I INTRODUCTION

The desired objective of natural resource law is to provide for present resource demands without prejudicing reasonably foreseeable needs of future generations. This presupposes a stable legal regime where sustainability is accepted as a basic principle.

The current law for renewable resources is encapsulated in section 5 of the Resource Management Act 1991 (RMA), which gives the purpose as the sustainable management of natural and physical resources (excluding minerals). There is ongoing debate over the relationship created by the RMA between the resource needs of humanity and the priority to be given to environmental concerns.⁽¹⁾ Also unresolved are issues of resource ownership (not addressed by the RMA) and management arising in Maori claims under customary law and the Treaty of Waitangi.

This paper investigates the state of confusion surrounding river beds - who owns them, and what rights to water resources flow from ownership. This involves tracing relevant legislation, and the turbulent history of major litigation from 1840 to the present day, in an attempt to explain the continuing significance of river-beds to both Maori and the Crown. The current law is then analysed to determine what reforms (if any) are needed to achieve resource law objectives.

II THE MAORI VIEW

Maori view rivers holistically, both as a source of sustenance and as a taonga (precious possession). The physical and metaphysical dimensions of a river are unified, and the people and their river are intimately connected. The Waitangi Tribunal has recognised that these traditional concepts have retained their force:⁽²⁾

Conceptually each stream carries its own mauri (life force) and wairua (spirit) guarded by separate taniwha and having its own mana.

Such views have not been evident in the recent past. Counsel for the Crown at the Maori Appellate Court hearing in 1958 on Maori custom and usage of the Wanganui river showed a lack of understanding bordering on contempt:⁽³⁾

[T]his Court should deprecate all attempts to introduce matters of Maori mythology into a mundane matter like this. Those matters are entirely irrelevant.

Surprisingly, the Court also considered that the evidence before it related only to the ancient Maori, and required claims for inclusion in a title

to be tied more to the foundations of practical realism rather than to those of mere symbolism... ⁽⁴⁾

However, recent Waitangi Tribunal decisions reasserting traditional Maori values have received more favourable judicial comment.⁽⁵⁾

III EFFECT OF THE COMMON LAW

At common law, ownership of the bed of tidal rivers up to ordinary high water mark (termed navigable rivers when they are actually navigable) vests in the Crown.⁽⁶⁾ This is said to result from the Crown's prerogative rights attaching to the seas.⁽⁷⁾ The Crown has no prima facie right to the beds of rivers beyond this point.⁽⁸⁾ Riparian owners above the high tide mark are presumed to own the adjacent river bed ad medium filum (to the centre of the river), but cannot interfere with public rights of navigation⁽⁹⁾ which can be acquired by statute or prescription.⁽¹⁰⁾ Conversely, a right to navigation does not give any right to property in the bed.⁽¹¹⁾ The property right in the river bed is severable from the dry land to which it attached.⁽¹²⁾

The Privy Council⁽¹³⁾ has stated that the principle of ad medium filum aquae applies in the colonies. The principle was first considered in New Zealand in Mueller,⁽¹⁴⁾ and first applied in Joyce.⁽¹⁵⁾ English common law is of limited relevance in New Zealand, which has since 1903 had a statutory definition of "navigable".⁽¹⁶⁾

IV THE Wanganui River CASES

The Wanganui River Trust was established in 1891, under the Wanganui River Trust Act 1891. Using its powers to improve navigation, the Trust destroyed many Maori pa tuna (eel weirs). Section 11 of the Act stated:

Nothing in this Act contained shall affect any rights conferred upon the Natives by the Treaty of Waitangi.

