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Wheen, Nicola R --- "Foreshore and Seabed, by Richard Boast" [2007] OtaLawRw 10; (2007) 11 Otago Law Review 513


Foreshore and Seabed

(by Richard Boast, LexisNexis, Wellington, 2005)

Foreshore and Seabed is a detailed work that sets about describing the body of law that applies to the foreshore and seabed (and, briefly, riverbeds, lakebeds and minerals) in New Zealand. In particular, it analyses the common law and customary rights that relate to ownership and use of the foreshore and seabed, the Court of Appeal’s decision in Ngati Apa v Attorney-General [2003] NZCA 117; [2003] 3 NZLR 643 and the Foreshore and Seabed Act 2004. Boast expressly points out that the book is not intended to be, and indeed is not, only about common law native title to the foreshore and seabed, or the recognition of such title in Ngati Apa and its subsequent extinguishment in the Act.[1]As Boast observes, the law that in New Zealand relates to the ownership and use of the foreshore and seabed extends beyond the Maori, native title and Ngati Apa issues although ‘… it is from questions relating to Maori claims of various kinds – or from attempts to manage, forestall or extinguish such claims – that much of the operative law happens to derive’.[2] In fact the influence of Maori claims, especially Ngati Apa, is so important in this field that it directs the structure of the book even though it has not been allowed to prescribe or limit its content.

And so Foreshore and Seabed is divided into three parts: background and the law up to Ngati Apa; Ngati Apa to the Foreshore and Seabed Act; and the Foreshore and Seabed Act. The first part begins with a short chapter that introduces the book, contains some background material outlining the importance of the coast to New Zealanders, and identifies the various Acts that affect the coast. Chapters 2, 3 and 4 also, for the most part, comprise important, but still fairly background, material. I think these three chapters could have been easily and effectively combined into one.

Chapter 2 outlines key steps in the history and development of law relating to the use and ownership of the foreshore and seabed, and describes aspects of Crown sovereignty and title, and categories of land in New Zealand. This is all information that must be understood for the rest of the book to make sense but Chapter 2 ends with a discussion that really continues in Chapter 5, and which explains the relevance and significance of Chapters 5, 6, 7 and 8. These are the interesting chapters on the common and customary law, and on New Zealand developments in the application

of that law to the foreshore and seabed, up to and including Ngati Apa. As Boast explains at the end of Chapter 2, although the Foreshore and Seabed Act now ‘… governs title to the foreshore, public rights of access to it, and questions of proprietary and non-proprietary customary title relating to it’,[3] the former common law is still relevant. Understanding the common law enables understanding of the ‘… point of departure for the current legislation …’ and provides a standard against which the legislation and the validity of the Crown’s actions under the former law may be evaluated. Furthermore, the Act itself ‘… expressly preserves and incorporates the common law in a number of key respects.’[4]

Chapter 3 pursues the related ‘legal problems’ of the ownership of riverbeds (which, according to Boast, ‘remains unclear ’,[5]) and lakebeds (where the Crown has taken a ‘radically different approach’ to its approach to the foreshore and seabed, including displaying a willingness to vest the beds of major internal lakes in Maori[6]). Chapter 4 explores the meaning of ‘foreshore’ and ‘seabed’ at common law and in international law, and distinguishes the term ‘Queen’s Chain’. Here Boast exposes the legislature’s decision to include an ‘expansive’ definition of the foreshore and seabed in the Foreshore and Seabed Act. As Boast observes, the inland boundary chosen in the Act (mean high water springs) lies further up the beach than that used in other recent legislation (mean spring tides) which is itself further inland than that used by the common law and the Crown Grants Act 1908 (which, as Boast establishes, use high water mark at ordinary tides). The significance of this is not made altogether clear, but since the Act vests all ‘public foreshore and seabed’ in New Zealand in the Crown, the Crown may be seen to be quietly enhancing its landholding to the detriment of other freeholders of land adjacent to the foreshore. Boast notes that the difference in area between the common law and Crown Grant boundary on the one hand, and the boundary as defined by the Foreshore and Seabed Act on the other, is ‘likely to be considerable’ in places.[7]

