Maori Land - A Category of Its Own
The greater part of the reserved water margin pattern which exists today, was established over general land in the period 1853-1892 by the laying off of roads along significant water boundaries. This was the period when after Maori title had been extinguished, settlers took Crown grants to the best and most accessible land. Concurrently (or nearly so), in the period 1862 to 1909, almost all Maori customary land was converted to Maori freehold land. But Maori customary land did not admit of the attributes which would permit a coastal or riverside reservation to the Crown. The reservation of boundary margins over general (non-Maori) land was based on plans of survey, and Crown grants which excluded the land reserved. There was underlying Crown title to both the land granted and the land reserved. Maori ownership according to ancient custom was obviously not based upon survey plans and Crown grants. Although the conversion of Maori customary land to Maori freehold (i.e., a written title) was perfected by a formal grant of the land from the Crown, the basis of the paper title was an investigation of ownership rights by the Maori Land Court. The Court provided the Governor with a certificate of ownership that authorised the Governor to make the grant. There has never been power to grant customary title as freehold to anyone other than the customary owners. If there were to be a strip, it would have to be taken, not reserved. In a nutshell, this is the reason why the Queen’s Chain was not established over Maori land.
The classic description of customary ownership along rivers was provided by Judge Browne of the Maori Land Court in the original proceedings for investigation of title to the bed of the Wanganui River in a judgment on 29 September 1939: 23
"This Court in all its experience of native land and the investigation of the title thereto, never once heard it asserted by any Maori claimant that the ownership of the bed of a stream or river running through or along the boundaries of the land the subject of investigation, whether that stream or river was navigable or not, was in any way different from the ownership of the land on its banks. Nor has it ever heard it denied that the tribes or hapus that owned the land on the banks of a stream or river had not the exclusive right to construct eel weirs or fish traps in its bed or exercise rights of ownership over it. The river bed being a source of food in ancient times would be looked upon as a highly important asset to any tribe and the right to it would be very jealously guarded by the members of that tribe."
Marginal land along river and stream boundaries is part of the customary title of Maori, and part of their freehold title when customary land becomes freehold land. Marginal land around lakes and along the coast on the upland of the water, i.e., above mean high water mark or the upland margin of fluctuating inland lake beds, would similarly originally have formed a part of the adjoining customary land, and later the freehold of that same land.
The physical dimension of ownership of Maori land along water margins can be described with reference to the customary rights obtained by usage in the past. Has statute law made any impact?
Although the instructions from the Colonial Office in 1846 made provision for a Court to deal with Maori land, nothing was done until the Native Land Act 1862 was enacted. The Court did not begin operations until 1865 when in that year a further Native Land Act repealed the Act of 1862. The Act of 1865 had far-reaching effects, for the Court was empowered to issue a certificate converting land from customary to freehold tenure which could be sold. After receipt of the certificate of the Court, the Governor could issue a Crown grant for the land in the certificate. Section LXXVI of the Act of 1865 provides for roads through land granted under the Act. "From and out of any land which may be granted under the provisions of this Act it shall be lawful for the Governor at any time thereafter to take and lay off for public purposes one or more lines of road …". Significantly at the point of taking the land would be freehold in status and no longer customary land. The Maori title had been converted to a general title, and the Maori owners could sell the land free of tribal constraints. Large areas were sold to the settlers. 24
The laying out of roads along water boundaries was the device employed by the Governor and early land administrators in respect of general land to secure a public margin. This was achieved under the statutes and ordinances relating to the sale of Crown land, all of which where appropriate contained powers to lay off roads. In fact, under sLXXVI the Governor could have laid out roads along Maori freeholds with frontage to water in the same way as in land sold directly by the Crown to the settlers. Clearly the Crown did not compromise the title of Maori but respected cultural and customary rights in relation to the land for which Maori retained title. Article 2 of the Treaty of Waitangi may be taken to have had a bearing on the matter.
The key period in relation to Maori land and water margins is 1862-1909. If legislation were to deal with any form of marginal strip along water, it is the legislation enacted in that period which would provide authority. From time-to-time between the first Native land Act of 1862, and the year 1909, when for practical purposes the conversion from customary to freehold land was completed there were changes made in the legislation relating to the manner of giving effect to and the steps to be taken after an investigation of title by the Maori Land Court. The law and practice are authoritively summarised by Sir John Salmond, then Solicitor-General, in his Notes on the History of Native Title 1909 (Vol 6 The Public Acts of New Zealand 1908-1931 at p87) reproduced as Appendix 15.
