposed the Treaty were ignored, whileothers interested in it found no opportunity for meaningfulnegotiation of its content [20]. However, the extent to which theTreaty was debated, the speeches made in opposition and the factthat some chiefs did not sign it, provides some evidence that therewas a solemn understanding of its content [10]. Some did not signthe Treaty for fear of losing power and status to a woman eventhough she was a queen [28].

According to Biggs [34], the Maori language version of theTreaty is stylistically and grammatically awkward, and the wordschosen to translate crucial terms have different meanings, or theMaori words are more generalised and less precise than theEnglish language version. Durie [20] explains that the Maorilanguage version of the first article included the term kawana-tanga (a transliteration of governance) and not mana (authorityand control), and that the signatories would have objected hadthey known they were ceding the exercise of control. Further-more, the second article’s use of the term tino rangatiratanga(unqualified exercise of chieftainship), which is closer to theEnglish concept of sovereignty than was kawanatanga, contradictsa translation of the first article as Maori having ceded sovereignty.Notwithstanding the differences in translations and debates aboutwhether or not sovereignty was actually ceded, the Crown didobtain the right to govern [20].

3.2. Recognition of the treaty and native title

New Zealand became annexed to Britain as a dependency ofthe New South Wales colonial government following proclama-tions signed by the Governor of New South Wales in Sydney on 14January 1840 and signed by the Lieutenant-Governor in NewZealand on 21 May 1840. This proclamation asserted Britishsovereignty over the North Island by virtue of the rights andpowers ceded to the Crown by the Treaty and over the SouthIsland and Stewart Island by discovery in 1769. In this proclama-tion of sovereignty the Crown did not acquire full title to land; itacquired the pre-emptive right to extinguish native title and to

R. Bess / Marine Policy 35 (2011) 85–94 89

issue land grants [5]. In May 1841 New Zealand was separatedfrom New South Wales and became the Colony of New Zealand. In1842 the Chatham Islands to the east were included in the newColony. Since 1947 New Zealand had full legislative autonomyover its own affairs [27]. The legal system remains rooted inBritish common law, with the judiciary independent of theexecutive and legislative branches of government [32].

Recognition of the Treaty was challenged from the start due toincreasing settler demands for land and the lack of administrativefunds to purchase land under the Crown pre-emptive right. Maorihad freely entered into private land purchases prior to signing theTreaty and continued this practice afterwards. They did not agreethat Crown pre-emption meant that they were required to acceptCrown offers that were unsatisfactory to them [28]. Maori hadalso learnt about grazing leases in Australia, which allowed themto control their land while accommodating settler demands. Thegovernment viewed Maori land leases as a ‘most serious evil’, as itprovided them with little incentive to sell land [35]. Beginning in1841 there was an attempt to free up Maori land based on theLockean theory of property rights arising from the expenditure oflabour and capital. Accordingly, Maori land would be restricted towhat they occupied and used, and the remaining ‘waste lands’would have Crown title [4]. However, drawing on United Statesnative title jurisprudence, in 1847 the court in R (On the

Prosecution of CH M’Intosh) v Symonds [36] reaffirmed the practiceof extinguishing native titles by fair purchase and with the freeconsent of the ‘Native occupiers.’

Nonetheless, the Crown largely ignored the Treaty as thesettler population increased, which correspondingly increased thestrength of the government. Tensions increased as some Maoriacted in unison to retain their land, and they appeared to overtlychallenge Crown sovereignty by appointing a Maori king, which tothem was in accordance with tino rangatiratanga and certainprovisions of the Constitutions Act 1846 [28]. By 1860 there wasopen warfare, which in the end required 18,000 British troopswith technological superiority to defeat perhaps the smallestresistance force in the British Empire [37]. Maori resistancedelayed and limited British victory. There were also occasionswhen factions within the same iwi coordinated both resistance toand assistance for British troops to minimise harm to Maori-European economic interests [37]. The land that British troopsconquered and the land that Maori vacated during warfare wereconfiscated under the Settlements Act 1863, which extinguishednative title to the land [4]. Subsequently land was also confiscatedfor public works with little or no compensation [28].

