''Ngati Apa v Attorney-General'' was a landmark legal decision that sparked the

New Zealand foreshore and seabed controversy The New Zealand foreshore and seabed controversy is a debate in the politics of New Zealand. It concerns the ownership of the country's foreshore and seabed, with many Māori groups claiming that Māori have a rightful claim to title. These c ...

. The case arose from an application by eight northern South Island

iwi Iwi () are the largest social units in New Zealand Māori society. In Māori roughly means "people" or "nation", and is often translated as "tribe", or "a confederation of tribes". The word is both singular and plural in the Māori language, an ...

for orders declaring the foreshore and seabed of the

Marlborough Sounds The Marlborough Sounds are an extensive network of sea-drowned valleys at the northern end of the South Island of New Zealand. The Marlborough Sounds were created by a combination of land subsidence and rising sea levels. According to Māori m ...

Maori customary land. After lower court decisions and consequent appeals in the Maori Land Court, the Maori Appellate Court and the High Court; the

Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...

unanimously held that the Maori Land Court had jurisdiction to determine whether areas of foreshore and seabed were Maori

customary land Customary land is land which is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownersh ...

or not. The court also held that, "The transfer of sovereignty did not affect customary property. They are interests preserved by the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

until extinguished in accordance with the law". The effect of the decision was subsequently overturned by the

Foreshore and Seabed Act 2004 The Foreshore and Seabed Act 2004 is a former Act of the Parliament of New Zealand. It overruled the 2003 decision of the Court of Appeal in '' Ngati Apa v Attorney-General.'' Its passage arose out of, and further fueled, the New Zealand fo ...

Background

Justice Keith succinctly summarised how the case got before the Court of Appeal,

Judgments

The lowest common denominator of the four judgments is “crystal clear”: property rights cannot be extinguished by a “side wind”."

Elias CJ

Chief Justice Sian Elias addressed four main points in her judgment. Firstly, Elias CJ addressed the issue of who at

owned the foreshore and seabed and held, In response to arguments by the

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that there is a presumption of Crown ownership of the foreshore and seabed, Elias CJ cites a number of examples of nineteenth century legislation and evidence from Chief Justice Fenton acknowledging Maori

customary rights A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...

below the low water mark. Secondly, the judgment rejected the argument that the Maori Land Court did not have jurisdiction to determine the status of the foreshore and seabed because this area is not land. Elias Cj notes that, "Both lake beds and river beds have been the subject of claims to the Maori Land Court without jurisdictional impediment .. Much legislation concerned with “land” applies to seabed and foreshore". Thirdly, Elias CJ dismisses suggestions by the Crown that Maori customary interests have been expropriated by the Harbour Acts, Territorial Seas Acts or

Resource Management Act The Resource Management Act (RMA) passed in 1991 in New Zealand is a significant, and at times, controversial Act of Parliament. The RMA promotes the sustainable management of natural and physical resources such as land, air and water. New Zea ...

. Finally, the judgment dealt with the precedent created in '' In Re the Ninety-Mile Beach''

963 Year 963 ( CMLXIII) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * March 15 – Emperor Romanos II dies at age 25, probably of poison admini ...

NZLR 461 (CA) that, "any Maori customary property in the foreshore had been extinguished once the contiguous land above high water mark had lost the status of Maori customary land". Elias CJ held, "an approach which precludes investigation of the fact of entitlement according to custom because of an assumption that custom is displaced by a change in sovereignty or because the sea was used as a boundary for individual titles on the shore is wrong in law."

Gault P

The judgment of President Gault is the only dissent from the majority's overruling of ''In'' ''Re the Ninety-Mile Beach''. Gault P's argument is that, However Gault P notes that if land investigated by the

Native Land Court Native may refer to: People * Jus soli, citizenship by right of birth * Indigenous peoples, peoples with a set of specific rights based on their historical ties to a particular territory ** Native Americans (disambiguation) In arts and enterta ...

was described as not bordering the sea, the Maori Land Court would have jurisdiction to rule on the status of the strip between land and sea.

Keith and Anderson JJ

The decision of Keith and Anderson JJ was delivered by Justice Keith. The judgment of Keith and Anderson JJ concurs with that of Elias CJ that at common law pre-existing native title and rights continues to exist despite the conferring of radical title in the Crown. The judgment also notes that under New Zealand property law, "property in sea areas could be held by individuals and would in general be subject to public rights such as rights of navigation". On ''In'' ''Re the Ninety Mile Beach'', their judgment also notes that it is wrongly decided; "Whether the foreshore was also investigated and was determined to be the Crown's in the course of a particular process is a matter of fact, not a matter to be assumed." On the Territorial Sea Acts they additionally observe, "legislative measures claimed to extinguish indigenous property and rights must be clear and plain".

Tipping J

Justice Tipping joined with the majority of the court in overturning ''In'' ''Re the Ninety Mile Beach'', and with the whole of the court in declaring that there was no barrier stopping the Maori Land Court from investigating Maori customary rights in the foreshore and seabed. ''Ngati Apa v Attorney-General''

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3 NZLR 643 at 15 16 Tipping J restates the problem with the reasoning in ''In'' ''Re the Ninety Mile Beach'',

References

{{DEFAULTSORT:Ngati Apa v Attorney-General 2003 in New Zealand law Court of Appeal of New Zealand cases 2003 in case law Treaty of Waitangi