The Treaty of Waitangi, Treaty settlements, and Māori interests
This is a single section from Chapter 5. Read the full chapter here.
Does the legislation potentially affect rights and interests recognised at common law or practices governed by tikanga?
Any land, bodies of water, or other resources potentially subject to customary title (or rights), and that might be affected by proposed legislation, should be identified, as should any other potentially affected practices that are governed by tikanga.
The common law recognises Māori customary title (akin to a property right) and customary rights (which may include rights of use and access) in land and other natural features. Customary title and customary rights pre-date the Government’s acquisition of sovereignty.
Recognition of Māori customary title and customary rights at common law is not dependent on the Treaty. Express language (or at least clear and plain implication) is required to extinguish any subsisting Māori customary title or customary rights.
Care should be taken when assessing where legislation may affect practices governed by tikanga. Such practices will likely be identified by the steps taken under 5.1.