Chapter 5 returns to the book’s core material. It describes and analyses two key elements of the relevant common law: ownership of/rights to the foreshore and seabed, and native title. Boast’s investigation reveals that there is an English common law presumption that the Crown owns the foreshore and seabed, but freehold title to the foreshore is nevertheless possible,[8] and that the common law also recognises public rights to navigation and fishery in the foreshore and other tidal waters. As the book progresses (read on past Chapter 8), it becomes apparent that the issue in New Zealand (and elsewhere) has been how these common law rights and presumptions reconcile with the law on native title.[9]

This body of law establishes that ‘… extant native title survives a change in sovereignty …’, and that such title ‘… may be recognised by the Courts until such time as it has been extinguished in a lawful manner.’[10] Thus Chapter 5 ends with an analysis of the Australian decision Commonwealth v Yarmirr (2001) 208 CLR 1, (2001) 184 ALR 113, the most important case on ‘… the intersection of these two strands of common law’ prior to Ngati Apa.[11] Here, the High Court of Australia held that the native title that the applicants had been held to have in the claimed area under the Native Title Act 1993 was not exclusive. This was based on the majority’s view that exclusive title could not be reconciled with common law public rights of navigation and fishing, and the international right of innocent passage. Kirby J dissented, finding it entirely possible to reconcile the public and international rights with an ‘otherwise exclusive’ native title. Boast observes that the ‘… approach of the New Zealand Court of Appeal in Ngati Apa has a great deal of common ground with Kirby J’s decision in Yarmirr.’[12]

Chapter 6 (a short chapter on Maori customary law and the foreshore and seabed) broke up my reading of the book because the discussion in Chapter 7 seems to follow from that in Chapter 5. Chapter 7 takes the common law issues set out in Chapter 5 and traces their application in the context of New Zealand law between 1840 and 2004. I am not sure that separating these two chapters with Chapter 6 really works, although I accept that assimilating Maori customary law into the general discussion might hide it, and alternatively that moving this discussion could disturb the book’s chronological aspects (something which may have engaged the legal historian in Boast). Whether Chapter 6 is in the right place or not, it contains important material. As Boast observes, ‘… exploration [of Maori customary law] is now certain as a result of the [Foreshore and Seabed Act], s 32.’[13]

Chapter 7 has two parts. In the first, Boast investigates the application of the common law to the foreshore and seabed in New Zealand up to the decision in Ngati Apa. This involves analysis of the Crown’s pre-emptive purchases prior to 1862, of the approach of the Native/Maori Land Court from 1862 to 1962, and of the decision in In re the Ninety-Mile Beach [1963] NZLR 461 (CA). From the first source, Boast concludes that at least some Crown officials involved in carrying out pre-emptive land purchases on behalf of the Crown worked on the assumption that ‘… the Crown’s rights [to the foreshore and seabed] did not arise from mere operation of the law but were in fact based on particular transactions.’[14]This indicates that these officials at least did not assume that the Crown had any special rights to the foreshore and seabed that should displace native customary title. Boast finds that this idea is confirmed by case law from the early Maori Land Court cases. This, although not ‘highly developed’, nevertheless provides ‘at least some authority’ that ‘… the Court would essentiallytreat applications for existing orders in the same way as applications for title to “terrestrial blocks” [and so, in other words, there was] no suggestion that there is a special or particular standard applicable to foreshore and seabed cases.’[15] The first part of Chapter 7 ends with an analysis of the Court of Appeal’s decision in the Ninety-Mile Beach case. This is the case that was overruled by majority in Ngati Apa, and although Boast does explain in Chapter 7 that this was because it was based on ‘… certain assumptions about native title that were questionable even at the time and certainly could not withstand scrutiny by a contemporary Court’,[16] the reasons for this overruling are not really clear until the discussion in Chapter 8 on Ngati Apa itself has been consumed.

