Australian Agricultural and Resource Economics Society Conference 2005. Contributed papers

The Challenge of Native Title

By

Robin Johnson

In Canada, Australia and New Zealand the original occupants of the land had fairly well developed systems of customary rights associated with land and water resources. Occupation of these lands by European settlers saw these rights curtailed or exchanged in various land purchase deals and agreements. It has emerged in retrospect that not all of these customary rights have been extinguished and new legal approaches have developed around the recognition of this problem. Native title is the authorised Australian term for existing customary land rights and in NZ they are called customary rights. Canada has aboriginal rights. The body of law being developed is known as aboriginal title (after Canadian experience of the same problems). This paper examines native, aboriginal and customary title in the light of the economics of property rights in general and tries to identify where legal and administrative law is heading in such matters.

A property rights framework

Economists are interested in property rights because they underlie the whole process of exchange and commerce. Douglas North says that without a well-enforced and well-specified system of property rights trade would never have developed as it did. Property rights in this sense include formal contracts, bonding of participants, guarantees, brand names, elaborate monitoring systems and enforcement systems that protect the individual but also create security and confidence in commerce. He points out that the resources devoted to transacting are large (although small per transaction) but the productivity gains from trade are even larger. Security of land tenure is part of this system of property rights (North 1988).

There is no proper theory of property rights as such but rather a series of observations (a doctrine in lawyer's terms?) that describe how property rights can be made to work. Property rights relate to the customary acceptance that one person has established an 'ownership' in something that another has not. Dragun (1989) refers to 'the social pattern of rights and duties established through custom, convention or the law'. Once established, the 'owner' of a resource, say, has by agreement some prior rights over the use of that resource and over the access of others to it. Furthermore, the establishment of the right facilitates exchange, and the right itself has a value. Markets work best when exchangeable resources are backed up by adequate property rights (ownership).

Scott (1989) identifies 6 descriptors of property rights that qualify their usefulness in exchange: duration; flexibility; exclusivity; quality; transferability; and divisibility. Duration conveys the idea a contract for a certain period of time, which may, for example, encourage investment in harvesting; Flexibility conveys the idea of discretion to adapt to change; Exclusivity conveys the idea of freedom from interference (legal or otherwise); Quality refers to legal protection and security; Transferability refers to the ability to sell the right or sub-contract the right; and Divisibility to an ability to subdivide or aggregate rights. Scott uses these descriptors to identify what might be called 'strong' and 'weak' systems of property rights as in, say, leasehold tenure of land. Using scores, he assesses each attribute in turn to arrive at a common measure of 'strongness'.

An alternative formulation to Scott's characteristics can be developed through the concept of attenuation (Quiggin 1986). Any limitation on the way property rights may be used constitutes attenuation. The ideal, unattenuated state, is approximated by private chattel ownership where the owner has completely free rights of use, exclusion of all others to any use, and complete alienation. The attenuation of property rights, in this view, will always reduce their value to the owner, and place restrictions of some sort on his flexibility of action. Attenuation is usually associated with government action such as regulatory limits on the freedom of action of an owner (in terms of use or sale for example). On the other hand, the key features of non-attenuated rights are complete specification, complete exclusivity, and full transferability (Dragun 1989).

Scott notes that in terms of common property resources in fish stocks that duration affects investment in harvesting methods, exclusivity affects freedom of action within any laid down control system, transferability affects ability to transfer rights to others, and divisibility the right to share or have joint arrangements. Understood here rather than made obvious is the assumption that government action is required to provide a regulatory framework within which a common property is converted to a set of private property rights.

Finally it is possible to define an efficient set of property rights (Hide 1987). If one takes into account all the costs of negotiating rights, the costs of policing, the costs of establishment, and the costs of litigation, (transaction costs), then the set of property rights that minimises these costs is an efficient set. The Torrens system of land registration is often quoted in this context as it provides very high security at low cost and hence is regarded as an efficient system of property rights (Johnson 1992). Poor design of a property rights system that leads to excessive litigation raises the transaction costs of a property rights system as a whole and causes a serious loss of economic efficiency. The very granting of a property right in a communal fishery is contentious and hence may contribute considerably to economic inefficiency.

Property rights are supported and sanctified by the legal system. The legal system is in turn supported by constitutional arrangements. Institutionalists like Buchanan (1975) and Dixit (1996) stress that constitutions are made and developed in some kind of abstract and rarified atmosphere above day-to-day politics. Constitutional rules are important because it is in their framing that the operational rules are set for the conduct of commerce and in particular, the framing and definition of property rights.

Buchanan warns that political decision makers in their every-day activities tend to beaver away at the edges of the constitutional arrangements in a society and make fundamental changes almost by accident. In recent times, it is said that court activists also have a tendency to interfere in constitutional arrangements, the perogative of parliaments.

In Australia and New Zealand, the land registration system has good property right characteristics that encourage enterprise and investment. Early settlers and governments were most conscious of the failings of English land tenure and wished to establish a land owning democracy of free men. A freehold title system encourages exclusive ownership, free transfer of rights, and the raising of loans against the security of the land asset.

It has emerged in more recent times that the land registration system did not fully accommodate the customary rights to land and other resources that were held by the existing inhabitants in the two countries. In New Zealand, Maori owners of land could register their ownership and thus secure the benefits of exclusive and saleable title. But since customary rights might also include access issues, fishing rights, food gathering and portage rights, these were not dealt with under the land registration system.. In many cases such rights were extinguished by the incoming colonialists. Registered title gave to the majority of people the opportunity to have exclusive title when they wanted it and thus control over land use. The foreshore and seabed debate is about land ownership not covered by the Land Transfer Act and in particular rights to land on the foreshore and seabed which had historical associations with Maori food gathering and fishing.

In this paper I discuss native, customary and aboriginal title in a property rights framework. I discuss the nature of such rights in Canada, Australia and New Zealand, and the mechanisms that have been introduced to recognise them. Customary rights to land were at the core of the Waitangi Tribunal Report on The Crown Foreshore and Seabed Policy (2004). Important evidence to this enquiry was given by Dr Paul McHugh, who thoroughly reviewed Canadian, Australian and New Zealand court decisions of recent years. I will therefore discuss the nature of aboriginal property rights in theory and the application of the theory to the debate on the foreshore and seabed and the developing case law put forward by the courts in Australia in the wake of the Mabo and Wik decisions.

Indian Treaties and Land Claims in Canada

Canada shares the common British parliamentary tradition with Australia and New Zealand as well as, in common with New Zealand, the colonial practice of negotiating a treaty with its indigenous peoples. The 'First Nations' people have sought to achieve recognition, respect, reciprocity, and a more equitable sharing of land, resource and decision-making authority with government (Haywood and Price 2004). 'First Nations' is the term used in Canada as a collective noun for earlier terms 'Indian band' and 'Indian tribe'. The term connotes 'a group of people with common language, culture and history who identify with each other as belonging to a common political entity' (op cit, p 261).