3.2.1. The native land court

The government considered the solution to Maori landproblems was to convert native title into individualised Crowngrants, which, it was assumed, would incline Maori to merge intothe settler population as farmers and willing sellers of unusedland [4]. For this purpose, the Native Lands Act 1862 became anunprecedented departure from the Treaty in that it discontinuedthe Crown pre-emptive right to purchase Maori land [38]. The Actreplaced Crown pre-emption with the Native Land Court processto adjudicate contests between Maori regarding who ownedblocks of land. The court process investigated Maori claims andresulted in the successful applicants receiving a certificate of titlethat converted land held under native title to a freehold grant,which could be sold privately or to the Crown.

This type of land title, still referred to as Maori freehold land,was unique within the British colonies [19]. Maori freehold titlewas issued to ten owners per block of land from 1865 to 1873 andthereafter to an unrestricted number of owners between one andone hundred [4]. Most Maori freehold land was sold to the Crown

or settlers soon after receipt of the certificate of title [19]. TheNative Land Court often led to strong differences between Maoriregarding whether or not to sell their land, and some were forcedto sell land to pay substantial debts incurred through the courtprocess [28]. However, Maori were not always victims of the NativeLand Court process. There were occasions when Maori claims thatwere tenuous at best were used to skilfully manipulate simplisticLand Court assessments to acquire title to large and valuable blocksof land, with the proceeds of sale sometimes squandered [4].

Before 1860 title to around two-thirds of Maori land had beenextinguished by Crown purchase, including almost all of the SouthIsland [4]. In 1860 Maori held around 23.2 million acres (80%) ofthe 28.5 million acres in the North Island. In 1890 Maori heldaround 11.6 million acres (40%) of the North Island. By 1890 morethan 4 million acres had been confiscated. Though much of theconfiscated land was returned to Maori, considerable amountswere kept in Crown holdings and some was sold [4]. The NativeLand Court process between 1865 and 1910 led to the title toalmost 8 million acres being passed to European settlers. In 1910Maori held around 7.7 million acres (27%) of the North Island [39].

In 1877 the court in Wi Parata v Bishop of Wellington [40]reinterpreted the basis for the R (On the Prosecution of CH

M’Intosh) v Symonds case [36]. The Wi Parata decision rejectedMaori having a system of law and political institutions prior to1840 that could cede sovereignty. In addition, it was asserted thatsince treaties with ‘primitive barbarians’ lacked legal validity, theTreaty was ‘a simple nullity.’ The decision denied any legallybinding obligations to uphold native rights. Instead, it was left tothe discretion of the executive to put in place unenforceable andnon-justiciable moral obligations to validate the Treaty [27]. In1941 in Hoani Te Heuheu Tukino v Aotea District Maori Land Board

[41] Britain’s Privy Council determined that the Treaty had nolegal effect in and of itself; any rights purported to be conferred bythe Treaty could not be enforced by the courts unless they hadbeen incorporated into statute.

3.2.2. Fisheries legislation

Maori rights to fisheries as guaranteed in article 2 of the Treatywere not referred to in the first fisheries legislation, the OysterFisheries Act 1866. However, the Treaty rights were acknowl-edged in s 8 of the Fish Protection Act 1877, which stated that‘Nothing in this Act contained shall be deemed to repeal, alter, oraffect any of the provisions of the Treaty of Waitangi, or to takeaway, annul, or abridge any of the rights of the aboriginal nativesto any fishery secured to them thereunder’. However, this Act wasrepealed by the Sea Fisheries Act 1894, which was amended in1903 to include reference only to ‘existing Maori fishing rights’[27]. The Fisheries Act 1908 did not include any reference toMaori rights to fisheries, though it was the primary legislation formanaging fisheries until it was repealed in 1983. Section 88(2) ofthe Fisheries Act 1983 stated that ‘nothing in this Act shall affectany Maori fishing rights’. The Fisheries Amendment Act 1986,which brought about the quota management system (QMS), didnot include reference to s 88(2) in the 1983 Act or any other rightsthat Maori had to fisheries resources as guaranteed by the Treaty.Implementation of the QMS left many part-time Maori fisherswithout any allocation of individual transferable quota (ITQ) andprompted claims to large areas of fisheries based on Maori havingnever relinquished their fishing rights and the Crown havingbreached its Treaty obligations [30].

