Minhinnick v Attorney-General

[2025] NZCA 584

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA485/2020

[2025] NZCA 584

BETWEEN	RICHARD TE POU MINHINNICK Appellant
AND	ATTORNEY-GENERAL First Respondent
NEW ZEALAND STEEL LIMITED
Second Respondent
WAIKATO NORTH HEAD MINING LIMITED Third Respondent

Hearing:	26–29 February 2024
Court:	Cooper P, French and Gilbert JJ
Counsel:	M C Harris and S M Wilson for Appellant S M Kinsler and C E Sinclair for First Respondent J E Hodder KC and T D Smith for Second and Third Respondents

TABLE OF CONTENTS

Para No

INTRODUCTION [1]

Overview of factual and procedural background	[4]
Amended notice of appeal	[33]
Issues for determination	[44]
Summary of our conclusions	[50]
Structure of the judgment	[54]

PROCEDURAL HISTORY [56]

Procedural issues for this Court	[56]
The O’Malley and Boast briefs of evidence	[57]
The status of the 2014 proceedings	[71]
The statement of defence to Ngāti Te Ata’s 1990 claim	[75]

AFFIRMATIVE DEFENCES [79]

Submissions	[81]
Our view	[89]

THE WAIUKU DEED AND CONFISCATION [99]

Our approach to the historical evidence	[101]
Background to the Waiuku Deed and Confiscation	[109]
Ngāti Te Ata’s relationship with Maioro	[112]
The economic prosperity of Ngāti Te Ata	[116]
The Taranaki conflict	[121]
Sales of land by Ngāti Te Ata before November 1864	[125]
The Waikato War	[128]
Alleged harassment of Ngāti Te Ata	[139]
The lead up to the Waiuku Deed	[144]
The New Zealand Settlements Act 1863	[152]
The Waiuku Deed	[158]
The Confiscation	[165]
Later events	[168]
The immediate aftermath	[168]
The Compensation Court	[174]
The October 1865 Crown grants	[178]
The New Zealand Settlements Acts Amendment Act 1866	[179]
Waiuku No 3 Deed	[180]
Issue of new grants in 1878	[181]
Was the sale under the Waiuku Deed vitiated?	[186]
Judgment under appeal	[189]
Duress	[189]
Unconscionable bargain	[196]
Undue influence	[198]
Unconscionable bargain	[200]
Undue influence	[218]
Duress	[221]
Our view	[226]
Our approach on appeal	[226]
Analysis—unconscionable bargain	[234]
Analysis—undue influence and duress	[262]
Was the Confiscation lawful?	[274]

What is the correct interpretation of the word “rebellion” under

the New Zealand Settlements Act 1863?	[278]
Judgment under appeal	[278]
Appellant’s submissions	[279]
Crown submissions	[290]

Was Ngāti Te Ata, or a section of it, or any considerable number

thereof, in rebellion?	[294]
Judgment under appeal	[294]
Appellant’s submissions	[295]
Crown submissions	[297]

Is the Crown entitled to justify confiscation on the basis that a

“considerable number” of Ngāti Te Ata were in rebellion when

the confiscation wrongly stated that Ngāti Te Ata was an iwi in

rebellion?	[301]
Appellant’s submissions	[301]
Crown submissions	[302]

Even if there was jurisdiction under the New Zealand Settlements

Act 1863, did the Governor exceed his statutory power by declaring

all the land in the district confiscated?	[304]
Judgment under appeal	[304]
Appellant’s submissions	[305]
Crown submissions	[307]

Did the New Zealand Settlements Acts Amendment Act 1866

validate any illegality in the Confiscation?	[308]
Judgment under appeal	[308]
Appellant’s submissions	[309]
Crown submissions	[310]
Our view	[313]

The correct interpretation of the word “rebellion” under

the New Zealand Settlements Act 1863	[316]
Statutory text	[316]
Purpose	[320]
Context	[324]
Effect of the Waikato Raupatu Claims Settlement Act 1995	[330]
Were a considerable number of Ngāti Te Ata in rebellion?	[337]
The effect of the New Zealand Settlements Acts Amendment
Act 1866	[370]

Did the Waiuku Deed and/or Confiscation breach a fiduciary

duty to consider and protect the interests of Ngāti Te Ata?	[374]
Judgment under appeal	[376]
Appellant’s submissions	[382]
Crown submissions	[395]
Existence of duty	[395]
Application of duty	[406]
Our view	[410]

THE 1939 AND 1959 TAKINGS AND ISSUE OF THE LICENCE [458]

Background to the Public Works Act 1928 takings and the

Licence	[460]
Sand dune reclamation	[460]
The taking of Te Papawhero	[467]
The takings of Waiaraponia, Te Kuo and Tangitanginga	[475]
Compensation for the takings of Wairaponia, Te Kuo and
Tangitanginga	[496]
The genesis of New Zealand’s iron and steel manufacturing industry	[500]
The Glenbrook Steel Mill expansion project	[517]

The claims in respect of the 1939 and 1959 takings, and the issue

of the Licence	[528]
The causes of action pleaded in the High Court	[528]
Judgment under appeal	[535]
The issues to be determined	[538]
Appellant’s submissions	[539]
NZ Steel submissions	[545]
Crown submissions	[554]
Our view	[557]

Were the 20th century actions of the Crown unlawful by reason of its

alleged failure to consider the special status of the wāhi tapu?	[557]
Did the Crown breach a fiduciary duty owed to Ngāti Te Ata?	[569]

1990 COMMITMENTS AND TREATY OF WAITANGI

NEGOTIATIONS	[577]
Background	[577]
Claims arising from the 1990 commitments	[644]
Judgment under appeal	[644]
The arguments on appeal	[648]
Did the memorandum of understanding give rise to binding and
enforceable obligations on the Crown?	[658]
Legitimate expectation	[665]
Judgment under appeal	[668]
The arguments on appeal	[671]
Did the memorandum of understanding give rise to a legitimate
expectation?	[682]
Affirmative defences	[691]

COSTS	[692]
RESULT	[693]
INTRODUCTION

[1] The factual matrix of this appeal spans some 150 years and the claims pursued by the appellant are wide-ranging. They reflect long-standing grievances of

Ngāti Te Ata against the Crown, arising from the acquisition and confiscation of land

in the shadow of the Waikato War that broke out in July 1863. The proceeding involves a challenge to the lawfulness of the acquisition of land by the Crown pursuant to an

agreement executed by representatives of Ngāti Te Ata and the subsequent exercise of

powers of the Crown to confiscate land under the New Zealand Settlements Act 1863. There is a particular concern relating to four blocks of land known as Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga (the four wāhi tapu areas) located within

Maioro on the Āwhitu Peninsula north of the mouth of the Waikato River. Over the

years since 1938, those blocks were used for afforestation in an attempt to stabilise the sand dunes on the peninsula and then as part of the land used for the establishment of New Zealand Steel’s manufacturing activities based on the mining of the ironsands in the area.

[2] The High Court rejected the various claims advanced on behalf of Ngāti Te Ata by Richard Minhinnick, who now appeals.[1] The respondents are the Attorney-General (the first respondent), and New Zealand Steel Ltd and Waikato North Head Mining Ltd (the second and third respondents, together “NZ Steel” unless the context otherwise requires).[2]

[1]       Te Ara Rangatū o te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2020] NZHC 1882

[2] From February 1976, Waikato North Head Mining Ltd (a subsidiary company of NZ Steel) was responsible for the mining operations (as opposed to steel production) at Maioro. See below at [517].

[3] The historical nature of the claims requires us to use language which in many cases strikes what now appears to be a jarring note. Many of the relevant materials employ terms like “Natives”, “rebels”, “rebellion”, and refer to “friendly”, “loyal” and “hostile” Māori. Necessarily, these terms featured frequently in submissions and the case on appeal. A number of the relevant precedents, which concern other indigenous and first nations peoples, also include language which would not be used today. In the judgment that follows, we have found it necessary to include these terms in order to present a full and accurate picture of the historical record and context.[3] That should not be taken as a contemporary endorsement on our part of the language used.

[3]       Likewise, when quoting directly from historical documents we have preserved the language used

Overview of factual and procedural background

[4] Over the course of this judgment, the factual background will be traversed in detail. Much of it has been pieced together many years after the events to which it relates from an incomplete documentary record and is the subject of competing expert evidence. To assist in understanding what follows, we provide here a brief overview of the key historical events and mention also some aspects of the procedural history of the case, which have themselves given rise to substantive issues it will be necessary to resolve. A statement of the issues we have to consider is produced at [44] to [49] below, followed by a summary of what we have decided.

1. Ngāti Te Ata’s ancestral land relevant to the appeal lies on the

Āwhitu Peninsula at Te-Pūaha-o-Waikato, the mouth of the Waikato River. Maioro

lies at the southern end of the Āwhitu Peninsula and on the northern bank of the mouth of the Waikato River. The location of “Maioro” is shown on the map below which, as with all of the maps included in this section of the judgment, we adopt from the brief of evidence of James Parker, called by the Crown to give expert historical evidence in the High Court.

[6]        The four areas referred to as wāhi tapu (sacred sites, in this context being burial

grounds),[4] located within Maioro—Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga—are central to Ngāti Te Ata’s concerns. The locations of the wāhi tapu can be observed on the following map:

[4]       We note that the NZ Steel referred to the four wāhi tapu as the “Four Blocks”: they consider that although the four areas were identified as wāhi tapu on early maps, this designation may not be accurate. NZ Steel identified its preference as being for specific sites of greatest importance to be identified, considering this has not been possible to date.

[7] In November 1864, the Crown purchased the North and South Blocks of the

Āwhitu Peninsula, including Maioro, from Ngāti Te Ata. The transaction was

documented in a deed which we call the Waiuku Deed, executed on 2 November 1864. The map below shows the boundary of the purchase (referred to as the Waiuku No. 2 Purchase):

[8] The land acquired by the Crown under the Waiuku Deed included some land that it had already purchased: the Manukau, Ramaroa and Opoia Blocks, as well as various other smaller areas with which we are not concerned. The Crown had, in 1854, also purchased the Waiuku No 1 Block, which lies to the east of the land purchased under the Waiuku Deed. The Waiuku No 1 Block is not directly relevant to these proceedings.

1. The Waiuku Deed excluded a number of wāhi tapu, including the four which

are in issue in these proceedings, and also provided that various lands (the habitation

reserves) would be granted back to members of Ngāti Te Ata by way of Crown grants.

[10] One month after the execution of the Waiuku Deed, the Crown confiscated land in a purported exercise of the powers granted under the New Zealand Settlements Act. This occurred against the backdrop of the Waikato War. The land confiscated was described in the Order in Council as the Waiuku North and Waiuku South Blocks. The confiscated land is depicted in the following map:

[11] As can be seen, there was substantial overlap between the lands purchased under the Waiuku Deed and the lands confiscated. The consequence of confiscation

was that Ngāti Te Ata’s title was extinguished: under the New Zealand Settlements

Act, confiscated lands were “deemed to be Crown Land freed and discharged from all Title Interest or Claim of any person whomsoever”.[5] Crown grants for the habitation

[5]       New Zealand Settlements Act 1863, s 4.

reserves were later issued to named members of Ngāti Te Ata who were considered

“loyal”, as appears to have been contemplated by the Waiuku Deed itself.

1. Notably, the wāhi tapu were excluded from the Waiuku Deed, but among

the lands confiscated under the New Zealand Settlements Act. Crown grants were

ultimately made in respect of the wāhi tapu, initially in October 1865, but subsequently

those grants were cancelled, and new grants were issued on 18 February 1878. The new grants were made to named members of Ngāti Te Ata subject to restrictions on alienation. These restrictions were “from sale and mortgage, and from lease without the consent of the Governor”.

