New Zealand Law Students Journal
Last Updated: 14 January 2013
N G A T I A P A : A COUNTER-REFORMATION
LAURA FRASER* AND JESSE WALL**
The Court of Appeal adjudicated a conflict of precedents unique in New
Zealand jurisprudence when it decided Attorney General v Ngati
Apa1 (“Ngati Apa”) in 2003. The Court had
refused to recognise that the doctrine of customary title was a source of the
common law sixty years earlier
in Re the Ninety-Mile Beach2
(“Ninety-Mile Beach”), a decision defiantly
inconsistent with earlier decisions of the Privy Council.3 Ngati
Apa represents a bold, if not wholly unexpected, departure from this
earlier Court of Appeal decision and is the most recent
end of a
significant shift in judicial approach to customary rights in New
Zealand. Despite legislative intervention
to override the immediate
impact of the Ngati Apa, the case remains a useful example of
the manner in which appellate courts overturn their own prior
This article looks to explore the latter decision of the Court of Appeal from
a jurisprudential standpoint. Part A seeks to describe
the change of law in
Ngati Apa with particular emphasis on the reasoning that led to
overturning Ninety-Mile Beach. Part B will explore some of the
different jurisprudential frameworks that compete to describe such modifications
law. It will be argued that Realist Positivism provides the most
accurate description of the workings of the Court of Appeal
in the Ngati Apa
A. The Decision in N g a t i A p a
The essence of the Court of Appeal’s decision to reverse its own prior
decision of Ninety-Mile Beach was a fundamental clash as to
* Candidate for BA; LLB (Hons), University of Otago.
** Candidate for BA; LLB (Hons), University of Otago.
1  NZCA 117;  3 NZLR 643 (CA).
2  NZLR 461.
3 Nireaha Tamaki v Baker  UKLawRpAC 18;  AC 561;  NZPCC
The New Zealand Law Students’ Journal (2007) 1 NZLSJ
Indigenous systems of property ownership were part of New Zealand common
law at 1840. This involved clarifying relationships between
the common law
and statute. While the Court of Appeal in 1963 considered that
a positive source of Indigenous
rights needed to be found in law, the
Court of 2003 felt that Indigenous rights in land continued to exist until
1. The Precedent: N i n e t y - M i l e B e a c h
The Court of Appeal had been asked to determine if the Maori Land Court had
jurisdiction to investigate and grant title to land
within the tidal zone of
the Ninety-Mile Beach.4 The Maori Land Court is a body of limited
jurisdiction; the powers of the Court are confined to those conferred on it
The Court had been empowered by statute to investigate any
claim to a customary interest in land made by Maori with a view
to issuing a
certificate of title5. If this investigatory power was found to
extend to areas of the foreshore, then there existed a potential avenue for
Maori to claim
an interest in some of the last remaining land in New Zealand
not subject to freehold title. The Court of Appeal proceeded to analyse
legal question on the assumption that the Maori Land Court had investigated
and granted title to lands adjoining the beach,
although this fact has
subsequently been disputed.6
Both North and TA Gresson JJ expressed reservations about the consequences
of the Maori Land Court having jurisdiction over
the foreshore. North J
considered that such a result would be “startling and
inconvenient”7. Both judges felt that the public interest
dictated they decline to recognise any such jurisdiction in the Maori Land
both judges accepted that the only source of title in New
Zealand was the Crown. North J said:
There is no doubt that it is a fundamental maxim of our laws that the Queen
was the original proprietor of all lands in the Kingdom
the only legal source of private title, and that this
4 Re the Ninety-Mile Beach, supra n 2 at 466.
5 Sections 21 and 23, Native Land Act 1965.
6 R P Boast “Re The Ninety-Mile Beach Revisited: The Native Land Court and the
Foreshore in New Zealand Legal History” (1993) 23 VUWLR 145-170.
7 Supra n 2 at 467.
Ngati Apa: A Couter-Reformation 281
principle has been imported with the mass of the common law into New
Zealand; that it “pervades and animates the
whole of our
jurisdiction in respect to the tenure of land”: see R v Symonds
(1847) N.Z.P.C.C. 387, 388.
