Supreme Court decision on Crown’s obligations to Maori owners of customary land –
Proprietors of Wakatu & Rore Stafford v Attorney-­General

The Supreme Court has determined that the Crown owed fiduciary duties to the owners of Maori customary land in Nelson, Motueka and Golden Bay. It is the first time that the New Zealand Courts have made such a determination. The decision was made by majority; 4 -­1.

The case goes back to the early days of colonial New Zealand when the settlement of Nelson (Whakatu) was being established.

The New Zealand Company purchased land from the Maori landowners on the terms that one tenth of the land area of the Nelson settlement would be set aside in trust for Maori landowners and their descendants and that pa, burial sites and cultivation areas would be excluded from the sale. The trust was called the Nelson Tenths’ Trust. The Tenths’ Owners claimed that the Crown took over the role of trustee of this estate in 1840 and was legally obliged to fulfill the terms of the sale agreement.

The eventual Nelson settlement was for 151,000 acres, of which one tenth was to be reserved for the Maori landowners. However, the Crown only ever reserved 5,100 acres, significantly less than the agreed amount, and in later years this was diminished further. By 1977 the estate was just 1,626 acres.

The Supreme Court accepted that the Crown never set aside in trust the additional acres required under the initial purchase agreement. It found that the Crown had a legal duty to ensure this occurred because it was acting as trustee.

Chief Justice Sian Elias stated: ‘There is overwhelming evidence on the historical record that the Crown throughout intended to and did deal with the reserve land as a trustee.’ The Crown argued that at all times it was acting in its political capacity, rather than as trustee and therefore no legal duties applied. The Supreme Court rejected this argument because in this case ‘pre-­existing and independent property interests of Maori’ existed and those pre-­existing rights had been recognised by the Crown.

The Court has referred back to the High Court the question of determining the extent of the losses the Maori landowners suffered as a result of the Crown’s actions.

Kaumatua Rore Stafford, whose standing to bring the claim as a rangatira was unanimously upheld by the Supreme Court, described this is an emotional day. ‘The take (issue) about our whenua has been kept alive by our tupuna and our uri (descendants) for generations. This is the beginning of the next phase of our journey and we are delighted with the result.’

Final_backgrounder_paper_approved_28_Feb_2017.pdf

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