3.2.3. Principles of the treaty

The State-Owned Enterprises Act 1986 gave effect to thetransfer of Crown assets, including large tracts of Crown land, toquasi-public commercial enterprises. In 1987 the NZ Maori Council

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v Attorney-General case [42] pertained to an objection to thetransfer of Crown land that was subject to or may become subjectto a claim in the Waitangi Tribunal, which is discussed below. Theobjection was that the transfer of land violated s 9 of the State-Owned Enterprises Act, which states ‘Nothing in this Act shallpermit the Crown to act in a manner that is inconsistent with theprinciples of the Treaty of Waitangi’. This provision was the firstoccasion where any principles of the Treaty had been givenstatutory recognition [43].

The NZ Maori Council v Attorney-General decision [42] reaf-firmed Parliament’s powers of legislation and observed that theTreaty was not a bill of rights or a fundamental constitutionaldocument. The decision acknowledged that while the rightsguaranteed by the Treaty were non-justiciable in the absence ofincorporation into statute, the Treaty had gained prominence inthe interpretation of statutes; therefore, the courts ‘will notascribe to Parliament an intention to permit conduct inconsistentwith the principles of the Treaty.’ However, these principles hadto be developed to determine if there were any inconsistencies inCrown actions [44]. The Court of Appeal derived seven Treatyprinciples, and the Treaty of Waitangi (State Enterprise) Act 1988enacted a monitoring system to ensure the transfer of Crownassets would not violate these principles [43]. The two principlesmost commonly cited in the courts are the Crown-Maorirelationship being akin to a ‘partnership’ that placed a fiduciaryduty on the Crown and ‘active protection’ with respect to iwiorganising themselves and, under the law, controlling theirresources [38].

Development of the Treaty principles dramatically raised thestatus of the Treaty from a ‘simple nullity’ to a quasi-constitu-tional document [27]. This increased status has led to thedevelopment of several statutory provisions regarding the Treaty[32]. These provisions vary in the recognition accorded to theTreaty and the effect it has on the statute as a whole. Somestatutes are for the purpose of settling specific claims and requirereference to the Treaty to effect the settlements. Some statutesinclude references to the Treaty to give effect to certain rights thatare affirmed in the Treaty, while others require an administrativedecision maker to have regard to the principles of the Treaty. Thataside, the Treaty’s legal status remains dependent on Parliament’swillingness to give it status, which can depend on the vagaries ofpolitics [38].

3.2.4. Settlement of treaty claims

The Treaty of Waitangi Act 1975 established the WaitangiTribunal as a semi-judicial forum with recommendatory power toinvestigate allegations by Maori of contemporary breaches of theTreaty. In 1985 the Tribunal’s jurisdiction was extended retro-spectively to 1840. The Treaty of Waitangi (State Enterprises) Act1988 provided the Tribunal with a limited statutory mandate tomake binding orders on the Crown for specified forms of redress[38]. In 1995 the Office of Treaty Settlement (OTS) was establishedwith responsibility to negotiate and settle historical claims made onor before 21 September 1992. While negotiations are often complex,they are becoming more standardised and can be pursued withoutinvestigation by the Tribunal. Once settlements are negotiated, theyare almost always finalised in statute [45]. As a result of theTribunal’s binding mandate and establishment of the OTS, therehave been significant settlements between the Crown and Maori ofhistorical grievances over land confiscation, fraudulent land transac-tions and fisheries [46].