TA Gresson J similarly expressed this sentiment in his judgment,8
and Gresson P concurred with both. By adopting this position, the Court
precluded the recognition of any customary rights
in land, as such
rights are not derived from the Crown. North J was careful to point out that
this did not automatically mean
that Maori had no legal rights in the
foreshore. Such rights may have been created by statute or derived from a grant
North J acknowledged that there existed no legislative provision
limiting the scope of investigations able to be undertaken
by the Maori Land
Court. This indicated that investigations into the foreshore might initially
have been within the Court’s
However, North J felt that the Maori Land Court was required to
show “due regard”10 to the common law position that the
Crown was entitled to the foreshore. In the immediate case, North J considered
that the prior
Maori Land Court investigation into the foreshore of the beach
and the subsequent granting of title to adjoining land “wholly
extinguished”11 any claims to rights in the foreshore. Further
enquiries into ownership of the foreshore were precluded, as the results of the
investigation impliedly confirmed Crown ownership of this land. In cases
where such an inquiry has been undertaken, rights in the
foreshore exist only at
the Crown’s discretion.
North and Gresson JJ also considered that section 12 of the Crown
Grants Act 1866 impliedly excluded Indigenous title in the foreshore.12
This provision specified that where ‘the sea’ is the stated
boundary of a title to land, this meant the high tide mark.
Emphasis was also
placed on section 147 of the Harbours Act 1878. This provision said that no part
of the shore of the sea could
be granted or disposed of without the
8 Ibid at 475.
9 Re the Ninety-Mile Beach, supra n 2 at 469.
10 Ibid at 472.
11 Ibid at 473.
12 Re the Ninety-Mile Beach, supra n 2 at 473 and
special sanction of an Act of the General Assembly. The Court was of the
opinion that these provisions removed the residual ability
of the Crown to
grant title to the foreshore, thereby impliedly excluding any Maori claims to
rights in the area.
Most of the reasoning employed by the Court in this case can be traced to
earlier decisions of New Zealand domestic
courts such as
Waipapakura v Hempton13 and Wi Parata v Bishop of
Wellington14. These decisions held that Indigenous rights in
land could only be recognised by positive legal authority such as statute, and
have no basis in the common law. Ninety-Mile Beach can be
explained as an orthodox application of the reasoning in these earlier
cases. The Court did not seriously contemplate
the possibility that such
rights may not have needed a positive source.
However, there was more than one approach to Indigenous rights alive in New
Zealand case law in 1963.15 The Privy Council observed the
existence of Indigenous title in New Zealand common law in cases such
as Nireaha Tamaki v Baker16 and this approach was
theoretically binding on the Court of Appeal. The decision in Ninety-Mile
Beach epitomises the approach of New Zealand courts to this
authority.17 For the most part, New Zealand courts failed to
recognise the Privy Council as a source of law regarding Indigenous rights
relating to land, a position dramatically pronounced in the Protest of
Bench and Bar18 issued in the wake of Privy Council
decisions recognising customary rights as an encumbrance on the radical
title of the
Crown.19 Thus, customary ownership of the foreshore
was not recognised by the Court of Appeal in Ninety-Mile Beach.
Consequently, the New Zealand approach to Indigenous title was
13  NZGazLawRp 141; (1914) 33 NZLR 1065.
14 (1877) 3 NZ Jur (NS) SC 72.
15 Paul McHugh “Aboriginal Title in New Zealand Courts” (1984) 2 Canterbury Law
16 Supra n 3.
17 Re the Bed of the Wanganui River  NZLR 419 (CA).
18 (1903) NZPCC 730.
19 The Protest was a response to the 1903 decision of Wallis v
Solicitor-General (1903) NZPCC 23.
the most part of the Twentieth Century governed by domestic courts. The
decision in Ninety-Mile Beach became binding authority on legal ownership
of the foreshore by default and Indigenous interests in land were only
empowered by statute.