The essence of the judgment in Ninety-Mile Beach is to be found in the two passages quoted by Boast in Chapter 7.[17] First the Court of Appeal assumed ‘… that at some point or other the Native Land Court must have investigated the title to the various blocks of land along the coast adjoining the beach …’, and that the ‘… “downstream” effect of the Native Land Court process …’ had extinguished native title.[18] According to the Court of Appeal, where the Land Court fixed the boundary of title to the adjacent land at low water mark, ‘… the individuals in whose favour the order was made … gained a title to low water mark …’ but where the Court fixed the boundary instead at high water mark, the land between high and low water marks (that is, the foreshore) ‘… likewise remained [emphasis added [by Boast]] with the Crown.’[19]Thus, the Court of Appeal’s judgment was based on at least two incorrect assumptions. First, it got the facts wrong: Boast shows that title to the blocks in question had been investigated by pre-emptive Crown purchase before the Land Court was even established.[20]Second, it assumed, as Boast argues by emphasising the word ‘remained’ in the quote above, that the Crown had ‘… some kind of title to the foreshore which goes much further than mere imperium’[21] despite having rejected the Crown’s submission in the case that it owned the foreshore by prerogative right. This assumption, as the decision in Ngati Apa shows, is not consistent with the law of native title.

The second part of Chapter 7 has little to do with the foreshore and seabed, but it is only three pages long. It describes in general terms the jurisdiction of the Maori Land Court. The purpose is clearly to set the stage for Part B of the book: Ngati Apa to the Foreshore and Seabed Act. No doubt it is all necessary information, but maybe it could have been integrated into the analysis elsewhere in the book.

The second part of Foreshore and Seabed covers the legal developments and events that occurred in and after the Court of Appeal’s decision in Ngati Apa, and culminates with the enactment of the new regime under the Foreshore and Seabed Act. Chapter 8 begins this part by examining Ngati Apa, from the interim decision of Judge Hingston in the Maori Land Court, which was successfully appealed by way of case stated in the High Court but then confirmed in all significant respects by the Court of Appeal as it overruled its earlier decision in the Ninety-Mile Beach case. The actual case raised (as is now well known) a limited jurisdictional question: could the Maori Land Court investigate title to the foreshore and seabed? However, as Boast puts it:[22]

[b]y holding … that the Maori Land Court did indeed possess this jurisdiction, the Court of Appeal in reality determined – and this is the real significance of the case – that a very large area of land long assumed to belong to the Crown in dominium is in fact at least potentially Maori customary land and might be Maori freehold land.

In her leading judgment in Ngati Apa, Elias CJ found that:[23]

the Crown did not acquire full and absolute dominium at the point of acquisition of sovereignty and English common law rules relating to Crown rights with respect to the foreshore and seabed could not themselves displace New Zealand common law relating to the recognition and protection of native title.

She described the ‘… common law as received in New Zealand …’ as ‘… modified by Maori customary proprietary interests.’[24]

The reaction to Ngati Apa consumes Chapters 9 and 10 of Foreshore and Seabed. Legal response to the Court of Appeal’s decision depended, at least in so far as the foreshore was concerned, on whether the Ninety-Mile Beach case was seen to be rightly or wrongly decided. There is no question about what Boast thinks. The Government of the day had, as Chapter 9 records, relied on the Ninety-Mile Beach case. However, it chose not to appeal the decision in Ngati Apa and instead decided to simply legislate common law native title to the foreshore and seabed away, to remove these matters from the Maori Land Court’s jurisdiction, and to vest the foreshore and seabed in the Crown (or some other formulation representing the so-called public domain). Although this proposed course of action was found to breach Treaty of Waitangi principles by the Waitangi Tribunal (as discussed in Boast’s Chapter 10), it was nevertheless swiftly implemented.

