In Re the Ninety-Mile Beach

The plaintiff in the case, Waata Tepania, was the "Chairman of the Taitokerau Maori District Council, a member of the New Zealand Maori Council, and a member of both the Taitokerau and Aupouri Maori Trust Boards, Mr Tepania was a leader and elder of both the Aupouri and Rarawa tribes. A resident at Ahipara, he was born at Wai-mahana and as a lad attended the most northerly school in New Zealand — Te Hapua."[2]

The background to the case was neatly summarised by Justice T.A. Gresson:

This was an application under s. 161 of the Maori Affairs Act 1953 by Waata Hone Tepania for an investigation of title, and for the issue of a freehold order in respect of the foreshore of the Ninety-Mile Beach in North Auckland. It was heard by the Māori Land Court in November 1957 and the Court found as a fact that immediately before the Treaty of Waitangi in 1840 the Te Aupouri and Te Rarawa Tribes owned and occupied the foreshore in question according to their customs and usages. The Chief Judge, however, stated a case, pursuant to s. 67 of the Maori Affairs Act 1953, for the opinion of the Supreme Court on two substantial questions of law, which — in abbreviated form — may be stated as follows:

1. Has the Māori Land Court jurisdiction to investigate title to, and to issue freehold orders in respect of the foreshore — namely, that part of the land which lies between mean high-water mark and mean low-water mark?

2. If so, is the Māori Land Court prohibited from exercising this jurisdiction by reason of a Proclamation issued by the Governor under s. 4 of the Native Lands Act 1867 on 29 May 1872?[3]

In the Supreme Court, Justice Turner stated that "s 150 of the Harbours Act 1950 operated as "an effective restriction upon the jurisdiction of the Māori Land Court" which in terms of the statute was in effect "forbidden to undertake the investigation of the application."" [4]

Waata Tepania appealed Turner J's decision to the Court of Appeal.

Justices Alfred North and Terence Gresson gave judgments dismissing the appeal with which President Kenneth Gresson concurred. Justice North holds as a preliminary point that the Crown is the only "legal source of private title", and that "on the assumption of British sovereignty — apart from the Treaty of Waitangi — the rights of the Maoris to their tribal lands depended wholly on the grace and favour of Her Majesty Queen Victoria, who had an absolute right to disregard the Native title to any lands in New Zealand, whether above high-water mark or below high-water mark."[5]

The judgements contained two principal reasons for denying the Māori Land Court the jurisdiction to investigate title to the foreshore. Firstly, the judges held that the Court was prevented by the Harbour Acts of 1878 and 1950. Secondly, the judges held that Māori Land Court investigations of title to land adjacent to the sea had extinguished customary rights below the high water mark.

The Court of Appeal overturned the ratio of In Re the Ninety-Mile Beach in its 2003 decision Ngati Apa v Attorney-General. The Court explicitly overruled the decision both on the preliminary point on the source of Aboriginal title and on the specific issues of statutory interpretation. Reaffirming the doctrine of native title established in R v Symonds, Chief Justice Elias stated:

The transfer of sovereignty did not affect customary property. They are interests preserved by the common law until extinguished in accordance with law. I agree that the legislation relied on in the High Court does not extinguish any Maori customary property in the seabed or foreshore. I agree with Keith and Anderson JJ and Tipping J that In Re the Ninety-Mile Beach was wrong in law and should not be followed. In Re the 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 [1901] AC 561. This is not a modern revision, based on developing insights since 1963. The reasoning the Court applied in In Re the Ninety-Mile Beach was contrary to other and higher authority and indeed was described at the time as “revolutionary”.[10]

Elias CJ explained the proper interpretation of the Harbours Acts:

Such legislation, by its terms, applied to future grants. It did not disturb any existing grants. Indeed, substantial areas of seabed and foreshore had already passed into the ownership of Harbour Boards and private individuals by 1878. I agree with the conclusion of Keith and Anderson JJ that the legislation cannot properly be construed to have confiscatory effect. Although a subsequent vesting order after investigation under the Maori Affairs Act 1953 was “deemed” a Crown grant (s162), that was a conveyancing device only and applied by operation of law. It was not a grant by executive action. Only such grants from Crown land were precluded for the future by the legislation. More importantly, the terms of s150 are inadequate to effect an expropriation of Maori customary property.[11]

Elias CJ also noted that,

Just as the investigation through the Māori Land Court of the title to customary land could not extinguish any customary property in contiguous land on shore beyond its boundaries, I consider that an investigation and grant of coastal land cannot extinguish any property held under Maori custom in lands below high water mark.[12]