2. The Change: N g a t i A p a
Political, social and legal circumstances changed dramatically in the decades following Ninety-Mile Beach. Many post-colonial jurisdictions had come to recognise the existence of Indigenous title at common law.20 In New Zealand, the landmark decision of Te Weehi v Regional Fisheries Officer21 suggested that the New Zealand judiciary was increasingly receptive to recognising Maori customary rights.22
Importantly, other New Zealand cases such as Te Runanga o Muriwhenua Inc v
Attorney-General 23 and Te Runanganui O Te Ika Whenua Inc
Society v Attorney-General24 had hinted, by analogy, that
Ninety-Mile Beach was wrongly decided. In 2003 the Court of Appeal had
an opportunity to revisit the jurisdiction of the Maori Land
to investigate customary title to the foreshore and seabed. The
opportunity arose in the context of a claim made in the Maori
Land Court by the
Ngati Apa iwi that they held customary title to the foreshore and seabed of
the Marlborough Sounds.
The Ngati Apa decision did not address the factual question of whether
customary title to the foreshore and seabed could be established in the
Sounds. It addressed the preliminary legal issue of
whether the Maori Land Court had the jurisdiction to undertake
investigation into the foreshore and seabed with a view to declaring the land
customary land within the meaning in section 129(2)(a)
of Te Ture Whenua Maori
Act 1993. In addition, the Court made observations on
20 See for example Mabo v Queensland (1988) 166 CLR 186; Delgamuukw v British Columbia
 3 SCR 1010.
21  NZHC 149;  1 NZLR 680. Williamson J accepted a defence to a charge of possessing undersized paua based on a Maori customary fishing right given statutory effect by section 88(2) Fisheries Act 1983.
22 Supra n 6 at 169.
23  NZCA 7;  2 NZLR 641.
24  NZCA 218;  2 NZLR 20.
the inherent jurisdiction of the High Court to declare land held under
The case before the Court of Appeal had some factual differences to
Ninety-Mile Beach. Ngati Apa related to both foreshore and seabed
of the Marlborough Sounds. Some of the land in question had never been
subject to an
investigation by the Maori Land Court. However, the
majority of the Court did not distinguish Re the Ninety-Mile Beach on the
facts.25 Elias CJ preferred the reasoning of the earlier Privy
Council decisions to that of the Court of Appeal in Ninety-Mile Beach.
Elias CJ argued that Ninety-Mile Beach relied on decisions that had
been “discredited”26 and consequently was not of
precedential pedigree. The Chief Justice was careful to couch her
decision in terms of the
established precedent of Nireaha Tamaki,
casting Ninety-Mine Beach and the domestic decisions that
preceded it as an unfortunate aberration from settled law.
While Elias CJ described the actions of the Court as predicated on
established authority, it can be argued that the departure
Mile Beach in effect represented a new approach for New Zealand
courts. The core disagreement with the reasoning in Ninety-Mile Beach is
clearly explained in the opening paragraph of the judgment of Tipping J:
When the common law of England came to New Zealand its arrival did not
extinguish Maori customary title. Rather, such
title was integrated
into what then became the common law of New Zealand. Upon acquisition of
sovereignty the Crown did not,
therefore, acquire wholly unfettered title to
all the land in New Zealand. Land held under Maori customary title
known in due course as “Maori customary
This approach to customary title was first taken by a New Zealand
Court in the decision of R v Symonds28 in 1847. The reasoning
behind this approach flows from the Native Laws Act 1868 which
25 Gault P’s judgment is distinguished from the majority on this point: see discussion of his judgment in Part B of this article.
26 Ngati Apa supra n 1 at .
27 Ibid at .
28 (1847) NZPCC 387.
that English common law was applied in New Zealand only in so far as
applicable to the circumstances of the colony.29 The existence
of an established regime of sophisticated Indigenous property rights is a
circumstance of New Zealand sufficient
to modify English common law.
