New Zealand Journal of Environmental Law
Last Updated: 12 February 2023
On the Crest of a Wave: Indigenous Title and Claims to the Water Resource
Mark B Schroder*
The doctrine of indigenous title originates from the theories of Francisco de Vitoria and Bartolomé de Las Casas, which informed the practice of European nations in their colonies. British colonial practice, the common law and the doctrine of continuity therefore allowed indigenous peoples to retain control of their lands and natural resources. The modern doctrine of indigenous title has subsequently received recognition, at different stages, in the courts of the United States of America, Canada, New Zealand and Australia.
The formulation of the doctrine, although originating from a similar base, has begun to diverge in the four jurisdictions. Context specific solutions have been developed in relation to the content of indigenous title, however, there seems to be a growing consensus that the content of such a title is not limited to traditional uses. This view also reflects emerging international rights norms which suggest that indigenous title includes a right to modern forms of development. Nonetheless, differences exist in relation to methods of extinguishment, the payment of compensation and the recognition of a fiduciary duty owed toward indigenous peoples.
The jurisprudence of the four nations, however, still provides persuasive guidance in applying the doctrine to particular resources. Therefore, in light of North American and Australian decisions and practices, Maori indigenous title rights clearly exist in respect of the sea. Maori title rights to the waters of rivers and lakes also remain because they have not been extinguished by the common law or legislation. Individual hapu and iwi can therefore claim a customary
title to particular waters by proving the nature and content of that right via tikanga.
Indigenous title is therefore a potent source for the recognition of Maori rights to the water resource. Subsequently any attempt by the Crown to extinguish a recognised title will require compensation to be paid to the relevant hapu or iwi.
1. INTRODUCTION: YEAR 512
Two streams of water flow into a coastal lagoon: one stream is tidal and salt from the sea; the other fresh from the rain on nearby hills. As the streams enter the lagoon there is, on the surface, the chaotic froth of their interaction which gradually establishes a recognisable pattern as the streams merge with the lagoon. But their separate identity is not wholly lost. At various levels the streams continue to exist, influencing and changing, but not destroying the diversity in the character of the lagoon.1
This is year 512. 512 years since Christopher Columbus discovered the ‘New World’ by setting foot upon the Americas on the 12th of October 1492. 512 years of relations between the ‘Old World Order’ and indigenous peoples.2 512 years of conquest, conversion, and colonisation. 512 years of dealing with competing claims to lands and resources. 512 years since diverse streams of people first came together and began to interact. 512 years during which the doctrine of indigenous title has developed to recognise the rights of First Nation peoples.
Although Columbus had desired “...to care for the Indians and let no harm or hurt be done to them...” the reality on the ground was far different.3 The Spanish therefore developed a principle of respect for Indian possession based on the theories of Francisco de Vitoria. Derived from these Spanish origins is the modern doctrine of indigenous title now recognised in the United States of America, Canada, New Zealand and Australia. The doctrine is given its content by the traditional laws and customs observed by the particular indigenous peoples. Furthermore, this content extends further than simply recognising traditional uses. The content of indigenous title is not frozen and can therefore extend to modern uses.
2. INDIGENOUS TITLE
The common law doctrine of indigenous title derives from the fact that prior to the introduction of British sovereignty, indigenous peoples controlled and occupied their lands and natural resources in accordance with traditional laws and customs. Upon the acquisition of sovereignty, whether by discovery, settlement, conquest or cession, the Crown obtained a radical title to the land. The Crown’s primary title, however, is burdened by the indigenous title, which is a beneficial title retained by the indigenous inhabitants by virtue of the doctrine of continuity.4 Thus the title remains until the Crown takes action to extinguish it by virtue of their law-making power as sovereign.
3. THE ORIGINS OF THE INDIGENOUS TITLE DOCTRINE
3.1 The Spanish Origin of Indigenous Title
Upon being confronted by a group of armed, elaborately dressed, pale skinned men, the indigenous peoples of the Americas would hear a proclamation read aloud to them in a strange foreign tongue. This proclamation was the Requerimiento, which was promulgated in 1513 following deliberations at the Spanish town of Burgos in 1512 regarding the formal basis of Spain’s right to conquer and rule the indigenous peoples of the Indies.5
King Ferdinand had been of the belief that the Spanish Crown’s title derived from papal foundations. With the ‘discovery’ of the New World by Columbus the Spanish Crown had turned to the papacy to provide an ecclesiastical legal basis for their title. Authority for Spain’s claim of jurisdiction had to come from Rome due to the Crown’s belief in the Petrine doctrine, that the Pope had universal jurisdiction. In 1493 Pope Alexander issued the papal bull of Inter Caetera granting title to all that Columbus had discovered to the Spanish Crown ‘forever’.6 The papal bull legitimised Spain’s actions by providing a mandate to colonise, civilise, and Christianise the New World.7
This mandate enabled the Spanish to create the encomienda system whereby groups of Indians were ‘commended’ to worthy Spaniards in order to spread the word of Christianity. In reality the system was a source of labour that ensured the Spanish were able to reap the financial benefits of their new land in the Americas.8 The clergy in the New World, however, soon became concerned with the “...genocidal fury of the Spanish colonists and conquistadors...” and appealed to King Ferdinand to investigate.9 This appeal led to the meeting of a council at Burgos in 1512, where discussions resulted in doubts arising in regards to the Crown’s rights deriving from the papal bull.10 King Ferdinand therefore requested the learned opinions of the theologian, Matias de Paz and the jurisconsult, Juan López de Palacios Rubios, who ultimately assured the Crown of the validity of its papally derived titles. Lopez was therefore assigned to draft the Requerimiento, a formal charter of conquest.11
The Requerimiento was required to be read aloud to any newly discovered group of Indians informing them that they could either accept Christian missionaries and Spanish imperial hegemony or be annihilated. If the Indians did not consent then the Spanish conquistadors could legally commence hostilities against them.12 In reality, however, the indigenous peoples were not given a chance to even consider the Requerimiento’s proclamation. According to Lewis Hanke:13
...the Requirement was read to trees and empty huts when no Indians were to be found. Captains muttered its theological phrases into their beard on the edge of sleeping Indian settlements, or even a league away before starting the formal attack, and at times some leather-lunged Spanish notary hurled its sonorous phrases after the Indians as they fled into the mountains.
The Requerimiento was relied on by Spain as the basis of legitimising its rule in the Americas. Such a position clearly sat well with those who argued that indigenous peoples, and in particular the Indians, were inferior or inhuman and therefore marked for subjugation.14 This view clearly contrasted with that of the ‘Spanish School’.
The Spanish School of theorists asserted that Indians were rational human beings who possessed rights of territory and sovereignty that had to be acknowledged by Europeans.15 The two main theorists of the Spanish School were Francisco de Vitoria and Bartolomé de Las Casas who wrote and lectured extensively on indigenous rights.
Vitoria (1486-1547), a professor of theology, is often hailed as one of the founding fathers of international law and modern indigenous rights.16 In De Indis Noviter Inventis (On the Indians Recently Discovered), a three-part lecture delivered in 1532, Vitoria asserted that the Indians were the true owners of their lands and that they were in fact rational beings possessing natural legal rights.17 Such a view stemmed from Vitoria’s concept of the Law of Nations, which recognised that certain rights inhere in all men and that state equality was applicable to all states, not just European or Christian nations.18 Vitoria therefore stated that:19
...unbelief does not destroy either natural law or human law; but ownership and dominion are based either on natural law or on human law; therefore they are not destroyed by want of faith...
Vitoria also rejected Spain’s papal title to the New World. For Vitoria title by right of ‘discovery’ could not apply to the Americas because they were already inhabited. Discovery could therefore only apply to deserted lands, that what belongs to nobody. For Vitoria discovery by itself “...gives no support to a seizure of the aborigines any more than if it had been they who had discovered
Arizona J Intl Comp L 1, 2.
us.”20 Therefore Spanish contentions of title, based on the Pope’s assertions as incorporated into the Requerimiento, were baseless according to natural law.21 Whilst refuting seven types of Spanish title, Vitoria also provided seven examples of adequate title that Spain could hold over the New World. Under natural law all nations had the right to sociability and trade. Spain therefore had the right to interact and trade with the Indians. Included in this notion of free trade was the Spanish right to exploit natural resources that were in abundance and not required by the indigenous peoples.22 An adequate title would result provided that transactions were carried out in a peaceful manner. However, if the Indians resisted, offending the principles of natural law, the Spanish could make war. Therefore failure by the Indians to recognise the rights of Spain under the law of nations and transgression of legitimate boundaries could result in the loss of title and resources through the mechanism of a just war.23 An unjust war,
however, could never provide a basis for legitimate title.
Vitoria also developed the principle of guardianship in that Spain might exercise a benign guardianship over the Indians “...just as if the natives were infants.”24 The theory was that Spain could control but also care for the indigenous peoples, civilising the backward whereby:25
...the sovereigns of Spain might undertake the administration of their Country, providing them with prefects and governors for their towns, and might even give them new lords, so long as this was clearly for their benefit.
Vitoria’s doctrine of respect for Indian possessions became the guiding principle of Spain’s laws in relation to indigenous peoples. In 1537 the doctrine was given papal support by Pope Paul III’s papal bull Sublimis Deus which proclaimed that:26
...the said Indians and all other people who may later be discovered by Christians, are by no means deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and
should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect.
Las Casas (1474-1566), a noted and prominent Indianist, saw Indians as under the direct control of the Spanish King whilst at the same time being under the authority of their own rulers. Las Casas therefore rejected the encomienda system as no individual other than the King could have direct authority over the Indians.27 Although both Las Casas and Vitoria saw all humans as equal rational beings regardless of religion, the view of Las Casas differed significantly in relation to indigenous rights. Las Casas viewed indigenous rights as encompassing material security, cultural integrity and political autonomy. Las Casas therefore saw the Crown in a paternalistic role, needing to protect the Indian population from the encroachment of Spanish settlers.28 Most notably, Las Casas saw indigenous title as defensible against European claims. Indigenous title could only be set aside by voluntary agreement with the Indians following conversion, and even then with “the natural rights of their lords...retained.”29
Felix Cohen’s essay ‘The Spanish Origin of Indian Rights in the Law of the United States’ links the Spanish School directly to the development of Indian law in the United States.30 For Cohen:31
...our [United States] Indian law originated, and can still be most clearly grasped, as a branch of international law, and that in the field of international law the basic concepts of modern doctrine were all hammered out by the Spanish theological jurists of the sixteenth and seventeenth centuries, most notably the author of the lectures De Indis, Francisco de Vitoria.