Maori claims to fisheries led to simultaneous litigation, a numberof hearings in the Tribunal and protracted negotiations betweenMaori and the government [26]. The settlement of these claimsbegan on an interim basis set out in the Maori Fisheries Act 1989,

which included 10% of all ITQ and $10 million being transferred toMaori. The Treaty of Waitangi (Fisheries Claims) Settlement Act1992 sets out the full and final settlement that included $150 millionfor Maori to purchase 50% of Sealord Products Ltd. and 20% of all ITQfor species brought into the QMS. The Maori Fisheries Act 2004 setsout the full and final settlement of Maori claims to commercialaquaculture on or after 21 September 1992 and provides Maori with20% of marine space allocated for aquaculture.

The settlement of fisheries claims also included the Crownacknowledging that non-commercial customary rights had notbeen extinguished, which placed an obligation on the Crown todevelop regulations to recognise and provide for customary foodgathering. An important backdrop to this settlement occurred in1986 in Te Weehi v Regional Fisheries Officer decision [47], whichrepealed a lower court conviction for taking 46 paua (abalone)and concluded that the accused was exercising his customaryright in common law under s 88(2) of the Fisheries Act 1983. Theimportance of this decision is that it recognised a customary non-territorial property right that had not been extinguished [48], andin so doing rejected the decision in 1965 in the Keepa v Inspector of

Fisheries case [49] that customary fishing rights could not besevered from land ownership [26].

4. Ownership of the foreshore and seabed

Ownership of the foreshore and seabed has been an intractableproblem in that the Crown historically assumed ownership byprerogative right under British common law and did not takesteps to vest it by statute in the Crown. The Native Land Court hadheard several cases related to areas of the foreshore and wasprepared to issue title to areas below the high water mark [26].Many of the early purchase deeds referred to coastal and inlandwaterways as forming part of the properties purportedlyalienated to the Crown [5]. However, in 1870 in the Kauwaeranga

case [50] the Native Land Court practice of granting titles to blockbelow the high water mark was rejected. In 1872 the governmentissued a proclamation to suspend the Native Land Court fromissuing titles to land below the high water mark [19].

The Wi Parata v Bishop of Wellington case [40] and other caseswere the basis for the decision in In Re Ninety Mile Beach [51] in1963 that determined the Crown did not have a prerogative titleto the foreshore, but that native title to the foreshore had beenextinguished through inconsistent grants of land adjacent to theforeshore—the land having been granted to someone other thanthe customary owner [52]. Moreover, the decision stated theCrown Grants Act 1866 and the Harbours Act 1866 had vestedtitle to the foreshore in the Crown. It also stated that the MaoriLand Court, which succeeded the Native Land Court, had nojurisdiction to investigate native title claims to the foreshore,despite the Court’s primary function being to address Maorifreehold land for the benefit of owners, including the status ofland [5].

In June 2003 the court in Attorney-General v Ngati Apa [53]reached a decision regarding seven of the eight iwi at the top ofthe South Island seeking resolution of procedural difficulties toobtain permits for commercial aquaculture ventures on theforeshore and seabed. The decision stated that Maori customaryrights to the foreshore and seabed could exist as a matter of law,and that the Maori Land Court had jurisdiction to hear suchclaims. The decision did not state that such rights actually exist, asthey would have to be proven in the Maori Land Court inaccordance with tikanga. The decision overturned the reasoningin the Wi Parata v Bishop of Wellington [40] and In Re Ninety Mile

Beach [51] decisions by applying the doctrine of continuity in thatMaori customary land rights continued after 1840 and became

R. Bess / Marine Policy 35 (2011) 85–94 91

enforceable in New Zealand courts, and these rights included anyunextinguished rights to the foreshore and seabed. The decisionconsidered that various statutes had not unequivocally extin-guished customary title [27], and rejected inconsistent grants as avalid means of extinguishment [16].