All of the statutes to which Sir John refers have been perused; there is no statutory provision which would require or authorise a marginal strip along water boundaries. That is not to say that on occasion, reserves may have been made for public access. Rather, the statutes simply do not provide for margins along water. Cooke J in his judgement in re the Bed of the Wanganui River (1955) NZLR 419 at 437 in commenting on the effect of the legislation summarised by Sir John Salmond (supra) says:
"At every stage of the legislation, there was, however, provision for the issue of some instrument that either itself was, or that had the effect of, a Crown grant; and it is clear, I think, that, whatever be the precise form of the instrument of grant that represented the culmination of the proceedings for investigation of title to any of the riparian lands between 1862 and 1903, the grantor, and the only grantor, in the transactions was the Crown. The instrument was always, in effect or in terms, a grant by the Crown: and it is to such a grant and to the circumstances surrounding it that resort must be had …"
In the event of there being a doubt in the final analysis, it is the grant and the supporting survey plan which will determine the issue.
Many years were to pass before the Crown would attempt to establish public ownership of water margins on lands for which it had granted title, but had not made appropriate provision at the time of the Crown grant. The Land Subdivision in Counties Act 1946 was the first of a line of statutes which provided for a compulsory reserve for public purposes along water boundaries when land was subdivided by the owner. Section 11 – Reserves along seashore and banks of lakes and rivers etc – included a proviso to subsection (1) –
"Provided also that nothing in this subsection shall apply with respect to the subdivision of any land which is [Maori] land within the meaning of [the Maori Affairs Act 1953]."
Traditional values were preserved in the legislation.
This approach was to change. Section 432 of the Maori Affairs Act 1953 required partitions (subdivisions) of Maori Land in cities and boroughs to comply with the provisions of the Municipal Corporations Act as to subdivision. Under s432 the vesting of a reserve was effected by an order of the Maori Land Court. Section 23 of the Maori Affairs Amendment Act 1967 inserted a new s432A in the Principal Act, to place land in counties in the same situation as land in cities and boroughs. Esplanade reserves could be required by councils and confirmed by order of the Maori Land Court.
When the Local Government Act 1974 replaced the Municipal Corporation Act and the Counties Amendment Act (in 1979), the same procedure was followed. When Te Ture Whenua Maori Maori Land Act was enacted in 1993, there was a substantial upgrade of procedures. The main provisions relating to Maori partitions are set out in "Environmental Law & Resource Management" 2n Ed 1997 DAR Williams at p139. 25 Section 303(2) of Te Ture Whenua as originally enacted was specific in relation to the vesting of esplanade reserves. Sub paragraph (b) says:
Make such orders as may be necessary to
(i) Vest in the territorial authority an esplanade reserve required to be set aside under section 230 of the Resource Management Act 1991; and
(ii) Vest in the Crown any land to which section 235 of the Resource management Act 1991 applies - and sections 229 to 237 of the Resource Management Act 1991 shall apply with all necessary modifications.
However, by s47 of Te Ture Whenua Maori Amendment Act 2002, 26 this provision was repealed and new procedures substituted. Land no longer vests in the territorial authority as esplanade reserve along water, but is set apart as a Maori reservation for the common use and benefit of the people of New Zealand. This new concept is both encouraging and sensitive.
23 No consideration of Maori ownership of riverbeds and banks may be placed in current perspective in the absence of reference to In re the Bed of the Wanganui River (1962) NZLR 600 and the 25 years of litigation which preceded that decision. In that time the Maori Land Court, The Maori Appellate Court, the then Supreme Court, a Royal Commission in 1950 and the Court of Appeal (on two occasions) considered the principles of law distilled from Maori custom and usage and the application of appropriate English freehold law. The above passage by Judge Browne was approved by the then Supreme Court in The King v Morrison (1950) NZLR 247 at 255, and in the second and final hearing in the Court of Appeal (1962) 600 at 608 per Gresson P, at 612 per Cleary J and 621 per Turner J.
The headnote (at p600) for the second hearing in the Court of Appeal (supra) provides a precise statement of the decision of the Court:
"Where a block of land fronting on a non-tidal river has been held by Maoris under their customs and usages and later the title has been investigated and separate titles issued, the bed of the land adjoining the river becomes ad medium filum as part of that block and the property of the respective owners of that block.
The fact that a whole tribe may have exercised a right of passage over the river and that eel weirs and fishing devices placed by individuals or hapus were not rigidly limited to the portion of the river immediately adjacent to the bank occupied by such individuals or hapus does not negative the application of the ad medium filum rule.
So held, by the Court of Appeal (Gresson p., Cleary and Turner JJ.).