There is no close Canadian equivalent to the Treaty of Waitangi; the British North America Act 1867 was Canada's founding agreement between the British and the French. However, in 1982, aboriginal peoples in Canada (Indian, Inuit, and Metis) were able to negotiate a constitutional amendment that recognises treaty and aboriginal rights.

Back to 1763. The Royal Proclamation set out Britain's protection of Indian hunting grounds in North America,and provided for a due process of treaty negotiations between the representatives of the Crown and the First Nations of a particular territory. A number of Indian treaties were signed in Canada as a result. The proclamation amounted to a statement of intent rather than a treaty as such (op cit, p.140). Historians regard these proclamations as confirming that the aboriginal people had rights to land that pre-existed the assertion of British title, and that it was incumbent on the Crown to extinguish those rights.

In the Maritime provinces the early treaties were 'peace and friendship' treaties, with certain benefits for each side in terms of their trading relationships and alliances, some of which preceded the Proclamation of 1763. From the 1850s, the British Crown (through its governors in Upper Canada) negotiated a series of treaties known as the Robinson-Superior and Robinson-Huron treaties in Ontario. These involved the surrender of Indian land and resources in return for benefits such as annuities, reserve lands, and continued hunting, fishing and trapping rights. These treaties set the pattern for subsequent Indian treaties negotiated between the Canadian government (after Confederation in 1867) and First Nations on the prairie provinces of Manitoba, Saskatchewan, and Alberta.

A third series of treaties, known as the numbered treaties, began in 1871 in Manitoba with Treaty No 1 and moved West as far as the Rocky Mountains . The Crown sought to drive a tough bargain by securing peace and access to the fertile lands of western Canada for settlement and development. The First Nation negotiators were shrewd bargainers and sought to maximise the benefits flowing to their nations from the numbered treaties, including economic assistance to take up agriculture, a medicine chest (or medical provisions), and schools and teachers.

A final set of treaties was triggered by the Supreme Court of Canada Calder decision in 1973, whereby the majority of the Court affirmed that aboriginal title was a fact of Canadian legal history (although the Judges disagreed whether it still existed in British Columbia, where few treaties were signed). This decision compelled the government of Canada to revise its 1969 White Paper policy, which had effectively denied aboriginal rights and title. The new 1973 Canadian Indian claims policy stated that, in regard to the historical treaties, lawful obligations would be upheld (op cit, pp.141-2).

In British Columbia, Hayward and Price point out, government denied the existence of aboriginal title until relatively recently, and insisted the federal government should bear the burden for the settlement of aboriginal rights and title. In the late 1980s, however, the province came under increasing pressure from First Nations court injunctions against logging companies and the government over resource development, and from private sector concerns about uncertainty and a loss of investment. In 1990, two changes in approach were signalled. First, the government agreed to negotiate the Nisga's land claim with Canada and the Nisga's tribal council. Second, BC joined Canada and the First Nations Congress to form the British Columbia Claims Task Force to address the issue of aboriginal title in the province. In their first report, the Task Force laid out nineteen guiding principles for the treaty making process. These set the stage for political negotiations between First Nations, British Columbia and Canada, based on mutual trust, respect and understanding (op cit, p.146). Out of this arose the appointment of the British Columbia Treaty Commission to facilitate treaty negotiations, a body not unlike the Treaty of Waitangi Tribunal in New Zealand.

In general, the treatment of aboriginal title in Canada has been more generous than in Australia and New Zealand. Although aboriginal title had been recognised by the Canadian Courts since 1973 with the decision in Calder, it was only with the 1997 Supreme Court's decision in Delgamuukw that key issues regarding aboriginal title were resolved and a clearer definition of title was elucidated (Stephenson 2002/3, p.35). In this case, aboriginal title was found to be based in both the relationship between the common law and pre-existing systems of law, and in Aboriginal pre-sovereignty occupation. It was found that aboriginal title arises from the physical fact of occupation of peoples prior to the Crown acquiring sovereignty. This title was considered to be possessory title. Stephenson says that the most significant findings from a natural resource perspective can be listed as follows:

• that aboriginal title is a right to the land itself;
• that 'site specific' aboriginal rights and aboriginal title are distinct;
• that ownership of minerals, forest products and other natural resources are part of aboriginal title.

The Delgamuukw decision guarantees that aboriginal title holders had a clear right to choose how their lands will be used and developed.¹

Aboriginal Rights in Australia

In the 1992 Mabo case, the High Court of Australia held that the Meriam people had the right to posess their land on Mer Island in the Torres Strait according to their traditional law and custom. Australian law, for the first time, said that aboriginal and Torres Strait Islander people have rights to their country, according to their traditional laws and customs. These rights may be recognised when people have maintained a continuing connection with their land and waters and their rights have not been removed by Government (National Native Title Tribunal 1996).

Native title is the name given to the rights of these people and is a unique form of land title, different from freehold or leasehold titles. Native title cannot be bought or sold. Native title is not a land right that Government gives to indigenous people. It is a right that already exists in places where indigenous people follow their traditional laws and customs and have a continuing connection to their land and waters (op cit).

In 1993 the Federal Government passed the Native Title Act. One of the aims of the Act was to help indigenous people have their native title rights recognised without having to go to Court. The Act also protected existing rights of governments, industry and the general public. The Government set up the National Native Title Tribunal as a place to receive native title applications. The tribunal was to act as a mediator in negotiations as an independent body. The tribunal was not constituted as a Court: its role was to ensure that any agreements reached recognised and respected the rights and interests of all people involved in the best way possible (Tribunal 1996).

In 1996, the High Court observed that native title could co-exist on a pastoral lease. The Wik people of Cape York Peninsular had applied to have their native title recognised over land where two pastoral leases had been granted by the Queensland Government. Previous to this, it was unclear whether pastoral leases extinguished native title. Whether native title may survive on a particular type of lease depended on the terms of the lease and the relevant state legislation.²

The Court said that native title holders and pastoralists could share country; but that the rights of the pastoralists would always take first place over native title rights (Tribunal 1996).

Amendments in 1998 to the Native Title Act 1993 made a number of changes to the administration of the native title recognition process. Fletcher (2004, p.161) notes that the push to amend the Act was led by pastoral and industry groups, who called for stricter controls on the rights of native title claimants to negotiate with industry bodies. Major changes included: native title applications were to be made to the Federal Court instead of the National Native Title Tribunal; the 'right to negotiate' on pastoral leases and some other types of land tenures may change; native title applicants are required to pass a new registration test to gain the right to negotiate; new State and Territory equivalent bodies may assume any or all of the current responsibilities of the National Native Title Tribunal under their own legislation; people making application for a determination of native tile will be required to confirm that they have the authority of the people, clan or family for whom the application is made (National Native Title Tribunal 1998).