Starting from the premise that Indigenous title is capable of recognition at
common law, two key
flaws are evident in the analysis of the Court of Appeal in
Firstly, the Court of Appeal’s earlier analysis of the Crown Grants Act
and the Harbours Act is flawed insofar as the Court
held that these
enactments extinguished any existing customary rights. Neither statute
expressly excluded the potential for
customary title. If Parliament
intends to extinguish any customary title by statute then it must use
language that is
“crystal clear”30. In Ngati
Apa it was asserted in argument by counsel that several other statutory
regimes extinguished customary title.31 The Court found that no New
Zealand statutes were of the clarity necessary to extinguish any existing
customary title. Equally,
the Court held that statutes regulating the use of
the foreshore and seabed32 did not exclude the potential for
customary title insofar as customary title is consistent with such
regulation.33 The Court set a high threshold for extinguishing
customary rights by statute.
Secondly, the presumption that an earlier Maori Land Court
investigation precluded the existence of customary title
to the foreshore does
not stand if it is recognised that Indigenous title is a part of the common
law. This argument rests on the
assumption that the foreshore “remains
with the Crown”34 following such an investigation. Such an
assumption is “not supported by authority”35.
Numerous other issues were canvassed in Ngati Apa such as the powers
of the Maori Land Court under the Te Ture Whenua Maori Act to
29 Ibid at .
30 Ibid at .
31 These statutes include the Territorial Sea Acts and the Foreshore and Seabed
Endowment Act 1991.
32 For example, the Resource Management Act 1991.
33 Ngati Apa, supra n1 at [75 - 76] and .
34 Ibid at .
35 Ibid at .
confer use rights in land, the meaning of ‘land’ under
the Te Ture Whenua Maori Act, and the ability
to hold title to the
seabed at common law. Each of these issues was decided in a manner
that enabled the Maori
Land Court to investigate Indigenous title to the
foreshore and seabed. However, the primary effect of the decision was to
the approach of the courts to determining Indigenous title. After Ngati
Apa, it must be shown that customary rights in land have been legally
extinguished, rather than that customary rights have been created
The decision of the Court of Appeal is consistent with earlier overseas
decisions recognising Indigenous rights in land, such as
decision of Mabo v Queensland36 in Australia and the
long line of Canadian cases on the subject, recently confirmed in
Delgamuukw v British Columbia37. These cases are indicative
of broad acceptance of the view that English common law was modified to
account for existing Indigenous
practice on reception in a colonial
setting.38 However, the courts will not have the opportunity to
reflect on the full meaning and significance of the decision in Ngati Apa
for customary rights and title in New Zealand. The Foreshore and
Seabed Act 2004 removed the jurisdiction of the High Court and the Maori
Land Court to hear claims of customary
rights relating to the foreshore and
seabed, substituting the common law for more strenuous statutory procedures.
legislative change, the reasoning in Ngati Apa
provides a striking example of when and how appellate courts will depart
from their own previous decisions. Part B will attempt
to explain the approach
of the New Zealand Court of Appeal to this difficult question from a
B. Explaining Change in the Common Law
As we have seen in Part A, Ngati Apa changed the common law by
recognising the potential for customary native title in the foreshore
36 (1998) 166 CLR 186; (1988) 83 ALR 14.
37  3 SCR 1010.
38 It is worth noting that recent Australian High Court decisions have minimised the significance of this acknowledgement in that jurisdiction: See Commonwealth v Yammir (2001) 208 CLR 1; Ruru J “What could have been? The Common Law Doctrine of Native Title in Land under Salt Water in Australia and Aotearoa/New Zealand” (2006)
 MonashULawRw 6; 32 Mon L R 116-145.
seabed. How one perceives the change in Ngati Apa depends largely on
how one perceives the concept of law. We suggest that there are three
conceptions of law that lead to different
explanations of how the
common law changed in Ngati Apa. Part B will first outline how the
change can be explained by three possible conceptions of law: ‘Strict
‘Positivist Realism’, and
‘Dworkinism’. Secondly, the individual judgments of the
of Appeal will be categorised as adhering to one of three
conceptions of the law. Thirdly, it will be argued that Realist
provides the best explanation for the law change in Ngati Apa.
