By
Robin Johnson2
Last conference my paper was on the impact of the foreshore and seabed legislation on the existing land registration system (the Torrens system)(Johnson 2004). The viewpoint taken was one of formal property rights and their relationship to changing court decisions regarding the ownership of foreshore and seabed land. This paper enlarges on the institutional environment of property rights in New Zealand, and draws on examples from Canada and Australia. All three countries rely on various interpretations of ¨aboriginal law¨ as set out in the courts in the three countries. The paper argues that an institutional approach has some insights to offer in democratic resolution of the kind of property law issues raised by the pre- existance of traditional/customary/primitive land rights. In recent circumstances Maori title would exist even if there were no Treaty of Waitangi.
The foreshore and seabed legislation in 2004 raised the issue of what happens to customary rights when a country (or territory) is occupied by a foreign power. In the C18 and C19 European expansionism brought about the occupation of N America, S Africa, Australia and New Zealand. Earlier the Spanish and the Portugeuse occupied S America and parts of N America. The occupiers' legal systems prevailed and the rights of indigenous inhabitants were mostly ignored or severely discounted. Few provisions were made for land and water rights that might have existed (in customary law).
In broad terms, indigenous legal arrangements i.e. those accepted by custom, made arrangements for exclusive use of land and water where appropriate, and provided sanctions for the maintenance of the arrangements. The foreshore and seabed legislation was an exercise in clarifying what present-day legal systems had to say about customary access to the foreshore, access to near fishing resources, further distant fishing resources, and rights of exclusivity resulting from traditional or customary arrangements.
In reviewing these issues in 2003, the High Court had clarified that such customary rights that could be substantiated before the courts were fully recognisable and could be relevant to cases before the Maori Land Court. In making this decision the Court referred to the 'doctrine of aboriginal law' that had recently been receiving considerable attention in land issues in both Canada and Australia. This doctrine results from a progression of court decisions in these countries that sought to identify and clarify what customary rights survived foreign occupation and how the common law should be adjusted to accommodate them.
In the various territories occupied by British settlers and forces it was common for treaties to be struck with the indigenous inhabitants and these may or may not have provided for preservation of land and water customary rights (more details below). In Australia, there was very little treaty making whereas in Canada and New Zealand some of these rights appear to be reasonably clearly specified. The Treaty of Waitangi (1840) is fairly specific in stating 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. We know in practice that Maori lost control of most of their lands either by sale or agreement with the settler government or by dubious deals by some authorities. Nevertheless the Treaty remains a powerful guiding tool to resolve disputes over land and water rights as compared with Australia, say, where the establishment of customary rights has become enmeshed in the courts.
In this case, history is important in determining present day rights. The legislature and the courts create the legal framework that provides for the conduct of commerce and the resolution of disputes. Property rights underlie all commerce and agreements and negotiation and common agreement and acceptance of such rights makes the institutional system workable. The relationship between the courts and the legislature is of critical importance in what can be achieved. ¨Aboriginal law¨ only applies of course to those countries with dominant non-indigenous majorities and more direct methods might be employed to re-establish customary rights in countries like South Africa and Zimbabwe. We discuss here the appeal to aboriginal law in Canada, Australia and New Zealand and its role in resolving issues arising from surviving customary rights in land and water.
Institutional economics relates to property rights, transaction costs and all arrangements, formal and informal, that govern the behavour of society and the conduct of commerce. It can relate to the conduct of government organisations or to the behaviour of family units in society. Institutional economists are fond of saying that it is the details that are important.
In the present case, it is the study of traditional institutions that are important to the resolution of the foreshore and seabed issue. McLeod (2005) emphasises that intsitutional arrangements dynamically determine as well as respond to the incentive structure within society. He notes that institutional arrangements typically evolve glacially in a path-dependent fashion such that they are seen to be independent of rather than inter-dependent with incentive structures. He supposes that apolitical institutional arrangements evolve toward efficiency in their own settings. 'Adam Smith's metaphor of the silent hand with respect to uncontaminated markets is consistent with this. He notes that Posner (unreferenced) advances an analogous conjecture with respect to the development of an uncontaminated common law. By uncontaminated he understands in the absence of material monopolies, externalities and transaction costs. Her draws from these observations that the institutional arrangements of pre-contact Maori which were developed over at least 500 years were likely to have been efficient in the sense that they evolved in the direction of maximising output in that society given its particular technology and resources.