3.2 Colonial Practice
Unlike Cohen, F M Brookfield, whilst recognising Vitoria’s ideas, argues that the immediate origins of the common law doctrine of indigenous title are based on British colonial practice as it developed from the eighteenth century.32 Cohen notes “...that practically all of the real estate acquired by the United States since 1776 was purchased ...from its original Indian owners.”33 Such practice was clearly premised on the basis of the indigenous title doctrine which had received legal recognition via George III’s Royal Proclamation of 1763. In New Zealand, Paul McHugh notes that from the outset British settlers and the colonial office in London recognised the title of Maori tribes to their traditional land and conducted their affairs accordingly.34 Therefore from the early colonial days in North America and New Zealand, the doctrine of indigenous title formed part of the basic structure of colonial practice. In contrast historical practice in Australia dictated that the territory had been uninhabited and therefore the doctrine of indigenous title was never applied or recognised.
3.3 Common Law Title
Kent McNeil in ‘Common Law Aboriginal Title’ asserts that English law recognises indigenous title to land. For McNeil:35
[t]he doctrine of common law aboriginal title is based on the presumptions arising in English law from occupation of land. A person in factual occupation is presumed to have possession. From this conclusion in law other consequences follow, for seisen is presumed from possession, and the person seised is presumed to have a fee simple estate.
Recognition of indigenous land rights can therefore stem from the fact of possession via sources pre-dating the introduction of English law. McNeil, however, limits ‘factual occupation’ to the settled colonies of the dominions
noting that the doctrine of ‘original Indian title’ as developed in the United States is significantly different from the law in the British dominions.36
3.4 The Doctrine of Continuity
The doctrine of continuity holds that although the Crown initially has the power to terminate local property rights as an act of state, if it elects not to exercise that power, then local property rights are presumed to survive intact.37 This contrasts with the theory of radical discontinuity which holds that upon the Crown’s acquisition of a new territory the land rights of the local people are automatically terminated.38 Coke CJ’s report on Calvin’s Case in 1608 had provided a pre- colonial test of continuity. For Coke, the two forms of territorial acquisition of common law were conquest and descent.39 The laws of a Christian nation were held to survive conquest whilst the laws of a non-Christian nation were held to be abrogated ipso jure upon conquest. Coke held that non-Christian infidels were:40
...in law perpetui inimici, (perpetual enemies) for the law pressures not that they will be converted, that being remota potentia, (a remote possibility) for between them, as with the devil, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace.
Coke’s view, however, did not pass into the legal mainstream. By 1774 Coke’s opinion was seen as an embarrassment with Lord Mansfield holding in Campbell v Hall that non-Christian laws enjoyed the same presumption of continuity as Christian law.41 This presumption was first described in The Case of Tanistry which was decided in 1608, the same year as Calvin’s Case. The Case of Tanistry provided that indigenous laws survived British sovereignty unless they were inconsistent with the requirements of reasonableness, certainty, immemorial usage, and compatibility.42
40 Calvin’s Case (1608) 7 Co Rep 1a, 17a-17b; 77ER 377, 397-398 (KB) Coke CJ.
The Privy Council affirmed the principle of continuity in the 1957 case of Oyekan v Adele. Lord Denning held that upon British annexation of a territory the original land rights of the indigenous population remained due to the Crown’s acceptance that tribal property rights have a ‘legal’ as well as a ‘moral’ force.43 Lord Denning therefore stated that:44
In inquiring, however, what rights are recognised, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the property rights of the inhabitants are to be fully respected.
3.5 Reconciling the Origins of Indigenous Title
The origins of the indigenous title doctrine are to be found in the theories of the Spanish School. The foundation created by Vitoria and Las Casa clearly informed the practice of European nations in their colonies. British colonial practice was given further weight by the common law which presumed that those in factual occupation had possession and subsequently an interest in the land. The doctrine of continuity solidified this approach providing that local property rights survived the acquisition of sovereignty. Thus the common law allowed indigenous peoples to retain their lands whilst the doctrine of continuity allowed that possession to be governed by local laws and customs. This unique form of title has subsequently found judicial recognition in the courts of the United States, Canada, New Zealand and Australia, creating the modern doctrine of indigenous title.
4. INDIGENOUS TITLE IN THE UNITED STATES OF AMERICA, CANADA, NEW ZEALAND AND AUSTRALIA
The doctrine of indigenous title has a different name in each of the four jurisdictions. In the United States indigenous title is called ‘Indian’ or ‘original Indian title’ as distinct from ‘recognised Indian title’. In Canada and New Zealand the expression ‘aboriginal title’ is used whilst in Australia indigenous title is referred to as ‘native title’. In New Zealand indigenous title has also been referred to as Maori customary title, although Cooke P has noted that in the New Zealand context the expressions ‘aboriginal title’ and ‘Maori customary title’ are used
interchangeably.45 Indigenous title, therefore, refers to the doctrine generally whilst the various names are used in their location specific context.
In considering the formulation of indigenous title regard needs to be had to development of the doctrine in the four jurisdictions. The courts in each country have drawn on the jurisprudence and experience of the courts in the related jurisdictions in order to resolve local indigenous title claims. This is because the histories of the United States, New Zealand, Canada and Australia, despite notable differences, have a number of common features.46 British colonial expansion took the common law to North America, New Zealand and Australia. These territories were all originally occupied solely by indigenous peoples until they were displaced by settlers. As ‘settled’ colonies the common law applied in so far as local circumstances rendered any rules inappropriate.47 The four jurisdictions have subsequently been confronted with a number of complex issues concerning indigenous peoples, all of which stem from the colonial period. As Brian Slattery notes, the subject of indigenous title is perhaps the most significant of these issues.48
5. RECOGNITION OF THE INDIGENOUS TITLE DOCTRINE
5.1 United States of America
In the United States the first attempt to tentatively address the issue of who had title to the lands of the continent occurred in the 1810 case of Fletcher v Peck.49 Known as the ‘Yazoo’ case, Fletcher v Peck grew out of aggressive speculative schemes in Indian occupied lands claimed by the state of Georgia.50 In the Supreme Court’s majority opinion, Marshall CJ rejected the idea that Indians could hold absolute legal title to land. Rather, Marshall CJ acknowledged an Indian property right of ‘Indian title’.51 This designation established a legitimate
legal status for Indian land in American law with Marshall CJ urging that Indian title was “...certainly to be respected by all courts...” until legitimately extinguished.52 Indian title, however, was only one of occupancy with Marshall CJ stating that “...the nature of Indian title...is not such as to be absolutely repugnant to seisin in fee on the part of the state.”53 Dual legal titles therefore existed in which Indian tribes had a right of occupancy for the purpose of hunting whilst individual states could legally hold or transfer titles to the land.54
Recognition of the doctrine of indigenous title in the United States was established by the Supreme Court in 1823. In Johnson v McIntosh Marshall CJ noted that:55
...the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion.
Marshall CJ, however, went on to hold that discovery, by the British Crown, “...gives an exclusive right to extinguish the Indian title of occupancy, either by purchase, or by conquest...”56
At issue in Johnson v McIntosh was the nature of Indian title and the capacity of Indians to pass such a title.57 The Illinois and Piankeshaw tribes had sold land directly to Johnson’s group of land speculators in 1773 and 1775. The McIntosh group subsequently brought an action of ejectment having obtained a patent from the Untied States after the same tribes had ceded those lands to the federal government.58 Marshall CJ found that any individual who purchased lands directly from the Indians did so subject to their customary code and that such a title could be annulled by a subsequent sale by the Indians to the federal government.59 Central to Marshall’s reasoning was the doctrine of discovery. For Marshall
(Oxford University Press, Auckland, 1991) 106.
...discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
Marshall CJ therefore severely modified Vitoria’s theory of discovery, holding that ultimate title vested in the European discoverer.
In Worcester v Georgia Marshall CJ strengthened indigenous title by reconsidering the doctrine of discovery. For Marshall, discovery now:61
...gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it....It regulated the right given by discovery among the European discoverers; but it could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
Discovery therefore gave an exclusive right to purchase to the exclusion of others. It did not vest ultimate title in the discoverer.
The 1832 decision of Worcester v Georgia also saw Marshall CJ reiterate the existence of the indigenous title doctrine stating that “...[t]he Indian nations had always been considered as distinct, independent political communities, retaining their natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception...” that the rule of discovery enabled the discovering nation to extinguish the indigenous title.62 Marshall’s classification of Indian nations as distinct, independent political communities was important in the context of the case, which had been brought by a missionary asserting that Georgia laws did not apply on Cherokee lands. Marshall CJ therefore held that Georgia laws in relation to Cherokee lands were null and void.63
Marshall had formulated the classification of Indian nations in the previous year. In the 1831 case of Cherokee Nation v Georgia Marshall CJ held that the indigenous nations of the United States were ‘domestic dependent nations’ whose status was severely impaired.64 Marshall CJ therefore characterised the relation
of Indian nations to the United States as resembling that of a ward to his guardian, an idea similar to Vitoria’s principle of guardianship.65
Johnson v McIntosh, Cherokee Nation v Georgia, and Worcester v Georgia form the Marshall trilogy of cases which established indigenous title rights to land and resources in the United States. As Ronald Sackville has noted, the general principles articulated in the Marshall trilogy of cases “...have proved to be of enduring importance in both the recognition and extinguishment of indigenous rights to traditional lands.”66
In Canada, indigenous title has been recognised, in a limited form, since the 1888 decision of the Privy Council in St Catherine’s Milling and Lumber Co v The Queen. The Privy Council held that “...the tenure of the Indians was a personal and usufructory right, dependent upon the goodwill of the sovereign...”67 A usufructory right is a right to enjoy the use of another’s property without changing or diminishing its substance or value.68 The source of this right was the Royal Proclamation of 1763 which protected and recognised the rights of the Indian nations to the lands they occupied until the British Crown chose to dispose of them.69
This limited view of indigenous title in Canada remained until the 1973 case of Calder v Attorney General of British Columbia when the Supreme Court was forced to reconsider the source of indigenous title because the plaintiff Nishga tribe’s lands were not protected by the Royal Proclamation of 1763. Although the Nishga’s claim was dismissed, the six justices who rendered substantive decisions all accepted the existence of indigenous title in Canada. Judson J therefore held that indigenous title did not owe its origin to the Proclamation but rather to the fact of Indian prior occupation. As Judson J stated:70
...the fact is that when the settlers came, the Indians were there, organised in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means...
