Gresson: This was an application under s. 161 of the Maori Affairs Act 1953 by Waata Hone Tepania for an investigation of title, and for the issue of a freehold order in respect of the foreshore of the Ninety-Mile Beach in North Auckland.

Justice North holds as a preliminary point that the Crown is the only "legal source of private title", and that "on the assumption of British sovereignty — apart from the Treaty of Waitangi — the rights of the Maoris to their tribal lands depended wholly on the grace and favour of Her Majesty Queen Victoria, who had an absolute right to disregard the Native title to any lands in New Zealand, whether above high-water mark or below high-water mark.

"[5] The judgements contained two principal reasons for denying the Māori Land Court the jurisdiction to investigate title to the foreshore.

[6] As the learned Solicitor-General submitted might be the case, I am of opinion that once an application for investigation of title to land having the sea as one of its boundaries was determined, the Maori customary communal rights were then wholly extinguished.

Finally, as it would appear must often have been the case, if in the grant the ocean sea or any sound bay or creek affected by the ebb and flow of the tide was described as forming the boundary of the land, then by virtue of the provisions of s. 12 of the Crown Grants Act 1866 the ownership of the land between high-water mark and low-water mark likewise remained in the Crown.

The Court explicitly overruled the decision both on the preliminary point on the source of Aboriginal title and on the specific issues of statutory interpretation.

Reaffirming the doctrine of native title established in R v Symonds, Chief Justice Elias stated: The transfer of sovereignty did not affect customary property.

In Re the Ninety-Mile Beach followed the discredited authority of Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, which was rejected by the Privy Council in Nireaha Tamaki v Baker [1901] AC 561.

Although a subsequent vesting order after investigation under the Maori Affairs Act 1953 was “deemed” a Crown grant (s162), that was a conveyancing device only and applied by operation of law.