What is aboriginal title?

Maori claims to the foreshore and seabed rest on the common-law doctrine of "aboriginal title". But what is it?

Put simply, the doctrine of aboriginal or customary title boils down to two points: firstly, that indigenous peoples have some form of property rights, according to their own laws and customs; and secondly, that these property rights are not affected by a transfer or acquisition of sovereignty. The first is a matter of fact at the time an area is acquired. The second is a matter of long-standing precedents in English common law. According to these precedents, local property rights survive until they are relinquished or explicitly extinguished through purchase or statute. The common law also recognises that customary conceptions of property may not map to English conceptions, and therefore recognises lesser usage rights (such as hunting or fishing rights) as well as full ownership.

While the idea that property rights survive a change in sovereignty - that when Britain claimed New Zealand, it did not in fact end up owning it - may seem a little strange, it's common sense really. If New Zealand voluntarily joined Australia, it would not mean that the Australian government would suddenly acquire legal title to your house. The same principle applied to Maori in New Zealand in 1840. The fact that they signed a treaty surrendering sovereignty did not mean that they gave up their property.

In New Zealand, aboriginal title has been recognised since the early days of settlement. Article Two of the Treaty of Waitangi, which guarantees the chiefs continued possession of their "lands and estates forests fisheries and other properties" (or treasures, depending on which version you prefer), is an explicit recognition of existing property rights. The right of pre-emption or exclusive purchase in the same article was used by the Crown to lawfully extinguish Maori customary title and thereby allow alienation. Later, this was replaced by explicit legal mechanisms, such as the Native (now Maori) Land Court.

Aboriginal title has been recognised in New Zealand courts since the 1847 decision of R v Symonds, in which Justice Chapman said:

Whatever may be the opinion of jurists as to the strength or weakness of the Native title, whatsoever may have been the past vague notions of the Natives of this country, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it 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.

(My emphasis).

Unfortunately, this approach was overturned in 1877 with Wi Parata v Bishop of Wellington, which denied that Maori possessed enforceable property rights on the basis that they were "barbarians" with no body of customary law. Despite higher precedent from the Privy Council (in Nireaha Tamaki v Baker (1901) and Wallis v Solicitor-General (1902-3)), Wi Parata held sway in New Zealand for the next century. However, Symonds and aboriginal title have recently been resurrected: Te Weehi v Regional Fisheries Officer (1986) resurrected the concept of usage rights (in this case to fish), while other cases have gradually reaffirmed the idea of customary title amounting to full ownership. The foreshore and seabed case, Ngati Apa v Attorney-General, simply follows in this tradition.