and directed Mackay to follow the guide of the Gold Fields Act 1868 as providing for the negotiation of agreement between the Government and owners of adjacent lands.
Some right-holders at Kauaeranga agreed to the Government taking over management of the mudflats, but others wished to enter into private leasing arrangements for some of the most valuable areas. The Government responded by introducing the Thames Sea Beach Bill. In its initial form, the Bill represented an absolute assertion of the Crown's supposed prerogative over both the foreshore and all precious minerals 'wherever they might be found'. Hauraki Maori protested the Government's intent as transgressing both the Treaty of Waitangi and the negotiated cessions—a view again supported by Mackay who told the Select Committee which was examining the Bill that Maori had agreed to mining on only one part of the mudflat. In Mackay's view, Hauraki would 'take this position: they will say that they are the owners of that land for mining and for every other purpose' and would 'resist any action taken by the Government in the matter.'
In view of this advice, Maori protest, and past acknowledgment of native title in both the passage of legislation and the conduct of negotiation, the Select Committee recommended that the Government delay the passage of legislation until the question of ownership could be clarified. Instead, the legislature pressed on with a law to reimpose Crown pre-emption over the Kauaeranga foreshore, undermining Hauraki ability to deal with these lands as they liked, and to strike the best deals that they could. The Crown's control over the foreshore was further strengthened by Fenton's Native Land Court decision at Kauaeranga, in which rights pertaining to the mudflats—of fishing, in minerals, and of usage versus ownership—were separated out from each other, and those of Maori were sacrificed to the 'great public interest'. Although Hauraki could demonstrate the proofs of ownership demanded by Fenton to establish 'full and exclusive right', he refused to make a court order for the 'absolute property of the soil, at least below the surface'. Instead, he awarded Maori the 'exclusive right of fishing ... the surface of the soil' of the lands between the high and low water marks, stating that he could not `contemplate without uneasiness the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the colony [would] be vested in the natives'.
The Government subsequently interpreted Fenton's judgement as 'proof of the care' with which all arms of the executive dealt with questions concerning the right of Maori, but at the same time moved quickly to take the foreshore out of the jurisdiction of the Native Land Court in the Auckland Province. It is also argued that doubts exist as to how Government agents interpreted the court's decision regarding title, to Maori, when they sought to establish the Crown's absolute control over the Kauaeranga foreshore. Fenton's decision was used not to protect Maori rights in the foreshore, but to smooth the way to Government acquisition. In that process, the status of Maori rights was further downgraded. At first, E.W. Puckey, who had responsibility for the initial conduct of negotiations, talked of 'purchasing' the beach. Fenton insisted, however, that the Government negotiate in accordance with the import of his decision which had established that Maori need not be paid for the foreshore itself. McLean denied that there was any intention to 'forego the right of the Crown to the land below the water
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