Ngati Apa v Attorney-General
| Ngati Apa v Attorney-General | |
|---|---|
 |
|
| Court | Court of Appeal of New Zealand |
| Full case name | Ngati Apa & Anor v. Attorney-General & Others |
| Decided | 19 June 2003 |
| Citation(s) | [2003] NZCA 117; [2003] 3 NZLR 643 |
| Transcript(s) | Available here |
| Case history | |
| Prior action(s) | [2002] 2 NZLR 661 (HC) |
| Court membership | |
| Judge(s) sitting | Elias CJ, Gault P, Keith, Tipping & Anderson JJ |
| Keywords | |
| Foreshore and seabed, Aboriginal title, Te Ture Whenua Maori Act 1993 | |
Ngati Apa v Attorney-General was a landmark legal decision that sparked the New Zealand foreshore and seabed controversy. The case arose from an application by eight northern South Island iwi for orders declaring the foreshore and seabed of the Marlborough Sounds Maori customary land. After lower court decisions and consequent appeals in the Maori Land Court, the Maori Appellate Court and the High Court; the Court of Appeal unanimously held that the Maori Land Court had jurisdiction to determine whether areas of foreshore and seabed were Maori customary land or not. The court also held that, "The transfer of sovereignty did not affect customary property. They are interests preserved by the common law until extinguished in accordance with the law". The effect of the decision was subsequently overturned by the Foreshore and Seabed Act 2004.
Justice Keith succinctly summarised how the case got before the Court of Appeal,
[126] Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa, Rangitane and Te Atiawa applied to the Maori Land Court for an order that certain land is customary Maori land. The land is the foreshore and seabed of the Marlborough Sounds. The area includes seabed under waters within the Sounds, such as Pelorus Sound and Port Underwood, and under waters on the seaward side of the land such as the west coast of D’Urville Island.
[127] Judge Hingston in the Maori Land Court gave an interim decision on a preliminary question favouring the iwi. The Attorney-General and others appealed to the Maori Appellate Court which then stated questions of law for the High Court. Ellis J in the High Court answered the questions favourably to the appellants. The iwi appeal to this Court.
The, "the lowest common denominator of the four judgments is “crystal clear”: property rights cannot be extinguished by a “side wind”."
Chief Justice Sian Elias addressed four main points in her judgment.
Firstly, Elias CJ addressed the issue of who at common law owned the foreshore and seabed and held,
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