The Attorney-General v Ngati Apa decision [53] created fiercepublic debate. The debate was concerned with public access tobeaches being threatened if Maori had exclusive rights to theforeshore. This concern had little or no connection to thenarrowness of the decision that claims to Maori customary rightscould be heard by the Maori Land Court [27]. The public uproaralso led to political dialogue about the Treaty, and race issues ingeneral, turning ‘nasty’ [32:36]. The foreshore and seabed was thefocus of national politics for the 2005 general election [27]. Theleader of the opposition National Party had already campaignedon the platform that there should be ‘one law for all people,’ andthat Maori, or any group, should not receive preferentialtreatment [54], which elicited a significant increase in the polledsupport for that party. The then National Party leader openlychallenged what some considered the politically correct notionthat the Treaty was a foundation document of New Zealand’sorigins and had continuing importance to the nation’s future [55].

Politics aside, much of the wider public was genuinelyconfused to hear that there was uncertainty about ownership ofthe foreshore and seabed. Many agreed that until the Attorney-

General v Ngati Apa decision [53], ‘99 New Zealanders out of every100 believed that the land below the high water mark and seabedbelonged to the Crown that held it in trust for everyone’ [56].

4.1. Foreshore and Seabed Act 2004

In late 2003 the Labour Party-led government announced itsintention to legislate to protect the foreshore and seabed for allNew Zealanders, excluding those portions under private owner-ship, and guarantee a general right of public access along theforeshore [57]. Despite considerable opposition, and the WaitangiTribunal advising that further discussion was needed [58], in late2004 the government enacted the Foreshore and Seabed Bill,which fully came into effect on 17 January 2005. The 2004 Actvests the full legal and beneficial ownership of the publicforeshore and seabed in the Crown. The 2004 Act guaranteesthat all New Zealanders have access in, on and over the publicforeshore and seabed for recreational activities and provides forgeneral rights of navigation and boating and with no effect on thepublic’s ability to fish.

Section 12 of the 2004 Act removed the Maori Land Court’sjurisdiction over the foreshore and seabed, and s 10 removed theHigh Court’s common law jurisdiction on native title in relation tothe foreshore and seabed. Sections 32 and 33 set up newjurisdictions for these courts to hear claims for customary rightsorders and territorial customary rights but without vestingownership over any part of the public foreshore and seabed.

Customary rights orders recognise an activity, use or practicethat any group of Maori or non-Maori (Pakeha) has carried outcontinuously since 1840 to the present day. These orders do notconfer an estate or interest in land, though they are protectedunder the Resource Management (Foreshore and Seabed) Amend-ment Act 1991 (RMA Amendment Act) as a matter of nationalimportance, which may allow certain sites protection frominappropriate public access.

Territorial customary rights can be granted by the High Courtto any Maori group that can prove exclusive occupation and use ofan area since 1840. The group must hold title to at least asignificant portion of the land adjoining the relevant area. Anygroup can also apply to the High Court for a finding that the group

would have had territorial customary rights over that area if itwas not owned by the Crown. If successful, the group can applyfor a reserve over the area that would be administered by thegroup in conjunction with the Crown and the local authorityunder the RMA Amendment Act.

4.2. Public response and the political process

The Foreshore and Seabed Bill drew strong responses from bothMaori and Pakeha, as they grappled with its full implications [59].There were over 20,000 participants in the 5 May 2004 hikoi (protestmarch) on Parliament to oppose the Bill. The Labour Party-ledgovernment was criticised for its rapid legislative response to theAttorney-General v Ngati Apa decision [53], which was regarded asextinguishing most Maori rights to the foreshore and seabed,without obligation to pay compensation. It was asserted that therapid response violated common law principles and internationallaw. Moreover, the response disregarded the opportunity to educatethe public about the bases of Maori rights and a full appraisal of thepotential impact of the Attorney-General v Ngati Apa decision [16].The rapid response was also criticised by the United NationsCommittee on the Elimination of Racial Discrimination [60]. TheWaitangi Tribunal found that the foreshore and seabed were taonga(treasures) and protected by the Treaty. The Tribunal also found thatthe Crown’s Treaty obligations extended to the foreshore and seabedas much as they did to terrestrial land [58]. Enactment of the 2004Act split the Maori caucus in the Labour Party and led to formationof the Maori Party with the commitment to repeal the Act.

