COURT OF APPEAL OF NEW ZEALAND TE KŌTI PĪRA O AOTEAROA

MEDIA RELEASE

PROPRIETORS OF WAKATŪ v ATTORNEY-GENERAL

(CA436/2012) [2014] NZCA 628

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

The Court of Appeal has dismissed an appeal by the Wakatū Incorporation, Rore Pat Stafford and Te Kāhui Ngahuru Trust alleging breaches of trust and fiduciary duty against the Crown. The High Court had also dismissed the claims.

The claims relate to lands known as the Nelson Tenths in the upper South Island (Te Tau Ihu o Te Waka a Māui). In 1845 and 1848, the Crown granted land to the New Zealand Company for its settlement in the Nelson region. The 1845 grant purported to reserve one tenth of the land as reserves for Māori. The New Zealand Company’s earlier dealings with Māori to obtain the land included an agreement there would be reserves. The Crown had agreed with the New Zealand Company to honour that arrangement.

The essence of the claims is that, in doing so, the Crown took on legally enforceable obligations that have since been breached. The alleged breaches include that one tenth of the land was never reserved and the land that was reserved has gradually reduced in size.

The focus of the appeal was the claim the Crown breached a fiduciary duty. The Court of Appeal has held that it is possible for the Crown to owe fiduciary duties to Māori but that any fiduciary duty between the Crown and Māori must be established in particular factual circumstances using the conventional requirements for a fiduciary duty. Justice Ellen France has explained that there must be an explicit or implied undertaking to act with utmost loyalty in relation to specific Māori interests.

Justice Harrison and Justice French have added that the loyalty requirement poses obvious difficulties in the Crown-Māori context because the Crown is obliged to act in the wider interests of all its citizens. They have also said that fiduciary duty claims like this seek to unnecessarily strain settled legal principles when alternative remedies exist through the Waitangi Tribunal and the Treaty settlement process. In this case, the relevant Te Tau Ihu

iwi and the Crown have settled the claims in the Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui Claims Settlement Act 2014.

The Court has held no fiduciary duty arose on the facts. The arrangements made by the Crown in the 1840s and 1850s were of a political nature. The Crown was mediating competing interests and it took on an undeveloped obligation to be realised in legislation later.

The Court has also dismissed the claim that the Nelson Tenths were held on trust by the Crown for the same reasons. The Court has not decided whether it is appropriate to follow case law imposing a high threshold to find the Crown is a trustee.

The Court has expressed reluctance to make findings of breach (assuming there was a duty) when the High Court did not do so. However, it has indicated the High Court’s factual findings might support claims of breach if there was a duty. In particular, the Crown’s failure to reserve one tenth and its approach to additional pā sites, burial grounds and cultivations might qualify.

The Crown asserted positive defences of limitation and “laches” or “excessive delay”. These prevent claims where there has been a lapse of time. The Court has expressed caution about making decisions on these defences without clear findings of breach. It has indicated the exceptions in the Limitation Act 1950 may not apply so the claim, being a private law claim, may be time-barred.

Justice Harrison and Justice French have also held the claim is barred by the excessive delay defence. They have said it is not now possible for the Crown to return the land, and there has been a Treaty settlement reached in relation to it between the relevant iwi and the Crown.

The Court has allowed one part of the appeal. The Court has held that Mr Stafford has the legal standing to bring these claims as rangatira and member of at least part of the relevant customary collective. The High Court had said that Mr Stafford only had legal standing to bring the breach of trust claim, and not the fiduciary duty claim.

The Court has also held the claim is not barred by the Settlement Act as there was a clear Parliamentary intention to preserve it and the wording of the Act allowed for that.

Judgment: WakatuCA4362012.pdf

© Scoop Media