The amendments also more clearly defined the status of indigenous land use agreements (ILUAs)(Stephenson, op cit, p.60). An ILUA is a voluntary agreement between parties regarding the use of native title land for resource development. Agreements can be small scale through to large scale regional agreements. The agreement covers future acts such as compulsory acquisition and grants of mining interests. Matters covered by an ILUA include the doing of future acts; the imposition of conditions in relation to the doing of future acts; the validation of future acts; the manner of exercise of any native title rights in an area; the determination of compensation; and the extinguishment or surrender of native title. Stephenson says an ILUA can be used as a bridge to forming a long-term relationship between the resource developer and the native title parties. They allow applicants to deal with a whole range of future acts for a project and are not limited to just prospecting.^{3 4}

Justice Cullinane (2002/3, p.16) remarks of this period that there was high expectation that the Wik case would be turned down by the High Court. He notes that its success led to a legislative response of the government which limited the common law rights recognised by the Court in Mabo and Wik. He notes that the jurisdiction of the national native title tribunal has been challenged and at the time of writing the tribunal was not dealing with these matters. Cullinane says that one consequence of the Mabo judgement (and the later Wik judgement) was the necessity to reconsider many of the principles underlying property law. This was in order to determine the compatibility or otherwise of rights with native title. The precise nature of pastoral and other leases of Crown land and of mining titles has had to be reconsidered. Similarly in the Mirrpun case it has been necessary to consider the position at common law in relation to the sea and sea-bed (op cit, p.19).

Since then some authorities are of the view the promise of reconciliation between indigenous and non-indigenous Australians has been further blown away by a 'glacial avalanche of cases based on native title claims' (Amankwah 2002/3). Native title has been reduced from substantive interests in land to 'a bundle of rights' according to the interpretation the courts have put on the definition of native title. The courts have also attributed to the Native Title Act a codifying significance rather than Parliament's intention to provide a regulatory scheme for the recognition of native title and claims apurtenant to native title. They have also inaugurated a regime of partial extinguishment of native title in some circumstances (s24MD(2)(c) refers) (op cit p.4). These issues, summarised below, appear to be the Australian equivalent of the foreshore and seabed debate in New Zealand's jurisdiction.

Fletcher (2004) points out that the doctrine of native title is the only option available to those who seek to enforce Aboriginal land rights. The doctrine has in theory applied (along with the rest of the common law) since Australia was first settled as a terra nullius (unoccupied territory) by the British colonists. However, as in New Zealand, the courts failed to uphold the doctrine as they should have, and it was not until Mabo (1992) that it was properly understood and applied.. Fletcher says Australia's maintenance of the status quo is an inconsistency that can largely be ascribed to historical European perceptions of tribal organisation, especially the lack of concentrated settlements, their loose organisation and their migratory dispersion.

In the C18, British common law dictated that if a colony were 'settled', common law applied from the time of setlement 'to the extent that it was appropriate to the condition of the colony'. As the Australian colonies were viewed as settled rather than acquired by conquest or cession, British law applied and Aboriginal law was ignored, or 'was not assumed to exist' at all. Furthermore, although Australian Aborigines were in posession of their land when the British arrived, international law stated that 'if the Crown decided to treat a territory which was sparsely populated, or contained primitive peoples, as being unoccupied, it would be classified as settled'. While successive governors were issued with explicit instructions to provide for the Aborigines, these were ostensibly fulfilled through the allocation of land for their exclusive use (albeit land chosen by the government) and the provision of rations as recompense for the loss of access to their traditional foods.

No valid form of treaty was ever entered into in the history of Australian settlement. Concomitantly, the systematic dispersal of Aborigines from their traditional lands often occurred with no official record of the means of dispersal and no identification of the tribal lands (Fletcher 2004, pp.155-6)( See later for the implications of this in Yorta Yorta).

Treatment of customary coastal land in New Zealand

In New Zealand, these issues came to a head as recently as 2003 when the High Court ruled that customary rights on land located on the foreshore and nearby seabed had not been extinguished. Up to that time, it had been assumed that customary rights had been extinguished by the signing of the Treaty of Waitangi in 1840. This status was reflected in the Te Ture Whenua Maori Act 1993 ('law for Maori land') which consolidated the various native land court statutes and confirmed the status of existing Maori land and those rights which had already been recognised. The Maori Land Court and the Maori Appellate Court are constituted under the Act and have jurisdiction to hear matters relating to Maori land (Yearbook 2002). In relation to foreshore and seabed claims, the Marlborough iwi (tribal group) sought a status order from the High Court declaring the foreshore and seabed of their rohe (area) to be customary land. The group were interested in the aquacultural potential of their ancestral lands and waters. The government referred the issue to the Waitangi Tribunal. In its report there is a full description of the jurisdiction of the Maori Land Court as the Tribunal wished to examine whether its powers extended to the foreshore and seabed (Waitangi 2004).

For the purposes of the Act, all land in New Zealand must have one of the following statuses:

• Maori customary land;
• Maori freehold land
• general land owned by Maori;
• general land;
• Crown land; or
• Crown land reserved for Maori.

'Maori customary land' is described in the Act as 'Land that is held by Maori in accordance with tikanga Maori' (s129(2)(a)). It is said to be a 'residual' category of property for it comprises all land not held or granted by the Crown (The Court of Appeal determined that it can include coastal land covered by water).

The Act defines 'tikanga' as 'Maori customary values and practices'. The Waitangi Tribunal interpret it as anything which involves every aspect of the elements themselves and how humans interact with them.(Waitangi Tribunal 2004, p.1). Professor Mutu [in evidence] stated that it can mean any rule, plan or method; custom, habit; anything normal or unusual; reason; meaning, purport; authority, control; and correct, right; and involves the widest range of Maori values (ibid p.1).

Unlike Australia, the occupation of New Zealand by Europeans in the C19 was sanctified by a treaty with the indigenous inhabitants (The Treaty of Waitangi 1840). At this time, the British colonial administrators were insisting on settlers reaching an accommodation with the existing inhabitants of newly settled countries. The Treaty established among other things that Maori would retain 'full exclusive and undisturbed posession of their lands and estates forests fisheries and such other properties as they may collectively or individually posess, so long as it is their wish and desire to retain the same in their posession'.

Governor Grey brought the Torrens land registration system with him from South Australia in the 1840s . Registered land title was open to all races and further legislation protected the rights of Maori over subsequent years as in the provisions for the Maori Land Court. The foreshore and seabed position with regard to customary rights was never clearly defined and successive legislators came to assume that all Maori rights were extinguished. It was this issue which came before the High Court and the Court of Appeal in 2003 in the case concerning the Marlbrough tribes' access to aquaculture sites in Marlbrough Sounds.