[13] A concern arose in the early 1900s that sand dunes at Maioro were encroaching onto adjacent farmland. As a consequence, in 1914 the Crown began planting marram grass and lupin in the Maioro area. In May 1932, the Public Works Department began work on what became known as the Waiuku or Waikato North Head Sand Dune Project, which involved stabilising sand dunes before planting pine trees.

The work was undertaken on Crown land, land owned by settlers and the four wāhi

tapu. There are no contemporary records of attempts being made to contact the owners
of land not owned by the Crown in respect of this work.

[14] In 1935, the Cabinet approved the afforestation at Maioro. In 1938, the first pine trees were planted on Te Papawhero by the Public Works Department. In 1939, Te Papawhero was taken under the Public Works Act 1928. In 1941, the Waikato-Maniapoto District Native Land Court assessed compensation of £180 for the taking and ordered that it be paid to the Waikato-Maniapoto District Native Land

Board on behalf of the owners. All known Māori remains were exhumed from

Te Papawhero on 31 April 1941. In 1957, Te Papawhero was declared to be Crown land subject to the Land Act 1948. It was later set apart for state forest purposes.

[15] Planting on Waiaraponia by Public Works Department began in 1940 and was

completed in 1949. Planting on Te Kuo began in 1944 and was completed in 1953.
In 1945, planting on Tangitanginga began and this was completed in 1949.

[16] In 1952, the Conservator of Forests at the Auckland Conservancy informed the Director of Forestry that the Waiaraponia, Te Kuo and Tangitanginga wāhi tapu areas had been planted as part of the sand dune reclamation project without being acquired.

He requested in a later memorandum that the three wāhi tapu be acquired as it was

desirable that they be included in the project.

[17] In 1952, there were no living owners of the Waiaraponia, Te Kuo and Tangitanginga wāhi tapu. Attempts were made to contact successors to the grantees of the land, and the Crown subsequently ascertained from them that there were no objections to the land being taken except in respect of an urupā (burial ground or cemetery) in either Waiaraponia or Te Kuo,[6] and a strip of river frontage for a fishing reserve in Tangitanginga. Dame Ngāneko Minhinnick, a kuia (female elder) and

[6]       For completeness, a successor to Te Kuo had no objections provided that the urupā “in the area” be preserved.

leader of Ngāti Te Ata, made inquires as to compensation in 1971 and in 1972

compensation was paid.

[18] In 1966, all four wāhi tapu were set aside for ironsands mining purposes under the Iron and Steel Industry Act 1959. A heads of agreement was signed between the Crown and NZ Steel, under which the Crown granted NZ Steel a licence with an 100-year term, permitting it to mine land including the four wāhi tapu. The mining rights granted under the licence have since been exercised as the foundation of the steel manufacturing activities of NZ Steel at Glenbrook. The mining occurs by digging up sand deposits, filtering out iron-bearing minerals using fresh water and redepositing the remaining sand on the licence area as uncontaminated tailings. Remediation follows: in accordance with the requirements of the licence, the land is recontoured to replicate a natural dune shape and planted with marram grass.

[19] In 1978, NZ Steel applied for consent to expand its activities at Glenbrook. Water rights were granted. In this context a liaison committee was established with

representatives of Ngāti Te Ata and NZ Steel, and the Commissioner for

the Environment carried out an environmental impact audit of the proposed expansion. The report emphasised the importance of identifying sacred sites in the area and

protecting them from mining. Dame Ngāneko lodged a claim on behalf of the Huakina

Development Trust with the Waitangi Tribunal concerning issues relating to the Manukau Harbour but also taking issue with the decision to grant water rights to NZ Steel in respect of the proposed Glenbrook extension. At the hearing in July 1984, counsel for Ngāti Te Ata raised concerns about the desecration of the wāhi tapu by the mining activities of NZ Steel.

[20] In its report on the Manukau claim (Wai 8) issued in July 1985, the Waitangi Tribunal recommended that “negotiations be continued with all affected parties for a settlement of the claims in respect of the compulsory acquisition of lands in the Waiuku State Forest, if practicable without further recourse to this Tribunal”.[7] There was also a recommendation directed to the Ministers of Lands, Forests and Energy that the consents and licences authorising NZ Steel’s mining operations be “reviewed and renegotiated, or new undertakings sought, to protect sacred sites and adjoining Maori lands”.[8] On 30 September 1986, the Cabinet Social Equity Committee resolved to support these recommendations of the Waitangi Tribunal in principle, noting in doing so that negotiations were continuing.

[7]       Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (Wai 8, 1985) [Wai 8 report] at 97.

[8]       At 98.

[21] At about this time, consideration was being given to the disposal of the Crown’s interest in NZ Steel. The State-Owned Enterprises Act 1986 provided for the abolition of the New Zealand Forestry Service and the transfer of its assets and liabilities to the New Zealand Forestry Corporation. The Deputy Prime Minister, the Rt Hon Geoffrey Palmer, wrote to Dame Ngāneko in response to her inquiry and pointed out that in the event of the transfer of land subject to a te Tiriti o Waitangi | the Treaty of Waitangi claim to a state-owned enterprise, the land would remain subject to the claim.

1. On 17 March 1987, Dame Ngāneko lodged a claim (Wai 31) in the

Waitangi Tribunal on behalf of Te Puaha ki Manukau and the Huakina Development Trust. She claimed they would be prejudicially affected if the wāhi tapu areas were transferred to a state-owned enterprise. In 1988, the claim was amended to cover the entire Waiuku State Forest. This claim remains unresolved in the Waitangi Tribunal.

[23]      We discuss in more detail later in the judgment the negotiations and discussions

that took place between the Crown and representatives of Ngāti Te Ata down to

June 1990. It is sufficient to record here that the Minister of Justice issued a press release on 15 June 1990. The Minister noted that the Government had set in motion a process to return the four wāhi tapu areas at Maioro to Ngāti Te Ata and remove them from the operation of the Iron and Steel Industry Act.

[24] The following day NZ Steel expressed its surprise at the foreshadowed removal, and claimed such an action would be ultra vires. The Crown nevertheless decided to proceed. On 24 September 1990, it entered into a memorandum of understanding with Ngāti Te Ata to the effect that the Crown would remove the four

wāhi tapu areas from the ironsands mining licence, and that Ngāti Te Ata would

propose conditions under which mining could proceed on the balance of the Maioro land.[9] There would be provision for ongoing observation of the activities by

[9] The memorandum of understanding is the subject of discussion below from [621].

Ngāti Te Ata and a reinterment procedure for kōiwi (skeletal remains). A joint press

release was issued by the Minister of Justice and Ngāti Te Ata. A copy of the

memorandum of understanding was sent to NZ Steel. On 25 September 1990, the Minister of Justice wrote to NZ Steel informing it that the Cabinet had directed that the Minister of Commerce declare the four wāhi tapu areas no longer subject to the

Iron and Steel Industry Act and to apply to the Māori Land Court to revest the four

wāhi tapu in the descendants of the original owners. A further letter, of 15 October

1990, informed the company that the Minister of Energy intended to remove the four

wāhi tapu from the Iron and Steel Industry Act on or after 19 October 1990.

[25] On 17 October 1990, NZ Steel commenced an application for judicial review in the High Court against the Minister of Energy. Interim relief was sought, and the Crown offered an undertaking that the Minister and the Government would not remove the four wāhi tapu areas from the Iron and Steel Industry Act. On 5 November 1990,

Ngāti Te Ata was joined as a party to the proceeding. Then, on 14 November 1990,

Tompkins J issued a minute recording NZ Steel’s undertaking not to mine within the

wāhi tapu areas and an undertaking by the Crown not to remove the wāhi tapu areas

from the Iron and Steel Industry Act.[10] These undertakings were exchanged on the basis the matter would proceed to hearing on the substantive application for judicial review, and there would be no need to hear the application for interim relief.[11]

[10]      New Zealand Steel Mining Ltd v Butcher HC Auckland M1761/90, 14 November 1990 (minute of

[11] At [2].

1. On 12 December 1990, Ngāti Te Ata filed a counterclaim seeking relief against

the Minister of Energy and the Attorney-General for the takings. A further claim pleaded sought to enforce the memorandum of understanding. This was said to constitute a contract, for which specific performance was sought.

1. A further pleading was filed by solicitors acting for Ngāti Te Ata on

14 December 1990, containing a counterclaim against NZ Steel. It contained similar allegations to the 12 December 1990 pleading but relied on them as constituting a basis on which NZ Steel should be declined relief in the Court’s discretion on its application for judicial review because of the adverse impacts of the mining licence on the

wāhi tapu areas.

[28] The proceedings were adjourned on the basis of the undertakings exchanged by the parties, and there were various inconclusive settlement discussions in

subsequent years, including discussions with a view to settlement of Ngāti Te Ata’s

historical Treaty of Waitangi claims. This lengthy process came to an end when, in

April 2013, Ngāti Te Ata negotiators rejected a settlement offer made by the Minister

for Treaty of Waitangi Negotiations and indicated an intention to commence
proceedings against the Crown in the High Court.

[29] On 19 December 2013, Te Ara Rangatū o te Iwi o Ngāti Te Ata Waiohua Inc and Mr Minhinnick commenced the proceeding which is one of those giving rise to the present appeal.[12] On 15 May 2014, NZ Steel applied to the High Court to be released from its 14 November 1990 undertaking and to discontinue the application for review. The application was granted by Fogarty J, whose judgment was upheld by this Court on appeal.[13]

[12]      The other proceeding dealt with in the judgment under appeal was the counterclaim from the 1990 proceeding which had effectively been dormant until NZ Steel was given leave in 2014 to discontinue its application for judicial review commenced in October 1990. We were told that

[13]      New Zealand Steel Mining Ltd v Butcher [2014] NZHC 1552 [undertaking and discontinuance

[30] As noted by Fitzgerald J, the progress of the 2013 proceeding was “fraught with delay and disruption”.[14] The High Court trial eventually proceeded at its fourth allocated date, commencing on 4 June 2019 and occupying four weeks. This was over five years after the commencement of the 2013 proceeding and almost 30 years after the 1990 litigation was commenced.

[14] Judgment under appeal, above n 1, at [36]. The Judge explained the various reasons for the successive vacation of fixtures at [37].

[31] During the course of the substantive hearing, Fitzgerald J granted the plaintiffs leave to file a third amended statement of claim in the 2013 proceeding.[15] The Judge

[15] At [40]. The Judge declined, however, to grant leave to make amendments which would have required further and “not insubstantial” evidence to be called, on the basis that would likely have required further adjournment of the substantive fixture: at [40], n 25.

recorded the confirmation given by then counsel for Ngāti Te Ata that the 1990

proceeding was effectively “parked”, having been substantially, if not wholly, taken over by the 2013 proceeding.[16] Consequently, she proceeded to hear and determine only the 2013 proceeding. There is an issue that we will shortly address concerning the procedural effect of what was done, which was raised in argument on an application by Mr Minhinnick to amend the notice of appeal at the hearing in this Court.

[16] At [40].

[32] Many of the facts relevant to the plaintiffs’ claims relating to historical events taking place from around 1860 to the early 1900s were in dispute and the subject of briefs provided by expert historians.[17] The plaintiffs however did not call all the expert witnesses for whom they had provided briefs of evidence, in particular Dr Vincent O’Malley, a prominent historian and acknowledged expert on the Waikato War, and Professor Richard Boast KC, a specialist in legal history and Māori land law. The plaintiffs suggested that their briefs be taken as read, but the Judge held that would be inappropriate given the witnesses were unavailable for cross-examination. Accordingly, she did not read or take into account the briefs of either Dr O’Malley or Professor Boast’s evidence.[18] Two expert briefs were read: those of Messrs Roimata Minhinnick and Parker.[19] We discuss this evidence in more detail below, but note here that the appellant’s position on appeal is that the Judge was wrong not to read the briefs of Dr O’Malley and Professor Boast.[20]

[17] At [15].