5.3 New Zealand
Indigenous title in New Zealand was first recognised in the 1847 case of R v Symonds. The case provided the Supreme Court with the opportunity to consider what effect the Crown’s assumption of sovereignty had on Maori property rights. The circumstances of R v Symonds were similar to those of Johnson v McIntosh in the United States. McIntosh, who had purchased a parcel of land directly from local Maori under the impression that the Crown had waived its pre-emptive right, attempted to set aside a grant of title to Symonds who had purchased the same parcel of land directly from the Crown.
Chapman J held that the indigenous title “...is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers.”71 The Supreme Court therefore considered the general principles conveyed in the Marshall trilogy to be applicable to New Zealand.72 The assumption of sovereignty by the Crown did not displace Maori property rights, the Crown therefore acquired an imperium right to govern whilst Maori retained dominium over the land.73
This formulation of indigenous title was repeated by a full Court of Appeal in 1872. In Re Lundon and Whitaker Claims Act 1871 the Court of Appeal stated that:74
[t]he Crown is bound, both by the common law of England and by its own solemn engagements, to a full recognition of native proprietary rights. Whatever the extent of that right by established custom appears to be, the Crown is bound to respect it.
Acceptance of the indigenous title doctrine in New Zealand, however, was short lived. In the 1877 case of Wi Parata v The Bishop of Wellington Prendergast CJ held that Maori customary law was non-existent, stating that “...statute cannot
71 R v Symonds (1847) [1840-1932] NZPCC 387, 390 (SC) Chapman J.
(Oxford University Press, Auckland, 1991) 97.
call what is non-existent into being.”75 It was therefore held that indigenous title required affirmative legislative recognition.
The decision in Wi Parata was, however, never accepted by the Privy Council. In Nireaha Tamaki v Baker the Judicial Committee indicated that Maori customary title was recognised by both the common law and statute.76 The Privy Council in rejecting Wi Parata and the denial of indigenous title stated that it was “...rather late in the day for such an argument to be addressed by the New Zealand Courts.”77
Despite the decision of the Privy Council in Nireaha Tamaki v Baker it was not until 1986, 109 years after Wi Parata, that the doctrine of indigenous title was again recognised in New Zealand. In Te Weehi v Regional Fisheries Officer Williamson J held that under English common law “...the local laws and property rights of [indigenous] peoples in ceded or settled colonies were not set aside by the establishment of British sovereignty.”78 The decision therefore re-established the doctrine of indigenous title in New Zealand. Paul McHugh states that Te Weehi rehabilitated the Symonds case, undoing the Wi Parata reasoning.79
The existence of the indigenous title doctrine in New Zealand was reaffirmed and strengthened in Te Runanganui o Te Ika Whenua Inc Soc v Attorney-General with Cooke P stating that:80
Aboriginal title is a compendious expression to cover the rights over land and water enjoyed by the indigenous or established inhabitants of a country up to the time of its colonisation. On the acquisition of the territory, whether by settlement, cession or annexation, the colonising power acquires a radical or underlying title which goes with sovereignty. Where the colonising power has been the United Kingdom, that title vests in the Crown. But at least in the absence of special circumstances displacing the principle, the radical title is subject to the existing native rights.
It was not until 1970 that an action was first brought in Australia to assert indigenous rights to traditional lands at common law.81 In Milirrpum v Nabalco
Pty Ltd Blackburn J of the Northern Territory Supreme Court concluded that the doctrine of indigenous title did not form any part of Australian law.82 Blackburn J’s determination therefore relied on the theory of discontinuity and its supplement, the theory of common law dispossession. The theory of dispossession holds that upon the introduction of English law the local inhabitants are automatically deprived of their existing land rights.83 Blackburn J subsequently held that since the Crown was the source of title to all land the Aboriginal peoples were automatically deprived of their ancestral lands.84
In 1992 the doctrine of indigenous title was finally recognised in Australia. In Mabo v Queensland (No 2) the High Court of Australia rejected the notion that Australia was a terra nullius at the time of British Sovereignty, asserting it as “an unjust and discriminatory doctrine.”85 Mabo (No 2) therefore established that the Crown, upon the acquisition of sovereignty, acquired a radical title to various areas of Australia, but not absolute beneficial ownership of the land. Furthermore the acquisition of radical title did not extinguish the rights of the indigenous inhabitants over the land.86 Instead the radical title was burdened by the proprietary rights of the indigenous peoples that derived from their continuing occupation.
6. THE SOURCE OF INDIGENOUS TITLE
The source of indigenous title according to Lamar CJC in the Canadian case of Delgamuukw v British Columbia is the prior occupation by indigenous peoples of their lands. That prior occupation is relevant for two reasons. Firstly, because of the physical fact of occupation and secondly, because indigenous title is also sourced from the relationship between the common law and pre-existing systems of indigenous law. This makes indigenous title sui generis in nature.87
In Mabo (No 2) Brennan J stated that “[n]ative title, though recognised by the common law, is not an institution of the common law...”88 However, Brennan J held that “[t]he common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to
which they give rise.”89 Subsequently there is a dual source of indigenous title rights, the common law and prior occupation subject to indigenous law.
Furthermore, the existence of indigenous title is not dependent on legislative or executive recognition.90 In United States v Santa Fe Pacific Railroad the Supreme Court held unanimously that “[n]or is it true, as the respondent urges, that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal government action.”91
7. THE NATURE AND CONTENT OF INDIGENOUS TITLE
7.1 United States of America
In the Supreme Court case of Mitchel v United States, Baldwin J asserted that Indian occupancy title was “as sacred as the fee simple of the whites.”92 Furthermore, Justice Baldwin stated that:93
Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorised sale to individuals...
In Canada indigenous title has been held to be a right in land. It is therefore more than a right to engage in specific activities.94 In Delgamuukw Lamer CJC stated that indigenous title:95
...confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive
cultures of aboriginal societies. The activities do not construe the right per se: rather, they are parasitic on the underlying title.
Lamer CJC, however, placed an inherent limit on the content of indigenous title. The limit provides that “[l]ands held pursuant to aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land which forms the basis of the groups claim to aboriginal title.”96
In Canada indigenous peoples are therefore allowed to use their lands in any manner they collectively choose, including rights to extract minerals and harvest timber. However, due to the sui generis nature of the title a limit is placed on the title so as not to destroy the special connection with the land.97 Therefore indigenous title in Canada is qualified by the fact that it is inalienable to anyone other than the Crown, that it is a communal right and that it is inherently limited so that, for example, a traditional hunting ground cannot be strip mined, as it would destroy the connection to the land.98
7.3 New Zealand
In New Zealand the nature and content of indigenous title is a matter of fact dependent on the evidence in any particular case. Cooke P in Te Ika Whenua noted that how indigenous title is “...decided or assessed tends to turn, not on the evidence only, but also on the approach of the Court considering the issue.”99 Therefore in New Zealand the content of indigenous title is by nature very uncertain as it is ultimately dependent on how the judge construes the evidence.100 In Te Ika Whenua Cooke P also recognised that indigenous title falls along a spectrum. In assessing the nature and incidents of indigenous title Cooke P noted
At one extreme they may be treated as approaching the full rights of proprietorship of an estate in fee recognised at common law. At the other extreme they may be treated as at best a mere permissive and apparently arbitrarily revocable occupancy.
99 Te Runanganui o Te Ika Whenua Inc Soc v Attorney-General  NZCA 218;  2 NZLR 20, 24 (CA) Cooke P for the Court.
In Australia, Brennan J held in Mabo (No 2) that:102
Native title is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to these laws and customs.
Although initially in Australia the content of indigenous title was held to be a right in land, recent decisions have moved away from this description. In Ward v Western Australia the High Court upheld the decision of the Federal Court that indigenous title was not an underlying title in land but rather a bundle of rights and interests in land.103
8. PRISONERS OF THE PAST?
A key issue regarding the content of indigenous title is whether the use of lands and natural resources are restricted to traditional uses or whether there is a right to modern forms of development.
8.1 United States of America
In the United States Marshall CJ, in Johnson v McIntosh, declared that indigenous peoples “...were admitted to be rightful occupants of the soil, with a legal as well as a just claim to retain possession of it and to use it according to their own discretion...”104 Subsequently the ‘frozen rights’ approach has been rejected in the United States.