Common Law doctrine

We next turn to the definition of 'aboriginal title' and its relation to customary title. In the foreshore and seabed case, the Waitangi Tribunal was heavily guided by the evidence of Dr Paul McHugh (McHugh 2004).

'Aboriginal title'

'Aboriginal title' is a general term that describes various 'sets' of customary rights, ranging from particular use rights (for example, to use a particular area of foreshore as a pathway) through to the fullest possible set of rights, equivalent to land ownership (Waitangi 2004, p.45). According to the Tribunal, important among the features of the common law doctrine of aboriginal title are that:

• it recognises customary rights that pre-dated the Crown's acquisition of sovereignty and that have remained in existance, making it, in essence, a 'preservationist' doctrine, and not, for example, one that remedies the loss of customary rights;
• appreciates that customary rights may be held collectively, are unique (sui generus) and are identified in accordance with the traditions and usages of the people who hold the rights;
• customary rights are inalienable except to the Crown, with the result that such rights cannot be the subject of commercial transactions with third parties: they must first be transformed by lawful means into another kind of right.

The Tribunal noted that the common law doctrine of aboriginal title has not been much applied in NZ (ibid, p.45). The Tribunal was concerned to establish the precise role of the Maori Land Court (MLC) and the High Court. As a result of the Marlborough Sounds case, the way was opened by the courts for claims for customary rights to heard by both the MLC and the High Court (ibid, p. 44). The Court of Appeal judges view, contrary to the Crown's view of the matter, was that the MLC had jurisdiction to determine the status of claims concerning the foreshore and seabed. To reach their decision, the judges needed to consider the application in NZ of the common law doctrine of aboriginal title (ibid, p. 43).

Terminology

McHugh [in his evidence to the Waitangi Tribunal] defines what he means by the terms 'ownership' and 'rights' and 'aboriginal title':

Ownership and rights: the term 'ownership' is treated here as synonymous with full fee simple title to land or full beneficicial ownership - the right, in other words, to exclude all-comers. I use the term 'rights' to describe lesser rights over land. 'Ownership', as the term is used below, is inherently exclusive. A particular 'right' such as a right to fish, may or may not be exclusive but it is specific and defined by reference to the activity. Typically someone hold 'rights' over land in the ownership of another person.

Aboriginal title: The term 'aboriginal title' has been used in the same sense that the Australians speak of 'native title'. That is, I use it as a compendious term to describe a set of rights that runs notionally from full ownership to particular stand-alone rights. The term describes whatever interest it is that common law will recognise as being held by tribal peoples over a particular stretch of land or sea as a result of their aboriginal connection with that area. Where the aboriginal title is tantamount to ownership it can be described as 'territorial aboriginal title' and where it is not the term 'non-territorial title' can be used. Some use the term 'customary rights' instead of the label non-territorial, though where this happens it must be emphasised that the talk is of the common law breed of right rather than statutory jurisdiction of Te Ture Whenua Maori Act 1993 where the term 'customary' also appears (McHugh, 2004, p.7).

McHugh goes on to say that the common law doctrine of aboriginal title provides a legal description of the property rights of indigenous tribal peoples upon the Crown's assertion of sovereignty over their territory. There is a common law presumption that those property rights have survived the acquisition of sovereignty. The doctrine is a legal rather than a historical one, in that it does not purport to describe a body of doctrinaire rules that were consciously applied by imperial officials and colonial functionaries during the nineteenth century. Rather, it is a modern-day judicial characterisation of certain historical facts through which extant aboriginal property rights receive legal protection in the courts, rather than through their historical agency of protection, the Crown itself (ibid, p.7)[my emphasis]. Common law aboriginal title emerged, therefore, not as a historical truth, but as a legal doctrine concerned with identification and articulation of extant rights the protection of which public law was once (but no longer) content to leave to executive discretion (ibid, p.8).

In the case of the foreshore and seabed issue, the Tribunal refers to customary land as defined in the Te Ture Whenua Act encompassing all land not otherwise transferred to some other status. McHugh appears to be coming from the other direction and defining the property rights which the original inhabitants of all the land might still have. These may be territorial or non-territorial. They clearly include rights that overlap with the ownership of some other person [such as access or the right to fish]. McHugh further confirms that aboriginal rights are a judicial construction to meet the circumstances of the times i.e. to sort out forgotten or formerly non-utilitarian rights.

Resolving the New Zealand foreshore and seabed case⁵

The common law approach identified that the area between high and low water marks was originally acquired by the Crown under the Treaty along with any pre-existing Maori customary property rights. These rights have never been extinguished.

The vast majority of New Zealand land was converted to a fee simple basis thus extinguishing any customary rights. As for land below the high water mark, there was a general supposition before the Marlbrough Sounds decision that any customary rights in that zone had been extinguished when the customary rights to the contiguous dry land were extinguished. That supposition was bolstered by a belief in many quarters (including influential judicial and legal quarters ) that the Crown owned the foreshore and seabed anyway as part of its perogative right.

The Court considered the application in New Zealand of the common law doctrine of aboriginal title. Aboriginal title is a mechanism to preserve the pre-existing rights of indigenous people under their own laws. It is judge-made law. In Australia aboriginal rights are based on continuity of customary property rights upon the Crown's acquisition of sovereignty.

The Court in the New Zealand case merely decided that the indigenous Maoris had a right to establish before the Courts exactly what customary rights remained.

From a resource use point of view this decision changed very little. The customary property right still had to be re-established. Resource use (in the form of exploitation of fishing or aquaculture resources) cannot proceed without first determining what the right entails.

From a property rights point of view the necessary conditions for full ownership involve exclusivity and transferability. The steps to establishing these condituions have not yet been taken.

Exclusivity would mean giving right-holders sole control over use of that right. Transferability would mean that the right could be transferred to others possibly in some market transaction.

Any solution must address the issue of multiplicity and ranking of competing and non-competing rights. Can ownership be separated from use? Can access be granted without prejudicing either ownership or use?

Expert witness P McHugh talks of a bundle of rights. McHugh postulated that Crown title to the foreshore did not mean that the Crown was recognised as having rights equivalent to full ownership: access, rights of fishing, navigation and innocent passage were recognised in common law. The result is that the Crown's rights in the foreshore and seabed, at common law, amounted to 'a bundle of rights' less than full ownership . This, it was argued, would lead in turn to the Crown not being in the position to grant anyone else full ownership in this view.

The result of this line of argument is that no one has developed a theory of multiple rights (bundle of rights) for the foreshore and seabed where the different claims can be accommodated in some total construct. Future court cases may add to this body of knowledge over the years.