[18] At [16].

[19] At [17].

[20] See [57]–[70] and [102]–[104] below.

Amended notice of appeal

[33] On 21 February 2024, the appellant filed an application for leave to file an amended notice of appeal. The amended notice ostensibly sought to align the notice with the appellant’s submissions in support of the appeal. But the respondents opposed the application, complaining that the amended notice sought to raise issues that had not been pleaded in the third amended statement of claim (and so had not been dealt with by the High Court) or had not been raised in the original notice of appeal.

[34] Two particular matters were the subject of argument addressed in the course of the hearing. First, the amended notice of appeal sought to allege that the memorandum of understanding created enforceable obligations, an issue not raised in the original notice of appeal. Secondly, the amended notice of appeal sought to pursue as a ground of appeal an allegation that the Crown failed, in exercising the statutory powers under the Public Works Act and the Iron and Steel Industry Act, to consider a mandatory consideration—namely the nature and significance of the four wāhi tapu areas, the

effect of the takings on the wāhi tapu areas and the effect of including them in the

mining licence.

[35] As to the memorandum of understanding, the respondents accepted that its enforceability was raised in submissions in the High Court, albeit orally and only in closing. The complaint was that the issue had not been raised in the notice of appeal, but the issue was referred to in the third amended statement of claim, where it was alleged that the memorandum of understanding contained “commitments”, which the Crown had failed to perform. The Judge recorded that one of the issues she had to determine was whether the Crown had given “a binding and enforceable commitment

(through the [memorandum of understanding]) to remove the wāhi tapu from the

Licence area”.[21] She also recorded that counsel had argued that (as pleaded in the in the 1990 counterclaim) the memorandum of understanding “amounted to a binding contractual arrangement between the Crown and Ngāti Te Ata”.[22] The Judge

[21]      Judgment under appeal, above n 1, at [406(h)].

[22] At [666].

determined that issue.[23] The argument sought to be run on appeal was not included in the notice of appeal but that can hardly in the circumstances be a basis for rejecting an amendment to raise the issue. The appellant’s intended argument was dealt with in written submissions five weeks before the hearing of the appeal and we can see no prejudice in allowing the argument to be advanced.

[23] At [669].

[36] As to the issue concerning the alleged failure to consider mandatory considerations, the complaint is that the issue was not raised in the High Court. Mr Harris, who appeared for Ngāti Te Ata in this Court (but not in the High Court), noted that the issue had been raised in the 1990 counterclaim in which it was pleaded

that the taking of the wāhi tapu under the Public Works Act, the setting apart of those

lands under the Iron and Steel Industry Act, and the granting of a licence to mine them were unlawful (and in breach of fiduciary duty) because those actions were carried out

by the Crown without informing itself as to the nature and extent of Māori interest in

the wāhi tapu and their significance to Māori. Secondly, Mr Harris claimed that the

1990 claim was alive at the trial, and referred to the Judge’s second trial minute, in which she observed that Mr Kahukiwa “confirmed the plaintiffs do pursue the counterclaim”, and also referred to the “considerable overlap between the claim against the Crown in the 1990 proceedings and those aspects of the current proceedings alleging [breach of] fiduciary duty”.[24] Further, “that overlap [was] the reason the two matters [were] being heard together”.[25] After recording Mr Hodder KC’s observation that, as a matter of principle, pursuing the same issues in two proceedings is an abuse of process, she continued:[26]

[24]      Te Ara Rangatu o te Iwi o Ngati Te Ata Waiohua Inc v Attorney-General HC Auckland

[25] At [6].

[26]      Footnote omitted.

[7] Be that as it may, all parties have been on notice for some time that the counterclaim is to be heard at the same time as the substantive claim in the main proceedings. Any issues arising in this regard reinforce the need for clarity on the issues for determination at this trial …

[37] Mr Harris claimed the respondents should be taken to have prepared for trial on that basis, and argued there was no reason to suppose that any available relevant evidence was not before the Court. In any event, what was at issue was a legal question as to whether the Crown was obliged to consider the interests of Māori in order to exercise the relevant statutory powers reasonably and in accordance with law.

[38] Mr Smith, who addressed this issue for NZ Steel, referred to the Judge’s fourth trial minute, which recorded Mr Minhinnick’s agreement that the “live” proceeding for the purposes of the trial was the 2013 proceeding, and then indicated that challenges based on a failure to take into account the mandatory relevant consideration now contended for were not in scope.[27] An opportunity was afforded to amend the pleading to pursue the allegation but it was not taken up. Mr Smith submitted also that no issue of a failure to take into account a relevant mandatory consideration had been raised on the appellant’s evidence, nor was there evidence of such a failure. It would not be appropriate to rely on an absence of evidence to infer there had been no consideration of the issues.

[27]      Te Ara Rangatu o te Iwi o Ngati Te Ata Waiohua Inc v Attorney-General HC Auckland

[39] Although the issue is not clear cut, we have decided that we should allow the proposed amendment to the notice of appeal in respect of the mandatory consideration issue. The amendment would assert that the actions of the Crown in

taking the four wāhi tapu lands under the Public Works Act, granting a licence to

NZ Steel to mine the areas and other former lands of Ngāti Te Ata for ironsands in June 1966, and setting apart the lands for the purposes of the Iron and Steel Industry Act in July 1966 were unlawful and in breach of the Crown’s fiduciary duty because

the Crown failed to consider and protect the interests of Ngāti Te Ata when dealing

with the wāhi tapu areas.

[40] We consider it would be contrary to the interests of justice to deny the appellant the opportunity to address argument along these lines when the basis of the argument was well-signalled in the written submissions filed in advance of the hearing and when we think it is unlikely that the issues will turn on evidence not already before the Court. We say that against the background of the extensive material recording the processes that were followed by the officials and ministers who were involved in the relevant decision-making process. And the relevant context includes the fact that at the trial there were arguments directed against the Public Works Act, licensing, and Iron and Steel Industry Act processes on grounds other than that now sought to be pursued. These raised unlawfulness in terms of the exercise of powers under the Public Works Act, bad faith and improper purpose, failure to offer the wāhi tapu back, whether s 15 of the Public Works Act gave rise to a fiduciary duty and other issues. We think it unlikely that in preparing the necessary evidence to deal with these issues the evidence relating to the further issue now raised would not have been identified and called.

[41] Once that point is reached, the issue becomes one of what inferences may

properly be drawn from the material before the Court and legal argument about
the nature of the statutory powers conferred and exercised.

[42] For these reasons we have decided to grant leave to file the amended notice of appeal first provided in draft form on 21 February 2024.

[43]      We turn now to a summary of the issues that arise for determination on appeal.

Issues for determination

[44] It is convenient to set out the issues which arise on appeal, which we will deal with in a chronological sequence.

[45]      First, there are issues arising from events in the 19th century, which are as

follows: 

(a)  Was the sale under the Waiuku Deed voidable as an unconscionable

bargain, or for duress or undue influence?

(b) Was the Confiscation of Ngāti Te Ata’s land under the New Zealand

Settlements Act 1863 lawful?

(c) Did the New Zealand Settlements Acts Amendment Act 1866 validate

any illegality in the Confiscation?

(d) Did either or both the Waiuku Deed and confiscation breach a fiduciary duty to consider and protect the interests of Ngāti Te Ata, or any other

equitable duty?

[46]      Secondly, there are issues arising from 20th century takings of the wāhi tapu,

which are as follows:

(a) Were the takings of the wāhi tapu under the Public Works Act 1928 and

the inclusion of the wāhi tapu in the mining licence issued under the

Iron and Steel Industry Act 1959:

(i)	unlawful on the basis that the Crown failed to consider the special status of the land;[28] and/or
(ii)	a breach of a fiduciary duty owed by the Crown to Ngāti Te Ata to consider and protect their interests in the special

[28]      Submissions also addressed whether there was a duty to consult under the Public Works Act 1928.

circumstances prevailing?

[47] Thirdly, the issues arising from the memorandum of understanding and events

related to it (which the Judge called collectively “the 1990 commitments”) are as
follows:

(a) Did the Crown’s agreement under the 1990 commitments to return the

wāhi tapu to Ngāti Te Ata and remove them from the mining licence

give rise to binding and enforceable obligations on the Crown?

(b) Did the Crown breach a legitimate expectation of Ngāti Te Ata that its claims of breach of the Crown’s Treaty of Waitangi obligations would have been fairly addressed by now and not rendered nugatory by Crown

action or omission?

[48] In the amended notice of appeal, the appellant seeks a number of declarations in relation to these issues and says that the question of what other relief might be appropriate consequent on the making of these declarations or any of them should be the subject of a further hearing in the High Court.

[49] We must also decide whether any of the “affirmative defences” raised by the Crown and NZ Steel, being standing, limitation, and laches and acquiescence, fall to be determined in this appeal. Those issues were not determined by the High Court, evidently on the basis that it was agreed they should be left for a second trial should it be necessary to determine them. As it transpired it did not become necessary for the Judge to direct a further trial. As we explain below, we think there are some difficulties with the approach which Mr Harris suggested we follow on appeal, which is to make the declarations which the appellant seeks without considering and dealing with the affirmative defences. The defences would be left for the second stage when, in the event of a further appeal, we would have the benefit of the High Court’s judgment on them.

Summary of our conclusions

[50] For the reasons we explain below, we have concluded in relation to the issues arising from events in the 19th century that:

(a)	The sale under the Waiuku Deed was not voidable as an unconscionable bargain, or for duress or undue influence.
(b)	The Confiscation of Ngāti Te Ata’s land under the New Zealand Settlements Act 1863 (subject to the Crown grants of land to the signatories of the Waiuku Deed) was lawful in accordance with the statutory requirements and reflected the arrangements agreed between Ngāti Te Ata and the Crown under the Waiuku Deed.
(c)	To the extent that the Order in Council of 29 December 1864 providing for the Confiscation did not state that the Governor in Council was satisfied that “a considerable number” of Ngāti Te Ata were in rebellion (referring simply to Ngāti Te Ata being in rebellion), that was an omission within the validating terms of the New Zealand Settlements Acts Amendment Act 1866.
(d)	The Waiuku Deed and the Confiscation did not breach a fiduciary duty to consider and protect the interests on Ngāti Te Ata or any other equitable duty.

[51]      In relation to the issues arising from the 20th century, the takings of the

wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the

mining licence issued under the Iron and Steel Industry Act 1959:

(a)	were not unlawful on the basis that the Crown failed to consider the special status of the land; and
(b)	did not breach a fiduciary duty owed by the Crown to Ngāti Te Ata to consider and protect their interests.

In each case the Crown acted in accordance with powers conferred by statute.

[52]      In relation to the issues arising from the 1990 commitments:

(a)	The memorandum of understanding entered into in 1990 did not bind the Crown to return the wāhi tapu to Ngāti Te Ata and remove them from the mining licence.
(b)	The Crown did not breach a legitimate expectation of Ngāti Te Ata that its claims of breach of the Crown’s Treaty of Waitangi obligations would have been fairly addressed by now and not rendered nugatory by Crown action or omission.

[53] These conclusions mean there is no need to address the affirmative defences, as was the case in the High Court.

Structure of the judgment

[54] This appeal has layers of complexity: each issue, of which there are many, gives rise to a number of other issues, many of which overlap. The claims span over 150 years, and engage with novel questions of public and private law. To give each issue the attention required, we have split the claims into their logical groupings, and included in each resulting section a summary of the pleaded claims and the factual background relevant to them. We have then summarised the submissions made before setting out our analysis and conclusions.