1. Conceptions of Law
For our purposes, H. L. A. Hart provides the best explanation of the
positivist account of law. At its core, the law is a union of
primary rules of
obligation and secondary rules of change and recognition. The former
relate to the substance of the
law; the latter relates to the
procedure for determining the law. The way the law can change,
according to Hart,
is specified through secondary rules. “The simplest
form of such a rule is that which empowers an individual or body of persons
introduce new primary rules [...] and to eliminate old
rules”39. For example, the rule that legislation may
introduce new primary rules that defeat primary rules arising out of
custom or precedent is a rule of recognition. Moreover, the rule that the
Privy Council (prior to the New Zealand Supreme
Court) could restate the
common law in a way that bound the New Zealand Court of Appeal was another
This concept of law gives rise to the first account of the change in Ngati
Apa: Strict Positivism. From this perspective, the Court of Appeal in
Ngati Apa was, by using secondary rules properly, following
the superior authority of the Privy Council in Nireaha Tamaki
which recognised common law native title. Accordingly, Ngati Apa
remedied the mistake made by the Court of Appeal in Ninety-Mile Beach
in misapplying the rules of recognition by ignoring the Privy
There is an alternative interpretation of Hart’s concept of law. As
Hart himself notes, secondary rules of recognition
39 H. L. A. Hart, The Concept of Law, (1961)
formulated as a rule. Although the supremacy of the Privy Council over the
New Zealand Court of Appeal has been expressed numerous
times in case law, it
is contended that Hart’s conception of law is more concerned with
which secondary rules are
followed rather than which secondary rules are
For the most part the rule of recognition is not stated, but is existence is
shown by the way in which particular rules are identified, either by
the courts or other officials or private persons or their advisors.
One way of reading Hart’s conception of law is to treat secondary rules
as sociological facts rather than strict legal rules.
When the courts say the
rule of recognition is one thing but in reality the practice of the courts is
contrary to that rule, the
widely accepted practice is in fact the rule. This
reading gives rise to the second of our conceptual frameworks:
From this perspective, Ngati Apa effected a counter-reformation in the secondary rules. The initial reformation began with the1903 Bench and Bar Protest and was followed by the Court in Hempton, which failed to recognise the authority of the Nireaha decision. The reformation then continued with the Ninety-Mile Beach decision. The reformation changed a secondary rule: instead of the Privy Council being considered superior to the New Zealand Court of Appeal in the area of the law of Indigenous people’s proprietary rights, the decisions of the New Zealand Court of Appeal were accorded the highest pedigree. From
1903 to the mid 1980s there was this unorthodox, yet accepted,
secondary rule of recognition in this particular area of
law. Hence, according
to Positivist Realism, Ngati Apa effected a change in a
secondary rule of recognition. This ‘counter-reformation’ returned
the secondary rule back
to the orthodox position based on the court
hierarchy, and enabled the 2003 Court of Appeal to affirm the Privy Council
position in Nireaha Tamaki.
The above two conceptions of law are different interpretations of a
Positivist concept of law. Our third conception comes
from a very
different school of jurisprudence. R Dworkin in ‘Is law a system
40 Hart, 101.
rules?’41 launched a general attack on Positivism
and used Hart’s version “as a target”42.
Dworkin argued that the law includes principles and other standards, and
that positivism “forces us to miss the
important roles of these standards
that are not rules”43. Using this framework, our task of
explaining how the law came to change in Ngati Apa forces us to cast our
net wider than the legal rules that were stated and assumed in the case law, or
at least in the case law directly
relevant to the foreshore.
There are two key characteristics of Dworkinian principles. The first key
characteristic is that principles may have to
be weighted and balanced
against competing principles. It may be that one of the competing
principles is certainty of
law which requires attention to be paid toward
promulgated rules. But that principle of certainty may be trumped in a
case by a competing principle. Principles are never fully
deprived of legal validity. When they conflict, one principle is held
to be more
important than the other in a particular context, but the defeated principle is
not excluded from our legal system. It
is simply that in that particular case,
the principle was outweighed by another. According to Dworkin, rules do not
characteristic: “If two rules conflict, one of them cannot be a
The second key characteristic is that Hart’s rules of recognition
cannot identify principles and cannot balance and prioritise
them. This requires
a normative assessment of the competing principles derived from moral or
political theory. Hence, Dworkinian
principles are well outside the mechanical
rule-based concept of law that legal positivists defend.
