Aboriginal Rights in the Offshore: Maori Customary Rights under the Foreshore and Seabed Act 2004 (NZ)

Abstract

This article considers the new Foreshore and Seabed Act 2004 (NZ). This Act was passed in response to the Court of Appeal decision in Ngati Apa in 2003, which determined that Maori customary rights had not been extinguished in the foreshore. The Act constitutes one of the more significant international developments in Aboriginal rights in recent years. This article will situate the main aspects of the Act within Commonwealth native title jurisprudence. In particular, it contrasts the approach of the New Zealand courts, and the subsequent legislation, with that of the High Court of Australia, and to a lesser extent the Supreme Court of Canada, in recent years. The article concludes that the New Zealand Act constitutes a particularly ungenerous approach to Aboriginal rights: one that imposes significant hurdles on claimants, even in comparison to Australian native title law.