In United States v Shoshone Tribe of Indian105 and United States v Klamath and Moadoc Tribes106 it was held that Indian title extended to the commercial exploitation of minerals and timber.107 In Shoshone the Supreme Court held that
indigenous title gave the tribe a right of occupancy with all its beneficial incidents.108 As Paul McHugh notes, such a determination is consistent with the common law rule that an owner of land holds everything on or below the surface, including minerals.109 Felix Cohen has therefore stated that the decisions in Shoshone and Klamath and Moadoc “...delivered a death blow to the argument that aboriginal ownership extends only to products of the soil actually utilised in the stone age culture of Indian tribes.”110
In Canada, a right to development clearly exists, subject only to the ‘inherent limitation’. Kent McNeil notes that “[w]hat [the inherent limit] really appears to mean is that aboriginal title, while not limited to aboriginal uses of the land at the time of sovereignty, is still limited by those uses.”111 Thus present uses are not restricted to but are restricted by past uses.112
McNeil subsequently argues that the ‘inherent limit’ in combination with the communal nature of indigenous title gives rise to rights of self-government. This would allow indigenous peoples to make collective decisions about culturally appropriate ways of utilising their lands and resources in a modern- day context.113 Self-government would also reject the paternalism implicit in the inherent limitation.114
8.3 New Zealand
In New Zealand the courts have also accepted that the content of indigenous title is not limited to traditional uses. In Ngai Tahu Maori Trust Board v Director-
General of Conservation Cooke P noted that the right of development of indigenous rights is indeed becoming recognised in other jurisdictions.115 The Ngai Tahu Maori Trust Board case saw the Court of Appeal hold that commercial whale watching tours were analogous to traditional fishing and shore whaling, relating this to the fact that historically indigenous peoples had guided visitors to see the natural resources of New Zealand.116 Therefore, although the decision in Ngai Tahu Maori Trust Board was based on the need to give effect to the principles of the Treaty of Waitangi, as provided by section 4 of the Conservation Act 1987, a right to development was clearly recognised.117
A right to development in New Zealand therefore seems to be premised on some historical connection. In Te Runanganui o Te Ika Whenua Inc Soc v Attorney- General Cooke P rejected claims that indigenous title rights extended to the right to generate electricity.118 Cooke P stated that “...however liberally Maori customary title and treaty rights may be construed, one cannot think that they were ever conceived as including the right to generate electricity by harnessing water power.”119 Therefore in New Zealand the content of indigenous title is able to evolve, however, such evolution is unlikely to encompass all contemporary forms of resource development and exploitation.120
In Australia the dynamic nature of indigenous legal systems and subsequently indigenous rights have been recognised. In Mabo (No 2) Brennan J stated that “[o]f course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too.”121 Subsequently the High Court of Australia did not consider that the content of indigenous title was frozen. The evolution of such rights, however, would depend upon the ‘general nature’ of the traditional connection to the land being maintained.122
122 Mabo (No2), ibid, 42-44 Brennan J; Richard Bartlett “Native Title: From Pragmatism to Equality before the Law” (1995) 20 Melb U LR 282, 293.
8.5 International Right of Development
A right of modern development is a general human right, not one specific to indigenous peoples.123 Article 1(1) of the United Nation’s Declaration on the Right to Development provides that:124
[t]he right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
An indigenous right to development has, however, also been asserted in the International Labour Organisation’s Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries. The basic theme of Convention 169 is to recognise “the aspirations of [indigenous] peoples to exercise control over their own institutions, ways of life and economic development...”125 Article 7, one of the central provisions of the Convention, states that:126
[t]he peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use and to exercise control, to the extent possible, over their own economic, social and cultural development.
A right to development has also been included in the Draft United Nation’s Declaration on the Rights of Indigenous Peoples. Article 26 provides that “[i]ndigenous people have the right to own, develop, control and use the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used.”127 Article 30 states that “[i]ndigenous peoples have the right to determine and develop priorities
and strategies for the development or use of their lands, territories and other resources...”128 Although both the Convention and Draft Declaration require ratification by individual countries to have effect, the principle of an indigenous right to development is emerging in international law. Such a principle suggests that indigenous rights are not frozen.
Restricting indigenous rights to traditional uses is clearly discriminatory. The nature of human development is premised on the sharing of knowledge. Taking a static view of any society would result in development rights being frozen. All peoples have a right to development and subsequently indigenous peoples should not be treated as prisoners of the past. It is therefore conceivable that ‘inherent limitations’ placed on indigenous title may in future be rejected via reference to developing international rights norms.
9. INDIGENOUS TITLE AND INDIGENOUS RIGHTS
In Delgamuukw the Supreme Court of Canada made a clear distinction between indigenous title and indigenous rights. The Court held that there is a range of indigenous rights constitutionally protected by section 35(1) of the Constitution Act 1982.129 The effect of section 35(1), which states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed,” has been to constitutionalise pre-existing indigenous rights. Lamer CJC therefore held that indigenous title is a species of indigenous rights recognised by section 35(1).130
The rights affirmed by section 35(1) have therefore been held to fall along a spectrum according to their degree of connection with the land. At one end of the spectrum is an indigenous title which confers a right to the land itself. In the middle of the spectrum are site-specific rights which include activities related to a particular tract of land, but which fall short of an indigenous title. Finally, at the other end of the spectrum are non-site specific rights. These rights are practices and customs which are integral to a particular group’s culture, but are insufficient to create a claim to title.131
The rights affirmed by section 35(1) of the Constitution Act can also be infringed via regulation that falls short of extinguishment.132 The test for infringement by either provincial or federal government requires that there be a compelling and substantial legislative objective. Such objectives include the development of agriculture, forestry, mining and hydroelectric power, protection of the environment and the building of infrastructure.133 The second arm of the justification test requires consultation with or consent from the indigenous group whose rights are being infringed. This requirement arises from the fiduciary relationship between the Crown and indigenous peoples.134
This characterisation of indigenous rights according to their connection to land is of particular relevance to the New Zealand context. Paul McHugh in The Maori Magna Carta states that there are two types of indigenous title, ‘territorial’ and ‘non-territorial’ indigenous title. A ‘territorial’ title represents full indigenous title whilst a ‘non-territorial’ title is a lesser form of right that does not include claims of complete ownership. Thus ‘non-territorial’ title arises from the partial extinguishment of indigenous title.135
A ‘non-territorial’ title was held to exist in New Zealand in Te Weehi. In that case Tom Te Weehi was exercising a customary right to collect paua outside of his tribal region. Williamson J therefore noted that:136
...the customary right contended for in this case is not based upon ownership of land or upon an exclusive right to a foreshore or bank of a river. In that sense this claim is a ‘non territorial’ one.
It was subsequently held that Te Weehi was exercising a customary right which was not related to the land.137
There are two possible outcomes arising from the Te Weehi decision. Firstly, the ‘non-territorial’ approach allows claimants to side step statutory bars that prevent indigenous title claims to land against the Crown.138 Therefore future claims to the foreshore, sea, and seabed can be based in a ‘territorial’ title approach, whilst claims to other natural resources can be based on a ‘non- territorial’ title approach. Secondly, the ‘non-territorial’ approach may confine
(Oxford University Press, Auckland, 1991) 138-139.
138 Limitation Act 1950, s6(1A)(a): “Where any action to recover land that is Maori customary land within the meaning of Te Ture Whenua Maori Act 1993 is brought against the Crown or any person claiming through the Crown, this Act shall apply to that action...”
claims of indigenous title in New Zealand to the bundle of rights approach adopted in Australia. This arises because ‘non-territorial’ title rights have no connection to the land.
In Australia indigenous title has been held to be a bundle of rights and interests in land.139 The bundle of rights analysis enables each right to be extinguished one by one thus making indigenous title in Australia inherently fragile. The bundle of rights approach also means that indigenous title can be partially extinguished in Australia. Where a third party interest is inconsistent with the exercise of particular indigenous title rights then only those rights will be extinguished permanently.140
10. PROOF OF INDIGENOUS TITLE
The test for proof of indigenous title is similar in both Canada and Australia. Essentially, in order to claim an indigenous title, the indigenous people must prove that they exclusively occupied the claimed land at the time Crown sovereignty was asserted. Furthermore the onus of proving this exclusive occupation rests with the indigenous peoples claiming the title.
In Delgamuukw Lamer CJC set out three criteria for proving indigenous title. Firstly, that the land must have been occupied prior to sovereignty.141 This occupation needs to be proved by evidence of physical occupation and connections to the land via tradition and custom.142
The second criteria is that “...if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre- sovereignty occupation...”143 There does not, however, need to be an unbroken chain of continuity. As in Mabo (No 2), the requirement is that a substantial maintenance of connection has been maintained between the people and the land.144 If this connection is not maintained, then, as noted in Mabo (No 2), “...the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.”145
144 Delgamuukw, ibid, 258 Lamer CJC (Cory and Major JJ concurring). 145 Mabo v Queensland (No 2)  HCA 23; (1992) 107 ALR 1, 46 (HCA) Brennan J.
The third criteria requires the occupation to have been exclusive.146 This means that the claimants must have had the ability to exclude others from the land.147 However Lamer CJC also held that a joint indigenous title was possible if indigenous groups shared the right to exclude others from the land.148
In contrast, to prove an indigenous right in Canada, the ‘integral to the distinctive culture’ test applies. In R v Van der Peet Lamer CJC held that in order to prove a free standing indigenous right, that right must have existed prior to the time of European contact.149 The right has to have existed pre-contact in order for it to remain unmodified by European influences and therefore retain its distinctive qualities.
In New Zealand Elias CJ in Ngati Apa v Attorney-General noted that “[t]he existence and content of customary property is determined as a matter of the custom and usage of the particular community.”150 The date for determining title to land in New Zealand would seem to be the date upon which Crown sovereignty was asserted. The Native (now Maori) Land Court, which was created to investigate title to Maori lands, adopted the ‘1840 rule’ as established by the Compensation Court’s seminal Oakura block judgment of 1866.151 In the Oakura judgment Chief Judge Fenton stated that:152
Having found it absolutely necessary to fix some point of time of which the titles...must be regarded as settled, we have decided that the point of time must be the establishment of British Government in 1840, and all persons who are proved to have been the actual owners or possessors of land at that time, must (with their successors) be regarded as the owners or possessors of those lands now...
Therefore to prove the existence of an indigenous title in New Zealand evidence must be presented to show that the land or resource is controlled and
146 Delgamuukw, supra 141, 253 Lamer CJC (Cory and Major JJ concurring). 147 Delgamuukw, supra 141, 259 Lamer CJC (Cory and Major JJ concurring). 148 Delgamuukw, supra 141, 259 Lamer CJC (Cory and Major JJ concurring). 149 R v Van der Peet  2 SCR 507, 555 (SCC) Lamer CJC.
regulated in accordance with tikanga Maori. That means the resource must be held according to traditional customs and usages.153
11. EXTINGUISHMENT OF INDIGENOUS TITLE
Indigenous title can be extinguished by voluntary cession, fair purchase or by legislation.154 In North America and New Zealand the test for determining whether indigenous title has been extinguished by legislative act is that of clear and plain intention. Implicit in the Crown’s sovereignty is the right to extinguish indigenous title. However there is a presumption against extinguishment and therefore clear and plain intention is required.
In New Zealand the test for extinguishment was developed by Blanchard J in Faulkner v Tauranga District Council. Blanchard J stated that:155
It is well settled that customary title can be extinguished by the Crown only by means of a deliberate Act authorised by law and unambiguously directed towards that end ... [c]ustomary title does not disappear by a side wind. Where action taken by the Crown which arguably might extinguish aboriginal title is not plainly so intended the Court will find that the aboriginal title has survived.