[55]      The structure of the judgment from this point is as follows:

(a)	First, we address some procedural issues that arose at the trial and which the appellant contends require correction on appeal.
(b)	Secondly, we consider the approach this Court should take on the issue of standing and other affirmative defences raised by the respondents.
(c)	Thirdly, we address the appellant’s claims relating to the Waiuku Deed and the subsequent confiscation of the Waiuku North and South Blocks.
(d)	Fourthly, we address the appellant’s claims relating to the 1939 and 1959 takings of the wāhi tapu, and the mining licence.
(e)	Fifthly, we address the appellant’s claims relating to “the 1990 commitments”, based on the memorandum of understanding, subsequent events and legitimate expectation.

PROCEDURAL HISTORY

Procedural issues for this Court

[56] We address here procedural issues that arose at the trial in the High Court which the appellant contends require correction on appeal.

The O’Malley and Boast briefs of evidence

[57] First, Mr Harris submitted that the Judge’s refusal to read the evidence of Dr O’Malley and Professor Boast deprived the Court of the uncontested parts of their evidence and at least some of the relevant historical materials. A more considered approach was called for.

[58] Mr Kinsler for the Crown submitted that the briefs of Dr O’Malley and Professor Boast had no evidential status and that the Judge was correct not to admit them. The Court could not have simply identified and relied on the uncontested parts of the briefs so as to treat them as uncontested documentary hearsay—this exercise would have required a meticulous comparison between the briefs and the Crown’s evidence. The witnesses’ unavailability for cross-examination was not the responsibility of the Judge.

[59] Mr Hodder for NZ Steel also submitted that the Judge was correct not to read the briefs of evidence of Dr O’Malley and Professor Boast. The appellant had the opportunity to seek a ruling on the admissibility of the briefs but elected not to. This did not lead to an error on the part of the Judge.

[60] As noted above, at trial, the plaintiffs did not call Dr O’Malley or Professor Boast. In relation to their briefs of evidence, Fitzgerald J recorded that:[29]

[29] Judgment under appeal, above n 1, at [16].

The plaintiffs initially suggested their briefs simply be taken as read. That would have been inappropriate given the witnesses were not available for cross-examination. I have therefore not read or taken into account Dr O’Malley or Professor Boast’s evidence.

[61] Some of the circumstances which lead to Professor Boast and Dr O’Malley not being called as witnesses were recorded by Venning J in his judgment declining an application by the plaintiffs to adjourn the trial.[30] In the application for adjournment, the plaintiffs claimed they were not ready for hearing primarily because of ongoing funding difficulties which meant they were not able to prepare with their witnesses. The plaintiffs said that they could not afford the costs of calling these expert witnesses.[31]

[30]      See Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiōhua Inc v Attorney-General [2019] NZHC 1205.

[31] At [8].

[62] Venning J said that if the plaintiffs wished to rely on the lack of funding to support their application, they should have provided more information.[32] Further, he noted that trial counsel may have been “overstating” the financial difficulty as it related to the witnesses.[33] The witnesses’ evidence was finalised and briefs had been exchanged. Importantly, the Judge noted that although Mr Kinsler had confirmed that two briefs could be taken as read,[34] the Crown required Professor Boast for “very limited cross-examination”.[35] Further, as Dr O’Malley was one of the plaintiffs’ primary witnesses, Mr Kinsler confirmed that the Crown was prepared to pay his travel and accommodation expenses. Mr Hodder acknowledged that his clients would take a similar view regarding the calling of witnesses.[36]

[32] At [28].

[33] At [30].

[34]      Those of Sir Edward Durie and Ian Lawlor.

[35] At [30].

[36] At [30].

[63] After the trial commenced, when it became apparent that Professor Boast and Dr O’Malley would not be available to give evidence, Fitzgerald J observed in a minute that the briefs had “no evidential status”.[37] If rulings were required, she advised they would need to be sought as soon as possible and before the completion of the plaintiffs’ evidence.[38] It seems that the plaintiffs did not seek a ruling.

[37]      Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Inc v Attorney-General HC Auckland

[38] At [7].

[64] Given the Crown’s offer of financial assistance, it is unclear why at least Dr O’Malley was not called as a witness. Before us, Mr Harris conveyed that he had been instructed that the reason Dr O’Malley and Professor Boast were not able to appear because “there was no money to pay them”. He stated that he had not been aware of the Crown’s offer to cover Dr O’Malley’s expenses.

[65] Regardless of why the witnesses could not be called, we consider that the Judge did not err in her conclusion that it would be inappropriate to take the briefs of evidence as read, given that the witnesses were not available for cross-examination.[39]

[39]      See High Court Rules 2016, r 9.13(2): “When any part of the evidence contained in a brief is not given in evidence at the trial by the person to whose evidence that brief relates, any other party to the proceeding may, unless the trial Judge otherwise directs, put that part of the evidence to that person in cross-examination.”

[66] The briefs of evidence of Professor Boast and Dr O’Malley had no evidential status—the witnesses were not called and did not read their briefs at trial. A brief of evidence is not, in itself, evidence. The Evidence Act 2006 identifies that the ordinary way for a witness to give evidence is orally in the courtroom.[40] In civil proceedings, evidence-in-chief may be given through a written statement, only where either both parties consent to the giving of evidence in this form or the rules of the court permit or require the giving of evidence in this form.[41] Rule 9.51 of the High Court Rules 2016 provides that disputed questions of fact must be determined on evidence given by means of witnesses examined orally in open court, unless otherwise directed or authorised. Rule 9.12(1) of the High Court Rules mandates that, when a brief by a witness is subject to an oral evidence direction, it must be read by the witness at trial as the witness’s evidence-in-chief.

[40]      Evidence Act 2006, s 83(1)(a).

[41]      Sections 83(1)(c)(ii) and 84(2).

[67] There is no provision in the Evidence Act or the High Court Rules which provides for evidence in civil proceedings to be given in written briefs which are not then read or adopted in the courtroom. Accordingly, the briefs were not given in evidence and we consider, as the Judge did, that it is not appropriate to read or take into account Dr O’Malley or Professor Boast’s evidence.

[68] We agree in principle with Mr Kinsler’s submission that it would not be possible for this Court to identify and rely on the “uncontested” parts of the briefs. He made this submission on the basis that, even if this exercise were undertaken, the Court would be unable to safely conclude that particular parts of the briefs were uncontested.

[69] There is, however, an exception to this in respect of the portions of Professor Boast’s evidence cited by Mr Parker, the Crown historian. Fitzgerald J relied on some evidence given by Mr Parker, where the source he cited was Professor Boast’s brief of evidence,[42] and this approach was not contested before us.

[42]      See for example judgment under appeal, above n 1, at [83(d) and (f)–(g)].

[70]      Where the Crown has called a witness who commented on other historical

evidence which, for whatever reason, Ngāti Te Ata did not call, we can refer to it

because it is evidence on which the Crown relied. There is nothing on the record

which suggests that the Crown does not stand by any part of the evidence it called.

The status of the 2014 proceedings

[71] Secondly, Mr Harris submitted the status of the 2014 proceedings created a difficulty.[43] There was overlap between the 1990 counterclaim filed by Ngāti Te Ata and the 2013 proceeding.[44] Both were pursued at trial, and the Judge noted in a minute that all parties had been on notice that the two claims were to be heard together.[45] However, the defendants objected to there being two “live” and overlapping pleadings,[46] which Mr Harris claimed led to the challenges to the Public Works Act takings and the issuing of the mining licence falling between the cracks.

[43]      As explained above at n 12, the 2014 proceeding refers to Ngāti Te Ata’s counterclaim to NZ Steel’s application for judicial review in 1990, which was given a 2014 file number to create an electronic file record.

[44]      Ngāti Te Ata’s counterclaim filed in NZ Steel’s judicial review proceeding sought relief by way

[45] Minute No 2, above n 24, at [7].

[46]      Minute No 4, above n 27, at [2]–[3].

[72] Mr Kinsler submitted that there was no error regarding the scope of the pleadings. It was clear from the procedural background that the 2013 statement of claim was to be treated as the “live” proceeding, overtaking the 1990 counterclaim. The trial proceeded on that basis and so must the appeal.

[73] Mr Hodder also noted that the matter of the 2013 proceeding and 1990 counterclaim was considered in the second week of trial, and the Judge recorded the appellant’s acceptance that the “live” proceeding for the purposes of the trial was the statement of claim in the 2013 proceeding. The Court had granted leave to amend the statement of claim in that proceeding on a limited basis where amendments involved questions of law or were minor and did not require factual evidence.[47] Accordingly, the 1990 counterclaim did not “fall between the cracks”.

[47]      Referring to Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Inc v Attorney-General HC Auckland CIV-2013-404-5224, 19 June 2019 (Result Ruling 1) at [8]–[19].

[74] As we recorded at [31], and as noted by Mr Hodder, after being asked to clarify whether the 2014 proceedings were being pursued, and if so to what extent, trial counsel for the appellant accepted that the “live” proceeding for the purposes of the trial was the statement of claim in the 2013 proceeding. We consider this is dispositive of any complaint that the 2014 proceedings were not given adequate consideration.

The statement of defence to Ngāti Te Ata’s 1990 claim

[75]      This issue arises from the Crown’s pleading to the claim made by Ngāti Te Ata

in the context of NZ Steel’s application for review. Mr Harris submitted that on the critical question as to whether the Crown had agreed to return the wāhi tapu and remove them from the mining licence, the Judge appears not to have been informed that the Crown admitted in its statement of defence to Ngāti Te Ata’s 1990 proceeding that it had agreed to take those actions. Mr Harris claimed that the admission then made by the Crown was binding and could not subsequently be abandoned as the Crown purported to do.

[76] Mr Kinsler contended that the appellant’s focus on the Crown’s alleged

concession in the 1990 claim is misconceived. He submitted the only relevant position
is that in the Crown’s 2013 statement of defence.

[77] Mr Hodder submitted that the absence of reference by the Judge to the supposed admissions made by the Crown in its statement of defence to the 1990 claim is explained by the appellant’s confirmation that the 2013 proceeding was to be treated as the “live” proceeding. In any event, it was well-understood at trial that the Crown had changed its position on the legal effect of the memorandum of understanding between 1991 and 2013, as it was entitled to do.

[78] This procedural issue is inextricably linked with the substantive determination of the ground of appeal relating to the 1990 commitments, and is more appropriately discussed when we reach those issues below from [671]. For the reasons we give there, we do not accept the appellant can rely on the Crown’s claimed admission in respect of the present claim.

AFFIRMATIVE DEFENCES

[79] At this point, we turn our attention to standing and the affirmative defences raised by the respondents.

[80] In the judgment under appeal, Fitzgerald J did not consider it necessary to address the affirmative defences, including standing, advanced by each of the Crown and NZ Steel.[48] As a result, we do not have the benefit of relevant evidential findings made by the trial Court. The question is whether the affirmative defences should be addressed on appeal.

[48] Judgment under appeal, above n 1, at [723].

Submissions

[81] Mr Harris submitted that standing and the affirmative defences raised by the respondents should be determined at the next stage. His contention was that it is not presently necessary to determine the issue of standing. At trial, that issue was deferred until after the determination of liability, and accordingly, the appeal should proceed on the same basis. The issue of standing would become relevant in the event this appeal was successful. Standing and the other affirmative defences were plainly important, but not obstacles to the declaratory relief currently sought. Rather, they should be dealt with in a future stage of litigation if necessary.