McLeod quotes Posner's analysis (The Economics of Justice, Harvard 1983, p.146), of so-called primitive economies which found a remarkable similarity between institutional arrangements between them which he believed were generally efficient. Posner states ¨I argue that many of ther distinctive institutions of primitive society, including gift giving and reciprocal exchange, polygamy and brideprices, the size of kinship groups, and the value placed on certain personality traits such as generosity, are best explained as adaptations to uncertainty¨. McLeod interprets this as identifying best ways of managing risk and (I assume) therefore totally rational.
In this paper, we examine the resolution of the foreshore and seabed problem in an institutional perspective. It turns out that Canada, Australia and New Zealand have all addressed the land ownership problem in similar terms. The body of common law developed is known as ¨aboriginal law¨. It enables modern institutions (the courts etc) to interpret what the so-called primitive institutional situation was and how to recognise these customary rights in the light of modern institutional arrangements.
According to McHugh (2003), the term ¨ownership¨ should be treated as synonymous with full fee simple title to land or full beneficial ownership - the right, in other words, to exclude all-comers. He uses the term ¨rights¨ to describe lesser rights over land. ¨Ownership¨ 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 holds ¨rights¨ over land in the ownership of another person.
McHugh uses ¨aboriginal title¨ 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 legislation.
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
la of protection, the Crown itself. 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 (my emphasis).
According to the Waitangi Tribunal (2004), 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. Important among the features of the common law doctrine of aboriginal title are that:
The Tribunal noted that the common law doctrine of aboriginal title has not been much applied in NZ. As a result of the Marlborough Sounds case, the way was opened by the Court of Appeal for claims for customary rights to heard by both the Maori Land Court (MLC) and the High Court. 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.
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 (Hayward 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).
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's 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 1982, aboriginal peoples in Canada (Indian, Inuit, and Metis) were able to negotiate a constitutional amendment that recognised treaty and aboriginal rights (op cit, p.140).
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. 3 The Canadian Supreme Court placed certain limitations on the form of title which is otherwise fully possessory. It is not transferable except through the Crown.
Native Title - ¨Aboriginal Law¨ in Australia 4
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 c1996).
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 c1996).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. 5
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 c1996).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 eqivalent 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. 7
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 appear to be the Australian equivalent of the foreshore and
seabed debate in New Zealand's jurisdiction (Johnson 2005).
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. 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 Nineteenth Century, 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).
Up to the High Court decision in 2003, it had been assumed that
customary rights had been extinguished by the signing of the Treaty
of Waitangi in 1840. This view 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
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 S 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 befor the High Court and the Court of Appeal in 2003 in the case concerning the Marlborough tribes' access to aquaculture sites in Marlborough Sounds.
Government legislation in 2004 effectively nationalised the foreshore and seabed and established a new property right structure that left room for claimants to establish the form of any customary rights that remained. 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. 8
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
.
This issue raises the wider constitutional issue of the impact of colonial occupation on indigenous people's rights when the occupiers are now in the majority as in Canada, Australia and New Zealand. Institutions and the legislature support the majority view. 9
One need only look at Zimbabwe land occupation to see what happens when majority rule of another kind prevails!
Second, the nature of treaty making in the C19 clearly relates to the earlier recognition of such customary land rights. In both Canada and New Zealand the availability of earlier treaties enabled processes of reconciliation to be embraced at an earlier date. In Australia, the assumption of terra nullis (empty land) in Australian law left a path open to endless litigation and appeal to the courts as jurists and legislatures struggled to meet the buried rights of their indigenous people.
Third, in all three countries it has taken jurists a
considerable time to embrace a new doctrine of aboriginal law
and
apply it to their individual situations. This is man-made law.
Curiously enough, the respective governments have largely followed
the lead of the jurists although with bad grace at times as in this
case in New Zealand.
The recognition of these issues indicates that democratic governments, albeit three based on the Westminster model, can move by incremental steps to meeting a just solution to claims which originate in customary folk law and held by only a minority.
It is not surprising therefore that Dr Cullen can regard the
foreshore and seabed issue legislation in New Zealand as
reflecting the actual common law rights position codified into
statute, no more no less
!
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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.
Johnson, R. (2004), The Torrens Land Registration System and Customary Rights, Paper delivered to the New Zealand Association of Economists, Wellington, June 30-July2, 2004.
Johnson, R. (2005), The Challenge of Native Title, Paper delivered to Australian Agricultural and Resource Economics Society, Coffs Harbour, February 15-17, 2005.
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-------, (1998), Understanding the amended Native Title Act, Pamhplet.
-------, (2004), Annual Report 2003-2004, (www.nntt.gov.au).
-------, (2004), Website/Speeches (www.nntt.gov.au)
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