Thus any legislation purporting to extinguish indigenous title must show a clear and plain intent to do so. This test was reaffirmed by Keith J in Ngati Apa v Attorney-General stating that:156
The protective approach adopted in the earlier American and Privy Council authorities is to be seen in more recent rulings of the Supreme Court of Canada, the High Court of Australia and this Court: the onus of proving extinguishment lies on the Crown and the necessary purpose must be clear and plain.
In Calder v British Columbia Hall J in his dissent concluded “...that the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent and that intention must be plain and clear.”157 This rule was unanimously adopted by the Supreme Court of Canada in R v Sparrow.158 In
154 R v Symonds (1847) [1840-1932] NZPCC 387, 390 (SC) Chapman J.
Canada only the federal government has the power to extinguish indigenous title. Federal and provincial governments, however, both have the power to infringe upon indigenous title and rights.159
In Australia, Brennan J in Mabo (No 2) held that indigenous title is not extinguished unless there is a clear and plain intention to do so, stating that “[i]t is patently the right rule.”160 However, Mabo (No 2) also recognised other methods of extinguishment in Australia. Indigenous title has been held to be extinguished by laws, acts, or grants creating rights in third parties which are inconsistent with the survival of indigenous title.161 Indigenous title in Australia can also be extinguished by the Crown acquiring a full beneficial title to the land, either via statute or appropriation without statutory authority.162
Furthermore, indigenous title in Australia can be extinguished by both Federal and state governments. State law, however, will not extinguish indigenous title if it is inconsistent with valid Commonwealth legislation such as the Racial Discrimination Act 1975 (Cth) which prevents discrimination on the basis of race.163 In contrast, the position in the United States is that only the Federal government has the power to abrogate indigenous title. This is because Congress has a ‘plenary power’ of full jurisdiction over Indian affairs.164 This view has existed since Worcester v Georgia where it was held that state law does not apply to Indian lands or affairs. Individual states therefore, as in Canada, lack the constitutional capacity to extinguish indigenous title.165 In New Zealand, as a unitary system, the government as the Crown has sole right to extinguish indigenous title.
In the United States and Australia the idea that there is a duty to pay compensation for the extinguishment of indigenous title has been rejected. In Tee-Hit-Ton Indians v United States Justice Reed, delivering the opinion of the Supreme Court, stated that indigenous title was not a property right within the meaning of
the Fifth Amendment, which requires just compensation for the congressional taking of property.166 The taking of Indian lands was therefore held to be non compensable because original Indian title was not specifically recognised by Congress.167
Therefore only the taking of Indian title lands ‘recognised’ by Congress, via treaty, statute or agreement, could give rise to compensation.168 Even then, the involvement of the courts in determining compensation was curtailed by the plenary power of Congress.169 The majority judgments in Mabo (No 2) also rejected the notion that compensation was payable.170 Brennan J declared that indigenous title could be unilaterally extinguished without compensation.171
In Canada the position on compensation is uncertain. In Calder Hall J left open the question of compensation.172 In Delgamuukw Lamer CJC noted that “...the lands held pursuant to aboriginal title have an inescapable economic component.”173 Such a statement suggests that compensation for the extinguishment of indigenous title is payable in Canada. In contrast it has already been noted in New Zealand that compensation is payable. In Te Ika Whenua Cooke P stated that “...there is an assumption that, on any extinguishment of aboriginal title, proper compensation will be paid...”174
13. FIDUCIARY DUTY
The existence of a fiduciary relationship between indigenous peoples and the relevant sovereign is an important factor when considering issues of extinguishment, infringement and compensation in regards to indigenous title. In the United States a general trust relationship exists between indigenous peoples
and the federal government which imposes fiduciary obligations to protect tribal interests.175 Such obligations, however, have never been given effect by Congress or the courts due to the decision of Lone Wolf v Hitchcock where it was held that Congress is presumed to have acted in ‘perfect good faith’ when dealing with indigenous lands.176 In the United States v Sioux Nation the Supreme Court rejected this presumption of good faith.177 Subsequently, when Congress takes ‘recognised’ Indian land, good faith will be assessed in light of the adequacy of the consideration given.178
In Canada the Supreme Court case of Guerin v R recognised that the Crown has a general fiduciary duty to protect indigenous people in the enjoyment of their rights and lands.179 Dickson J held that the fiduciary relationship between the Crown and indigenous peoples has its roots in the concept of indigenous title.180 The existence of a fiduciary relationship derives from the fact that indigenous interests in land are inalienable except upon surrender to the Crown.181 A fiduciary relationship therefore arises because the principal’s interests are dependent upon and can be affected by the manner in which the fiduciary uses
their delegated discretion.182
In New Zealand a fiduciary duty has also been recognised as existing between Maori and the Crown. In Te Ika Whenua Cooke P stated that “[a]n extinguishment by less than fair conduct or on less than fair terms would likely be a breach of the fiduciary duty widely and increasingly recognised as falling on the colonising power.”183 A fiduciary duty extending to active protection of Maori interests has also been recognised in New Zealand as a principle of the Treaty of Waitangi.184
The Treaty, however, must be expressly recognised by statute before it becomes enforceable in the courts.185 The existence of a fiduciary duty in Australia was also suggested by Toohey J in Mabo (No 2).186 Toohey J stated that “[t]he fiduciary relationship arises...out of the power of the Crown to extinguish traditional life by alienating the land...”187 The vulnerability of the rights of indigenous peoples in relation to the Crown therefore gives rise to a fiduciary obligation on the part of the Crown.188
The developing recognition of a fiduciary duty, particularly in Canada and New Zealand, suggests that to extinguish indigenous title consent or compensation will be required. In Delgamuukw Lamer CJC noted that the extinguishment or infringement of indigenous title will often require the full consent of an indigenous nation.189 Therefore, even clear and plain extinguishment of indigenous title may breach the fiduciary duty if consent to or compensation for the abrogation of the right is not obtained or given. Mere good faith consultation may not be enough to displace the duty unless the infringement or breach is relatively minor.190 Compensation and consent to extinguishment therefore exists as a fiduciary obligation. If consent or compensation for the extinguishment of indigenous rights or title is not granted then a claim for compensation for a breach of the fiduciary duty will exist.
14. THE TIDE OF HISTORY: INDIGENOUS TITLE IN THE NEW ZEALAND HISTORICAL CONTEXT
The history of the relationships between indigenous peoples and subsequent settlers revolves around a desire to control natural resources.191 Central to this quest for control is land. For all settler societies the acquisition of land is necessary for economic development and expansion. Control of natural resources therefore provides a basis for both economic and political power. As noted in ‘A New
Zealand Legal History’ “[t]he fulcrum of the relationship between Maori and the law of the New Zealand state was land.”192
In New Zealand, as in the United States, Canada and Australia, the law was used to strip indigenous peoples of their rights in natural resources.193 Indigenous title to land in New Zealand has been largely extinguished via Crown purchase, legislative confiscation and Maori Land Court conversions to freehold title. Consequently indigenous title claims to water are one of the few remaining avenues for Maori to re-establish some control over a significant natural resource. Claims to water could be hindered, however, by the fact that the extinguishment of land rights may have resulted in a loss of connection to the water resource. The tide of history may therefore have washed away Maori customary rights.194 Nonetheless, such a view may be rebutted by noting that Crown policies actively sought to extinguish Maori rights in resources via confiscations and the destruction of the Maori system of communal land tenure.195 Futhermore, the Crown and the courts, from 1877 to 1986, rejected the existence of Maori title rights. Such factors should be considered in assessing whether or
not a suitable connection to the resource has been maintained.
15. OF THE EARTH AND SKY: MAORI AND THE NATURAL ENVIRONMENT
In Maori tradition all elements of the natural world are related through whakapapa (geneology). Maori mythology therefore provides that the world was created through the union of Ranginui (the Sky Father) and Papa-tua-nuku (the Earth Mother).196 Ranginui and Papa-tua-nuku were the parents of all creation. They lay clasped together and bore many sons, these sons were the elements of life.197 Tane, the first son, grew tired of living in the continually dark and cramped space between his parents. He decided to render his parents apart, so that the sky would stand far above as a stranger whilst the earth would remain close below as the nursing mother.198 Tane, placing his feet against Ranginui and bracing
(Ministry of Maori Affairs, Wellington, 1991) 2.
his hands against Papa-tua-nuku, forced them apart creating space between earth and sky, allowing his brothers and himself to escape into the light.199
Upon the separation of their parents the brothers fought amongst themselves for dominance. Tangaroa became god of the sea. Tumatauenga, the fiercest of the offspring, became the god of war.200 Haumia and Rongo became the gods of wild and cultivated foods whilst Tane created his own dominion as god of the forests and all living things that inhabit them. Tane also created human life, fashioning a female figure from the earth and breathing mauri (life) into her nostrils.201 Tawhirimatea, who had wished for his parents to remain together, followed Ranginui to the realm above and punished his brothers by becoming the god of winds and storms.202
Maori values and attitudes in relation to the natural environment therefore derive from Maori creation mythology which provides that all natural and living things are related as descendents of Ranginui and Papa-tua-nuku. This worldview therefore establishes an interrelatedness between humans and nature, creating a sense of belonging to nature rather than being ascendant to it.203
16. MAORI PERSPECTIVES OF THE WATER RESOURCE
Maori, prior to the arrival of Europeans, had developed customs and traditions in relation to water to ensure the health and quality of aquatic resources. Water resources had and have both metaphysical and spiritual values.204 Water resources within tribal boundaries were zealously guarded, with the controlling hapu (sub tribe) or iwi (tribe) being responsible for maintaining the quality of the water.205 For Maori water is perceived as having a life essence (mauri), it is a living thing animated by a spiritual force (wairua).206 Streams, rivers, lakes, estuaries and harbours are therefore seen not only as sources of food and transportation, but also as living entities with their own intrinsic value.207
Customary rights to use water were communal, being held by hapu or iwi rather than individuals.208 Customary rights were also complex with elaborate rules, restrictions, and guidelines existing in relation to water. Metaphysical concepts such as mauri, tapu, mana, rahui, utu and muru were utilised to control the use of the resource. For example, because each body of water was and is an individual entity, separate waters were and are not mixed as this would violate the mauri.209 Mauri can also be degraded by pollution. Water which has lost its mauri is waimate because it no longer has the power to rejuvenate either itself or other living things. Water that has been spoilt is waikino because its mauri has been degraded.210 Water in its purest form is known as waiora, and is considered to be the physical expression of Ranginui’s tears as he wept for Papa- tua-nuku.211 Waimaori is lucid freshwater which flows freely on the ground and is subsequently controlled by Tane. Waimaori water is for normal use whereas the use of waiora water is restricted to ritual purposes. Waitai describes the sea, surf, and tide and is used to distinguish salt water from fresh water. Waitai water therefore comes under the authority of Tangaroa, the god of the sea.212
17. CULTURAL DIFFERENCES
The European attitude towards water contrasted with that of Maori. Water was seen as a versatile transport medium and because of its ability to break down and assimilate waste it has been intimately linked to waste disposal.213 Such use directly conflicted with Maori beliefs and illustrates the cultural differences that existed and still exist between Maori and Europeans in relation to natural resources.