[82]      Mr Harris submitted that the Supreme Court majority in Proprietors of

Wakatū v Attorney-General set out a “blueprint” for how to approach issues of

standing and other affirmative defences in cases such as this.[49] In that case, a Mr Stafford was able to bring his claim by virtue of his status as a kaumātua (elder).[50] The Court held there may be a case for a “more relaxed” approach to standing in relation to claims by collective groups of indigenous owners.[51] The declaration made by the Court was made in Mr Stafford’s favour.[52] Here, Mr Minhinnick, a descendant of Ahipene Kaihau,[53] occupies effectively the same position that Mr Stafford did in

[49]      Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 [Proprietors of

[50]      At [494] per Elias CJ, [673] per Glazebrook J, [807] per Arnold and O’Regan JJ and [952] per William Young J.

[51]      At [490]–[491] per Elias CJ, [673] per Glazebrook J and [799] per Arnold and O’Regan JJ.

[52]      At [495] per Elias CJ, [723] per Glazebrook J and [827] per Arnold and O’Regan JJ.

[53]      In some of the documentary evidence, Ahipene Kaihau is also spelt “Aihepene Kaihau”. We adopt the spelling used by Mr Roimata Minhinnick. Ahipene was a rangatira of Ngāti Te Ata (who was one of the signatories to the Waiuku Deed).

Proprietors of Wakatū. Accordingly, at this stage, declarations should be made in his

favour on a representative basis. At the second stage, if any proprietary or financial relief was to be ordered, it would be appropriate for Mr Minhinnick to demonstrate that should be in his favour, and to satisfy the Court that those with appropriate whakapapa and a relationship with the land would benefit.

[83] Mr Kinsler told us that consenting to the two-stage approach was a tactical decision he made to promote efficiency, based on his belief that liability could not be established. He did not consider declarations should be given on a provisional basis; he wanted to ensure that the Crown’s affirmative defences were thoroughly ventilated. He noted that even though a declaration is all that is sought now, if successful, the appellant would ultimately seek proprietary and monetary remedies.[54]

[54]      Referring to Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 [Paki (No 2)] at [200] per William Young J.

[84] Mr Kinsler submitted that Mr Minhinnick lacks standing to pursue these claims. At trial, although it was contended by both plaintiffs that the claim was

brought on a representative basis for Ngāti Te Ata, they did not apply for a

representation order. This Court should be slow in such circumstances to find that litigation which has led to the suspension of Treaty of Waitangi settlement negotiations

with the mandated representatives of Ngāti Te Ata can be advanced in the absence of

formal confirmation of the representative status of the claim.

[85] While Mr Kinsler acknowledged that the Minhinnick family have a longstanding connection to the subject matter of this litigation, he submitted that a historical connection alone is insufficient. Moreover, there are inherent risks in allowing an individual to pursue a claim in circumstances where other parties who claim representative status are not before the court.

[86] Mr Kinsler submitted Mr Minhinnick lacks standing to pursue the claim on behalf of customary owners, claiming that there is insufficient evidence to establish the claim is properly representative. Mr Kinsler submitted it is also unclear whether Mr Minhinnick would have standing on behalf of any successors to legal title enabling him to bring proceedings of claims vested in them, due to the evidence that succession has not been maintained in relation to the 1878 Crown grant.

[87] Mr Kinsler argued that the standing issues arising here are different from those in Proprietors of Wakatū. Crucially, in that case, Mr Stafford had standing to bring a claim as a beneficiary of the trusts asserted in that claim. However, the question of whether Mr Stafford should have been heard on a representative basis was not substantially considered by the Supreme Court.

[88] Mr Hodder for NZ Steel submitted that the liability findings and declarations

sought by the appellant could not be made without consideration of the affirmative
defences.

Our view

[89] We are not persuaded that it would be appropriate for us to deal with the issue of standing in the absence of relevant findings by the trial Judge directed to that issue and focussing on the relevant evidence. To that extent it seems we are in agreement with the approach taken by counsel, but Mr Harris differs from Mr Kinsler and Mr Hodder to the extent that he urges us to make the declarations sought without reaching any determination on standing or the other affirmative defences. We understand that would be on the basis that if we were otherwise satisfied about the appellant’s claims, relief could be granted on the basis that it was contingent on the outcome of a further hearing in which standing and the other affirmative defences would be addressed.

[90]      We do not consider Mr Harris is right to suggest that the course followed in

Proprietors of Wakatū would support that approach. In that case, the second

High Court hearing proceeded after the Supreme Court had authoritatively determined that Mr Stafford had standing to bring the claim as a successor of parties who were entitled to sue on the Crown’s breach of fiduciary duty.[55] The Supreme Court was also able to deal with the Limitation Act 1950 defence in the context of factual findings in the Courts below. By contrast, here Mr Minhinnick seeks standing as a plaintiff in the context of a historical record showing some members of Ngāti Te Ata were the recipients of Crown grants and others were not. Absent some process in which the Court could be satisfied that relief sought would be in accordance with the wishes of everyone potentially affected, we think it would be wrong in principle for this Court to determine standing when the High Court did not do so.

[55]      Proprietors of Wakatū (SC), above n 49, at [494] per Elias CJ, [673] per Glazebrook J, [807] per

[91] In a joint memorandum of 6 May 2019 filed in the High Court, counsel for the Attorney-General and NZ Steel recorded an agreement previously reached by the parties that “the claim be staged in two phases with liability to be addressed at a first trial and remedies to be addressed at a subsequent trial, should it prove necessary”. It was said that the defendants agreed that approach was still appropriate. The memorandum referred to an attached schedule setting out the key issues to be determined. The schedule began by reiterating that the imminent fixture would be on liability issues only, in accordance with the agreement of the parties. If the Court found in favour of the plaintiffs on the liability issues, a further hearing would be necessary to address remedies. Counsel anticipated that any additional evidence necessary for the remedies hearing would be limited because much of the evidence relevant to liability would also be relevant to remedy. Counsel also noted that in some of the pleaded claims the line between liability and remedial issues was uncertain.

[92] The schedule then identified issues relating to both liability and remedy, the latter subject to the qualification that whether they needed to be addressed would depend on the outcome of the liability hearing. In the latter category, under a heading “Remedies (for separate hearing)”, were issues such as what is the appropriate relief for any breaches of fiduciary duty and duties of good faith. It should be noted that the list of matters for separate and subsequent hearing followed the statement of issues concerning the affirmative defences raised by the defendants, concerning standing, limitation, laches and acquiescence.

[93] For the plaintiffs, Mr Kahukiwa filed a memorandum on 8 May 2019, stating that they agreed to the “two staged approach”. As to the schedule of issues, Mr Kahukiwa was critical of what he saw as the implied assertion of the defendants that their statement of the issues should prevail, but he did not engage constructively with the defendants’ list or suggest other issues for trial.

[94] It is clear that the trial proceeded on the basis that issues of remedy were for a subsequent hearing. It is also clear that the Judge approached the liability issues by asking first whether the plaintiffs’ claims could succeed, and she dismissed them without considering standing or the other defences raised. She summarised her approach at the end of the judgment, under the heading “Affirmative Defences”:[56]

[56]      Judgment under appeal, above n 1.

[723] As I have dismissed the plaintiffs’ claims, it is not necessary to address the affirmative defences advanced by each of the Crown and NZ Steel. Further, the outcome on some of the affirmative defences (including standing and whether the claims are subject to statutory time limitation bars) would have depended on which and to what extent the plaintiffs’ claims were successful, and/or what consequences flow from any findings on liability (for example, whether an institutional or remedial constructive trust arose, and if so when). It is therefore inappropriate in my view to seek to determine the affirmative defences in a vacuum.

[95] Given the Judge’s conclusion that the various claims advanced by Mr Minhinnick could not succeed, it was strictly speaking unnecessary for her to deal with the affirmative defences. We note however that the passage from the judgment just quoted did not suggest that the affirmative defences would not have been addressed at the trial had Mr Minhinnick’s claims been successful. That is what we infer was in fact intended in accordance with the defendants’ statement of issues: it was only issues as to remedy which were to be left for a second trial.

[96] In this Court, Mr Harris submitted that the issue of standing had been deferred until after the liability issues were determined at trial. We do not think that is an accurate way of describing what occurred. As the Judge recognised in the case of the other affirmative defences, their availability would be to a large extent contingent on the liability findings, but that did not mean that from the outset they were deferred to a further trial.[57] They could have been dealt with at the same trial, and we infer they would have been had the Judge considered Mr Minhinnick’s claims were otherwise made out.

[57] At [723].

[97] Mr Harris acknowledged that issues of standing and Mr Minhinnick’s ability to maintain the claim in a representative capacity would need to be resolved “before any relief beyond that sought in this appeal” could be granted. While that is no doubt correct, it is problematic to proceed on the basis that declarations can be granted in proceedings where there are unresolved standing issues, and as pointed out by Mr Kinsler, one of the plaintiffs in the High Court, Te Ara Rangatū o te Iwi o Ngāti Te Ata Waiohua Inc, has not participated in the appeal. Although Mr Minhinnick claims he is bringing the claim in a representative capacity, there has been no attempt to invoke r 4.24 of the High Court Rules.[58] Given the nature of some of the issues in this case and the historical background in which individual members of Ngāti Te Ata had different relationships with the Crown, the standing issue is not insignificant.

[58]      Rule 4.24 of the High Court Rules provides: “One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding—

[98] In the end, we consider it appropriate to adopt the pragmatic approach taken

by Fitzgerald J of considering the substantive claims first, and then considering
the affirmative defences to the extent it is necessary and possible to do so.

THE WAIUKU DEED AND CONFISCATION

[99]      On 2 November 1864, a significant amount of land, including Maioro, was

purchased from Ngāti Te Ata under the Waiuku Deed. The sale and purchase excluded

the four wāhi tapu at issue in these proceedings. The next month, in late

December 1864, Maioro was part of the land in the Waiuku South Block confiscated by the Crown together with the Waiuku North Block (the Confiscation) pursuant to the New Zealand Settlements Act. The Waiuku South Block contained the four

wāhi tapu.

[100] The issues that arise on this part of the case can be encapsulated in

the following questions:

(a) Was the sale under the Waiuku Deed an unconscionable bargain, or

voidable for undue influence or duress?

(b)	Was the Confiscation under the New Zealand Settlements Act lawful?
(i) What is the correct interpretation of the word “rebellion” under

the Act?

(ii)        Was Ngāti Te Ata, or a “[s]ection” of it, or any “considerable

number thereof”, in rebellion?[59]

[59]      New Zealand Settlements Act, s 2.

(iii)       Is the Crown entitled to justify confiscation on the basis that a

“considerable number” of Ngāti Te Ata were in rebellion when

the Confiscation wrongly stated that Ngāti Te Ata was an iwi in

rebellion?

(iv)       Even if there was jurisdiction under the New Zealand Settlements Act, did the Governor exceed his statutory power by declaring all the land in the district confiscated?

(c) Did the New Zealand Settlements Acts Amendment Act validate any

illegality in the Confiscation?

(d) Did the Waiuku Deed and the Confiscation breach a fiduciary duty to

consider and protect the interests of Ngāti Te Ata?

Our approach to the historical evidence

[101] Before addressing the relevant evidence which concerns events that took place

in the mid to late 19th century, it is appropriate to set out our approach to evaluating
it.

[102] While some matters are not in dispute (there was a statement of agreed facts) and are the subject of documentary evidence, the record is incomplete and there is dispute about some matters of primary fact and the inferences that can appropriately be drawn from the information available. The disputed facts relating to historical events were the subject of comprehensive expert evidence given by Messrs Roimata Minhinnick and Parker.[60]

[60]      Because Mr Roimata Minhinnick shares a surname with the appellant (his brother), Mr Richard Minhinnick, we refer to him by his full name.