The legislative response to the Attorney-General v Ngati Apa

decision [53] heightened awareness that a Parliamentary majoritycan quickly change the extent that Maori customary rights areawarded protection [19]. This response also demonstrates theinherent tension between the legislature and judiciary regardingwho has the last word [32]. The legal principle that has dominatedthe relationship between Maori and the New Zealand state haslargely been parliamentary sovereignty; there have been nofetters on Parliament passing legislation that affects Maori, and asa result terrestrial land and the foreshore and seabed have been‘caught in a jungle of statute for over a century’ [26:184]. Somehave considered a solution might be to ‘bridle’ parliamentarypower to legislate in ways that are contrary to the guaranteesprovided in the Treaty. Consideration has been given to grantingthe judiciary power to make declarations whenever legislationwas found to be inconsistent with the Treaty guarantees [55].However, New Zealanders generally remain suspicious of judgesand prefer to use the political system [32].

Others have proposed entrenching the Treaty in supreme law,and this was proposed around the time the Treaty principles weredeveloped. It did not eventuate because many Maori wereconcerned that putting the Treaty into any law passed by Parliamentwould diminish its status from being ‘a powerful normative symbolwith moral legitimacy’ to a mere legal instrument that could thenbecome a ‘plaything for lawyers and judges’. Many considered thatas long as the Treaty remained outside the law, ‘its moral andnormative power can continue untouched, as a reference point forpolitical agitation’ [32:31]. But then, the moral force of pre-colonial‘here-first-ness’ could wane over time [61].

4.3. Review of the Foreshore and Seabed Act 2004

The results of the 2008 general election provided theopportunity for the Maori Party to reach political agreement withthe National Party to review the 2004 Act. In early 2009 a three-person Ministerial Review Panel was appointed. The Panel waschaired by a former High Court judge and Waitangi Tribunal chair.

R. Bess / Marine Policy 35 (2011) 85–9492

Some consider the Panel to be stacked in favour of Maori, makingits ensuing advice predictable [62]. In mid-2009 the Panelsubmitted its report [63] to the Attorney-General, which issummarised as follows:

�

Prior to the Attorney-General v Ngati Apa decision [53], thewhole of the coastal marine area to the outer limits of the12-nautical mile territorial sea, or to such outer limit ascustomarily could be controlled, was subject to customary titleunless it could clearly be shown that title to any specified parthad been properly extinguished. The legal rights of the generalpublic in the coastal marine area were confined to rights ofnavigation and fishing; � The 2004 Act did not effectively recognise and provide for

native title, as it took away the legal rights to have Maoriinterests determined by the courts. The Act also failed toproperly balance customary and public interests by advancingpublic interests at considerable expense to Maori interests;and

� Presuming the 2004 Act is repealed, there are several options

available, with the preferred option combining a nationalsettlement, local co-management arrangements and specificaccess and use rights. Furthermore, Maori with traditionalinterests in the coastal marine area could have some form ofcustomary or tikanga title to the foreshore and seabed, whilethe public has interests in access and navigation.

The report concludes that its preferred option should be seenas a beginning or catalyst for further dialogue before the optimaloption is finalised [63].

4.4. Replacement legislation

In early 2010 the National Party-led government released aconsultation document on options, and the government’s pre-ferred approach, for achieving an equitable balance of theinterests of all New Zealanders in the foreshore and seabed [64].In mid-2010 the government announced its decision to repeal the2004 Act and replace Crown ownership of the foreshore andseabed with a non-ownership public domain (takiwa iwi whanui).This non-ownership model will explicitly make the foreshore andseabed incapable of being owned by freehold title, except thoseareas already in private ownership. This model is in line withlegislation that recognises the government’s responsibility toregulate physical resources the Crown does not own, such asfishstocks and the continental shelf adjoining New Zealand’sexclusive economic zone. The replacement legislation will ensurepublic access for all to the foreshore and seabed and protection ofnavigation and fishing rights and existing use rights (licences,leases and consents) to the end of their term [65].