Historically, European views on the environment have been shaped by religion. Western Christianity placed humans at the centre with the right to
(Ministry of Maori Affairs, Wellington, 1991) 5.
conquer, subdue and to have domain over nature.214 Advances in science and technological developments reinforced this worldview. The rise of capitalism saw economics become the dominant value. Capitalism advocates development and exploitation of resources in the interests of economic growth. European views on the natural environment were and to a certain extent still are, anthropocentric.
The preoccupation with human progress and domination, when coupled with a contempocentrist preoccupation with the present, places European values in direct contrast with those of Maori. Whilst Maori saw themselves as part of nature, Europeans saw themselves as ascendant to nature. Such views persist at present, although developing environmental awareness has shifted the balance towards recognition of the natural environment’s intrinsic value. Maori claims to the water resource are therefore significant, not only in providing control of an important resource, but also in terms of recognising and respecting Maori environmental beliefs and practices.
18. INDIGENOUS TITLE TO WATER?
The doctrine of indigenous title is not restricted to land. Cooke P in Te Ika Whenua stated that “[a]boriginal title is a compendious expression to cover the rights over land and water enjoyed by the indigenous or established inhabitants of a country up to the time of its colonisation.”215 Cooke P has therefore confirmed that the doctrine of indigenous title extends to water, not just land.
The Waitangi Tribunal in the Whanganui River Report has also noted that in the Canadian case of Calder, the Nishga were recognised to be the owners of the lands and waters which had been in their possession from time immemorial.216 The Nishga’s claim, however, was dismissed because Judson J, with Martland and Ritchie JJ concurring, held that whatever property rights may have existed, those rights had subsequently been extinguished.217 The view of Judson J and his two colleagues prevailed because Pigeon J ruled against the Nishga on a
matter of jurisdiction.218 The Waitangi Tribunal has, however, stated that “...Maori owned the water as part of that which they possessed.”219
The fact that English law did not recognise an ownership right in water unless abstracted does not prevent the establishment of an indigenous title to water. In Amodu Tijani v Secretary, Southern Nigeria Lord Haldane warned that:220
There is a tendency, operating at times increasingly, to render [indigenous] title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.
Indigenous title is sui generis and although it is recognised by the common law, it derives its content from the traditions and customs of the particular indigenous peoples. Therefore if it can be established that a particular water resource was controlled and regulated in a manner that equates to some conception of ownership, then an indigenous title to that resource will exist.
The doctrine of indigenous title therefore clearly extends to water. Upon the acquisition of sovereignty, the Crown acquired a radical title not only to land, but also to the water of New Zealand’s rivers, lakes, and sea, in accordance with the long established principle of the common law, that the title was burdened by and subject to the pre-existing rights of Maori.
19. STATUTORY LIMITATIONS ON MAORI CLAIMS
In order for Maori to claim a title to the waters of rivers, lakes or the sea, a statutory limitation needs to be negated. Under section 84 of the Native Land Act 1909 customary title to land was deemed not to be enforceable against the Crown in any court.221 The effect of this provision was repeated in the Maori Affairs Act 1953 via section 155 which also prevented Maori from enforcing their customary title to land against the Crown.222
The limitations of the 1953 Act were not repeated in the Te Ture Whenua Affairs Act 1993 (Maori Land Act 1993) however all claims to recover Maori customary land are now subject to the Limitation Act 1950. Section 6(1A)(a) of the Limitation Act prevents all actions to recover customary land as defined by
the Maori Land Act 1993 that are not brought within 12 years from the date at which the alleged violation occurred.223 Section 6(1A)(b) prevents actions to recover damages against the Crown in respect of Maori customary land after six years from the date at which the alleged violation occurred.224
The limitations, however, extend only to customary land, the definition of which does not include water. Maori customary land is defined in section 129(2) of the Land Act as being “[l]and that is held by Maori in accordance with tikanga Maori. ”225 Therefore indigenous title claims to water are not subject to the
statutory bar of the Limitation Act.226 It is also possible that the statutory limitation could be negated, as R P Boast suggests, simply by advancing an application for a declaration without naming the Crown as a defendant.227
F M Brookfield has also suggested that the focus of the Limitation Act is to prevent actions concerning specific past wrongs. The effect of section 155 of the Maori Affairs Act, which has not been repeated, was to prevent all customary title claims. Surviving indigenous title rights can therefore be asserted against the Crown as they are not concerned with the specific wrongs envisaged by the Limitation Act.228 Subsequently claims to specific waters could be brought in conjunction with claims to the lands that are connected with the resource, such as the beds of rivers or lakes.
20. CLAIMS TO THE WATERS OF TANE’S DOMAIN: RIVERS AND LAKES
The regime regarding rivers in New Zealand is a mixture of statute and common law. The beds of all ‘navigable’ rivers were vested in the Crown via section 14
q/boast/FORESHOR.pdf> (last accessed 12 September 2003).
of the Coal Mines Amendment Act 1903. This provision was later repeated as section 261 of the Coal Mines Act 1979. Although repealed, the effect of this provision is preserved by section 354(1) of the Resource Management Act 1991.229 Section 354(1) provides that the Crown’s rights to lands and waters remain unaffected by the subsequent repeal of the statutes which originally vested the title to the resource.230
In the case of ‘non-navigable’ rivers the common law presumption is that the riparian owners owned the river ad medium filum aquae, to the middle line of the river. In Re the Bed of the Wanganui River the Court of Appeal held that where the Native (now Maori) Land Court has investigated the title and issued separate titles, the bed of the land adjoining the river becomes ad medium filum a part of that block and the property of the riparian owners.231 The Water and Soil Conservation Act 1967 effectively abrogated common law riparian rights in relation to use of the resource, introducing a system of water discharge and taking rights.232 Section 14 of the Resource Management Act now effectively restricts common law rights relating to the use of water.
With regard to lakes the position is less clear. Numerous Maori claims have been brought in regard to lakebeds, however, many have been settled rather than litigated.233 Such an approach has meant that the Crown has largely avoided compromising its position by ceding the ownership of lakebeds to Maori.234 In Tamihana Korokai v Solicitor General the Court of Appeal held that the Native Land Court had jurisdiction to investigate the title of lake beds and that it was a matter of fact as to whether the claimants were the owners of the lake according to custom.235 Although an inquiry was commenced by the Land Court, the issue was ultimately settled by direct negotiation with the Te Arawa Tribes in March
1922.236 The resulting settlement saw the beds of the fourteen lakes vest in the Crown, free of indigenous title, in exchange for the protection of customary fishing rights.237 This settlement was embodied in the Native Land Amendment and Native Claims Adjustment Act 1922.238
In 2001 the Crown offered Te Arawa a settlement of grievances relating to the lakes. The settlement, once ratified by the tribe, would give the Te Arawa Maori Trust Board title to thirteen of the lakebeds, a financial redress package of $10 million, an apology, a cultural redress package and a strategic management role.239 Under the agreement public access would be guaranteed, with the airspace and water columns above the lakebeds remaining in Crown ownership.
In 1926 an agreement was reached between the Crown and Tuwharetoa vesting the bed of Lake Taupo, the Waikato River and the Huka Falls in the Crown in return for £3000 per year plus a share of licence fees and the reservation of certain fishing rights.240 The agreement did not acknowledge any Maori customary title, however, in 1965 the Maori Land Court expressed the view that the bed of Lake Taupo had belonged to Maori contrary to the assertion of successive Governments.241 In 1992 the bed of Lake Taupo was revested in Ngati Tuwharetoa242 by a deed of transfer signed by the Minister of Conservation and Sir Hepi Te Heuheu and subsequently ratified by the tribe.243
In contrast to those lakes where recognition of Maori indigenous title rights were initially rejected, Lake Omapere was vested in trustees on behalf of “all persons of the Ngapuhi tribe” in 1955 by an order of the Land Court. This followed the 1929 Land Court case in which Judge Acheson held that the Court
/www.stuff.co.nz/stuff/0,2106,3062629a8153,00.html> (last accessed 18 October 2004).
(Ministry of Maori Affairs, Wellington, 1990) Appendix F.
could grant titles to the beds of lakes.244 Lake Waikaremoana, Lake Rotoaira and Lake Horowhenua were also vested in their respective local Maori tribes, however, in contrast to Lake Omapare, they were vested in certain named members of the particular tribe rather than the tribe as a whole. All members of the respective tribes, however, were recognised as having access and use rights.245 The general rule at common law regarding lakebeds, however, is that where
a single property completely surrounds a lake then the property owner owns the lakebed. Where the boundaries of lakes consist of the land of more than one owner the ad medium filum aquae rule may apply. Benjamin A Kahn, however, has concluded that, except where the surrounding land is included in one grant, the ownership of lakebeds is likely to vest in the Crown.246 This view is consistent with the South Australian Supreme Court case of Southern Centre of Theosophy Inc. v The State of South Australia where it was held that the application of the ad medium filum aquae rule was inappropriate for local conditions.247 Although the Privy Council reversed the judgment on appeal they did not alter the finding that Lake George was vested in the Crown.248 Therefore the ownership of lakebeds in New Zealand is likely to vest in the Crown, as they do in Australia, except where the surrounding land is included in one grant.249
21. HAVE MAORI RIGHTS TO THE WATERS OF TANE’S DOMAIN BEEN EXTINGUISHED?
Ultimately, past title claims have been site-specific and have focused on river and lakebeds via land recognition rather than the water as a resource by itself. Maori claims to the water resource may therefore be strengthened where the beds of rivers and lakes are already under Maori ownership or control. Such an approach would acknowledge and respect the holistic Maori concept of water.250
NZLJ 365, 367.
