New Zealand’s Treaty of Waitangi and the doctrine of discovery: Implications for the foreshore and seabed

Since the advent of Western European exploration questions have been raised about the legality and morality of claims to new territories and the ensuing, often brutal colonisation patterns. The doctrine of discovery justified the acquisition of territories by conquest or other means. By the 19th century British common law included the doctrine of continuity, which recognised that the property rights of the indigenous people survived after the Crown acquired sovereignty over their territories. The Crown used a general treaty of cession and protection as the instrument for gaining sovereignty. In the context of Western European colonisation, this article discusses the statutory and judicial recognition of New Zealand’s Treaty of Waitangi 1840 and native title to land. The ensuing discussion highlights statute and judicial decisions that depart from the Treaty and are unique within the British colonies. This article also discusses the settlement of Treaty-based claims to land and fisheries and the current debate regarding ownership of the land along the seacoast and beneath the sea. The article contributes to the broader discussion on indigenous rights.