Before moving on to the Foreshore and Seabed Act itself, Boast takes one last look (in Chapter 11) at what could have been had the law as laid out in Ngati Apa been left standing. When combined with the material in Chapter 14, this analysis serves to identify the impact and excesses of the Act. Chapter 11’s analysis proceeds by examining what orders or determinations the Maori Land Court, and alternatively the High Court, would have been able to make following the Court of Appeal’s decision. Boast focuses on the Maori Land Court, it being his view, supported by observations of what in fact occurred in the short period between the handing down of the Court of Appeal’s decision and the enactment of the Act, that this Court ‘… would have had a number of strings to its bow with regard to the foreshore and seabed.’[25] Boast finds that the Court’s options would have included making vesting orders (‘… equivalent to freehold titles …’[26] ), and that ‘[p]rivatisation of some parts of the foreshore and seabed was, therefore, a real and by no means fanciful possibility.’[27] However, he then argues that in practice the Court’s powers ‘… would have to have been exercised in a moderate and responsible way …’[28] and that the Court would have ‘… worked out a number of more restrictive tests, refined in the course of a number of appeals’[29] so that the ‘… prospect of large areas of the foreshore and coastline moving into Maori hands was in fact remote.’[30]

Since applications for freehold title were ‘a real possibility’ and since the Maori Land Court would effectively have had the power to grant Maori such title to the foreshore and seabed, ‘… then the Crown’s policy [and so the Act] could be said to be virtually confiscatory …’.[31] The Act was, as Boast argues, a ‘… radical solution.’[32] Instead, he suggests that the Crown should have considered ‘fine tuning’ Te Ture Whenua Maori Act 1993 to ‘… clarify the circumstances that would justify the making of a vesting order specifically in the case of foreshore and seabed, and … giving the Court a more substantial “toolkit” with which to work.’[33]

As previously stated, the material in Chapter 14 adds to Chapter 11’s analysis, even though this short chapter on the ‘Jurisdictional Effects of the [Foreshore and Seabed Act]’ is located in the third part of Foreshore and Seabed. Chapter 14 looks at the provisions in the Act that take powers away from, and conversely give powers to, the High Court and the Maori Land Court. To understand what has been taken away, it is necessary to consider what these Courts could have done had the Act not been enacted (that is, the material in Chapter 11). Having considered the issue, Boast concludes, that in so far as the High Court is concerned:[34] the abolition of the … jurisdiction to consider foreshore and seabed claims raising the Crown’s fiduciary duty and the existence of trusts may turn out to be much more significant than the abolition of the Court’s power to issue declarations relating to native title claims at common law.

As for the Maori Land Court, Boast’s Chapter 14 analysis is limited to the point that the Act ‘… cancels the jurisdiction that the Court of Appeal in Ngati Apa found the Maori Land Court to posses.’[35]Boast does not comment on this in Chapter 14. Instead he describes the course of events following the lodging of ‘… numerous foreshore and seabed applications …’ in the Maori Land Court following Ngati Apa but before the Government had implemented its response.[36] The point that the cancellation of the Maori Land Court’s jurisdiction could be seen ‘virtually confiscatory’ was made in Chapter 11. The possible implications of such a confiscation, if it really did occur, are discussed in Chapter 15 in a section entitled ‘Effectiveness of vesting.’ A structural issue thus arises again.

Chapter 12 is the first chapter in the third part of the book. This part concerns the Foreshore and Seabed Act itself, and Chapter 12 opens it by tracing the developments that led to the Act’s enactment including the select committee process, New Zealand Bill of Rights Act 1990 compliance process (where the Attorney-General concluded that the Bill created a reasonable and justified limitation on the right to be free from discrimination, and so complied with the 1990 Act via s 5), and the United Nations Committee on the Elimination of Racial Discrimination report (Boast leaves the reader to decide if this amounted to a ‘telling-off’ or only ‘mild reproof’ of the Government[37] ).

