Sir Douglas Graham: A layman's guide to understanding customary title

Over the next few months the Government will have to decide what it's going to do about the foreshore and seabed.

The ministerial review panel recommends the repeal of the act and that seems a foregone conclusion.

Once done, however, the Government has the choice of letting the courts decide whether a customary title exists, or trying to do a deal with iwi now.

As there are clearly conflicting views on when a customary title exists and what it is, going to the court for a ruling seems the most sensible action.

The matter first arose when the court ruled that because the Crown had never extinguished customary title, the Maori Land Court could consider whether a customary title existed in a small area in the South Island. The court added that it thought it would be difficult for a claimant to prove a customary title.

Within hours some representatives of iwi, ignoring the court's note of caution entirely, claimed that because iwi had never sold the foreshore or seabed they still owned it all. Even the ministerial review panel seems to accept that customary title, if not extinguished, exists by default.

However, other legal experts say that that is not right and that iwi have to prove that the customary title exists. It's no wonder, then, that the public is confused.

Throw in the fact that these rights are only available to Maori and the activists and the rednecks are having a field day.

So here is a primer's guide to customary title as I understand it, based largely on Canadian and Australian court decisions which are likely to be followed here.

What are customary rights and a customary title?

The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived.

Who has them?

Not all Maori have the same customary rights. Inland Maori do not have sea fishing rights. So they are dependent on what customary activity was being carried out.

If Maori hunted with spears, are they still restricted to that?

No - hunters can use modern equipment while exercising their customary right to hunt.

Who actually owns New Zealand?

The Crown had the ultimate radical title to all land. But a customary title is "parasitical" to the Crown's rights until it is lost.

Is a customary title like my freehold title?

No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.

What rights go with it?

If a customary title is proved to exist, minerals and trees belong to them. But they cannot do anything inconsistent with the customary activity, such as strip-mine the land.

Do Maori have to prove a customary title or is it theirs by default?

Maori have to prove it exists by demonstrating on the balance of probabilities that an iwi was in exclusive possession of the land at 1840 and have continued to practise customary activities on it ever since. In Australia a spiritual association may suffice.

If Maori owned all the land before British settlement, how did the Crown deal with customary title?

In the 1860s The Native Land Act enabled Maori to convert their customary title to a Crown grant often to only 10 members of the iwi. This facilitated land sales and broke down communal ownership.

Relatively little land remains in customary title today. In Canada, treaties were entered into swapping customary title over large tracts of territory for small reservations.

How is a customary title lost?

Once proved to exist, a customary title can be lost by abandonment, by surrender to the Crown, or by extinguishment by Parliament. While it is a customary title it is inalienable.

Abandonment is similar to a failure to exercise ahi kaa. If extinguished by statute the intention to extinguish must be clear and usually some compensation is due.

Can it ever be regained?

No. Once lost, it is gone forever because the law only recognises customary rights that are still in existence.

Does the fact that we have the Treaty of Waitangi make any difference?

Not really. The Treaty imposes duties on both parties. The Crown has to act fairly and has fiduciary duties to Maori.

But no customary right can be asserted if it is inconsistent with Crown sovereignty. At the end of the day Parliament decides what the law will be.

Is it possible iwi could establish a customary title to the foreshore or seabed?

It would be very difficult for any iwi to show that in 1840 they were in exclusive possession of the seabed, particularly as much of it was not under New Zealand's jurisdiction until long after that. Nor is it likely they could show they have maintained possession of the seabed close to shore since.

It's possible there may be remote areas of foreshore from low to high watermark where it could be proved.

Could it be turned into freehold land?

Yes, but the Maori Land Court would have to order that and the law tries to prevent the alienation of any customary land.

What are the risks to the Crown by going to court?

The court may decline to follow overseas legal precedent and find that some iwi have customary rights to the foreshore and even the seabed.

What would happen then?

The Government would have to sit down with Maori to discuss what should be done. If it decided to extinguish any rights it would most likely have to pay compensation.

Would the public be stopped from going to the beach?

No one seems to be suggesting that whatever happens.

What are the risks to Maori by going to court?

The court might find that Maori have to prove a customary title and are unable to do so.

What would happen then?

That would be the end of the matter.

Is it better for the Government and Maori to try to work out something now?

That will be for the parties to decide. But there are problems assuming what the law is and it might be better for all involved if a court ruling was obtained so that both sides understand what rights and obligations each has.

* Sir Douglas Graham is a former Minister of Treaty Negotiations.