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Dalhousie Law Journal

Keywords

New Zealand, common law, native, aboriginal, title rights, Maori, Court of Appeal, legislature, Waitangi Tribunal, civil rights, political rights

Abstract

This article is an account of a recent controversy in New Zealand regarding the common law native title rights of indigenous Maori people to a possible title in certain areas of the foreshore and seabed. In overturning its own precedent the New Zealand Court of Appeal had opened the door to such claims. However, the legislature, overwhelmingly supported by the majority non-Maori population, moved quickly to extinguish the inchoate rights with no guarantee of fair compensation. The lack of any constitutional protection ofcivil and political rights, and the absence of alternative institutional checks and balances, allowed the legislation to proceed unimpeded notwithstanding vigorous protests from Maori and from the Waitangi Tribunal whose mandate relates to the treaty rights of New Zealand's indigenous Maori minority. The fragility of civil and political rights in New Zealand has been articulated elsewhere, and the narrative outlined here presents a near-perfect instance of an inadequate rights regime facilitating an iniquitous outcome for a disempowered minority. It is a fairly straightforward tale of rights abuse and an exemplary study of the importance of constitutional protection of certain rights, in this case discrimination on grounds of race, against hostile majorities even in a modern liberal democracy. Both the native title jurisprudence and rights issues are imbued with the Canadian experience but lie in (sometimes dramatic) counterpoint to it.

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