There were protests and obstructions by Maori,⁽¹⁷⁾ and petitions to Parliament,⁽¹⁸⁾ followed by an application to the Native Land Court for investigation of title of the river bed. The Crown claim that the Wanganui River was a public highway failed.⁽¹⁹⁾ Judge Browne made a preliminary determination that at the time of signing of the Treaty of Waitangi, the bed of the river was customary land held by the Maori under their customs and usages.⁽²⁰⁾ The appeal by the Crown to the Native Appellate Court was unanimously dismissed.⁽²¹⁾ Before the Native Land Court could continue its investigations into whether Maori still owned the river bed, the Crown challenged the jurisdiction of the Native Land Court, by way of writs of certiorari and prohibition, claiming that any Maori customary title had been extinguished by the ad medium filum doctrine, and that the river bed was vested in the Crown by statute.⁽²²⁾ The Supreme Court⁽²³⁾ upheld the Crown's claim based on the statutory vesting, but by not ruling on the ad medium filum claim left open the possibility of a Maori right to compensation for confiscation. A Royal Commission was then set up by the Government to establish if Maori would have been the owners but for the Coal Mines Act. The Commission found clear evidence of widespread use of the river by Maori, sufficient to rebut the presumption that in transferring ownership of the land, they had also passed rights to the river bed.⁽²⁴⁾

Ferguson states that this reasoning was based on the English several fishery rule where the owner is presumed, in the absence of evidence to the contrary, to be the owner of the soil.⁽²⁵⁾ He also notes how Maori custom was moulded to fit the common law, with pa tuna being equated to English eel weirs but questions whether the analogy to several fisheries is appropriate. The concept of a fishery grant from the Crown under the English system of land tenure has no counterpart in Maori fishing rights deriving from custom and usage. Similar questions can be raised over the validity of the ad medium filum principle, equally unknown to the Maori.

The Crown, not content with the Commission's recommendation that compensation be limited to loss of the bed as a gravel supply, enacted the Maori Purposes Act 1951 to allow the Court of Appeal to determine the matter. In 1954 the Court of Appeal upheld the ownership of the river bed by Maori in 1840, and found that the Wanganui River Trust Act 1891⁽²⁶⁾ did not affect Maori rights in the river bed. However the Court would not determine the ad medium filum issue without further information. The subsequent Maori Appellate Court hearing⁽²⁷⁾ concluded that there was no Maori custom whereby rights to the river were held tribally rather than by the riparian occupiers.⁽²⁸⁾ The Court of Appeal subsequently adopted this view, and held that titles issued for riparian blocks included a title ad medium filum ⁽²⁹⁾ brushing aside evidence that ownership and placement of eel weirs did not conform to the ad medium filum rule.

A 1979 petition to Parliament by Wanganui tribes was also unsuccessful.⁽³⁰⁾

The result of this litigation is that owners of riparian lands adjacent to non-tidal rivers and streams own the river bed to the middle line, except on navigable rivers, where the bed is vested in the Crown by statute. Riparian owners as at 1903 might be eligible for compensation, but there is no such legislative provision in any of the Coal Mines Acts.

The failure to recognise tribal interest in the river was consistent with previous Court decisions,⁽³¹⁾ and Maori rights under the Treaty, expressly stated in the Wanganui River Trust Act 1891, were ignored. However, this should be seen in the context of hearings dominated by common law concepts of the river as a divisible entity. Even the basic authority of the Maori Court system to determine Maori custom has been questioned by no less a person than the Chief Judge of the Maori Land Court:⁽³²⁾

[T]he specialist knowledge that the Maori Land Court possesses, is not a knowledge of custom but of the complex laws introduced to replace customary tenure.

V THE WAITANGI TRIBUNAL

The Waitangi Tribunal has brought quite a different perspective to Maori claims to rivers. In the Mohaka claim it found that ambiguities in river boundaries⁽³³⁾ in the Waipukurau Deed of 1851⁽³⁴⁾ should be resolved in favour of Maori on the contra proferentum rule and concluded that no part of the river was sold along with land on the south bank. The Tribunal contrasted the Wanganui approach, which dealt only with the river bed, with the Maori perception of the river as a whole and indivisible entity. On the north bank, where title was investigated by the Maori Land Court, the Tribunal found the ad medium filum rule rebutted as, on the evidence, there was tribal ownership of the river, so distinguishing the Wanganui cases.

