Treaty does not stop at water's edge

Comment by JOCK BROOKFIELD*

A Herald editorial headlined Stealthy treaty extension had to be blocked over-reacted somewhat in its alarm at the Court of Appeal's decision in the Marlborough Sounds case, in which the court recognised the possibility of Maori customary title in land below high-water mark (the foreshore and the seabed).

Both the Herald and Sir Douglas Graham (in his article entitled Crown must lay claim on behalf of all) agreed there should be legislation countering the decision and declaring the Crown's ownership of the underwater land affected. Both articles invite comment.

If the court's decision is an extension of the Treaty of Waitangi, the treaty itself, so to speak, stopped at high-water mark. This, of course, cannot be so. Bays, harbours and estuaries, as well as the foreshore, were part of the original colony and the treaty applied to them as to the rest of the country.

As for the territorial sea beyond (originally three miles but now 12), there is no reason why it does not apply also to that and the underlying bed.

In any case, the treaty was not, as the editorial suggested, the basis for the court's decision. Quite apart from the treaty, the Crown in claiming sovereignty over New Zealand claimed also radical or ultimate title to all land, both dry and under water. That includes lake and riverbeds, the foreshore, and the seabed of bays, harbours and estuaries and the territorial sea.

Our system of land ownership rests ultimately on the grants of land made by the Crown under the common law that came when British sovereignty was established. (Sometimes the grants, especially in rural areas, included land under water. There are still many instances where, for example, foreshore and seabed are privately owned, as in tidal creeks in unsubdivided coastal land).

But the same common law recognises the customary property rights (or customary title) of Maori as the aboriginal people of the country.

The Appeal Court has merely affirmed that, where Maori customary title is claimed in parts of the foreshore or seabed, the Maori Land Court has the same power to investigate the claim as it has in respect of dry land and the beds of lakes and fresh water rivers.

So both the treaty and the common law apply to the land, whether under water or not. But it is the common law that is the basis for the successful appeal in the Sounds case.

The treaty is still important though, because its principles, as well as recognising Maori property rights, require that Maori be at least fully consulted about proposed legislation that would affect such rights.

Both the Herald and Sir Douglas seem to see the court's decision as a judicial novelty. It is not. The trend and logic of court decisions and of much legal writing has long been against the Crown's contention that it holds all ungranted areas of foreshore and seabed free of any Maori claim to customary title.

The decision should not have caused surprise. Statutes that Sir Douglas refers to as "specific", in declaring the Crown's title to foreshore or seabed, did not specifically extinguish Maori property rights there. They needed to do so, if the Crown's contention was to be supported.

Maori customary title proved in any part of the foreshore or seabed will not necessarily give exclusive possession of the area affected. The customary title may well consist of lesser, non-exclusive, rights of customary use (some of which may be affected by the Treaty of Waitangi (1992 Fisheries Claims Settlement Act or other legislation).

The title is likely to be subject, anyway, to public as well as international rights of navigation.

Where the rights are non-exclusive, their co-existence with public and commercial fishing rights will have to be worked out, perhaps by regulation along the lines suggested by Sir Douglas.

The position in Australia may be compared, where the High Court has held (Yarmirr's case, 2001) that the Australian common law recognises that non-exclusive Aboriginal customary rights may exist in territorial waters.

Public rights to fish and navigate, now much affected by legislation, are common law rights. But other rights, to the recreational use of beaches and the sea, are uncertain in many if not most coastal areas of New Zealand, there having been no general right at common law.

At present, at least in many parts of the coast, we swim in the sea not as of clear legal right but because the owner of the underlying bed allows us to do so. That is not satisfactory, even if it works in practice.

Legislation to remedy that is desirable, whether the owner of a particular area of foreshore or seabed is the Crown or Maori. The legislation should, too, ensure that marine farming does not (in Sir Douglas' words) grind to a halt. (That should not be difficult. The Crown could continue to lease the marine farms but as trustee for the ascertained Maori owners.)

The legislation should not go further and abrogate any Maori property rights. If it does, it should provide for compensation. If only for the purpose of assessing that, it will be necessary for the power of the Maori Land Court to determine a full range of customary rights, including the non-exclusive rights mentioned above, to be clarified.

In any event the successful appellants in the Sounds case must be left free to proceed in the Maori Land Court (where they will not necessarily be successful anyway), as the Appeal Court's decision allows them.

There would be a gross breach of established constitutional convention if Parliament reversed the judgments given in their favour.

The convention was broken when Parliament passed the 1982 Clutha Development (Clyde Dam Empowering) Act to annul a decision of the Planning Tribunal that had been given against the then Government.

That Government rightly incurred obloquy as a result; as the present Government will have noted.

The Sounds case must be considered against the background of colonisation. Much as some radical commentators dislike being told so, colonial government brought benefit to Maori, such as a much-improved rule of law.

But it brought disaster as well, in its grievously destructive effects on a communal society. That was certainly so in regard to customary property rights.

These are now, properly and in accordance with the rule of law, being reasserted over land below high water mark in the Marlborough Sounds.

The way should be left clear for the Maori Land Court, adequately empowered, to determine those rights in this and any other case that arises.

* Jock Brookfield, a professor emeritus at Auckland University, is the author of Waitangi and Indigenous Rights: Revolution, Law and Legitimation.