In effect, Government legislation in 2004 nationalised the foreshore and seabed and established a new property right structure with the question of multiple customary rights and bundles of rights still unresolved. While public access will be maintained, Maori who can prove an uninterupted link to an area since 1840 will be able to request the establishment of a reserve recognising their guardianship status. Guardians will have a say in the management of the relevant areas.⁶ Maori will need to apply to the High Court for a territorial customary right order to establish a foreshore and seabed reserve, or get other compensation from Government. The Minister of Finance, Dr Cullen, said in the House that 'the proposed Bill was a delicate balance which reflects the actual common law rights position codified into statute, no more no less'.

As in Australia, legislative changes, as well as Court interpretations, have tended to blunt the thrust of the move to recognise wider customary rights where they conflict with existing rights. In New Zealand, the above discussion shows that many customary property rights still extant continue to be outside current property law structures. Minority groups are therefore likely to seek other means of achieving the recognition of these rights. One possibility is to seek constitutional change. Judge Wickcliffe of the Maori Land Court has indicated that it may be time to renegotiate the unwritten constitution of Aotea/New Zealand within the framework of the Treaty of Waitangi so that Government institutions can be re-aligned and legitimated (National Business Review, Sept 3, 2004).

The Australian Courts approach to native title⁷

Since the Mabo and Wik decisions, and the passing of the Native Title Act legislation and its amendments, a number of cases have been referred to the courts for further interpretation of the legislation and the meaning to be given to native title. As these discussions have preceded or have been concurrent with New Zealand developments it may be useful to summarise their main features for this analysis. The material has been well analysed in the James Cook University Law Review for which the present author is extremely grateful (Amankwah 2002/3). We first discuss (a) the clarification of possessory title, (b) the situation where the bundle of rights may be eroded by court action, and (c) the continuous maintenance of rights under the Yorta Yorta decision.

Possessory title.

Following Stephenson (2002/3), concepts of aboriginal law in Australia have diverged significantly from Canadian perspectives. In terms of resource development, the precise content of aboriginal title was not clear. This included questions of rights to ownership of natural resources and minerals, rights of use and management of resources, rights to control access to aboriginal title lands and rights to authorise commercial development of such resources. These are the significant issues with which this essay commenced!

Native title in Australia appears to be sourced in the 'traditional laws and customs' of the Aboriginal peoples who have a connection to the relevant lands or waters, says Stephenson. In 2002, the High Court in Western Australia v Ward, stated that the primary source of native title is the Native Title Act. The majority in Ward considered that as the native title claims were brought under the Act the definition in that Act would govern those native title rights. In the Act native title is defined as in s223(1) to mean the communal, group or individual rights and interests that are possessed under traditional laws acknowledged and customs observed where Aboriginal people have a connection with the land or waters by those laws and customs. In this way, the statutory definition indicates native title rights and interests derived from the traditional laws and customs and not the common law (op cit., p.25).

Thus the majority in the Ward decision rejected the broad view that native title is a possessory title based on prior occupation of land giving rise to possession of lands at common law. Toohey J in Mabo was the only judge to formally state that Australian native title was sourced in the prior occupation giving rise to possession by Aboriginal people. Given the findings of a traditional title in Mabo there was no need for the court to make a decision about the plaintiff's arguments concerning possessory title. Mabo found that 'the Merriam peoples are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'.⁸

This established the principle of communal title rather than land belonging to individuals or groups, even though. the Queensland Supreme Court had found that there was apparently no concept of public or general community ownership among the peoples of the Murray Islands, all of the land being regarded as belonging to individuals or groups. As Stephenson states:

“If native title derives solely from the laws and customs of the indigenous community concerned, how could the court have found that a customary communal title exists? Therefore it is arguable that native title must have originated and derived its content from the Merriam peoples' exclusive occupation as a community of the Murray Islands, and not from their traditional laws and customs. On this basis the laws and customs would arguably be applicable to determine the existence and content of individual and group rights within the indigenous community, but would not be the source of the title itself”.

Stephenson thus argues that two sources of title potentially exist in Australia. The first source, the exclusive possession and occupation of indigenous peoples of their land, is recognised in common law. The second source is in the traditions and customs of the indigenous community. Claims for recognition of native title at common law, outside the NT Act, are not precluded by the Act. It is argued that where native title is claimed at common law, the common law source of native title is relevant in determining native title rights. When native title claims are conducted through the stautory regime of the Act then the definition of the Act is applicable. In this way, it is arguable that the majority view in Ward should be read as applicable only to native title claims which are made under the Act (op cit., pp.26-7).

Thus the source of native title makes a real difference to the content of native title. As a possessory title is the equivalent of a fee simple, it follows that the holder of a possessory title should have rights equal to those of a holder of fee simple! Such a title should be fully transferable and should be lost only in accordance with the ordinary rules applicable to loss of possessory title. However a title sourced in the traditional laws and customs of an Aboriginal community potentially may be restricted by the limits of that community's laws and customs. Stephenson points out that if a community did not mine for metals in such lands and this was never part of their laws and customs, then such title may not include rights to minerals later found therein.

Bundle of rights

In 2002, the High Court addressed some threshold questions on the concept of Aboriginal title in the Ward case; in particular the conceptualisation of native title as a 'bundle of rights'. The Ward majority endorsed the position that such a bundle of rights could be extinguished piece by piece. The Court was applying the approach taken by the Full Federal Court that native title rights could consist in separate components and interests. The Court's reasoning flowed from the emphasis it placed on the terms of the definition of title in the NTA. The majority said 'It is a mistake to assume that what the Native Title Act refers to as native title rights and interests is necessarily a single set of rights relating to land that is analagous to a fee simple'.

The majority did acknowledge that what is considered by the Aboriginal people to be a singular relationship with their land was being divided in its recognition.(op cit, p.29).

Thus the Ward High Court's narrow interpretation of native title failed to recognise native title as equivalent to full ownership of land and restricted native title to land rights based on the traditions and customs of the particular community.⁹

In post Ward Australia, two forms of native title again emerge. One form, recognised by the NTA and sourced to the traditional laws and customs of the Aboriginal community, the other, that which is recognised and interpreted by the common law and sourced on possession and occupation of traditional lands. By limiting the native title rights to the 'traditional resources of the land' the ability of native title holders to trade in those resources, to be consulted regarding their use, to exercise any control over the access of others to those resources or to share in the royalities from the use of resources, were effectively eliminated. Therefore, post Ward, native title holders must rely on the provisions of the NTA either through the right to negotiate procedures or through the Indigenous Land Use Agreements that deal directly with developers (op cit, p.31).

Stephenson concludes that the Ward case recognises only limited rights of the traditional owners over their traditional lands (op cit, p.73). Without recognised rights of ownership of minerals and natural resources, the ability of the traditional owners to effectively control resource development on native title land is minimal and traditional owners have limited capacity to negotiate agreements with developers outside the Native Title Act.