As set out in the consultation document, the replacementlegislation will include tests for the courts to apply to claims forterritorial customary title without vesting ownership. Alterna-tively, individual iwi can negotiate a settlement with the Crownoutside the courts. Similar to the tests for territorial customaryrights under the 2004 Act, the replacement legislation will requirea Maori group making a claim for territorial customary title toprove exclusive occupation and use of an area since 1840 without‘substantial’ interruption. The new territorial customary title testswill differ from the territorial customary rights tests under the2004 Act by

�

Incorporating the use of tikanga as the traditional system ofauthority, along with the Treaty principles and associatedjurisprudence;

�

Removing the requirement for continuous title to contiguousland; � Allowing for fishing by third parties within the definition of

exclusive occupation and use;

� Recognising legitimate customary transfers of territorial

interests between iwi and hapu post-1840; and

� Allowing for ‘shared’ exclusivity of the relevant foreshore and

seabed.

Since these tests are less stringent than those for territorialcustomary rights, more of the foreshore and seabed may berelevant to claims made for territorial customary title. The awardsfor proven territorial customary title will include the right to:

�

Decide whether or not an activity requiring a coastal permitunder the Resource Management Act 1991 (the RMA) could beprogressed by the consent authority; � Give or refuse to give consent to marine reserve applications under

the Marine Reserves Act 1971 and conservation protected areasand concessions made under the conservation legislation; and

� The option to develop a planning document that sets out the

coastal iwi/hapu objectives and policies. Local authoritieswould have to take account of the document in relation tothe RMA and relevant sections of the Local Government Act2002. The Ministers of Conservation and Fisheries would berequired to consider the document in relation to conservationand fisheries management, respectively.

The replacement legislation will include tests for recognitionand protection of non-territorial customary interests. These testswill include proving customary activities, uses and practices havebeen in existence since 1840 and continue to be carried out in aspecified area in accordance with tikanga. These tests will beapplied through the courts or negotiated in settlements with theCrown. The awards for proven non-territorial customary interestswill include:

�

Protection of customary activities, uses and practices under theRMA and exemption from certain environmental rules,including coastal permit requirements; � The ability to restrict or prohibit access to wahi tapu areas,

such as burial grounds; and

� The option to develop the same planning document as awarded

for proven territorial customary title but with lower status.

The replacement legislation will also provide recognition of themana of iwi regarding their relationship with the relevantforeshore and seabed (mana tuku iho). This recognition will beawarded without any claims made to the courts or negotiationswith the Crown. Once the replacement legislation is drafted, therewill be a select committee process that allows for further publicconsultation. The government intends to enact the replacementlegislation by late 2010 [64]. The Maori Party announced the mid-2010 decision fulfilled its promise to repeal the 2004 Act. TheParty referred to its work with the National Party as a Treaty-based partnership in practice that produced ‘some significantadvances’ [66].

It is too early to gauge the public response to the implicationsof the mid-2010 decision. Some Pakeha remain suspicious of thegovernment’s assurance the replacement legislation will protectpublic access to the foreshore and seabed, given that some iwi/hapu have been imposing closures of coastal areas (rahui) withoutstatutory recognition. Pakeha in general are aware of the potentialeconomic benefits for iwi/hapu by managing access to areas of theforeshore and seabed with customary title or interests status in

R. Bess / Marine Policy 35 (2011) 85–94 93

light of government initiatives to support an export-led economicrecovery by ‘unlocking’ New Zealand’s hydrocarbon and mineralreserves on land and under the seabed [67]. On the other hand,the replacement legislation, like the 2004 Act, falls short of thecommon law doctrine of continuity that recognised the propertyrights of the indigenous people and the doctrine of native titlethat recognised their legal right to their land. Time will tell whatwill unfold from the bill to replace the 2004 Act; the next andmost important step in this saga is its detail [68].