In the Pouakani claim,⁽³⁵⁾ the Tribunal found the application of the ad medium filum rule to rivers "confused and confusing" and concluded that the ownership of river beds remained unresolved.⁽³⁶⁾

VI STATUTE

The Coal-mines Act Amendment Act 1903 s 14 first vested the beds of navigable rivers in the Crown. This provision was retained in the Coal Mines Act 1925 s 206 and the Coal Mines Act 1979 s 261, and was finally repealed by the Crown Minerals Act 1991 s 120. However, by RMA s 354 the repeal does not affect any title to land acquired by the Crown under the Coal Mines Act 1979 s 261.

A Problems With River Bed Legislation

The term "navigable" has always been contentious. It is not clear whether it applies solely to commerce⁽³⁷⁾ or whether it applies more generally, including to jetboats and small canoes. Must the river as a whole be navigable, can it be in one direction, and can a river be made navigable by artificial means?⁽³⁸⁾ Must the criteria be applicable at 1903, or at the time of the Crown grant?⁽³⁹⁾

"Granted by the Crown" was given conflicting interpretations in Leighton,⁽⁴⁰⁾ with that of Adams J. being preferred in Tait-Jamieson.⁽⁴¹⁾ If this is the law, then a Crown grant comes within "granted by the Crown" and the Coal Mines Act provisions are virtually without effect. This High Court case did not refer to the Court of Appeal Wanganui decision, creating yet further doubt as to the status of the law.

Does "vesting in the Crown" mean ownership? In the Maori Land Act 1932 s 2 "customary land" is defined as

land which, being vested in the Crown, is held by the Maoris ... under the customs or usages of the Maori people (italics added)

In this case "vesting" must refer to the radical title of the Crown. By contrast, in the Native Land Amendment and Native Land Claims Adjustment Act 1926, s 14(1) declares the bed of part of the Waikato river to be the

property of the Crown, freed and discharged from native customary title (if any) or other native freehold title ... (italics added)

Arguments on these lines in Morison ⁽⁴²⁾ received little attention, but there remains uncertainty as to the difference between "vesting the river bed" and "vesting ownership of the river bed".

There was little debate on the introduction of the river bed provision in 1903. Other sections dealing with miners' medical funding and hours of work in mines were far more controversial at the time. The purpose of section 14 seems to have been to vest in the Crown the rights to coal under the river bed following Mueller. Its effect appears to have been to appropriate river beds almost at random, given the indefinite nature of "navigable". However the combined effect of the above uncertainties creates doubt that either Maori customary title (if any) has been extinguished⁽⁴³⁾ or that rights of riparian owners have been overridden.

B Reservations of land adjacent to rivers.

Marginal Strips first appeared in 1892⁽⁴⁴⁾ as a reservation in Crown grants for preserving public access to the countryside. After various re-enactments⁽⁴⁵⁾ the concept now appears in the Land Act 1948 s. 58 and the Conservation Act 1987 ss 24 - 24L.⁽⁴⁶⁾ Marginal strips are generally not shown on maps, nor surveyed off. The statutory rules over the years have varied the minimum stream width to which marginal strips apply, and at some times (but not others) there has been discretion to waive the rule.