Chapter 13 provides an overview of the Act that covers its structure, key features, object and purposes, and the two ‘principal’ kinds of orders that can be made under it – territorial customary rights orders and customary rights orders.[38]Chapter 13 also outlines the related amendments made to the Resource Management Act ‘… by means of [which customary rights orders] made under the [Foreshore and Seabed Act] achieve effective protection.’[39]

Chapters 15, 16 and 17 pursue in detail three key aspects of the Act. Chapter 15 analyses the idea and implications of vesting the ‘public foreshore and seabed’ in the Crown. It begins with an examination of the meaning of ‘foreshore and seabed’ and ‘public foreshore and seabed’, and subsequently describes the ‘…. statutory guarantees relating to public rights of access, navigation and fishery’ to which the ‘… nationalisation of title to the foreshore and seabed …’ is subject.[40] Boast argues that the Act’s definition of ‘foreshore and seabed’ will ‘… widen options for some Maori groups with traditional associations with large navigable waterways …’[41] and further that the ‘sensible’ course is to see the ‘public foreshore and seabed’ as equivalent to a ‘“moveable freehold”’ or as a ‘… ribbon always in a state of constant flux.’[42]

Then, in a brief but tantalising discussion, Boast takes up the confiscation issue raised in Chapters 11 and 14. He notes that while there is no doubt that the Act has effectively extinguished common law native title to the foreshore and seabed (‘… while at the same time [allowing] the common law [to] form part of the criteria governing the establishment of a statutorily defined right’)[43] , there is a chance that a claim to compensation for that extinguishment could be made. The Act itself is generally silent as to compensation,[44] but Boast argues that there is Privy Council, common law and US case law authority to support the application of a presumption of statutory interpretation that compensation is payable where ‘… a statute extinguishes valuable private property rights.’[45] He acknowledges that the application of this presumption in New Zealand is ‘uncertain’,[46] and the Crown ‘… can be expected to argue that the [Act] does not extinguish … without compensation, but instead combines statutory extinguishment … with new procedures which provide for recognition and enforcement of customary rights according to the new framework.’[47] Boast sees these as ‘… formidable, although … not … unsurmountable’ hurdles to a claim for compensation.[48]

Chapter 15 also raises the prospect of a claim in restitution to recover royalties for sand and gravel extraction mistakenly paid to the Crown (on the assumption that it was the owner of the foreshore and seabed prior to the enactment of the Act) being made. On Boast’s analysis the likely success of such a claim would depend on the Courts here following the House of Lord’s decision to allow recovery of money paid under settled law later changed, and so completely abandoning the old distinction between money paid pursuant to a mistake of fact (potentially recoverable) and money paid pursuant to a mistake of law (unrecoverable).[49]

Chapter 16 looks in-depth at territorial customary rights orders. Under s 33 of the Act the High Court can ‘… make a finding that [a] group … would but for the vesting of the public foreshore and seabed in the Crown by s 13(1), have held territorial customary rights to a particular area of the foreshore and seabed at common law.’ Boast investigates the nature of these findings, what it will take to establish a case to support them, and how the High Court is likely to deal with applications. From this, he concludes first that these orders ‘… will not be at all easy to obtain and many groups are likely to [be] disbarred in particular bythe “continuous title to contiguous land” requirement’[50] and second that the role the High Court is required to assume in considering applications for territorial customary rights orders is that of a ‘… kind of high-level and expensive commission of inquiry, a function not at all in keeping with the High Court’s ordinary powers as New Zealand’s premier Court of general jurisdiction.’[51]Boast then considers the potential impact of a favourable finding under s 33. He explains that the successful group can apply separately to the High Court for either an order referring the finding to the Attorney-General and Minister of Maori Affairs (who are then required to ‘… enter into discussions with the applicant group for the purpose of negotiating an agreement as to the nature and extent of the redress to be given by the Crown in recognition of the finding …’[52] ) or an order establishing a foreshore and seabed reserve. Boast describes the first option as ‘rather remarkable’ (since he knows of no other equivalent provision directing the Crown to negotiate in this way),[53] but subsequently argues that since Maori can already negotiate with the Crown over alleged breaches of the Treaty of Waitangi, groups are ‘… certain … to simply circumvent the convoluted [territorial customary rights orders] requirements and proceed to negotiations directly.’[54]The second option (a foreshore and seabed reserve) may look promising but Boast’s analysis reveals that this is a largely ‘empty’ option since it only recognises, but does not actually protect, customary activities.[55]

