Māori customary rights
The assumption of Crown ownership under common law (law from precedent rather than statute) overlooked the place of Māori customary interests in the foreshore and seabed. Many Māori communities are coastal, and their long traditions of fishing have been widely recognised by New Zealanders.
Yet Māori use has historically been more than just fishing. The lands under the water were used for the landing of canoes, recreation, as battlegrounds, burial grounds and for the collection of seaweed. People were at times stopped from using tidal areas by rāhui (prohibitions) in response to a drowning or to preserve shellfish stocks.
In 1885 Hōri Ngātai of the Ngāi Te Rangi tribe said that the land below high water immediately in front of where he lived on Tauranga Harbour was ‘part and parcel of my own land … as being part of my own garden’. He explained: ‘From time immemorial I have had this land … The whole of this inland sea has been subdivided by our ancestors, and each portion belongs to a proper owner.’ 1
From 1840, the Crown – through its officers, orders and, eventually, legislation – gradually intruded on and disturbed the varying degrees of customary (including spiritual) association that Māori communities had with the foreshore and seabed.
With respect to dry land, Māori ownership interests were recognised. There were debates about the nature and extent of such interests but, in general, the existence of customary property was accepted. There were formal processes of purchase and transfer of ownership. The Crown did not presume to have ownership by right. But with respect to the seabed and foreshore (excluding fisheries), there was either indifference to, or unawareness of, Māori property interests in general legislation and the way in which it was applied.
There were occasions where the Native Land Court acknowledged Māori customary interests in the foreshore, but only in the form of fishing rights. A number of cases claiming property rights were taken to the Land Court, although control of the fisheries (including valued fishing grounds) was an important motivation for litigation in respect of both the foreshore and seabed.