Continuous maintenance of rights

The Mabo court took the view that the content of traditional laws and customs can change over time and yet still be recognised by the court. In Yorta Yorta the High Court took a similar approach and found that the Aboriginal 'body of laws' may undergo evolution and development and yet still remain traditional laws and customs of the community. This demonstrated that a continuous tracing of particular activities to pre-sovereignty times was not necessary¹⁰ (Stephenson, p.33).

This seems to be a very positive view of the Yorta Yorta decision. The Yorta Yorta tribe were claiming a large section of land in Victoria and NSW. Judge Olney in the Federal Court in 1998 had determined that native title to the claim area did not exist. The case then went to the Full Court of the Federal Court and then the High Court on appeal which dismissed the appeal (Henriss-Anderson 2002/3, pp.331-5). The Judge , relying on passages from the judgement in Mabo, held that there were four avenues of inquiry in establishing a claim for native title:

• that members of the claimant group were descendants of the original occupiers;
• establishing the nature of the traditional laws and customs [of those ancestors];
• that the traditional connection with land had been substantially maintained; and;
• the rights and interests must be rights and interests recognised by the common law.

The first two avenues were satisfied by the evidence, such as it was, put forward. In terms of maintaining the traditional connection in a substantial manner, he found there had been a break in the occupation of the land and the original inhabitants had ceased to observe laws and customs based on tradition (op cit, p.333). He further concluded that contemporary activities of the claimant group were of recent origin and did not owe their origin to traditional laws and customs. He thus found that native title (as defined in NTA) had expired and that the Crown's radical title had expanded to full beneficial title. In relation to the fourth requirement, he said that this amounted to a requirement that the rights and interests had not been extinguished. 'Because the existence of native title had not been established, it was unnecessary for his Honour to go into this issue'.¹¹

The link between these two interpretations of the Yorta Yorta decision appears to lie in the High Court's views on the interpretation of s223(1)(a) and (b) of the NTA with regard to 'traditional laws and customs'.

“ Their Honours said that the fact that the rights and interests owe their existence not to the common law, but to traditional laws and customs, infers the existence of a normative system other than the common law. The recognition of those rights and interests by the common law points to an intersection between the common law and the traditional laws and customs, an intersection of two normative systems.. The intersection occurred at the time of sovereignty. Only those rights and interests whoch owe their existence to the normative system that intersected with the common law at the time of sovereignty will be protected by the Native Title Act” (op cit, p.337).

Therefore their Honours held, the “traditional laws and customs' presently possessed must have their origin in the normative Aboriginal and Torres Strait Islander rules existing before sovereignty, and the normative system under which the rights and interests are possessed must have had a continuous existence and vitality since sovereignty.. What is required is a continuity of the normative system, not of the actual content of the laws and customs, thus allowing for change in the content of those laws and customs.”

Since the original Judge had determined that the society which had once observed the traditional laws and customs had ceased to do so and no longer constituted the society out of which the the traditional laws and customs sprang, such continuity had been broken and the decision was sustained.¹²

To conclude this section, it has been observed that in some parts of Australia that it may be easier to establish a continuous connection with the land (Poynton 2002/3). The later time frame for white conquest and occupation in much of Queensland has resulted in Aboribinal Peoples, generally, being able to remain on country even in relatively heavily settled areas and to have maintained a 'normative system' originating in pre-conquest customs and traditions among themselves. Thus, Poynton points out, “the overweening rigor demanded by the new conservatives on the High Court and the States may still be met in the Sunshine State even if absurd amounts of money will be thrown at anthropologists to determine exactly what is a 'normative system'” (op cit, p.254).

Some implications of Australian case law

Canada, Australia and New Zealand all face a similar problem in accommodating the land claims of the indigenous populations of their respective territories. Retrospective law-making has re-established land rights which were thought to be extinguished. Each country has dealt with land rights in slightly different ways and with different scales of compassion. With respect to land, Australia has perhaps not been as laggardly as NZ in recognising the problems involved but it has not been as compassionate as the Canadian authorities. With respect to fishing, New Zealand appears to be more generous.

The Mabo and Wik decisions were consistent with the application of aboriginal law as it was developing in international fora. Perhaps more than other countries, the hearing of claims in Australia has taken a very litigacious turn and some authorities believe the Courts have diminished the gains made in Mabo and Wik. The Ward case was unable to make the case for posessory title based on traditional customary rights and hence precluded further consideration of an expanding freehold title system. Further, the Ward case adopted a bundle of rights point of view, and by limiting the native title rights to the `traditional resources of the land, the ability of native title holders to trade in those resources, to be consulted regarding their use, to exercise any control over the access of others to those resources or to share in the royalities from the use of resources, were effectively eliminated. This was in considerable contrast to Canadian law-making which opened up most of these possibilities. The Yorta Yorta case further restricts the meaning of continuity in relation to ancestral lands and makes it more difficult for most claimants to establish their connections with their ancestral associations and territories.

The Challenge of Native Title

The challenge is to recognise past rights to property that were thought extinguished. The challenge involves basic constitutional changes in property law. Canada, Australia and New Zealand have all faced these issues in recent years and have responded to different degrees.

Customary rights to land and waters were recognisable in pre-colonial times. The Australian courts have made progress by relating pre-colonial customs about rights to those established under British sovereignty. Normative rights may be customary or according to common law. The trick is to bring the two together as in Ward. Ancestral connections then fall into place. The principle of continuity is established.

Rights appear to be diluted, or extinguished altogether, as in the case of minerals, where no customary activity can be established in Australia. Canada is more generous in this regard.

Customary rights to the foreshore and seabed in New Zealand may still not be extinguished according to the courts. New legislation has over-ridden this right by nationalising the foreshore and seabed land where it is not already held in fee simple. The right to appeal to the courts for terrritorial customary rights remains.

Customary systems of rights appear to fall short of systems in fee simple in one respect or another. Australian cases discuss a bundle of rights. If transferability cannot be obtained, for example, the the bundle of rights is that much less. These missing parts of the bundle of rights appear to have high significance in terms of the Australian law as in the Ward case.

Both New Zealand and Australia have used legislative change (Foreshore Bill and 1998 Amendment to the NTA) to impose the wishes of the majority on a minority due to popular pressure.

One cannot help but conclude that the courts and the legislators continue to give a western jurisdictional bias to their dealings in cases involving customary rights in land in Australia and New Zealand. Some lessons could be learnt from Canadian experience.

Constitutional changes to property rights are thus effected by populist governments without invoking wider public debate about reforms in the constitution proper. This is consistent with Buchanan's dictum about manipulating constitutional change by incremental changes in policy.