Chapter 17 concerns customary rights orders, which focus on activities rather than areas as with territorial customary rights orders. Boast first discusses who may apply for a customary rights order, and what may (and may not) go in an order. He notes that the Act confers jurisdiction (via ‘basically identical’ provisions[56] ) on both the High Court and the Maori Land Court to make these orders, but points out that an ‘… authorised representative of a group of natural persons with a distinctive community of interest …’ may apply to the High Court, whereas applications to the Maori Land Court can only be made by ‘… whanau, iwi, or hapu.’[57] Again, this looks interesting for groups ‘… not differentiated by iwi, hapu or whanau’, but in reality, as Boast shows, it is almost impossible to think of a group in New Zealand that could qualify by meeting this community of interest standard.[58] In the last part of Chapter 17, Boast goes on to analyse how orders will be given effect once made, having noted that this essentially occurs via the Resource Management Act rather than occurring directly under the Foreshore and Seabed Act itself.[59]

Finally, the book features very full appendices of significant documents such as key Maori/Native Land Court decisions, the Attorney-General’s report on the Foreshore and Seabed Act, the Act itself (and extracts from other relevant legislation) and a precedent for a customary rights order application under the Act. I enjoyed reading the book and have learned a great deal from it. Boast has a lot of knowledge and relevant experience to share. Foreshore and Seabed offers some interesting and lucidly expressed analysis on the law relating to the foreshore and seabed. In places the analysis was broken up by the book’s structure, and some chapters could have been integrated into others. Nevertheless, those with an interest in native title law, environmental law or land law will want to read this book. Practitioners should find the later chapters on the Act particularly helpful, especially as the earlier chapters on the common law and Maori customary law provide the necessary analytical context to give meaning to the ideas behind, and many of the concepts, tests and standards within, the Act.

Nicola R Wheen, Faculty of Law, University of Otago.


[1] Foreshore and Seabed, page 10.

[2] Idem.

[3] Foreshore and Seabed, page 103

[4] Foreshore and Seabed, page 18.

[5] Foreshore and Seabed, page 20.

[6] Foreshore and Seabed, page 28.

[7] Foreshore and Seabed, page 31.

[8] Foreshore and Seabed, page 37. Thus ‘Anyone claiming to own a piece of foreshore or seabed … had to point to an actual Crown grant, or … circumstances from which a Crown grant could be inferred.’

[9] Boast asserts (Foreshore and Seabed, page 44): ‘… the core principles of native title have always been part of the basic structure of New Zealand common law …’ and it is now clear that this is correct. But there is a group of cases, as Boast acknowledges in Chapters 5 and 8, beginning with the infamous Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur (NS) 72, where this law was distorted (or ‘misunderstood’ as more kindly put by F M Brookfield ‘The New Zealand Constitution – the Search for Legitimacy’ I H Kawharu (ed) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford UP, Auckland, 1989), page 10). These cases progressed on the (now known to be clearly) incorrect assumption that native title rights ‘… existed … only by ‘grace and favour ’ of the Crown and were not cognisable by the courts’ (Brookfield, ibid, page 11). This was the key error corrected in the ‘important’ judgment of Williamson J in Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (Brookfield, idem).

[10] Foreshore and Seabed, page 49. According to Boast, ‘It has certainly been assumed in New Zealand practice that Maori customary title needs to be independently extinguished prior to Crown grant …’ by purchase or confiscation for example (page 45).

[11] Foreshore and Seabed, page 49.

[12] Idem.

[13] Foreshore and Seabed, page 53.

[14] Foreshore and Seabed, page 59.

[15] Foreshore and Seabed, page 68.

[16] Foreshore and Seabed, page 70.