[103] At the time he prepared his brief of evidence, Mr Roimata Minhinnick was the chief executive officer of Ngāti Te Ata and the lead negotiator for the Ngāti Te Ata

Claims Support Whānau Trust. He also had a significant number of other roles. His

representative work for Ngāti Te Ata began in 1987. Mr Roimata Minhinnick is

the son of Dame Ngāneko, who was an advocate for Ngāti Te Ata and the Manukau environment for most of her adult life. She was descended from “hereditary rangatira” of Ngāti Te Ata.[61] Mr Roimata Minhinnick’s brother, Mr Tahuna Minhinnick, and

[61]      Dame Ngāneko Minhinnick’s maiden name was Kaihau.

Dame Ngāneko were to be the principal witnesses for Ngāti Te Ata in this case.

However, both had passed away by the time of the High Court trial and Mr Roimata Minhinnick took on the responsibility of presenting the evidence they might have given, based on his own familiarity with the relevant history. Fitzgerald J observed of him that, in addition to the role set out above, he had been a researcher for the Waitangi Tribunal and had “devoted very substantial time and energy to

researching the history of Maioro and Ngāti Te Ata’s claims”.[62]

[62] Judgment under appeal, above n 1, at [17].

[104] Mr Parker is the senior historical researcher at Te Tari Ture o te Karauna | Crown Law Office where, at the time he prepared his brief of evidence, he had been employed for 24 years. Previously, he was an archivist at what was then National Archives (now Te Rua Mahara o te Kawanatanga | Archives New Zealand). He has specialist knowledge of information in archival repositories, and the identification and assessment of that information, as well as the storage and retrieval of government information dating back to 1840. He has appeared for the Crown as an expert witness before the Waitangi Tribunal, the Māori Land Court, and the High Court. Mr Parker described the incomplete nature of the documentary records available in the following way:

Over time a large quantity of the Crown’s records have been lost, primarily in fires in storage facilities, and primarily affecting nineteenth century records. The loss of those nineteenth century records means, that for this proceeding, experts have to work out what occurred from, often, fragmentary surviving information[.] For instance, where inwards correspondence to a Government department in the nineteenth century has been destroyed, it is possible to obtain some insight into the subject matter of a letter by looking at the description of it in registers created to control inward correspondence and also by looking for the reply to that letter, which has often survived. In that way a partial picture can be built up of what was going on. However, a review of the evidence that has been produced in this proceeding reveals that much of it consists of speculation that an event that occurred at some distance away from the area in question is relevant, even though its relevance is a moot point or simply irrelevant. This is where experts have to be careful.

[105] The appellant contends there is “ample evidence” for the Court to reach conclusions on events occurring in the 19th century. Mr Harris drew our attention to arguments made to, and rejected by, the Supreme Court in Proprietors of Wakatū. Particularly, as noted by Elias CJ in that case:[63]

[63]      Proprietors of Wakatū (SC), above n 49 (footnotes omitted).

[458] The Crown says it has been prejudiced by its inability to call and cross-examine witnesses with [first-hand] knowledge of the events in issue and by the loss of relevant documents. The Crown points out that there is little or no documentary material in relation to the rationale for the Crown’s agreement to remodelling of the settlement in 1847 …

[459] I am not persuaded that the Crown has shown material evidential prejudice such as would justify the claim being barred for delay. I agree with the Court of Appeal’s unanimous conclusion that the historical record is “relatively intact” and that, as Harrison and French JJ noted, no significant prejudice in a forensic sense to the Crown has been made out. This accords with the view of Clifford J, who pointed out that the parties were able to present a full statement of agreed facts.

[106] Here, the Crown asserts that it does face significant prejudice in attempting to defend any challenge to the validity of the Waiuku Deed after such an extraordinary lapse of time. It submitted that this Court should be wary of drawing inferences, including inferences as to the intentions of the parties and the broader circumstances of the transaction, from the limited evidence that remains.

[107] The Crown contended it was “irretrievably prejudiced” by its inability to call witnesses—the entire case, particularly with respect to events between 1860 to 1950, was built on a “superstructure of expert opinion” from Mr Roimata Minhinnick and Mr Parker. Mr Kinsler submitted that documentary hearsay is not a proper foundation for primary factual conclusions; evidence must be sufficient to discharge the burden of proof. Although there is a record of decision making, it does not approach the standard of what would be expected in an application for judicial review today.

[108] We consider the sufficiency of evidence must be considered on an issue-by-issue basis. The nature of any piece of evidence dictates how much it can be relied on and for what purpose. We do not consider any particular approach to historical evidence needs to be articulated—where there is insufficient evidence to prove the particulars of a claim, that will be dispositive of the claim regardless of whether that claim arises from historical or contemporary events. The standard of proof does not relax, nor the burden alter, with the passing of time.

Background to the Waiuku Deed and Confiscation

[109] As discussed above, Maioro is located at the southern end of the Āwhitu Peninsula and on the northern bank of the mouth of the Waikato River. Maioro contains the four wāhi tapu at issue in these proceedings: Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga.

[110] The claims pertaining to the 19th century arise from several key events. In November 1864, the Crown purchased from Ngāti Te Ata all the land in the Waiuku North and South Blocks, including Maioro but excluding the wāhi tapu areas. In December 1864, all of the land purchased and the wāhi tapu that had been excluded from the purchase was confiscated by the Crown under the New Zealand Settlements Act. In 1865, the wāhi tapu were granted back to members of

Ngāti Te Ata pursuant to the conditions of the Waiuku Deed. However, the majority

of land outside the wāhi tapu areas has remained in Crown ownership since 1864.

[111]    To be understood, these events must be placed in their proper historical context.

Ngāti Te Ata’s relationship with Maioro

1. Mr Roimata Minhinnick gave evidence that Ngāti Te Ata are mana whenua of

Maioro and have been so since time immemorial. In support of this, he referred to the Māori Appellate Court’s 1994 ruling in favour of Ngāti Te Ata on the ownership of Maioro based on customary tenure.[64]

[64]      Minhinnick v R – Maioro Lands (1994) Waikato Maniapoto Appellate Court MB 220 (18 APWM

[113]    Maioro contains ancient burial grounds where, originally, the “most illustrious

chiefs” of Ngāti Te Ata were buried. Oral tradition records the burial of the earliest

tupuna of Ngāti Te Ata, Ohomairangi, approximately 1000 years ago. The site had

also been used for mass and dispersed burials: first, when remains were exhumed

from some burial grounds elsewhere on the Āwhitu Peninsula in the 1860s and then

taken to Maioro, and secondly, during “epidemics”.[65]

[65]      These epidemics include the 1918 influenza pandemic.

[114] Mr Roimata Minhinnick gave evidence as to the enormous cultural significance of Maioro, which he attributed to its location at the “heart of spirituality” at the mouth of Ngāti Te Ata’s ancestral river, Te Awa o Waikato. At Maioro, the mouth of Te Awa o Waikato joins with Ngā Wai Hohonu o Rehua, which is part of Te Moananui o Rehua. The point at which the mauri (life force) of these two large natural waterways meet is where one would go to karakia (pray) and was also where wai teretere tanumia, burial by submerging into the wairua (the meeting of life force

of the two waters), was carried out. Members of Ngāti Te Ata have continued to carry

out a range of customary and cultural practices on the land.

[115] Mr Parker did not expressly dispute Mr Roimata Minhinnick’s evidence on this, but gave evidence that the customary interests of various Māori groups in the South Auckland and Lower Waikato districts are complex, due to the movement of various groups, shared lineages, and inter-marriage. He cautioned that these factors can lead to some confusion where documents discuss events at one locality and commentators wrongly assume the event involved a certain group, which could be misleading.

The economic prosperity of Ngāti Te Ata

1. Mr Roimata Minhinnick said that, at the height of their prosperity, Ngāti Te Ata

were at the centre of trade in the Auckland region. From 1840 to 1863, Ngāti Te Ata

held rangatiratanga and kaitiakitanga in respect of significant tracts of land and
controlled a number of resources.

1. The resources controlled by Ngāti Te Ata ranged from large aquifers and rivers

for water, large forest stands for wood and building, and an abundance of flax which was in high demand for rigging on sailing ships. The iwi processed their natural resources, participated in trade, and controlled trade routes. They grew produce, caught and processed fish, owned and operated the means of transporting their goods

on waka, and traded for guns. There was no need for Pākehā middlemen, as the iwi

transported their own produce to the market and entered into direct negotiations for its
sale.

1. As early as January 1836, Ngāti Te Ata was described by William Woon, a

missionary, as being “very covetous after trade”. In January 1841, the missionary
James Hamlin wrote that the result of provisions in the area being scarce was that:

… the natives … can get a much larger price for their productions, hence it is difficult to keep a native in our employment or a girl to assist Mrs Hamlin in her domestic duties which with her large family are heavy. The natives at present seem to be carried away with the love of trade.

1. Ngāti Te Ata cultivated land in a number of areas around the Auckland region,

including Onehunga, Ōrākei and throughout the Āwhitu Peninsula. In December

1869, as recorded in evidence given in the Native Land Court, Ngāti Te Ata rangatira Hori Tauroa recounted that the iwi had cultivated land at Okahu right up until “the time of the war at Taranaki” in 1860.[66] He also apparently quantified the numbers of

[66] This evidence was given for the “Orakei Hearing”, which concerned the claim by Apihai te Kawau, on behalf of himself and the members of several iwi for a certificate of title to

Ngāti Te Ata at the time:[67]

[67]      Footnote omitted.

The number of N. Tiata residing at Orakei was 100. Those who lived at Awitu at the same time were 100 men, besides women and children.

[120]    The evidence of Mr Roimata Minhinnick was that, prior to the 1863 military

invasion and the Confiscation, Ngāti Te Ata had successfully participated in

the economic development of the Auckland region and New Zealand as a whole. Throughout the 1850s, “the Manukau was the harbour that kept Auckland alive”.[68] The importance of the trade route, “the great thoroughfare” controlled by Ngāti Te Ata, was noted by many.[69]

[68]      Dick Scott Fire on the clay: the Pakeha comes to West Auckland (Southern Cross Books, Auckland, 1979) at 10.

had performed its obligations under the MOU.

[656] Mr Harris submitted that the 1990/1991 pleadings represented a formal and considered acknowledgement by the Crown that the MOU recorded an agreement. He said there was no suggestion at the time that the MOU was merely a non-binding “political compact”, the position taken by the Crown at the trial, and despite NZ Steel’s

proceeding, the Crown could have transferred the wāhi tapu subject to the rights of

NZ Steel under the Licence.

[657] Both the Crown and NZ Steel support the Judge’s conclusion that the MOU was not a binding contract. Whatever the position arising from the 1990 pleadings, the trial proceeded on the basis of pleadings in which the Crown denied that there was a binding commitment whether as a result of the MOU or otherwise. The Crown was not bound by the historic pleading, which could have been amended in any event should that have proved necessary.

Did the memorandum of understanding give rise to binding and enforceable
obligations on the Crown?

[658] We consider the Judge was correct to hold that the MOU was not intended to contain binding and enforceable obligations. Although Ngāti Te Ata claimed the MOU was a contract and sought specific performance of it in 1990, that was not the allegation made in the third amended statement of claim. We have no doubt the MOU contained a basis on which the Crown would have been prepared to resolve issues at Maioro if agreement had been able to be reached with all parties on the outstanding matters it referred to. However, the language used showed it would be necessary for agreement to be reached with NZ Steel as to conditions on which NZ Steel would be able to carry on activities at Maioro outside the wāhi tapu areas. The Crown certainly began to proceed in accordance with the MOU but that led within a short space of time to the commencement of NZ Steel’s application for review. The fact that Ngāti Te Ata agreed to the adjournment of NZ Steel’s proceeding right down to 2014 (when the company sought to be relieved from its undertaking) is

inconsistent with any suggestion Ngāti Te Ata thought it had a binding agreement with
the Crown. As is the fact that it took no action to advance its own claim commenced
in December 1990.