References

Amankwah, H.A. (Editor)(2002/3), Native Title: A Decade after Mabo, James Cook University Law Review, vol 9, Special Issue.

Buchanan, J.M. (1975), A Contractarian Paradigm for Applying Economic Theory, American Economic Review 65, 225-30.

Cullinane, K. (2002/3), Mabo A retrospect 10 years on, James Cook University Law Review 9, Special Issue, 9-20.

Dixit, A.K. (1996), The Making of Economic Policy: A Transactions Cost Politics Perspective, Cambridge Mass., MIT Press.

Dragun, A.K. (1989), Property Rights and Institutional Design, Workshop on Economics of Institutional Change, Australian Agricultural Economics Society, Lincoln University.

Fletcher, D. (2004), Australian Native Title, in Haywood and Wheen, The Waitangi Tribunal, Bridget Williams Books, Wellington.

Hayward J. and Price R.T. (2004), Indian Treaties and Land Claims in Canada, in Hayward and Wheen, The Waitangi Tribunal, Bridget Williams Books, Wellington.

Henriss-Anderson, D.(2002/3), Case Note: Members of the Yorta Yorta Community v Victoria (2002) HCA 58 (12 Dec 2002), James Cook University Law Review 9, 331-41.

Hide, R.P. (1987), Property Rights and Natural Resource Policy, Studies in Resource Management No 3, Lincoln University.

McHugh, P.G. (2004), In the matter of the Treaty of Waitangi Act and in the matter of an Application for an urgent enquiry into Foreshore and Seabed issues, WAI No 1071, dated 13 January 2004.

National Native Title Tribunal, (c1996), Native Title Coexistence, Pamphlet.

-------, (1998), Understanding the amended Native Title Act, Pamphlet.

-------, (2004), Annual Report 2003-2004, (www.nntt.gov.au).

-------, (2004), Website/Speeches (www.nntt.gov.au)

• Developments in Australia: native title and reconciliation (Fred Chaney).
• The tidal wave of justice and the tide of history: ebbs and flows in indigenous land rights in Australia (Graham Neate).
• An overview of native title in Australia, some recent milestones and the way ahead (Graham Neate).
• Implementation and resourcing of native title and related agreements (Malcolm Allbrook and Mary Anne Jebb).

New Zealand Yearbook (2002), Statistics Department, Wellington.

North, D.C. (1987), Institutions, Transaction Costs and Economic Growth, Economic Inquiry 25, 419-428.

Maori Affairs Committee, House of Representatives (2003), Inquiry into the Crown Forestry Rental Trust, Report of the Maori Affairs Committee.

O'Faircheallaigh, C. (2004), Evaluating Agreements between Indigenous Peoples and Resource Developers, in Honour Among Nations: Treaties and Agreements with Indigenous People, ed Langton, Tehan, Palmer and Shain, Melbourne University Press.

Poynton, P.(2002/3), Is Yorta Yorta Applicable in Queensland?, James Cook University Law Review 9, 252-267.

Quiggin, J (1986), Common Property, Private Property and Regulation: the Case of Dryland Salinity, Australian Journal of Agricultural Economics 30, 103-117.

Scott, A. (1989), Evolution of Individual Transferable Quota as a Distinct Class of Property Right, in The Economics of Fishery Management in the Pacific Islands Region, edited by Campbell, Menz and Waugh, ACIAR Bulletin No 26, Australian Centre for International Research, Canberra.

Secher, U. and Amankwah, H.A. (2002/3), Native Title, Crown Property and Resources, James Cook University Law Review 9, 109-225.

Stephenson, M.A. (2002/3), Resource Development in Aboriginal Lands in Canada and Australia, James Cook University Law Review 9, 21-73.

Waitangi Tribunal (1998), Muirwhenua Fishing Report, WAI 22, Department of Justice, Wellington.

------- (1992a), Ngai Tahu Sea Fisheries Report, WAI 27, Department of Justice, Wellington.

------- (1992b), The Fisheries Settlement Report, WAI 307, Brooker and Friend, Wellington.

------- (2004), Report on The Crown Foreshore and Seabed Policy, WAI 1071, Legislation Direct, Wellington.

Appendix: Notes on the Crown Forests Act 1989 and the Fisheries Settlement 1992 in New Zealand.

In making comparisions with other countries it would seem appropriate to examine the outcomes that have been achieved in the settlement process. In the text it is clear that Canada, Australia and New Zealand have arrived at different legal solutions to the issue of aboriginal/native customary rights in land. In New Zealand, the recent experience with foreshore and seabed land was explored in the text. However, in some areas the settlements have been more generous and enlightened; particularly with regard to inshore fishing customary rights and latent rights over Crown forestry estates.

Crown Forests Act 1989 : In 1988 the Government announced plans to sell its commercial forestry interests. The New Zealand Maori Council and the Federation of Maori Authorities took the Crown to court to stop the sales, as it was considered likely that forestry interests would be subject to claims under the Treaty of Waitangi Act 1975. Litigation established that the Crown could be in breach of its treaty obligations, and Parliament subsequently enacted the Crown Forests Assets Act 1989. Section 34 of the Act requires the responsible Ministers to establish by deed a forestry rental trust on behalf of the Crown (Maori Affairs Committee 2003).

Preliminary agreement between the parties were entered into between July and October 1989. The trust deed was finalised on 30 April, 1990. Under the agreement reached, the Crown was entitled to sell existing timber on Crown forestry land, and all funds raised both by the initial payments and by subsequent rental payments were to be paid into a fund administered by the Trust. The interest earned from this fund was to be made available to assist Maori in the preparation, presentation, and negotiation of claims before the Waitangi Tribunal involving lands coverered by the agreement (op cit).

The agreement provides security of tenure for purchasers of state/Crown plantations and protects the interests of Maori who have claims before the Waitangi Tribunal. Purchasers have the right to use the land for a period sufficient to permit any existing tree crop to reach maturity and be harvested. The right to use the land is automatically extended by one year each year unless notice of termination is given. If notice of termination is given, the purchaser will still have time to harvest tree crops planted prior to this notice. In the event of a successful Maori claim the government will issue notice of termination to the purchaser and compensate the claimant for the rights the purchaser retains until the end of the termination period (New Zealand Year Book 1993, p.351).

Prior to 1986, exotic plantations had been established by and maintained by the New Zealand Forest Service, a government department. The land planted could be unoccupied Crown land or leased land including land leased from Maori. In 1986, the assets of the Forest Service were taken over by the crown-owned Forestry Corporation. The sale of management and cutting rights to Crown commercial forestry assers was launched by the Corporation in October 1989. Rights to about 550,000 ha of plantation forests were offered for sale in units of varying sizes. The sale did not include the land or Maori leased forests (op cit, p.350). Following consideration of the bids, management and cutting rights to 249,000 ha were allocated to new owners, while the rights to 306,000 ha remained unsold. Some 97,000 ha of the land unsold was subsequently sold to American interests.