Let us now view the position of the Court of Appeal in Ngati Apa
through the Dworkinian lens. The rule in Ninety-Mile
Beach, that property title must be derived from the Crown or from statute,
might be supported by certain principles. There is the principle
that the public
interest is best served by not disrupting the established property regime by
recognising non statutory sources of
title,45 as well as the
41 R Dworkin, ‘Is the law a system of rules?’, The Philosophy of Law (1977).
42 Ibid. 43.
44 R Dwokin, The Philosophy of Law, 48.
45 North J considered that non statutory land rights
would be “startling and
Wi Parata; that Maori (during the establishment of crown sovereignty)
were (in the words of Prendergast CJ) “incapable of performing
duties, and therefore of assuming the rights, of a civilised
community”46 and thus incapable of possessing property rights
prior to Crown sovereignty.
On the other hand, there was conflicting authority from the Privy
Council in Nireaha Tamaki, which was supported by different principles.
For instance, there is the principle (affirmed in Te Weehi) that for any
property right to be extinguished, there must be explicitly clear
statutory language to that effect.
These principles were also later
affirmed in analogous cases, such as Te Weehi, Muriwhenua and
Te Ika Whenua.
The conflicting rules seem irreconcilable. However, from a Dworkinian
perspective, there is more to law than rules. There are principles
not found in the most directly relevant precedents that suggest that a court may
recognise customary rights in the foreshore
and seabed. These principles
constitute part of the legal fabric which enabled the Court of Appeal in 2003
to prioritise the
principles to find common law native title in the foreshore
and seabed. The change in Ngati Apa can be thus viewed as an
example of wider principles setting aside directly appropriate precedent,
striking a better balance
in the law than in Ninety-Mile Beach.
Therefore, there are different ways of explaining the change of law in
Ngati Apa depending on the particular lens through which we view the
decision. We shall now consider the conceptual frameworks the Judges of
Court of Appeal adopted in the Ngati Apa decision.
2. Elias CJ, Keith and Anderson JJ
Elias CJ seems to have subscribed to the Strict Positivist conception of
legal change in Ngati Apa. The joint judgment of Keith and Anderson JJ
purports to adopt this approach. The Chief Justice’s view that Ninety-
Mile Beach should be overturned on the grounds that it was contrary
inconvenient”, Re the Ninety-Mile Beach at 467.
46 Wi Parata, 77.
the Privy Council’s decision in Nireaha Tamaki is clear from paragraph
13 of the judgment:
...Re Ninety-Mile Beach followed the discredited authority of Wi
Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, which was rejected
by the Privy Council in Nireaha Tamaki v Baker  UKLawRpAC 18;  AC 561. This is not
a modern revision, based upon developing insights since 1963. The
reasoning the court applied in Ninety-Mile Beach was contrary to
other higher authority and indeed was described at the time as
Under this approach, the Court in Ninety-Mile Beach in 1963 misused
the secondary rules of recognition to apply the rule in Wi Parata
as the primary rule. The court in Ngati Apa cured this
defect by applying Nireaha as the primary rule that flows from the
correct application of secondary rules.
However, Elias CJ later states at paragraph 61 that Wi Parata
is “contrary to common law and the successive statutory provisions
recognising Maori customary title”. Moreover, Keith
and Anderson JJ
state in their joint judgment at paragraph 154:
...native property rights are not extinguished by a side wind, in this
case by a general statute concerned harbours. The need for
plain” extinguishment is well established and is not met in this case.