[659] As to Mr Harris’s argument based on the Crown’s pleading admitting the MOU contained binding commitments, the context of the pleading must be remembered. It will be recalled that NZ Steel’s application for review was accompanied by an application for interim relief under s 8 of the Judicature Amendment Act. The application was resolved by undertakings that NZ Steel would not mine the four wāhi tapu and the Crown would not remove them from the Licence “pending the final determination of [the] proceedings, or further order of the court”.[465] The Crown was clearly entitled to rely on this in its statement of defence, having regard to the basis on which the proceeding had been adjourned.

[465]     Interim orders minute, above n 10, at [2]–[3].

[660] We see the MOU as representing a summary of the position that had been

reached in discussions between Ngāti Te Ata and the Crown at the time it was signed,

and their intent as to how issues should be progressed. But it was known that issues about ceasing activity on the wāhi tapu areas would have to be resolved having regard to the terms of NZ Steel’s 16 June 1990 letter. In the circumstances, the terms on which mining could proceed at Maioro outside the wāhi tapu areas, as well as the removal of the wāhi tapu from the Licence, would be crucial elements of any resolution. That these important matters had yet to be agreed is another circumstance militating against the idea that a binding agreement had been reached. So also is the fact that when signed by a representative of Ngāti Te Ata, the agreement was returned to the Crown with a letter stating that it had been signed on the understanding that “negotiations continue as soon as possible”.

[661] After the MOU was signed, negotiations continued in the shadow of the High Court proceedings, a further indication that the parties did not consider the MOU had recorded a binding agreement.[466] We have already referred to the fact that on 16 July 1991, counsel for Ngāti Te Ata accepted on their behalf a proposed settlement with the Crown and NZ Steel which contemplated:

[466]     As to the relevance of subsequent conduct to the issue of whether a contract had been formed, see

(a) cancellation of the Licence over the wāhi tapu and their return to

Ngāti Te Ata;

(b) the possible grant of a further mining licence to NZ Steel in respect of

the wāhi tapu (following consultation with Ngāti Te Ata) with payment

of a royalty agreed between the company and Ngāti Te Ata;

(c)	ongoing mining elsewhere on Maioro with an agreed “proper reinterment procedure”;
(d)	the Crown making a payment of $4.875 million to NZ Steel; and
(e)	discontinuance of all High Court proceedings relating to the wāhi tapu.

[662] Obviously this settlement, involving as it did NZ Steel, was different from what was provided for in the MOU, and agreeing to it was inconsistent with the idea that the MOU was a binding agreement. It is significant that, as mentioned above, when,

in November 1994, Ngāti Te Ata wanted to secure the right to pursue remedies in

relation to any future licence for mining in the wāhi tapu areas, this was approached

on the basis of a change to the proposed 1991 settlement. The same was true of further
changes sought in May 1995. The MOU had ceased to be a matter for discussion.

[663] We do not consider it matters for present purposes that the 1991 settlement was not ultimately documented in a deed of settlement, and the Crown’s offer was later withdrawn in the circumstances we have already mentioned. The MOU itself was never incorporated in a deed. There was a sufficient agreement in terms of the exchanges of correspondence in 1991 to show that the parties had moved on from the arrangements set out in the MOU. Overall, the history of negotiations earlier set out is inconsistent with the proposition that a binding commitment had been entered in terms of the MOU.

[664]    For these reasons we are satisfied this ground of appeal cannot succeed.

Legitimate expectation

[665] A further ground of appeal claimed the Judge erred in holding that Ngāti Te Ata did not have a legitimate expectation that its claims in respect of the Crown’s breaches of obligations under the Treaty of Waitangi would have been fairly addressed by now and not rendered nugatory by Crown action.[467]

[467] Judgment under appeal, above n 1, at [722].

[666] The sixth cause of action pleaded in the third amended statement of claim was headed “Claim of Right”. It included an assertion that the unresolved claims in the Waitangi Tribunal (Wai 8 and Wai 31) were proprietary in nature and were “things in action”. It referred to recommendations 9 and 12 of the Waitangi Tribunal’s report in Wai 8;[468] Cabinet decisions made in response; the Deputy Prime Minister’s advice to

[468]     Wai 8 report, above n 7.

Dame Ngāneko of 24 February 1987 that land subject to a Waitangi Tribunal claim

would remain subject to that claim when transferred to a state-owned enterprise; the decision of this Court in the Lands case;[469] the sale of the Crown’s shareholding in NZ Steel; negotiations leading up to and execution of the MOU; the further discussions leading to the terms of settlement recorded by the Minister in Charge of Treaty Negotiations on 5 August 1991; and the fact that there was no good reason for

[469]     Lands case, above n 256.

Ngāti Te Ata to be denied fair redress in settlement of its claims.

[667] The pleading alleged a legitimate expectation that the Waitangi Tribunal claims would have been “fairly redressed by now” and that the claims “would not be rendered nugatory by Crown action or omission”. The case in the High Court was that in breach of Ngāti Te Ata’s legitimate expectation the Crown had not provided redress for their claims; rather, “fundamentally by selling its shares in [NZ Steel] without reference to

Ngāti Te Ata”, the Crown had “impaired the resolution of the claims” to Maioro and

the ironsands.

Judgment under appeal

[668] The Judge was prepared to accept that there could be a claim for breach of a legitimate expectation in the context of Treaty of Waitangi negotiations—at least of a procedural kind—such as where the Crown had made a clear and unambiguous promise or undertaking that it would proceed in a certain way.[470] But she did not consider the various matters on which Ngāti Te Ata relied established a legitimate expectation that the claims would be “fairly redressed by now” had arisen. In this respect:

[470] Judgment under appeal, above n 1, at [695].

(a)	The nature of Ngāti Te Ata’s claims in Wai 8 and Wai 31 and
the Waitangi Tribunal’s recommendations on them were not a promise, undertaking, policy or practice of the Crown.[471]
(b)	The other facts set out in the statement of claim effectively recorded the course of the Treaty of Waitangi negotiations, entry into the MOU and the Crown’s statement in the MOU that it would remove the four

[471] At [713]. 472 At [714]. 473 At [715]–[716].

wāhi tapu from the Licence. As she had held the MOU did not give rise

to a binding contractual commitment, the Judge considered it could not give rise to the kind of promise or undertaking that might found a legitimate expectation.472

(c)	Other matters relied on by Ngāti Te Ata, including the Deputy Prime Minister’s letter of 24 February 1987 and this Court’s decision in the Lands case, could not found a legitimate expectation.473
(d)	The fact that there was no good reason for Ngāti Te Ata to be denied fair redress in settlement of its claims would be relevant to breach, if a legitimate expectation had been otherwise established.[474]

[474] At [717]. 475 At [718]. 476 At [719]–[721].

[669] Moreover, the broad nature of the pleaded legitimate expectation was such that there would be no satisfactory yardstick by which to judge whether it had been breached. This tended to demonstrate that an unambiguous promise, policy or practice sufficient to found a legitimate expectation had not been established. The extensive history of negotiation between the parties showed that there were a “whole host of reasons” why the claims had not been resolved, including the involvement of NZ Steel as a third party, the issues involving the cross-claim to Maioro that had been referred

to the Māori Appellate Court, and the introduction of the Resource Management

Act.475

1. The second legitimate expectation claim was that Ngāti Te Ata’s claims would

not be rendered nugatory by Crown action or omission. As to this, the Judge was not convinced that the sale of the Crown’s shares in NZ Steel had rendered the claims nugatory. The fact that the parties had come close to resolving the claims showed they remained capable of resolution.476

The arguments on appeal

[671] Mr Harris’s argument on this aspect of the appeal had two strands. The first was that since the MOU recorded a binding obligation, the Judge was wrong to hold that the MOU could not found a legitimate expectation, and the promise or undertaking necessary for a legitimate expectation had not been made out. We have already upheld the Judge’s conclusion about the enforceability of the MOU as a contract. Mr Harris argued that the claimed legitimate expectation based on the MOU could overlap with a claim in contract, arguing that the “elements of the claim for legitimate expectation [were] made out to the extent of the commitments made under the MOU”.

[672] The second strand of the argument, which appears to have a different emphasis from the claim advanced in the High Court, was that the Crown has breached a

legitimate expectation that it would pursue a settlement of Ngāti Te Ata’s

Treaty of Waitangi claims, most recently by withdrawing from negotiations in 2014 in response to the commencement of the present proceeding. The legitimate expectation was expressed as being that the claims would have been “fairly addressed by now and not rendered nugatory by Crown action”.

[673] Mr Harris developed this aspect of the legitimate expectation argument by

referring to the terms of negotiation agreed by Ngāti Te Ata and the Crown in

June 2011. He pointed out that document set out various “guiding principles” including “working together to achieve a settlement and best outcomes that are manifestly fair and just”. There were also stated objectives, such as negotiating in good faith a settlement that is “comprehensive, final, durable and fair in the circumstances” and recognising the “nature, extent and injustice of breaches of the Crown’s obligations to Ngāti Te Ata under Te Tiriti o Waitangi/The Treaty of Waitangi”.

1. Mr Harris noted that the Crown had represented to Ngāti Te Ata throughout

the period from 1990 to the suspension of negotiation in early 2014 that it was committed to resolving their grievances, and claimed it was clear from the 2011 terms of negotiation that settlement would involve a transfer of land and other financial and

cultural redress. That would include the return of the wāhi tapu.

[675] Mr Harris argued that the Crown’s acknowledgement of its obligations to

provide redress for Ngāti Te Ata’s grievances, and Ngāti Te Ata’s reliance on those

acknowledgements (by engaging in the negotiations) gave rise to a legitimate expectation. The question was whether the commencement of the present proceeding justified the Crown from refusing to negotiate further on the Treaty claims, and

“withdrawing from returning the wāhi tapu”. Mr Harris submitted commencement of

the proceeding was not a sufficient reason to justify the Crown “withdrawing from

implementation of the wāhi tapu withdrawal” and from negotiations about the historic

Treaty claims. Negotiation could have continued so as to finalise the solution for the wāhi tapu, especially given the context, including the ongoing threat presented by

NZ Steel’s mining activities, the Waitangi Tribunal recommendation that the wāhi tapu

be protected from mining, and the sale of the Crown’s shares in NZ Steel which had effectively introduced an independent third party determined to retain the wāhi tapu in the Licence area. Since the Crown withdrew from negotiations the ongoing mining and export of ironsands, approved by the Crown, had exacerbated the threat to the wāhi tapu, damaging Ngāti Te Ata’s ancestral lands and stripping away their economic value. The commencement of the proceeding was not a sufficient reason to

justify suspending negotiations, and by doing so the Crown breached Ngāti Te Ata’s

legitimate expectations.

[676] Mr Harris submitted the remedial response to this breach should be confronted at the next stage of the proceeding.

[677] Mr Kinsler for the Crown submitted that that the non-binding nature of the MOU meant that the claim based on legitimate expectation failed at the first hurdle. The Judge was right to conclude that the MOU could not give rise to the type of promise or undertaking that might found a legitimate expectation. There was no satisfactory yardstick, as the Judge had found, that could be used to measure performance of the broad and ambiguous expectation claimed.

[678] Mr Kinsler also submitted Ngāti Te Ata’s claims had not been rendered “nugatory” in any sense, noting evidence of the Director of the Office of Treaty Settlements, Lilian Anderson, at the trial.[477] Ms Anderson gave evidence that the Crown had been willing to return the lands at Maioro, including the wāhi tapu, to

[477]     Ms Anderson’s brief of evidence was taken as read.

