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The Treaty of Waitangi and Treaty settlements
This is a single section from Chapter 4. Read the full chapter here.
Are any of the rights and interests affected by the legislation potentially recognised at common law?
Any land, bodies of water or other resources potentially subject to customary title (or rights), and that might be affected by proposed legislation, should be identified.
The common law recognises Māori customary title (akin to a property right) and customary rights (which may include rights of use and access) in land and other natural features. Customary title and customary rights pre-date the Government’s acquisition of sovereignty.
Recognition of Māori customary title and customary rights at common law is not dependent on the Treaty. Express language is required to extinguish any subsisting Māori customary title or customary rights. A statement that Parliament intends to legislate inconsistently with the principles of the Treaty will therefore not be sufficient to extinguish customary title.
The courts will generally hold that, unless voluntarily surrendered, abandoned or expressly extinguished in clear terms by legislation, customary title and customary rights will continue to have legal effect. Legislation that is intended to extinguish or apply to customary title and customary rights will require clear and precise wording to that effect.
Extra care must be exercised when dealing with customary title or rights relating to riverbed, lakes, the foreshore and seabed, as these often pose difficult legal issues.