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Maori Customary Rights & William The Conqueror


Howard's End

Maori Customary Rights & William The Conqueror

By Maree Howard

As the debate rages across the country over Maori customary use of the sea-bed and foreshore it is well to remember that the basis our land laws is a fiction which started over nine hundred years ago when William the Conqueror stood on a hill in England and declared that he now owned all the land by right of conquest. Maree Howard writes

The debate, mostly from point-scoring politicians at this point, is heating up over Maori customary use and access to the sea-bed and foreshore.

But Maori do have a legitimate point, not only from the Treaty of Waitangi, but from a much older document - the Magna Carta.

Chapter 29 of the 1297 Edward 1 Magna Carta, which is still the law in this country says; " No freeman shall be disseised of his.......free customs.......... We will sell to no man, we will not deny or defer to any man either justice or right."

Magna Carta remains a covenant between the Sovereign and the Subject. The Queen has described it as a "peace treaty" and much the same could be said for the Treaty of Waitangi.

And our Parliament again enacted Chapter 29 of Magna Carta into New Zealand law as recently as 1988.

There is some good legal authority for the force Magna Carta in this sea-bed foreshore controversy which Maori can rely on.

In Calder v Attorney-General of British Columbia (1973) and in R v Foreign Secretary; ex parte Indian Association of Alberta (1982) it was said;

"In the context of the British experience in North America, including the 1763 Imperial Proclomation, the Indian Bill of Rights has force analogous to the status of Magna Carta which has always been considered to be the law throuhgout the Empire following the flag to newly discovered or acquired territories."

There is much fiction today about the way we are governed and even our centuries old land tenure system relies on a fiction.

It is the continuing fiction of radical royal grants, exercised by our Government, which underlies the English land tenure system which is part of New Zealand's land law.

"The notion of radical title enabled the Crown to become Paramount Lord of all who hold tenure granted by the Crown and to become absolute beneficial owner of all unalienated land for the Crown's purposes"

So said the High Court of Australia when ruling on native title in the Mabo case in 1992.

That means that the Crown - the Government - simply takes when it wants to - and it all started when little old William the Conqueror stood on a hill in England in 1066 and said I claim right to all land by right of conquest.

Interestingly, in New Zealand, the Crown was never a conqueror but still claims that right.

In the Mabo case in 1992 the High Court went on to say that it is now far too late in the day to change our system of land ownership.

Nevertheless, the fiction continues and the Crown, it seems, has now decided to again exercise that fiction by annoncing new laws in an attempt to stall or thwart Maori claims.

The Court of Appeal was right - Maori do have the right to have their claims heard before the Maori Court over what they say are their legitimate rights, interests and customs.

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