The Crown cannot sell marginal strips, but can exchange them for "another strip of land"⁽⁴⁷⁾ but on disposing of land adjoining a river held under the ad medium filum rule, the Crown retains ownership of the river bed.⁽⁴⁸⁾ Reserves created during subdivisions also may (but need not) lead to adjacent river bed vesting in the Crown.⁽⁴⁹⁾

The situation is further complicated by provisions in the RMA 1991 ss 230-237H for esplanade reserves⁽⁵⁰⁾ and esplanade strips⁽⁵¹⁾ created on subdivision of land. For reserves (but not strips) any part of the allotment forming part of the bed of an adjacent river bed vests in the territorial authority.⁽⁵²⁾

Crown grants or sales of Crown land since 1892 may have resulted in marginal strips vesting in the Crown, with the ad medium filum rule then vesting the adjacent river bed in the Crown. With so many variables and no comprehensive records, the extent of marginal strips is unknown, but their significance may lie, at least in theory, in making river beds available to Maori in settling grievances with the Crown.

C The Current Management Regime

The Water and Soil Conservation Act 1967 extinguished most common law rights to water⁽⁵³⁾ and vested power in Regional Water Boards to grant water rights. These powers have been continued and expanded under the RMA⁽⁵⁴⁾ with granting of resource consents now a function of Regional Councils. However, the issue of ownership of water resources is not addressed in either Act.^{(55) (56)}

There was some recognition of Maori interests in the Town and Country Planning Act 1967,⁽⁵⁷⁾ and Maori cultural and spiritual values were found to be relevant in the context of its decision-making processes.⁽⁵⁸⁾ Under the RMA there is now statutory recognition of Maori concerns as matters of national importance,⁽⁵⁹⁾ as "other matters"⁽⁶⁰⁾ and in the need to take into account the principles of the Treaty of Waitangi.⁽⁶¹⁾ However, the emphasis of the Act on sustainable management does not prevent decision-makers from acting contrary to Treaty principles.⁽⁶²⁾

Section 13 generally prohibits activities on river beds, unless permitted by a rule in a regional plan or by a resource consent from a regional council. There is an exception for continuing long-established lawful uses in limited circumstances.⁽⁶³⁾ Maori customary use may be "lawful" after Te Weehi, provided that the customary right has not been extinguished by statute.⁽⁶⁴⁾

VII A NEW JUDICIAL VIEW

A fundamental change in stance seems to have occurred in Te Runanganui.⁽⁶⁵⁾ Cooke P. noted the concept of rivers as taonga adopted by the Waitangi Tribunal⁽⁶⁶⁾ expressed as a "whole and indivisible entity, not separated into bed, banks and waters". Cooke P. found it odd that this concept had not been put forward in that way in the Wanganui cases, with counsel emphasising the bed and the banks rather than the flow of water; and saw a possible example of the tendency warned against in Amodu Tijani.⁽⁶⁷⁾ Two possible consequences flowed from this conceptual difference: the Coal-mines series of Acts might not be sufficiently explicit to override the concept, and the ad medium filum rule, being inconsistent with the concept, might be unreliable in determining what Maori agreed to part with.

These admirable sentiments ignore the difficulties facing Maori in earlier times. Maori claims needed to conform to concepts of land tenure in common law and statute to have any chance of success. This meant proving ancient custom and usage in relation to "title and interest" in customary land.⁽⁶⁸⁾ The ideological divide between the holistic Maori approach and the system of legal rules (common law and statute) was too wide for the courts to span in the Wanganui River cases - the protest by counsel that Maori were being dispossessed by laws which were not only unknown to them, but foreign to their customs, had little impact. Basic treaty law, which could have bridged the gap, was not considered in the Wanganui River cases.

Cooke P.'s further statements on compensation for compulsory acquisition,⁽⁶⁹⁾ and fiduciary duties of a colonising power do not represent the current law in New Zealand. The change in composition of the Court of Appeal since the retirement of President Cooke creates doubt that such sentiments will be influential in future cases.

VIII EFFECT OF RIVER BEDS ON RESOURCE LAW

River bed ownership is more confused now than at any time since 1840. Decisions by the Waitangi Tribunal⁽⁷⁰⁾ and dicta in the Court of Appeal⁽⁷¹⁾ question whether common law rules and purported statutory extinguishments have been effective in depriving Maori of their interests. The mixture of statute, common law and miscellaneous vestings in the Crown provides no basis for formulating natural resources policy.