[17] Foreshore and Seabed, page 71. But note that page/paragraph references have not been provided for these quotes, or, for that matter, for the critical quote from Elias CJ’s judgment in Ngati Apa reproduced at page 81 of the book (see note 24 below). The relevant page references for the quotes from the Ninety-Mile Beach case are 467 and 473 respectively.

[18] Foreshore and Seabed, page 71.

[19] These words are per North J at page 173 of the case (see note 17 above), quoted by Boast in Foreshore and Seabed, page 71.

[20] Foreshore and Seabed, page 71 note 48.

[21] Foreshore and Seabed, page 71.

[22] Foreshore and Seabed, page 79.

[23] Foreshore and Seabed, pages 80 and 81.

[24] These are the Chief Justice’s own words (see Ngati Apa, para 86) as quoted in Foreshore and Seabed, page 81 (but see note 17 above).

[25] Foreshore and Seabed, page 97.

[26] Idem.

[27] Idem.

[28] Idem.

[29] Foreshore and Seabed, page 99.

[30] Foreshore and Seabed, page 97.

[31] Foreshore and Seabed, page 93.

[32] Foreshore and Seabed, page 99.

[33] Idem.

[34] Foreshore and Seabed, page 122.

[35] Idem.

[36] Foreshore and Seabed, pages 122 to 124. There is also a very short section on the redefinition of ‘land’ in Te Ture Whenua Maori Act so as to ‘… confine the Court’s jurisdiction to land above [mean high water springs] …’ (page 124).

[37] Foreshore and Seabed, page 111.

[38] Foreshore and Seabed, page 117.

[39] Foreshore and Seabed, page 115.

[40] Foreshore and Seabed, page 136.

[41] Foreshore and Seabed, page 126.

[42] Foreshore and Seabed, page 136.

[43] Foreshore and Seabed, page 133.

[44] Except in so far as local authorities are concerned, see s 25 and the discussion in Foreshore and Seabed, pages 133 to 134.

[45] Foreshore and Seabed, page 134.

[46] Idem. Note that Boast does not cite the New Zealand cases Lumber Specialties v Hodgson [2000] 2 NZLR 347, Westco Lagan Ltd v Attorney-General 15/8/00, McGechan J, HC Wellington CP 142/00 and Gebbie v Banks Peninsula DC (1999) 5 ERNZ 362 (EC) and [2000] NZHC 621; [2000] NZRMA 553 (HC). These cases consider ‘takings’ arguments and might have added to Boast’s analysis on this point.

[47] Foreshore and Seabed, page 135.

[48] Idem.

[49] Foreshore and Seabed, page 140.

[50] Foreshore and Seabed, page 159. Boast describes this requirement (by which the Act demands that any group applying for an order shows ‘continuous title to contiguous land’ despite it also ‘… essentially provid[ing] that extinguishment of title to a coastal block extinguishes the customary title, if any, to the foreshore and seabed’) as ‘harsh’ and one ‘… that is likely to eliminate many groups from any hope of obtaining a [territorial customary rights order]’ (page 157).

[51] Foreshore and Seabed, page 162.

[52] Section 37(1), reproduced in Foreshore and Seabed (page 163) with a rather misleading error. As quoted, the section reads: ‘… as to the nature and extent of the redress to be given to the Crown in recognition of the finding …’ (emphasis added).

[53] Foreshore and Seabed, page 163.

[54] Foreshore and Seabed, page 166.

[55] Foreshore and Seabed, page 164, but note that Boast does go on to consider the effect of ss 79A and 79B of the Resource Management Act. These sections were inserted into this Act ‘… as part of the foreshore and seabed package’ and provide that ‘once a foreshore and seabed reserve management plan has been finalised and lodged with a regional council, the council is under potentially quite onerous obligations toensure that its own planning documents are not in conflict with it’ (page 165).

[56] Foreshore and Seabed, page 178.

[57] Idem.

[58] Idem.

[59] Foreshore and Seabed, page 179


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