In contrast, where a claim is brought to the water resource alone, although this seems to go against the holistic concept, it may simply be a case for Maori to obtain and protect those few rights that remain. Therefore at issue is whether water rights in relation to rivers and lakes have been clearly and plainly extinguished.
At common law and via statute, rights relating to rivers and lakes focus on the land or the beds, not on the water as a resource by itself. Therefore it seems that, although control is expressed over the resource, there is no actual ownership of the water resource.251 Common law rules and in particular the ad medium filum principle, are clearly rebuttable because they relate only to land. Furthermore, the ad medium filum aquae rule with regard to non-navigable rivers and to a lesser extent lakes, has been noted by both Cooke P and the Waitangi Tribunal as being inconsistent with the holistic Maori concept of water.252
In the Whanganui River Report the Waitangi Tribunal also noted that decisions of the United States, Canadian and Australian courts have held that the ad medium filum rule is more readily rebutted in countries that do not have the long history of settlement that gave rise to the common law in Britain.253 In the Lake Waikaremoana case the Native (now Maori) Appellate Court held that presumptions of English law, such as the ad medium filum rule, were not applicable to the New Zealand context. The Court stated that:254
...we are of the opinion that in New Zealand these [English law presumptions] are of no effect if it is found they in any way conflict with the customs and usages of the Maori people. We consider that these rights once established are paramount and freed from any qualification or limitation which would attach to them if the rules and presumptions of English law were given effect to.
Such a view has recently been reiterated by the Court of Appeal in the Ngati Apa case with Elias CJ noting that “[t]he laws of England were applied in New Zealand only ‘so far as applicable to the circumstances thereof’.”255 Thus Maori
–38; Waitangi Tribunal The Whanganui River Report: Wai 167 (GP Publications, Wellington, 1999) 291-295; Waitangi Tribunal Te Ika Whenua Rivers Report: Wai 212 (GP Publications, Wellington, 1998) 82-86.
255 Ngati Apa v Attorney-General  NZCA 117;  3 NZLR 643, 652 para 17 (CA) Elias CJ.
indigenous title rights in relation to water have not been extinguished by the ad medium aquae rule.
Statutory schemes, such as the Resource Management Act, focus on controlling and sustaining the use of the resource. Thus, as noted by Elias CJ in Ngati Apa, the Resource Management Act lays down a universal regime relating to water rights which may substantially restrict the activities undertaken, however, it does not extinguish the right to the resource.256
With regard to navigable rivers vesting in the Crown, it would appear that Section 354(1) of the Resource Management Act does not extinguish Maori customary title to rivers and their waters. In Te Ika Whenua Cooke P noted that:257
...the Waitangi Tribunal has adopted the concept of a river as being taonga. One expression of the concept is ‘a whole and indivisible entity, not separated into bed, banks and waters.’ The vesting of the beds of navigable rivers in the Crown....may not be sufficiently explicit to override or dispose of that concept.
Thus a Maori customary title in rivers and river waters has not been extinguished by common law rules or statute. Similarly, the vesting of lakebeds in the Crown will not extinguish Maori indigenous title rights.
Maori claiming a customary title to the water of rivers and lakes will therefore need to show the nature and content of that right via tikanga. Since customary rights with regard to these waters have not been extinguished, the common law will have no difficulty recognising Maori title to the resource. The common law recognises Maori customary title via the doctrine of indigenous title. The content of the Maori customary title is governed by tikanga thus allowing for the possibility of an ownership title in water if such a right is proven.
22. INDIGENOUS TITLE AND TREATY RIGHTS
Establishing a customary title to specific water resources has become even more vital for claimants given the position of the Crown and in particular the Office for Treaty Settlements, in regard to rivers and lakes. The Crown’s preliminary negotiating position is a refusal to contemplate Maori ownership of natural
resources. Thus the colonial view of ownership overrides the holistic Maori view in regards to the settlement process.258
The Crown has based its policy approach on the Treaty of Waitangi. The Crown considers that Article One of the Treaty gives it the right to own or regulate natural resources. The Crown believes that its rights under Article One override Maori rights provided by Article Two.259
Subsequently the preliminary negotiating position of the Crown with respect to natural resources is to take the view that they were limited to use and access rights. Ultimately the Crown does not consider that Article Two guaranteed to Maori the ownership of natural resources.260
Article Two, of the English version of the Treaty, guarantees Maori the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties. Article Two of the Maori version of the Treaty has been translated as the unqualified chieftainship over their lands, villages and all their treasures.261 However, the Crown takes the position that its sovereign right is enforceable over the guarantees offered in Article Two. Furthermore, the treaty is not enforceable unless expressly incorporated into statute. Subsequently the Crown is able to take such a restrictive position, therefore placing greater importance on Maori customary title claims.
This contrasts with the position in the United States where the treaty model is the opposite of that in New Zealand. Whilst the Treaty of Waitangi saw Maori retain their rights to natural resources in exchange for the cession of sovereignty, in the United States American Indian tribes retained sovereignty whilst trading away certain natural resource rights.262 In United States v Winans it was held that “...a treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation to the Indians, but a grant of rights from them – a reservation of those not granted.”263
Thus in the 1908 case of Winters v United States the Supreme Court held that:264
(Butterworths, Sydney, 2000) 171.
The Indians had command of the lands and the water – command of all their beneficial use, whether kept for hunting, “and grazing raving herds of stock”, or turned to agriculture and the arts of civilization.
Therefore, upon the creation of a reservation, it was implied that the federal government reserved enough water to satisfy the purpose for which the reservation was created.265
It should be noted however, that the United States Supreme Court has been rather inconsistent in regards to Indian water rights. Further statements in Winters and in Arizona v California266 suggest, according to Richard H Bartlett:267
...that the water rights in question – modern forms of irrigation – do not derive from reservation by the Indians of their aboriginal title, but from a reservation or grant by the government upon the establishment of a reserve.
Therefore, as Bartlett concludes, indigenous title to water in the United States and also Canada, does not extend to non-traditional uses, whilst more extensive rights arise via the establishment of a reservation.268 Bartlett’s conclusion in relation to Canada, however, must now be revised in light of the Delgamuukw decision which recognises an indigenous right to development subject only to the inherent limitation.269 Clearly indigenous title to water in Canada now extends to non-traditional uses.
It is also important to note that in the United States, Article VI of the Constitution protects treaties as the supreme law of the land overriding anything in the constitutions or laws of any state.270 This constitutional enshrinement therefore means that in the United States treaty rights are inherently stronger and more readily enforceable than indigenous title rights. This contrasts with the New Zealand position which requires the Treaty of Waitangi to be
incorporated in statute before it becomes enforceable in the courts.271 Indigenous title rights, however, are readily enforceable in the ordinary courts.
In New Zealand the doctrine of indigenous title, according to Paul McHugh, is therefore a potent source for the recognition of Maori rights to water resources. In contrast R. P. Boast states that the doctrine is largely irrelevant. Boast believes that historically the doctrine of indigenous title has mattered rather less than the doctrine of parliamentary sovereignty. Boast therefore concludes that statutory references to the Treaty of Waitangi and Maori interests count for more than the doctrine of indigenous title.272
References to the Treaty of Waitangi in the Resource Management Act may subsequently prove more effective in establishing Maori rights in water resources than indigenous title. Section 8 of the Resource Management Act states that the principles of the Treaty of Waitangi will be taken into account, whilst section 6 of the Act places an emphasis on the national importance of the relationship that Maori and their culture and traditions, have with their ancestral lands, water, sites, waahi tapu and other taonga.273 It is also interesting to note that Maori rights in the geothermal water resource have been protected by the Act, whilst there is no express protection of rights to fresh or salt water.274
23. CLAIMS TO THE WATERS UNDER TANGAROA’S AUTHORITY: THE SEA
Establishing a right to New Zealand’s territorial seas, including estuaries, requires consideration of R v Keyn and the Ngati Apa case in regard to the extent of the common law. In the High Court case of Attorney-General v Ngati Apa Ellis J held that for the purposes of the Maori Land Act 1993, ‘land’ did not extend below the low water mark.275 This decision, however, has subsequently been overturned by the Court of Appeal, which unanimously held that the Maori Land
Court has jurisdiction to consider whether the foreshore and seabed are Maori customary land.276 Thus title claims to land can be made via the Land Court. What remains unclear is whether title to the waters (and land) of the territorial sea can be claimed via the doctrine of indigenous title in New Zealand’s ordinary Courts.
Since indigenous title is a common law doctrine it can only be recognised as far as the common law extends. The 1876 case of R v Keyn is an old English authority which held that the common law did not extend past the low water mark.277 Therefore the principle in R v Keyn must be negated before claims to the waters of the territorial sea can be made.
24. THE EXTENT OF THE COMMON LAW: NEGATING R V KEYN
24.1 Inconsistent with New Zealand Circumstances
There are three ways in which the authority of R v Keyn can be negated. Firstly it can be argued that R v Keyn is not relevant to the New Zealand context. In Ngati Apa Elias CJ stated that the High Court made an error in starting with the English common law, unmodified by New Zealand conditions.278 The common law in the New Zealand context includes Maori customary proprietary interests in the sea, seabed and foreshore. Thus R v Keyn is inconsistent with the local circumstances of New Zealand, being the existence of indigenous peoples, and is subsequently not relevant to any inquiry into the existence of indigenous title offshore.279 Therefore the New Zealand common law extends offshore via recognition of pre existing Maori customary rights.