The legislative endorsement of Mueller can now be seen as overkill to solve a specific local problem. The Wanganui River cases show an attempt by Maori to retrieve lost rights which were conceptually incompatible with the legal system, in the face of a determined Crown attack which had no discernable policy basis. Neither decision shows that rights in river beds are necessary for management of the water resource. The RMA has reinforced this conclusion by effectively denying any usage rights except in very limited circumstances.⁽⁷²⁾ The litigation over river beds may become simply an interesting historical aside in the debate over control of rivers.

Waitangi Tribunal decisions affirming rivers as Maori taonga are consistent with basic treaty rights and customary law (see Appendix) but address fact-specific claims and cannot provide a general rule.

IX CONCLUSION

It is a matter for concern that the RMA fails to give appropriate weight to Maori concerns in a changing political and judicial environment. However, reforms which address Maori grievances have been made possible by divorcing river beds from resource management. These are:

FIRSTLY, align the RMA with the Conservation Act 1987⁽⁷³⁾, at least for water resources, to require compliance with the principles of the Treaty of Waitangi. This means at least a duty to consult with Maori.

SECONDLY, grant kaitiakitanga over river beds vested in the Crown, and give statutory effect to Waitangi Tribunal river bed decisions.

THIRDLY: Review all statutes dealing with river beds, to create a consistent policy of vesting ownership in the Crown to leave the way open for future re-vesting in Maori.

Whatever steps are taken, the basic conflict between the Maori holistic view and English common law concepts remains, and will continue to bedevil attempts to find a permanent solution.

There are two basic rules applying to treaties between colonising states and native races:

Construing words in the way they would be understood by the aboriginal race ⁽⁷⁵⁾ and

interpreting against the party framing the treaty (the contra proferentum rule) ⁽⁷⁶⁾

Article Two of the Treaty guarantees to the Maori Chiefs and Tribes of New Zealand

The full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties...

although a literal translation of the Maori text - that signed by most of the chiefs - is:⁽⁷⁷⁾

the unqualified exercise over their lands, villages and over their treasures all.

According to the Waitangi Tribunal, "Sovereignty is limited by the rights reserved in article the second"⁽⁷⁸⁾

The Privy Council commented in Amodu Tijani ⁽⁷⁹⁾

[I]n interpreting native title to land, not only in Southern Nigeria but other parts of the British Empire, much caution is essential. There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be kept in check closely.

The position of the New Zealand courts is as stated by Chapman J.,⁽⁸⁰⁾ later adopted by the Privy Council,⁽⁸¹⁾ and quoted in the Court of Appeal in 1993 as being authoritative:⁽⁸²⁾

Aboriginal title cannot be extinguished (at least in times of peace) other than by free consent of the native occupiers, and then only by the Crown in strict compliance with the provisions of any relevant statutes.

However, these sentiments conflict with the long history of statutory extinguishments in New Zealand.⁽⁸³⁾

BIBLIOGRAPHY

G. Austin Legal Submissions on the Beds of Navigable Rivers, Section 261 of the Coal Mines Act 1979, Presented to the Waitangi Tribunal by Graeme Austin (Pouakani Report: Wai 33), 1993.

H.J.W. Coulson & U.A. Forbes The Law Relating to Waters: Sea, Tidal and Inland (Henry Sweet, London, 1880).

H.P. Farnham The Law of Water and Water Rights (Lawyers' Co-operative Publishing company, Rochester N.Y., 1904).

J.P. Ferguson Maori Claims Relating to Rivers and Lakes (LLM Research Paper, VUW, 1989).

I.H. Kawharu - Appendix in I.H. Kawharu(ed) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford, Auckland, 1989), 319-320.

Stuart A. Moore A History of the Foreshore and the Law Relating Thereto (Stevens & Haynes, London, 1888).