In the Ninety-Mile Beach case,
the Court did not recognise that
principle of interpretation. Accordingly, for both reasons, we consider that
seriously misread the provisions in the harbours
What these extracts suggest is that Wi Parata and Ninety-Mile Beach
were contrary to other aspects of the established fabric of the legal
system. In other words, they adhered to rules that
are displaced by
other principles in the legal system. The relevant principles may be derived
from (i) the statutory recognition
of Maori customary title in legislation, (ii)
common law recognition of customary rights from analogous case law (such as
Muriwhenua), and (iii) general principles of statutory
This would be an example of the Court revising the balance of
principles in the legal system to effect change in law: an
Dworkinian conception of law. However, Elias CJ rejects the notion that
Ngati Apa is a modern revision of the law “based upon developing
insights”. Hence, the Chief Justice’s decision is best understood
as an exercise in Strict Positivism. As for the joint judgment of Keith and
Anderson JJ, their jurisprudential perspective
is unclear. They purport to
subscribe to Elias CJ’s Strict Positivism, yet they also seem to be re-
balancing principles to
arrive at the same conclusion.
3. Gault P
In one sense, Gault P’s decision in Ngati Apa can be seen as a
dissent. Although Gault P arrived at the same outcome as the remainder of the
Court of Appeal, the avenue which his
Honour took to reach the result is unique
and difficult to reconcile with the other judgments. Instead of overturning
in Ninety-Mile Beach, Gault would have
narrowed the scope of the decision at paragraph 121:
But I consider that those conclusions are consistent with the intended
application of the provisions of the successive Native Lands
Acts. Interests in
native lands bordering the sea, after investigation by the Native Land Court
(which encompassed ascertaining
interests of any other complaints), were
extinguished and substituted with grants in fee simple. It does not seem
now to find that there could be have been strips of land between the
claimed land bordering the sea and the sea that were not
which the interests were not identified and extinguished once the Crown
grants were made....Of course, if it
is shown that the land investigated
was not claimed as bordering the sea the position might be different. The
Court in Ninety- Mile Beach case did not rule on that factual
Although this approach was unique in Ngati Apa, it is common place
for an appellate court to constrain prior precedents to limited circumstances
so as to be free from
the constraints of difficult precedent. The
important question for our purposes is what concept of law drove Gault P to such
a narrow view of Ninety-Mile Beach?
Gault P must have felt constrained by the precedent value of Ninety-
Mile Beach if his Honour was unwilling to make findings with regard to the
kind of strips of land that were adjudicated upon in 1963.
in showing deference to the 1963 Court of Appeal, Gault P’s decision
must be premised upon Positivist Realism.
the Court of Appeal’s decision in 1963 has the requisite pedigree in
this particular area of the law to accurately state the
substantive law. Gault P
perceives his judgment in Ngati Apa as addressing a slightly
different question than that was determined in the Ninety-Mile Beach
decision, whilst assuming the validity of Ninety-Mile Beach. Hence,
Gault P tended towards a Positivist Realist perspective,
whilst not joining
the counter-reformation of secondary rules.
This approach may seem counter-intuitive, but can be understood when
one considers the practical impact of reversing Ninety-Mile Beach. Gault
P’s decision reflects a Formalist concern for negative impacts of
retrospective change in settled law. The change in law
in Ngati Apa had a
retrospective effect, as it had the potential to attach new legal consequences
to past events.47 This is an insult on the rule of law, as those
with interests in the seabed and foreshore could reasonably have relied upon
law as stated in the 1963 Court of Appeal decision. When the 2003
Court of Appeal changes the status of the law, the new law
applies to past,
present and future conduct which may detrimentally impact on bona fide
4. Tipping J
Tipping J also seemed concerned about the disruption of settled law. The
judgment of Tipping J recognised explicitly the
change in the common
law that was brought about by the Ngati Apa decision. Tipping J
held that the Court in Ninety-Mile Beach did not adequately recognise
the fundamental point that the Crown acquired sovereignty in New Zealand
subject to Maori customary
title.48 Tipping J also
recognised that although the “decision in Ninety Mile has stood for 40
years”49it was necessary to overturn it. At paragraph
I was initially hesitant but am now satisfied that the case
for overruling Ninety-Mile Beach is clearly made out [...] while the case
has stood for a long time, it is better in the end that the law now be set upon
47 See Elmer A Dreidger, Statutes: Retroactive Respective Reflections (1978) 56 Canadian
Bar Review, 268.