Ngāti Te Ata, as part of the settlement of historical Treaty of Waitangi grievances. It

remained committed to addressing the historical Treaty grievances through the settlement process once the litigation is resolved but did not want to negotiate while the same issues were the subject of ongoing litigation. Mr Kinsler submitted it was wrong to suggest that the Crown should bear sole responsibility for the continuing impasse over Maioro when there had been a series of settlement offers over time made

in good faith to resolve Ngāti Te Ata’s grievances.

[679] As to the Waitangi Tribunal’s recommendations, Mr Kinsler submitted that while the Tribunal had made non-binding recommendations which would properly carry considerable weight, they did not provide directly enforceable legal rights which could be the subject of a claimed legitimate expectation enforceable in the High Court. That would circumvent the non-binding nature of Waitangi Tribunal recommendations which is a feature of the statutory scheme in the Treaty of Waitangi Act.

[680] As to the sale of the Crown’s shares in NZ Steel, the High Court had correctly concluded this was a policy matter for the Crown taken in the context of significant losses to the taxpayer. Any consequences for the Crown’s response to the Waitangi Tribunal’s recommendations was in the realm of policy, political and fiscal considerations, which is properly the domain of the executive and not the courts.

[681] The Crown was entitled to take the view that historical Treaty grievances were appropriately settled through the Treaty settlement process with negotiation between mandated iwi representatives and Crown negotiators, followed by agreement between senior Ministers and iwi leaders, with Parliament providing the final confirmation through settlement legislation.

Did the memorandum of understanding give rise to a legitimate expectation?

[682] Mr Harris did not seek to rely on authorities different to those discussed by Fitzgerald J in the judgment under appeal. These included this Court’s decisions in GXL Royalties Ltd v Minister of Energy, Comptroller of Customs v Terminals (NZ) Ltd and Green v Racing Integrity Unit Ltd, and the decision of the High Court in New Zealand Association for Migration and Investments Inc v Attorney-General.[478]

[478]     GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518; Comptroller of

[683] With the Judge, we see no reason in principle why a legitimate expectation could not be established in the context of Treaty of Waitangi settlement negotiations, given a clear promise by the Crown to act in a certain way which has been relied on by the plaintiff and when there is no good reason for the Crown not to proceed in accordance with its promise.[479] In this context we would not distinguish between procedural and substantive expectation. But it will often be necessary to bear in mind the observations of Arnold J (writing also for Elias CJ) in Ririnui v Landcorp Farming Ltd, that many decisions about the “nature, form and amount of redress” made in connection with Treaty settlements are “quintessentially the result of policy, political and fiscal considerations that are properly the domain of the executive rather than the courts”.[480]

[479] Judgment under appeal, above n 1, at [695].

[480]     Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89] per Elias CJ and

[684] A claim for breach of legitimate expectation must have as its foundation a commitment made by the public authority against which the claim is made, whether in terms of a specific promise, or in terms of a settled practice or policy.[481] As we understand it, Mr Harris’s argument asserts first that the MOU contained a commitment that was sufficiently clear on its own to found a legitimate expectation. While it might be the case that a claim based in contract might overlap with a claim based on legitimate expectation, it is not clear whether the latter would involve anything other than a duplication of the factual basis of the former. For reasons we have already addressed, we do not think the MOU amounted to such a clear commitment, and we need not repeat them here.

[481]     Comptroller of Customs, above n 478, at [125].

[685] The second basis of the legitimate expectation argument rested on the discussions and negotiations that had taken place in the period from 1990 until the Crown withdrew from the negotiations in response to the commencement of this litigation. Viewing the course of the conduct of the Crown over that period, we think

it is clear that Ngāti Te Ata could properly have a legitimate expectation that it would

receive redress for its historical Treaty grievances and that part of the settlement would involve the return of the wāhi tapu to Ngāti Te Ata. That was the tenor of the MOU and it was repeated in the June 2011 terms of negotiation which we have earlier addressed. Mr Kinsler confirmed, in accordance with the position set out in Ms Anderson’s evidence, that the Crown remained committed to addressing the historical Treaty grievances through the settlement process, once the litigation is resolved. But it did not want to negotiate while the same issues were the subject of ongoing litigation.

[686] The legitimate expectation as framed has a temporal element that the claims would have been “fairly redressed by now” and not rendered nugatory by Crown action or omission. While it is implicit that the grievances would be given redress at a stage when that was still possible, it is clear that could still be the case. That presumably is why the present litigation has been pursued. And as we understand it, throughout the lengthy period of the litigation NZ Steel has not mined within the

wāhi tapu areas despite being released from its undertaking.

[687] We do not see how it is possible to construe the narrative so as to find the temporal aspect of the legitimate expectation which Ngāti Te Ata now assert. To do so would be to decide that the Crown’s response to the commencement of litigation was unavailable to it and we do not consider that would be appropriate. In saying that, we also bear in mind that the June 2011 terms of negotiation specifically provided that:[482]

[482]     The Trustees were acting for the mandated representatives of Ngāti Te Ata.

During these negotiations, the Trustees agree not to initiate, or to pursue, before any court or tribunal, any legal proceedings relating to any of the claims that are within the scope of the negotiations except as provided in cl 20.

[688] Another clause reserved the right of both parties to withdraw from negotiations if they became “untenable”. It is difficult to square these provisions with the

suggestion, implicit in Ngāti Te Ata’s argument, that the Crown was obliged to

continue negotiating notwithstanding the commencement of litigation.

[689] We also consider the Judge was right to conclude that the delays that have occurred in the settlement process are not properly attributable to the actions of the Crown alone. We have set out the history of the negotiations in some detail. The narrative shows that the intervention of NZ Steel and the commencement of its application for review effectively derailed what seemed to be an imminent resolution

of some of Ngāti Te Ata’s claims, after a process that had in fact commenced in

the mid-1980s, in response to the Waitangi Tribunal’s report in Wai 8. After that, another imminent settlement was overtaken by the enactment of the Resource

Management Act and subsequent changes of negotiating position by both Ngāti Te Ata

and the Crown. The present proceeding was commenced at a time when the Crown was engaged in further negotiations under the 29 June 2011 terms of negotiation, with the direct involvement of the Minister for Treaty of Waitangi Negotiations. Other

delays were attributable to the Māori Appellate Court process and the resolution of

the Ngāti Te Ata mandate process.

[690] Consequently, we are not able to find that there was a legitimate expectation having the temporal element claimed.

Affirmative defences

[691] We have concluded that the appeal cannot succeed. As a consequence, like the Judge we do not need to consider the affirmative defences. We would have been reluctant to do so in any event, given the absence of relevant factual findings by the High Court.

COSTS

[692]    The respondents do not seek costs and we make no order accordingly.

RESULT

[693]    The application for leave to file an amended notice of appeal is granted.

[694]    The appeal is dismissed.

[695]    There is no order as to costs.

Solicitors:
Corban Revell Lawyers, Auckland for Appellant
Meredith Connell, Wellington for First Respondent
Chapman Tripp, Wellington for Second and Third Respondents

Judgment:  6 November 2025 at 3.00 pm

JUDGMENT OF THE COURT

A	The application for leave to file an amended notice of appeal is granted.
B	The appeal is dismissed.
C	There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

MINHINNICK v ATTORNEY-GENERAL & ORS [2025] NZCA 584 [6 November 2025]

[judgment under appeal]. References to “Mr Minhinnick” throughout this judgment refer to the
appellant, Mr Richard Minhinnick.

and not amended it to correct, for example, the spelling of words in te reo Māori or the use of

tohutō (macrons).

Tompkins J) [interim orders minute] at [2] and [3].

Ngāti Te Ata’s counterclaim was given a 2014 file number (CIV-2014-404-1172) to create an

electronic file record, and for convenience we refer to it as the 2014 proceeding in accordance with the intituling. Mr Minhinnick was substituted as the counterclaim plaintiff following the judgment of Venning J in Te Ara Rangatu o te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2886, [2019] NZAR 12: the counterclaim had originally been advanced by Ngāti Te Ata as an unincorporated body.

decision]; upheld in Ngāti Te Ata v New Zealand Steel Mining Ltd [2015] NZCA 547, [2016]
NZAR 38 [undertaking and discontinuance appeal].

CIV-2013-404-5224, 6 June 2019 (Minute No 2) at [4] and [6].

CIV-2013-404-5224, 17 June 2019 (Minute No 4).

CIV-2013-404-5224, 4 June 2019 (Minute No 1) at [7].

of declarations that the Crown was obliged to perform its obligations under the 1990
commitments.

Wakatū (SC)].

Arnold and O’Regan JJ and [952] per William Young J.

(a)	with the consent of the other persons who have the same interest; or
(b)	as directed by the court on an application made by a party or intending party to the proceeding.”

220) [Minhinnick Māori Appellate Court decision] at 16. In this decision, the Court determined that there was sufficient evidence for it to find that Maioro was included within the rohe

(boundary) of Ngāti Te Ata and that Ngāti Te Ata held rangatiratanga over Maioro at all material

times from 1840 to 1865: see at 235.

an estate at Okahu, on the shores of the Waitematā. Hori Tauroa appeared as a co-claimant, on

behalf of himself, Ahipene Kaihau and another member of Ngāti Te Ata: see the decision in F D

Fenton Important judgments delivered in the Compensation Court and Native Land Court,
1866–1879 (Auckland, 1879) at 53.

members of Ngāti Te Ata were appointed to protect the Waiuku residents and that 15 actually went

to do so.

Ngāti Te Ata captured.

Period: Volume I (1845-64) (R E Owen, Wellington, 1955) at 324.

July 1863, as on 24 July 1863, the Minister of the Colonial Defence wrote to the Commander of

the Colonial Defence Corps at Ōtāhuhu reprimanding him for allowing his men to destroy

the waka, being inconsistent with the orders only to seize and secure them.

and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 717 at [23.2.1].

version.

Edelman JJ (footnote omitted), quoting Kakavas v Crown Melbourne Ltd [2013] HCA 25, (2013)
250 CLR 392 at [14].

76 CLR 646 at 654 per Rich J (Dixon and McTiernan JJ agreed); and Jenyns v Public Curator
(Qld) (1953) 90 CLR 113 at 118–119.

and McHugh JJ. The Court in Thorne, above n 149, at [42] per Kiefel CJ, Bell, Gageler, Keane
and Edelman JJ also affirmed this observation.

(SC), above n 157, at [6].

Māori in the late 1800s, with the result that the burden of proof would then shift to the Crown.

This was the possibility touched on in Paki (No 2), above n 54, at [151] per Elias CJ, and [256] and [286]–[287] per William Young J.

Transport Workers Federation [1983] 1 AC 366 (HL) [The Universal Sentinal] at 400;

Attorney-General for England and Wales v R [2003] UKPC 22, [2004] 2 NZLR 577 at [15]; and

Haines v Carter [2001] 2 NZLR 167 (CA) at [108] and [112].

at [3.5.3(1)] (emphasis in original), referring to Dicey, above n 199.

at [4.8], n 126.

at [3.5.3(2)].

at [4.8] (footnotes omitted).

[4.8].

(SC), above n 49; and Paki (No 2), above n 54.

Gazette 499 at 505. The proclamation described the relevant Crown land as including “Waiuku

West Parish, situated in Blocks VI and VII, Maioro Survey District: Total area, 670 acres 3 roods
16 perches, more or less”.

referred to Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC); and
Ngaronoa v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643.

Elder Advocates of Alberta Society, above n 354.

Tompkins J) at 2.

Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433

(CA) at [56]; and Verissimo v Walker [2006] 1 NZLR 760 (CA) at [40]–[41].

Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137; Green v Racing Integrity

Unit Ltd [2014] NZCA 133, [2014] NZAR 623; and New Zealand Association for Migration and
Investments Inc v Attorney-General [2006] NZAR 45 (HC).

Arnold J.