5. Conclusion

Although continuous use and possession of land had formedthe basis for title dating back to Roman times, it interferedwith the politics of expansion, and so it had to be circumventedduring the age of discovery [6]. Explorers and early settlersconsidered the indigenous people were outside natural law and,therefore, without legal rights to land. This view legitimisedindigenous people’s subjugation and confiscation of their land andother resources. With the development of the doctrine ofcontinuity, treaties were used to acknowledge the property rightsof the indigenous people and retention of title to their land.However, the early precepts of the doctrine of discovery,acquisition of land by conquest or other means, remainedpowerful and persuasive throughout 19th century colonisation,making the discovery doctrine the ‘perfect instrument of empire’[69:325].

With respect to New Zealand, Maori were denied the right tofreely sell their land without incurring costs that sometimes exceededthe land value and left them with few economic options [4].Continuation of Maori land leases could have had the effect ofcontrolling the speed of settlement, the price paid for land and thenature of settler relationships. For these reasons, Maori land leaseswere deeply at odds with the perceived role of the New Zealand stateto provide settlers with land. In the 1860s the military occupations,destruction of villages and confiscation provisions further disadvan-taged Maori, as they were alienated from most of their land [35].According to Boast [4], there is little doubt that government policy hasbeen both crude and effective in acquiring as much Maori freeholdland as was possible and as cheaply as it could. Nonetheless, Maoriengagement with colonial law shows that they were not alwaysoppressed and victimised [15]. The situation was different withrespect to rights to fisheries. For more than one hundred years, statuteand judicial decisions eroded Maori fishing rights by neglecting theirclaims, leaving them with limited involvement in most fisheries andlargely restricting their use to subsistence purposes [30].

Despite these conditions, Maori continued to influence thepolitical process to gain recognition of the Treaty, the Crown’sfiduciary duty and the doctrine of native title. The Treaty claimssettlement process has transferred vast amounts of land, ITQ andother assets that ensure Maori will have a continued and growingpresence in the overall economy [30]. Maori make up 15 percent ofthe population and the percentage is increasing. They are educated,urbanised and integrated within the dominant culture whilemaintaining and enhancing an assertive and distinct culturalidentity [32]. Maori culture continues to influence the dominantculture. In 1987 the Maori language was declared an officiallanguage, and Maori rituals have been co-opted to function as asort of civil religion. For example, the use of karakia (prayer) tocommence court proceedings and public meetings is increasinglypermitted. Pakeha reactions to Maori culture and spirituality andits official fostering and recognition have been mixed, ranging fromwarm acceptance to ridicule and hostility [31].

A further political consideration is the objection that somePakeha have to the ‘insatiable machine’ of the Treaty settlement

process. It would appear that many expect a democratic basis forresolving the foreshore and seabed debate to circumvent afloodtide of Te Riri Pakeha (white man’s anger) [62]. There isthe real potential for Te Riri Pakeha to collide with Te Riri Maori.While McNeil [16] considers the legislative response to theAttorney-General v Ngati Apa decision [53] was unduly hasty andunnecessary, he acknowledges that it may have prevented socialunrest and disharmony, which he considers is a sad reflection onNew Zealand society’s reputation for tolerance and respect for therule of law. Some would agree that the Treaty divides people bylending formal credence to the claim that those with Maoriancestry are the ‘people of the land’ and Pakeha cannot ever be,regardless of their contribution and number of generations livedin New Zealand [61]. The settlement of claims to fisheries makesexplicit that customary rights are separate from common rights ofcitizenship [70]. Awards for proven territorial customary title andnon-territorial customary interests will lead to further separationof these rights.

The challenge for all branches of government is to find theappropriate balance and limits between competing rights; withrespect to the Treaty, all branches of government have ‘walkedthe tightrope’ regarding the position for Maori within the fabric ofthe general social, legal and political framework [71]. Theoutcome of translating the mid-2010 decision into replacementlegislation by late 2010 could instigate a turning point in theCrown-Maori relationship and become a symbol of equitablepartnership; it could become an example of executive powerbased predominantly on the rights of one group over another [71].This situation should entice the wider public to give seriousconsideration to the doctrine of native title and the precepts of thedoctrine of discovery and their relevance in shaping NewZealand’s future.

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