Apart from the direct compenstaion made available for historic research on Treaty claims, the principle invoked in these measures was to hold back from changes of ownership which could jepardise future settlement of Treaty claims by using land ownership as a form of redress/remedy. At the end of this appendix discussion there is a summary of the remedies available under the legislation.

The Fisheries Settlement involved both the recognition of pre-colonial customary rights and the use of property right compensation to meet lost opportunities and past wrongs. Customary fishing rights were established before 1840 but had been diluted or ignored by post-colonial expansion of domestic fishing and the deep water fisheries. When the Government wanted to introduce a quota management system in the 1980s, it was soon discovered that most of these customary fishing rights had not been extinguished. The Waitangi Tribunal has the powers to hear claims regarding rights thought to be established under the Treaty of Waitangi but the Deed of Settlement between the particular tribal group and Government is the legislative authority for the maintenance of rights and/or exchange of resources or funds in compensation.

In the case of the Muriphenua claim (Waitangi 1988), the Tribunal determined that the fishing activities of the Mutriwhenua people involved the whole of the adjacent continental shelf [around the north coast of the North Island]. Those activities were capable of being developed as a commercial industry and in fact had been developed on commercial lines. [In this location], any commercial fishing by others must necessarily have interfered with their full, exclusive and undisturbed right to maintain and develop their fishing capabilities. Accordingly, an agreement or arrangement was necessary to permit of any other commercial fishing on the continental shelf that they used. No such arrangement or agreement had been made. Had the Treaty guarantee been maintained, and had their fishing activities been properly supported and promoted by the Crown, the claimant tribes would have developed an off-shore fishing capability (op cit, p.239).

The Tribunal suggested that Government must bargain for any right to the commercial exploitation of the inshore fishery: the Tribunal's view was that the Treaty of Waitangi fully protected these customary fishing activities. In the case of the Quota Management System, there was a fundamental conflict with the Treaty's principles and terms, as it apportioned to non-Maori the full, exclusive and undisturbed posession of the property [rights] in fishing that to Maori was guaranteed by the Treaty. The tribunal concluded that substantial relief to the claimants was required in respect of past breaches and to restore their fishing economy to what it might have been. There could be no once-and-for-all settlement in Muriwhenua without a long term programme of rehabilitation to restore their ancestral association with the seas.

In 1992, the Tribunal addressed the claims of the Ngai Tahu people (the dominant tribal group in the South Island of New Zealand)(Waitangi 1992a). In this case the Tribunal presented two recommendations separating the inshore fishery and the continental shelf.

Ngai Tahu have an exclusive treaty right to the sea fisheries surrounding the whole of their rohe [territory] to a distance of 12 miles or so there being no waiver or agreement by them to surrender such right.

Ngai Tahu have a treaty development right to a reasonable share of the sea fisheries off their rohe extending beyond 12 miles out to and beyond the continental shelf into the deepwater fisheries within the 200 mile exclusive economic zone such right being exclusive to Ngai Tahu.

The Tribunal stated that it was not in a position to accurately assess the value of the sea fisheries to which Ngai Tahu is entitled under the Treaty. They stated

“The tribe has never disposed of its exclusive right to the sea fisheries out to 12 miles or so from its shoreline. It is no doubt possible to assess reasonably accurately the extent and value of the sea fisheries within this inshore zone of Ngai Tahu. However, the fixing of a reasonable share of sea fisheries extending beyond such inshore zone and also beyond the continental shelf into the deepwater fisheries within the 200 mile exclusive economic zone is more difficult. In assessing this share the tribunal believes that account must be taken of the serious depletion of the inshore fisheries resulting in a decline in yields of the major species and in the yields from recreational and traditional Maori fishing” (op cit, p.306-7).

Concurrent with this finding, officials were already preparing to discuss a deed of settlement for all Maori fishery claims. Maori had held a hui [meeting] as early as 1988 and negotiators were mandated to seek not less than 50 per cent of the offshore quota on the basis that the Treaty gave a right to 100 per cent (Waitangi 1992b). The Deed was signed in September 1992 and provided:

• $150m for the purchase of Sealord Products Ltd ( a fishing company which held some 26 per cent of the quota);
• twenty per cent of all new species to be transferred to Maori as they come under quota;
• the establishment of a new Treaty of Waitangi Fisheries Commission comprised of Maori to hold the assets in the interim;
• for Maori to develop a policy for the distribution of any assets received in the settlement;
• the Government to make regulations in consultation with Maori to recognise and provide for customary food gathering and the special relationship between Maori and those places, which are of customary food gathering importance to the extent that such food gathering is not commercial in any way;
• Maori to be able to continue to take non-commercial fishing claims to the Waitangi Tribunal;
• repeal S 88(2) of the Fisheries Act 1983 and thus remove the ability of Maori to take court action on claims; and
• remove the rights of Maori to take further claims in respect of commercial fishing claims. (NZYB 1993, p.358).

The above statement points out that the Government believes that, far from extinguishing Maori fishing rights, the settlement redefines those rights in a modern context within a progressive and sustainable fishery management system. In sum, the settlement transferred over 35 per cent of the total commercial fishing industry to the indigenous claimants.

Recommended remedies: Two main remedies are available to the tribunal: a general power to make non-binding recommendations of its choice, and more specific powers to make binding recommendations, either for the return to claimants of certain land or 'interests in land', or for the payment to them of compensation for the loss of logging rights in Crown forests, when those rights have been sold. The former is covered by the Treaty of Waitangi Act 1975 and the latter by various amendments to the Act in 1988 and 1990 (Hayward and Wheen, p.125). A further amendment in 1993 barred the tribunal from recommending the return or repurchase by the Crown of 'private land', including land owned by local government or local authorities. As the Tribunal moves though the claims before it, its powers are progressively reduced as 'full and final' settlements are reached. In each case, the settlement legislation precludes any further power of the Tribunal to grant a remedy to the same claim.

A summary of the non-binding recommendations that have been made by the Tribunal has been complied by Dawson and Adams (Hayward and Wheen, pp. 234-6):

• Leaving space for further settlement processes;
• Recognition of the mana (pride) and status of claimants;
• Recognition of the claimants internal structures and processes;
• Amendments to future legislation;
• Changes in government policies, administration and resource management regimes;
• Return of land;
• Vesting in claimants of other assets or compensation;
• Controls over land use; and
• Compensation for the preparation of claims.

I am not aware of any study of the net effect on the claimants of these various remedies although across the board the 1992 fisheries settlement must be one of the largest. The forestry claim discussed above may have potential gains for the claimants but not direct compensatory components in the short term apart from the funds released for the preparation and presentation of claims to the Tribunal.