Interpreting Customary Rights Orders under the Foreshore and Seabed Act: The New Jurisdiction of the Maori Land Court

Abstract

The Foreshore and Seabed Act 2004 inaugurated a new jurisdiction for the Māori  Land Court with respect to customary rights orders over areas of the foreshore and seabed. This article focuses on the customary rights orders provisions of the Act. While this new jurisdiction is entirely statutory, the language of the provisions reflects the common law “tests” for aboriginal rights and native title. This article looks, therefore, to the common law as a possible guide for interpretation of the CRO provisions. It concludes, however, that the statutory language of the Act provides an opportunity for New Zealand courts, and the Māori  Land Court in particular, to forge a new body of jurisprudence, one which hopefully will avoid the strictures and inequalities of its common law equivalent.