New Zealand Law Commission Preliminary Paper 9: The Treaty of Waitangi and Maori Fisheries (Law Commission, Wellington, 1989).

Property Law and Equity Reform Committee The Law Relating to Water Courses: Interim Report (Wellington, 1983).

Waitangi Tribunal Pouakani Report: Wai 33 (Brooker and Friend, Wellington, 1993).

Waitangi Tribunal Mohaka River Report: Wai 119 (Brooker and Friend, Wellington, 1992).

18 September 1997

Rex Sinnott

300033475

Word Count : 3057

1. D.E. Fisher "The Resource Management Legislation of 1991: A Juridical Analysis of its Objectives" in Resource Management (Brooker & Friend, Wellington, 1991) Intro-1, Intro-12, Intro-13.

2. Waitangi Tribunal Manakau Report: Wai 8 (Government Printer, Wellington, 1985).

3. Maori Appellate Court, Rotorua, decision of Prichard, Smith, O'Malley, Jeune and Brook JJ, 6 June 1958.

4. Above n 3, 1.

5. Te Runanganui o Te Ika Whenua Inc. v A-G [1994] 2 NZLR 20.

6. Crown Grants Act 1908 s 35; Bickett v Morris, L.R., 1 Sc. App 47.

7. G. Austin Legal Submissions on the Beds of Navigable Rivers, Section 261 of the Coal Mines Act 1979, Presented to the Waitangi Tribunal by Graeme Austin (Pouakani Report: Wai 33), 1993.

8. Murphy v Ryan (1867) 2 IR Rep CL 143, 152.

9. Foreman v Free Fishers of Whitstable, L.R., 4H.L. 266.

10. Property Law and Equity Reform Committee The Law Relating to Water Courses: Interim Report (Wellington, 1983), 3.

11. Orr Ewing v Colquhoun, 2 App. C. 839.

12. Below n 23, 254.

13. Lord v Commissioner for the City of Sydney (1859) 12 Moo. P.C.C. 473.

14. Mueller v Taupiri Coal-Mines, Ltd (1900) 20 NZLR 89. The doctrine was rebutted in that case as the river was a public highway.

15. R v Joyce (1904) 25 NZLR 75.

16. Coal Mines Act Amendment Act 1903, s 14.

17. 1894 AJHR C-1 80; 1896 AJHR C-1 114.

18. 1887 AJHR I-2 8; 1928 AJHR I-3 10.

19. Compare Mueller - above n 14.

20. Maori Land Court, Wanganui, decision of Browne J., 20 September 1939.

21. Maori Appellate Court, Wellington, decision of Shepherd CJ, Carr, Harvey, Dykes and Whitehead JJ, 20 December 1944.

22. Coal Mines Act 1925 s 206.

23. The King v Morison [1950] NZLR 247.

24. Report of the Royal Commission on Claims Made in Respect of the Wanganui River 1950 AJHR G-2, 9.

25. J.P. Ferguson Maori Claims Relating to Rivers and Lakes (LLM Research Paper, VUW, 1989) 7, 8.

26. Enacted to improve navigation on the Wanganui river.

27. As a result of the Maori Purposes Act 1954, s 6 which added s 36(5A)-(5H) to the Maori Purposes Act 1951.

28. Above n 3.

29. In re the Bed of the Wanganui River [1962] NZLR 600.

30. 1980 AJHR I-3, 3.

31. See above n 23, 255-256 where Hay J. followed previous decisions of both the Maori Land Court and the Maori Appellate Court.

32. E.T. Durie Custom law: Address to the New Zealand Society for Legal and Social Philosophy (1994) 24 VUWLR 325, 326.

33. "in the waters", "into the river", "across the river" "up the river".

34. Agreed between Ngati Pahauwera and Donald McLean as agent of the Crown.

35. Waitangi Tribunal Pouakani Report: Wai 33 (Brooker & Friend, Wellington, 1993).

36. Above n 35, 297.

37. as seems to be the case in Mueller.