24.2 No Longer Good Law
Secondly, it can be argued that R v Keyn is no longer good law. In the Australian case of Commonwealth v Yarmirr the majority in the High Court of Australia held that R v Keyn should be confined to a narrower proposition relating to its facts. That is “...that, absent statutory authority, a criminal court cannot punish as criminal, conduct which happens beyond the low-water mark on vessels flying
277 R v Keyn  UKLawRpExch 73; (1876) 2 ExD 63.
the flag of a foreign state.”280 One problem with the majority’s reasoning here is that they fail to explain the acceptance of Keyn in New South Wales v The Commonwealth [Seas and Submerged Lands Case].281 Such difficulty would not arise in New Zealand due to the fact that the Keyn case has not been endorsed by our highest appellate court.282 Yarmirr is therefore persuasive precedent rejecting the Keyn principle.
24.3 Subsequent Extension of Sovereignty
Finally, the third method to side step Keyn is to adopt the reasoning of Merkel J’s minority decision in the full Federal Court decision of Yarmirr v Northern Territory which is useful in establishing an indigenous title via common law to the territorial sea. Merkel J held that the problematic case of R v Keyn was really only an acknowledgement of the state of the law at the time of Federation in Australia in 1901. Merkel J therefore stated that with each progressive extension of sovereignty comes the jurisdiction of the common law.283 According to Merkel J’s reasoning the relevant dates for proof of indigenous title in Australia were 1824, 1883, 1930 and 1990. These dates corresponded with the extension of Australia’s territorial waters and subsequently sovereignty. In 1930 the sovereignty of Australia was extended to three nautical miles, whilst in 1990 it was extended to 12 nautical miles.284 This subsequently means that the relevant date for proving indigenous title would vary according to what parts of the sea are being claimed.285
The majority in the High Court of Australia made a similar point stating that the assertion of sovereignty was constituted by a right to legislate, therefore the passing of legislation concerning territorial waters was an assertion of sovereignty, not ownership.286
<http://www.hreoc.gn.au/social_justice/nt_report/chap3.html> (last accessed 5 July 2003).
Thus in claiming a customary title to New Zealand’s territorial waters, it is possible that R v Keyn can be negated by adopting Merkel J’s approach in Yarmirr. This approach, as Andrew Erueti has noted, would require evidence that Keyn has been superseded by modern international law developments. This approach would also require a determination as to when sovereignty was acquired over New Zealand’s territorial sea.287 For example, in 1965 the Territorial Sea and Fishing Zone Act provided for a three-mile territorial sea. In 1977 the territorial sea was extended to 12 nautical miles under the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977.288
Ultimately the High Court’s decision in Yarmirr was based on the Native Title Act 1993 (Cth) which refers to native title over ‘land and waters’.289 This approach allowed the majority to avoid making a conclusion on the extent of the common law.290 New Zealand does not have a statutory equivalent to Australia’s Native Title Act, thus legislation does not extend the doctrine of indigenous title offshore in New Zealand. Enacting such legislation would, however, be another means of negating R v Keyn.
25. HAVE MAORI RIGHTS TO THE WATERS UNDER TANGAROA’S AUTHORITY BEEN EXTINGUISHED?
Although there appears to be at least three methods by which customary title to water may be extended to the territorial sea, it must still be determined that such rights have not already been extinguished. The effect of the Territorial Seas Acts291 are to vest the bed and subsoil of the territorial sea in the Crown.292 The waters of the territorial sea are therefore not specifically vested in the Crown. Section 7 of the Territorial Sea, Contiguous Zone, and Exclusive Economic
(c) the rights and interests are recognised by the common law of Australia.”
Zone Act 1977 vests the beds of internal waters and the sea in the Crown, however it makes no mention of vesting the superjacent waters in the Crown.
Even if the territorial waters were vested in the Crown this would not be sufficient to extinguish customary title rights. In Ngati Apa Elias CJ stated that the Act is principally concerned with matters of sovereignty, not property.293 Subsequently the Act does not extinguish Maori indigenous title rights. Futhermore, Keith and Anderson JJ noted that the vesting of rights in the crown is not inconsistent with existing Maori title rights.294 However, the exercising of rights over the waters of the territorial sea are substantially restricted, but not extinguished, by the provisions of the Resource Management Act 1991 controlling the coastal marine area.295
If R v Keyn can be negated then a Maori customary title claim to the territorial sea need only to adopt the standard indigenous title process. That is to prove the nature and content of the title according to custom and to ensure the title has not been extinguished by legislation.296
26. INTERNATIONAL COMPARISONS: THE RECOGNITION OF OFFSHORE RIGHTS IN THE UNITED STATES OF
AMERICA, CANADA, AND AUSTRALIA
In the United States the courts have never doubted that indigenous title at common law extended to the sea.297 In People of Village of Gambell v Clark the Federal Court of Appeal’s Ninth Circuit held that:298
Aboriginal title or right is a right of exclusive use and occupancy held by the Natives in lands and waters used by them and their ancestors prior to the assertion of sovereignty by the United States.
In People of Village of Gambell v Hodel the Federal Court of Appeal’s Ninth Circuit held that “...the United States has assumed sufficient control over the
666 para 76 (CA) Elias CJ.
outer continental shelf constituting sovereignty which requires recognition of Aboriginal rights in the outer continental shelf...”299
Although these two cases concerned oil and gas development rights off the shore of Alaska, they clearly recognise that offshore indigenous title rights extend further than the boundary of the territorial sea to include the continental shelf. Such a view also suggests that indigenous title rights can be recognised in relation to the 200 nautical mile exclusive economic zone.
In Canada the courts have not doubted the application of indigenous title offshore. In Calder the Supreme Court concluded that indigenous title included the tidal and sea waters of Observatory Inlet and Portland Inlet and Canal.300 Further cases have accepted the existence of offshore fishing and harvesting rights.301
Federal government policy also officially accepts that indigenous title extends to offshore areas in Canada. Federal policy relating to the settlement of indigenous title claims declares that:
...if an aboriginal group’s traditional activities have extended to off-shore areas, their claim settlement may include off-shore wildlife harvesting rights....Participation in environmental management regimes and resource- revenue sharing arrangements may also be negotiated with respect to off-shore areas.
Subsequently the Canadian government has signed an agreement in principle with the Inuit of northern Quebec concerning the Nunavik Marine Region. The Marine Region covers 250,000 square kilometres of land and water in Hudson Bay, Hudson Strait, and Ungava Bay.302 Under the agreement the area’s 10,000 Inuit residents receive 50 million dollars and a five million dollar wildlife research fund. The Nunavik Inuit will also participate in the management and development of the region and share in the proceeds from any discoveries of oil, gas, fish and precious stone.303
/www.globeandmail.com/servlet/ArticleNews/front/RTGM/20021025/wnunavik/Front/ homeBN/breakingnews> (last accessed 29 April 2003).
In Australia the decision of the High Court in Yarmirr confirmed that indigenous title rights, as recognised by the Native Title Act 1993 (Cth), extend offshore. The Court, however, held that offshore rights were not exclusive. The indigenous title rights were non-exclusive due to the existence of common law public rights to navigate and fish the waters and the international right of innocent passage of ships through territorial waters.304 Accordingly, the indigenous claimants had no right to exclude others from the claimed area.
The recognition of indigenous title offshore in North America and Australia is clearly persuasive authority for the recognition of such rights in New Zealand. The indigenous title doctrine clearly applies to the 12-mile territorial sea and may extend to the exclusive economic zone. Article 56 of the United Nations Convention on the Law of the Sea provides that New Zealand, as a coastal state, has “...sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil...”305 Subsequently it may be possible for an indigenous title to water to be recognised as existing within the 188 nautical mile zone extending from the territorial sea to the high seas.306 These waters have already been designated as comprising part of New Zealand fisheries waters via section 10 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977.
It is unlikely, however, that rights to water will exist in relation to the continental shelf. Article 77 of the United Nations Convention on the Law of the Sea allows coastal states to explore and exploit the natural resources of the continental shelf’s seabed and subsoil.307 Article 78 provides that rights to the continental shelf do not extend to the waters or air space above.308 Therefore, although rights exist to the minerals of the continental shelf, as recognised in New Zealand by the Continental Shelf Act 1964, sovereign control of the shelf is limited to the bed and subsoil subsequently denying the recognition of indigenous title to offshore waters extending beyond the 200 mile exclusive economic zone.309
Indigenous title claims to New Zealand’s offshore waters will therefore be recognised by the courts at common law provided that it is shown that the resource was used and controlled in accordance with custom. Such title rights, however, are unlikely to be exclusive due to the existence of competing interests as recognised by the High Court of Australia in Yarmirr.
Indigenous title in the four jurisdictions, from the earliest formulation of the doctrine in the Marshall trilogy of cases through to the present, has been influenced and shaped by the jurisprudence of the other. At present, however, the formulation of indigenous title in each jurisdiction is beginning to diverge. The courts in the United States, Canada, New Zealand and Australia have developed and are developing, solutions to indigenous title claims which are specific to their own context. Subsequently differences have now arisen in the approaches to content, extinguishment, compensation and fiduciary duties. These context specific solutions, however, can still provide persuasive guidance in applying the doctrine to particular resources.
Indigenous title is a powerful means of recognising rights in natural resources. In relation to the surface waters and sea of New Zealand, Maori indigenous title rights clearly remain. Maori title rights to the water resource have not been extinguished by the common law or statue law. Such rights, however, are to some extent inhibited by the existence of competing rights and controls. The content of Maori water rights will therefore be determined by tikanga. This content may also to extend to modern uses in accordance with the right to development. Subsequently a title to water may give rise to modern commercial activities such as marine farming, tourism ventures or even the harnessing of tidal power. Although the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 seems to make Maori commercial fishing rights non-justicable and non- commercial customary rights unenforceable, it is arguable that a right to fish would exist as an aspect of any title to water.310
In light of the government’s handling of the foreshore and seabed issue, it is likely that the Crown would take action to extinguish Maori rights in relation to the waters of New Zealand’s rivers, lakes and sea. Any attempt by the Crown to infringe or extinguish these rights will raise issues relating to the fiduciary duty that exists in respect of Maori. Consent and compensation will be required to
abrogate any rights to water.311 If these requirements are not met then compensation will be required for breach of the duty. Individual hapu and iwi can therefore claim an indigenous title to particular waters in order to regain some control over the resource. Any subsequent attempt by the Crown to extinguish a recognised title will result in the payment of compensation to the relevant hapu or iwi.