The Court of Appeal ruled in on 20 June 2003, some six or seven years after the application was filed, that Maori could take a case to the Maori Land Court for determining customary title over parts of the foreshore and seabed, which then had the potential to be converted to a freehold title.
All the judges agreed that the Maori Land Court did have the jurisdiction to determine the status of the foreshore and seabed; it was not restricted to dry land. They agreed that the New Zealand common law was different from English common law and that the Crown acquiring sovereignty was not the same as owning everything. Therefore, Maori property rights, when proven, had to be respected and given effect to (Chief Justice Elias was very clear on this point).
A landmark decision, said the lawyers. The politicians and the public panic: have we lost our right to have a barbecue on the beach?
The Government proposes preventing the Maori Land Court from awarding a freehold title to the foreshore and seabed. It wants to exclude the potential for findings which could establish property rights.
Maori groups have differing views: some say due legal process should be followed; others want the role of the kaitiaki of the seabed and foreshores recognised; some see co-management, others exclusive rights. All are concerned about protecting cultural and spiritual sites and practice and coastal marine environment.
Some time after Mexico and Peru were colonised in the 16th and 17th centuries, the Spanish Court came to accept that it had an obligation to protect the property rights of indigenous peoples. That obligation developed into the doctrine of aboriginal title. . it became part of English common law, and by the time the Treaty of Waitangi was signed, the British Colonial Office accepted it too. The guarantees of article two of the Treaty are very close to a restatement of the obligations.
Shortly after the signing of the Treaty, the Crown realised that all parts of New Zealand were owned by Maori according to custom. Agreement would be necessary before the Crown could acquire land to on-sell to settlers. The Native Land Court (1862) was set up to translate customary title into a legally recognisable title. This would make it easier for the Crown to transfer ownership to Pakeha.
From chapter 11 of The Treaty: every New Zealander’s guide to the Treaty of Waitangi, published by Random House 2005