Further held (per Turner J.). Whatever was originally the nature of the customary title to lands which have come before the Maori Land Court for investigation, the incidents of the titles which the same Court has issued and certified are, and always have been, the incidents of English freehold titles."
More recent judicial opinion has queried (in some respects) the correctness of the Court of Appeal decision in re the Bed of the Wanganui River – notably Cooke P in Te Runanganui o Te Ika Whenua Inc Soc v Attorney-General (1994) 2 NZLR 20 at 26 where he said "… the Waitangi Tribunal have 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". However, at this point in time the Wanganui case continues to state the law, i.e., the second decision of the Court of Appeal. The adjoining owners of Maori land own the bank and the bed to the centre line if there are separate owners on either side and the whole of the bed if the river intersects the title.
The first of the Court of Appeal cases on the Wanganui River (reported at (1955) NZLR 419 was initiated under the authority of s36 of the Maori Purposes Act 1951 which conferred jurisdiction to determine questions relating to the bed of the Wanganui River. The Court required further information to deal with the matter comprehensively; the second case stated arose out of that requirement. However, the court in the first case did rule that "… the bed of the Wanganui River within the limits stated, was at the time of the Treaty of Waitangi and upon the acquisition of British Sovereignty, land held by Maoris – namely the Wanganui tribe – under their customs and usage." From that judgement FB Adams J dissented and provided an opinion which said the river was held ad medium filum aquae by individual Maori owners. Adams J in a very detailed judgement disagreed with the vagueness of the tribal case and his opinion is valuable for providing some balance between the rights of individual Maori owners and tribal claims. His decision was encapsulated in the second case when the three judges of the second Court of Appeal agreed with him.
In the context of the rights which do not arise along the
riverbanks of Maori land when compared with reservations along rivers in general
land, whether the land is tribally owned or individually owned may not matter
– the land is of customary origin and is exempt from riverside margins.
24 Many riparian titles (no riverside or coastal reservation) came
into the hands of settlers through direct sales from Maori.
25 The main differences between an ordinary subdivision and a
partition to which the RMA applies are:
S47 Te Ture Whenua Maori Maori Land Act 2003 states in subsections (2) (3) (4) and (5) the following:1. Any condition requiring a contribution of land for reserves or in lieu of reserves can only bet set aside out of part of the land to be alienated;1
2. A reserve contribution cannot be made in respect of any part of the land which the Maori Land Court has certified to be of special historical significance or emotional association to the Maori people;2
3. No survey plan relating to the partition need to be deposited with the District and Registrar, but a plan must still be approved by the Maori Land Court;3
4. Any outstanding subdivision consent conditions may still have to be complied with at the time of making the partition order;4
5. The Maori Land Court has special powers to deal with subsequent alienation of land outside the hapu where there has previously been an exempt partition of the land;5 and
6. Any requirement for reserves or roading may be waived if the territorial authority is satisfied that the partition is not for the purposes of sale and no person other than the present owner will acquire an interest in the land.6
Section 302(1), Te Ture Whenua Maori Act 1993, Maori Land Act 19931
2
Section 302(2). Te Ture Whenua Maori Act 1993, Maori Land Act 19933
Section 300, Te Ture Whenua Maori Act 1993, Maori Land Act 19934
Section 303(2) and (3), Te Ture Whenua Maori Act 1993, Maori Land Act 19935
Section 304, Te Ture Whenua Maori Act 1993, Maori Land Act 19936
Section 305, Te Ture Whenua Maori Act 1993, Maori Land Act 1993; the Court may impose a condition that, in the event of sale, the territorial authority’s reserves and roading requirements be met in full.
"(2) The Court must –
"(a) make such orders as it considers necessary, having regard to Part X of the Resource Management Act 1991, to ensure that, in respect of any conditions of the subdivision consent that have not been complied with, adequate provision is made for such compliance; and
"(b) have regard to sections 229 to 237H of the Resource Management Act 1991 in respect of every partition of land to which section 301 applies.
"(3) Any land that would be required to be set apart, reserved, or vested in another person, because of subsection (2), must be set apart as a Maori reservation for the common use and benefit of the people of New Zealand, despite anything in the Resource Management Act 1991.
"(4) Land to which subsection (3) applies must be treated –
"(a) as if it were land set apart under section 338(1) and section 340(1); and
"(b) as if the procedural requirements of those subsections has been satisfied.
"(5) The Court may declare that any land set apart under subsection (3) be dedicated for the construction of roads, if the Court considers that to be necessary to satisfy a condition or requirement of a subdivision consent."
26 Refer to list of legislation
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
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PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