38. such as by the Wanganui River Trust removing boulders, or creating lakes behind hydro dams.

39. For a fuller discussion see: Property Law and Equity Reform Committee The Law Relating to Water Courses: Interim Report (Wellington, 1983), Attachment "A" (Background paper on ownership of riverbeds), pp 6-8.

40. A.G. v Leighton [1955] NZLR 750 (CA).

41. Tait-Jamieson v G C Smith Metal Contractors Ltd [1984] 2 NZLR 513.

42. Above n 23, 250-251.

43. see Mabo v State of Queensland (1992) 107 ALR 1, 3 per Brennan J, Mason CJ, McHugh J: there must be a clear and plain intention to extinguish (xi). This is not revealed by a law consistent with the continued enjoyment of native title (xii).

44. Land Act 1892 s 110.

45. Land Act 1908 s 122, Land Act 1924 s 129, Statutes Amendment Act 1946 s 72.

46. The Conservation Law Reform Act 1990 amended s 24 and added ss 24A-24L.

47. RMA s 24E.

48. RMA s 24F.

49. Counties Amendment Act 1961 s 29(1); Land Subdivision in Counties Act 1946 s 11.

50. These vest in the territorial authority - 231(1)(b).

51. which creates an interest in land registerable under the Land Transfer Act 1952.

52. s 237A (1)(a)(i).

53. Note s 21(1) - reservation for domestic needs, needs of animals and fire fighting.

54. ss 14, 15.

55. RMA s 13 places restrictions on uses of river beds, but makes no reference to ownership.

56. But note In re Lake Omapere Tokerau District Maori Land Court, Clarke J., decision of 22 February 1955 where "the land and the water" were vested in trustees on behalf of the Ngapuhi tribe.

57. s3(g): "the relationship of the Maori people and their culture with their ancestral land" is a matter of national importance.

58. Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188.

59. s 6 - "The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga".

60. s. 7 - "shall have particular regard to" kaitiakitanga.

61. s 8.

62. see criticism in Waitangi Tribunal Ngawha Geothermal Resource Report: Wai 304 (Brooker & Friend, Wgtn, 1993) 145-147.

63. s 2(1) (definition of land), 13(4), 9(1)(b), 10(1), 10(2).

64. Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, 681.

65. Above n 5.

66. Waitangi Tribunal Te Ika Whenua energy assets report: Wai 212 (Brooker & Friend, Wellington, 1993); Waitangi Tribunal Mohaka River Report: Wai 119 (Brooker and Friend, Wellington, 1992).

67. Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399.

68. 1909 Native Land Act s 91.

69. quoting Adeyinka Oyekan v Musendiku Adele [1957] 2 All ER 785, 788 (PC) per Lord Denning.

70. Mohaka River Report 1992; Pouakani Report 1993.

71. Above n 5.

72. RMA ss 9, 10, 13.

73. s 4: This Act should be interpreted and administered to give effect to the principles of the Treaty of Waitangi.

74. The terms "customary title" and "aboriginal title" are apparently interchangeable in New Zealand: Te Runanganui o Te Ika Whenua Inc Soc v A-G [1994] 2 NZLR 20 per Cooke P.

75. Jones v Meehan (1899) 175 US 1, 10.

76. R v Taylor and Williams 1981 62 CCC (2d) 227.

77. I.H. Kawharu - Appendix in I.H. Kawharu(ed) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford, Auckland, 1989), 319-320.

78. Waitangi Tribunal Muriwhenua Fishing Report: Wai 22 (Department of Justice, Wellington, 1988) 232.

79. Above n 67.

80. R v Symonds (1847) NZPCC 387, 390.

81. Nireaha Tamaki v Baker (1901) NZPCC 371, 384.

82. Above n 5, 22 per Cooke P.

83. 83 For example, Wi Parata v The Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.