Proprietors of Wakatu v Attorney-General 19 Dec 2014
Related articles
- Minister looks at court systems in Europe and UK News
- Brownlee Leads Aviation Mission To Shanghai News
- Sludge Report #192: The Naked Budget Columns
- Licensing To Cut Out Cowboy Advisers Migration
- Government Widens Drought Assistance News
- Young People Take Over Parliament News
- NZ home sales creep up in March, still subdued Property
- Actions For Young Driver Safety Get Green Light News
- NZ annual migration climbs, boosts housing demand Business
COURT OF APPEAL OF NEW ZEALAND TE KOTI PIRA O AOTEAROA
MEDIA RELEASE
PROPRIETORS OF WAKATU 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 Wakatu Incorporation, Rore Pat Stafford and Te Kahui 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 Maui). 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 Maori. The New Zealand Company’s earlier dealings with Maori 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 Maori but that any fiduciary duty between the Crown and Maori 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 Maori interests.
Justice Harrison and Justice French have added that the loyalty requirement poses obvious difficulties in the Crown-Maori 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 Ngati Koata, Ngati Rarua, Ngati Tama ki Te Tau Ihu, and Te Atiawa o Te Waka-a-Maui 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 pa 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
News
Hilary Timmins' Award-Winning UK Documentary Series To Inspire NZ Students
29 Jun 2020 Education
Dream Catchers, produced and directed by Hilary Timmins, celebrates the success stories of more than thirty inspirational New... more
New Zealand reaffirms support for Flight MH17 judicial process
7 Mar 2020 News
Ahead of the start of the criminal trial in the Netherlands on 9 March, Foreign Minister Winston Peters has reaffirmed the need to... more
Business
NZ Government's Economic package to fight COVID-19
17 Mar 2020 Business News
The Coalition Government has launched the most significant peace-time economic plan in modern New Zealand history to cushion the... more
NZ Government announces aviation relief package
19 Mar 2020 Business News
Transport Minister Phil Twyford today outlined the first tranche of the $600 million aviation sector relief package announced earlier... more
Living
Diversity was Key at New Zealand Trade Tasting in London
6 Jun 2022 Food & Wine
New Zealand Winegrowers Annual Trade Tasting was recently held in London, on Wednesday 4 May, in Lindley Hall.
It was the first... more
Kiwi author stuns Behind the Butterfly Gate
12 Jan 2022 Arts
Hidden behind the Butterfly Gate is where the secret has been kept for 76 years...
New Zealand writer Merryn Corcoran’s... more
Property
Fairer rules for tenants and landlords
17 Nov 2019 Property
17 NOVEMBER 2019
The Government has delivered on its promise to the over one million New Zealanders who now rent to make it fairer... more
New Zealand Government will not implement a Capital Gains Tax
17 Apr 2019 Property
The Coalition Government will not proceed with the Tax Working Group’s recommendation for a capital gains tax, Jacinda Ardern... more
Migration
Boosting border security with electronic travel authority – now over 500,000 issued
19 Nov 2019 Migration
19 NOVEMBER 2019
We’ve improved border security with the NZeTA, New Zealand Electronic Travel Authority, which helps us to... more
Christchurch reinstated as refugee settlement location
18 Aug 2018 Migration
18 AUGUST 2018
HON IAIN LEES-GALLOWAY
The announcement that Christchurch can once again be a settlement location for refugees... more
Travel
Gallipoli Anzac Day services cancelled
19 Mar 2020 Travel & Tourism
The New Zealand and Australian Governments have announced this year’s joint Anzac Day services at Gallipoli will be cancelled... more
New Zealanders advised not to travel overseas
19 Mar 2020 Travel & Tourism
New Zealanders advised not to travel overseas
more
Sport
The Skipper's Diary: Sir Richard Hadlee honouring his father and NZ's Forty-Niners
27 Oct 2019 Cricket
NZNewsUK London Editor Charlotte Everett spoke to Sir Richard Hadlee about why he’s chosen to publish his father’s... more
PREVIEW: All Blacks v England semi-final
26 Oct 2019 Rugby
The two most convincing quarterfinals winners are set to square off in a semifinal showdown for the ages when the All Blacks meet old... more
Columns
Gordon Campbell on the Gareth Morgan crusade
11 Nov 2016 Opinion
Gordon Campbell on the Gareth Morgan crusade
First published on Werewolf
The ghastly likes of Marine Le Pen in France and Geert ... more
Gordon Campbell on the US election outcome
10 Nov 2016 Opinion
Column - Gordon Campbell
Gordon Campbell on the US election outcome
Well um.. on the bright side, there (probably)... more
Kiwi Success
Congratulations to Loder Cup winner
26 Sep 2018 People
25 SEPTEMBER 2018
The Loder Cup, one of New Zealand’s oldest conservation awards, has been awarded to Robert McGowan for 2018... more
Appointments to New Zealand National Commission for UNESCO
16 Aug 2018 Appointments
16 AUGUST 2018Appointments to New Zealand National Commission for UNESCO
HON JENNY SALESA
Associate Education Minister Jenny Salesa is... more
Recruitment
Historic pay equity settlement for education support workers
14 Aug 2018 Recruitment
14 AUGUST 2018Historic pay equity settlement for education support workers
RT HON JACINDA ARDERN
HON CHRIS HIPKINS
Prime Minister
The... more
Historic pay equity settlement for education support workers
22 Aug 2018 Recruitment
14 AUGUST 2018Historic pay equity settlement for education support workers
RT HON JACINDA ARDERN
HON CHRIS HIPKINS
Prime Minister
The... more