E/CN.4/2006/78/Add.3 page 13 within the framework of existing statutes and regulations such as the Resource Management Act and its predecessors. Customary rights only become “aboriginal title” at common law, which requires a court decision or a specific statute. The Maori Land Court had not generally dealt with these issues under its jurisdiction. In 2003 the Court of Appeal (Ngati Apa case), overturning Ninety Mile Beach of 1963, ruled that it was arguable that customary title had not been extinguished either directly or by implication. The Court also declared that the Maori Land Court could determine whether defined areas of foreshore and seabed had the status of "Maori customary land." Maori tribes could also apply to the High Court for determinations on customary title to particular areas of the foreshore and seabed. 47. These developments prompted the Government to announce its foreshore and seabed policy in 2003, which became the subject of an urgent inquiry by the Waitangi Tribunal. The Tribunal, expressing its disagreement with the Crown’s proposal, concluded that this policy would remove the ability of Maori to go to the High Court and the Maori Land Court for definition and declaration of their legal rights in the foreshore and seabed. The Tribunal considered that in removing the means by which the rights would be declared, it effectively removed the rights themselves, whatever their number and quality. The Tribunal also concluded that the proposal would remove property rights, which amounts to expropriation; not guarantee compensation; enact a regime that recognizes lesser and fewer Maori rights in place of the property rights to be declared by the courts; and exchange property rights for the opportunity to participate in an administrative process. 48. Early in the debate on the foreshore and seabed issue, the Chief Commissioner of the Human Rights Commission stated that there are human rights dimensions to the issues of both customary rights and public access to the foreshore and seabed. The Government made some changes to the original bill, which in November 2004 was enacted by Parliament as the Foreshore and Seabed Act. According to the Government’s submission to CERD in February 2005, the purpose of the Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders and to recognize the rights and interests of individuals and groups in those areas. It does this by vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown, and by instituting a mechanism for the identification and protection of customary uses, activities and practices by order of the Maori Land Court or High Court. 49. Although the New Zealand Human Rights Commission had expressed concern over the unjustifiable extinguishment of Maori customary title to the foreshore and seabed and the absence of a guaranteed right of redress, it nevertheless noted a number of positive aspects in the Act, namely recognition of the strong cultural connection with the foreshore and seabed felt by all New Zealanders, the protection of public access, and rights of navigation, and the importance of non-alienation of areas of New Zealand’s coastline. 50. The Act provides for the protection of important cultural sites by limiting access to the foreshore and seabed by way of ministerial decision. It also defines “territorial customary rights” as pertaining only to judicially determined customary/aboriginal title and not to any group or individual claiming such a right. Nonetheless, the Human Rights Commission points out that potential Maori customary title over parts of the foreshore and seabed and fee simple title for Maori land under existing legislation have now been removed, without equivalent replacement.