Maori property cases have the potential to be noteworthy for the idea of protecting private property rights. This should be celebrated rather than lost in a wider discussion of the individual merits of the cases.

The Supreme Court’s recent decision in Paki v Attorney-General is a case in point, as is the Court of Appeal’s judgment in Attorney-General v Ngati Apa (the foreshore and seabed case).

Paki involves a claim to a stretch of land under the Waikato River. One question was whether the land had been appropriated by the 1903 Coal-mines Amendment Act and its successors, which claimed “navigable” rivers for the Crown.

The majority of the court adopted a narrow interpretation of “navigable”. They held that navigability is determined on a segment-by-segment basis, not on a whole-of-river basis.

Elias CJ, Blanchard and Tipping JJ expressly mentioned the preservation of private property rights in their reasoning – saying a “wide” interpretation would treat landowners whose land adjoined a non-navigable river segment differently, based on the state of the river upstream or downstream of their location.

The judges noted: “It is difficult to see any legislative purpose” in such differential treatment, and that “[s]uch potential confiscatory effect is … a reason why a [wide] interpretation is inappropriate”. They were concerned that landowners “would be deprived of property in circumstances where no one could benefit from navigation”.

In Ngati Apa, the Court of Appeal did not accept arguments that legislation blocked the recognition of the foreshore and seabed as Maori customary land. Referring to the Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977 and its predecessor, Gault P said: “To accept that line of argument would be to recognise extinguishment of customary rights by a most indirect route when express legislative enactment would have been expected”. This was reinforced by Keith and Anderson JJ, who noted: “… legislative measures claimed to extinguish indigenous property and rights must be clear and plain”.

Some elements of Paki and Ngati Apa may justify less favorable scrutiny. However, this should not prevent celebration of the fact that in these cases, our highest courts opted to interpret legislation in favour of upholding private property rights.