Abstract:
In November 2004, the New Zealand Parliament passed the Foreshore and Seabed Act (FSA).1 In so doing. it passed legislation which goes further towards denying Maori the opportunity to establish aboriginal title than comparative legislation which affects indigenous land rights in any other common law country. In essence the FSA removes the right of Maori to apply to Te Kooti Whenua Maori (the Maori Land Court) for territorial customary claims. It extinguishes aboriginal territorial claims to the foreshore and seabed and replaces such claims with a right to argue before the High Court that aboriginal title would have existed but for the legislation. However, there is no accompanying guarantee of compensation for this extinguishment. Finally. it allows for an application for recognition of a non-territorial customary right. known as a customary rights order, to be made to either the Maori Land Court or the High Court. Again, this statutory provision replaces common law jurisdiction.
