Waitangi and Indigenous Rights by F.M. Brookfield

Author:F.M. Brookfield [Brookfield, F. M. (Jock)]
Language: eng
Format: epub
ISBN: 9781869404956
Publisher: Auckland University Press
Published: 2010-12-31T16:00:00+00:00

Land under water as customary land

Where the customary title remains unextinguished, the land is ‘customary land’ for the purposes of Te Ture Whenua Maori Act 1993: that is, it is land held by Maori in accordance with tikanga Maori, defined in the Act as ‘Maori customary values and practices’97 and equivalent in our terms to Maori customary law. Very little customary land remains; very little, that is, if one has regard only to land not under water. As to land under water, it may be that some of it remains customary land, in which the Maori title (where it existed) has never been extinguished either by fair means or by means that (as we have seen) were part of the Crown’s giving effect to its revolutionary assertion of sovereignty over New Zealand. Here we must note a necessary requirement to the exercise of the power of extinguishment. In words quoted with approval by Blanchard J. in Faulkner v Tauranga District Council (1995),98 Brennan J. said in the High Court of Australia in Mabo v State of Queensland (No 2) (1992):

However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive. This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts dealing with the extinguishing of the native title of Indian bands in North America…. [R]eference to the leading cases in each [Canadian or United States] jurisdiction reveals that … native title is not extinguished unless there be a clear and plain intention to do so. That approach has been followed in New Zealand. It is patently the right rule.99

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