48 Ngati Apa, paragraph .
49 Ngati Apa, paragraph .
Tipping J, by recognising that Ngati Apa was a change in law, adopts a
non-Dworkinian concept of law. From a Dworkinian perspective, the rules and
principles that determined
whether there was a common law customary title in the
foreshore and seabed would have always been a part of the fabric of the law,
despite the failure of previous courts to properly identify them. A
Dworkinian judge would not ‘change’ the
law, but merely declare
the true state of the law by relying on both rules and principles. Instead,
Tipping J viewed Ngati Apa as setting the law upon a different
Furthermore, it is difficult to reconcile the Strict Positivistic account of
Ngati Apa with the concession that the Court is changing
the law. If it is the
case that the Court of Appeal in Ninety-Mile Beach merely misused the
secondary rules of a legal system, then it would be surprising that such an
error would stand for 40 years.
Under a Strict Positivist conception,
ever since the Privy Council’s findings in Nireaha the
common law has recognised customary title. The decision of a
subordinate court could not have the requisite pedigree
to overturn the Privy
Council decision. Therefore, to concede that Ngati Apa represents a
change in the law is to view the decision in Ninety-Mile Beach as a
reformation and the decision in Ngati Apa as a counter-reformation of
secondary rules: the Positivist Realist conception.
5. Which conception of the law provides an adequate account of N g
a t i A p a ?
A complication for both a Strict Positivism and a
Dworkinian conception of law is that both conceptions are
a declaratory theory of judgment. Namely, that the court does not change the
law, rather declares the true nature
of the law. This declaration may be made
upon the basis of primary and secondary rules or following a balancing of
principles. Nonetheless, it is an unstable premise from
which to explain the law. As Lord Browne-Wilkinson notes
Benson Ltd v Lincoln City Council:
...the theoretical position has been that judges do not make the law; they
discover and declare the law which is throughout the same.
According to this
theory, when an earlier decision is overruled the law is not changed; its true
nature is disclosed, having existed
in that form
all along. This theoretical position is... a fairy tale in which no one
Hence, it is problematic for these concepts of law that Ninety-Mile Beach
has been viewed as good authority for forty years before Ngati Apa. A
descriptive conception of law needs to be able to account for this. Strict
Positivism fails to account for the change in Ngati Apa, as the 40 year
reign of Ninety-Mile Beach can only be explained as a failure
of the secondary rules.
A Dworkinian conception could explain the change in terms of new principles and policies being introduced into the legal system after
1963, or by reference to a re-balancing of older principles against the
rules. But Ngati Apa would not be a change in law, it
would be a declaration of the law as a result of rules and principles
that have always been the law. Therefore, the Dworkinian conception of law
an adequate explanation of Ngati Apa, although it requires us to
believe in the declaratory theory of judgment.
Positivist Realism also provides an adequate explanation of the change in
Ngati Apa. In the words of the Chief Justice, Ninety-Mile Beach was
“revolutionary”. It was revolutionary as it, along with the
Protest of Bench and Bar, marked a reformation in the secondary
rules of recognition in a particular area of New Zealand law. It
to establish that in the area of Indigenous land law, the New
Zealand Court of Appeal had higher pedigree than
the Privy Council.
The change in 2003 was thus a counter-reformation, reverting back to the
orthodox rules of recognition. This,
in our opinion, is the best way to explain
the change in law effected by Ngati Apa.
Ngati Apa was a case that finally brought to an end a
unique disagreement between New Zealand domestic courts and the Privy
Council in the area of Indigenous rights. From a jurisprudential
standpoint it provides a useful illustration of the
possible applications for
the different classical conceptions of law, in particular, an
illustration of how the
conceptions of law are able account for change
50  UKHL 38;  3 WLR 1095 at 1100.
in law. A Dworkinian conception of law can adequately describe Ngati Apa as a re-balancing of legal principles, but it is constrained from describing Ngati Apa as a change in law. If we view Ngati Apa as changing the law with regard to customary rights in the foreshore and seabed, then we must to view the decision as a counter-reformation of rules of recognition.