Proprietors of Wakatū Inc v Attorney-General
[2012] NZHC 1461
•26 June 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-442-181 [2012] NZHC 1461
BETWEEN PROPRIETORS OF WAKATŪ INCORPORATED Plaintiff
ANDRORE PAT STAFFORD Second Plaintiff
ANDRORE PAT STAFFORD, PAUL TE POA KARORO MORGAN, WAARI WARD-HOLMES AND JAMES DARGAVILLE WHEELER
Third Plaintiffs
ANDTHE ATTORNEY-GENERAL Defendant
ANDNGĀTI RĀRUA IWI TRUST, NGĀTI KOATA TRUST, NGĀTI TAMA MANAWHENUA KI TE TAU IHU TRUST, TE RUNANGA O NGĀTI KUIA TRUST AND NGĀTI APA KI TE RĀ TO TRUST
Interveners
Hearing: 28 March-8 April 2011; 5-7 July 2011; 2-5 August 2011; 5-8 September
2011 (evidence); 7-11 November 2011 and 14-15 November 2011 (closing arguments); further joint written submissions 3 February 2012
Appearances: B Brown QC, K Feint and K Johnston for the plaintiffs
D Goddard QC, V Hardy, J Gough and J Prebble for the defendant
T Castle for the interveners Ngati Rarua, Ngati Koata and Ngati Kuia
J Ferguson and P Williams for the intervener Ngati Tama
Q Davies for the intervener Ngati Apa
Judgment: 26 June 2012
JUDGMENT OF CLIFFORD J
Solicitors: Pitt & Moore, P O Box 42, Nelson for the plaintiffs ([email protected]) (Counsel: [email protected] and [email protected])
Crown Law Office, P O Box 2858, Wellington for the defendant
([email protected]) (counsel: [email protected]) T J Castle for Ngati Rarua and Ngati Koata and Ngati Kuia ([email protected]) Kahui Legal, Wellington for Ngati Tama ([email protected])
Gascoigne Wicks, P O Box 2, Blenheim for Ngati Apa ([email protected])
PROPRIETORS OF WAKATU INCORPORATED v THE ATTORNEY-GENERAL HC WN CIV-2010-442-181 [26 June 2012]
Outline
Introduction ......................................................................................................... [1]
The partiesThe significance of contemporary Treaty negotiations .................... [10] The plaintiffs ...................................................................................... [14] The Interveners .................................................................................. [20] Te Ātiawa............................................................................................ [26] The defendant .................................................................................... [27]
An overview of the caseThe plaintiffs’ claims ......................................................................... [28] The Attorney-General’s response ...................................................... [35] The position of the Interveners ......................................................... [36]
Evidence
Admissibility issues ............................................................................ [40] Waitangi Tribunal historical accounts .............................................. [54] An overview of the evidence before the Court
§ Oral evidence............................................................................... [55]
§ Documentary evidence ............................................................... [67]
The factual context
The tangata whenua of western Te Tau Ihu in 1839 and the immediately succeeding years ........................................................... [74]
1839 – 1856: The creation of the Nelson Tenths Reserves............... [86]
§ The origins of the Company’s plans for reserves......................... [87]
§ The 1845 Crown Grant ................................................................ [95]
1856 – 1882 ...................................................................................... [173] The Shortfall, Diminution and Uplift ............................................. [179] Mackay’s 1893 Māori Land Court decision ................................... [189]
§ The Nelson Tenths Reserves from 1845 to 1856 ........................ [154]
The legal context – sovereignty, customary title and pre-emption ............. [191]
An express trust?The essence of the plaintiffs’ claim ................................................. [199]
The three certainties ........................................................................ [208]
§ Certainty of intention................................................................. [209]
§ Certainty of subject matter ........................................................ [218]
§ Certainty of objects.................................................................... [219]
Certainty of intention
§ The 1845 Crown Grant .............................................................. [221]
Certainty of subject matter .............................................................. [246]
Certainty of objects .......................................................................... [247]
A resulting trust? ............................................................................................ [252]
A constructive trust? ...................................................................................... [256] A relational duty of good faith? ..................................................................... [265] A breach of fiduciary duty?............................................................................ [268] Standing .......................................................................................................... [311] Limitation ........................................................................................................ [317] Result ............................................................................................................. [318]
Introduction
[1] On 12 May 1839 the New Zealand Company1 barque Tory sailed from Plymouth, England bound for New Zealand. On board was Colonel William Wakefield,2 in charge of an expedition to acquire land from Māori in the Cook Strait region for the Company’s colonists, large numbers of whom were soon to follow the Tory south. Central to this case is this extract from the Company’s written instructions to Wakefield on his departure as to the basis upon which he was to acquire that land:3
... You will take care to mention in every booka-booka, or contract for land, that a proportion of the territory ceded, equal to one-tenth of the whole, will be reserved by the Company, and held in trust by them for the future benefit of the chief families of the tribe.
[2] The plaintiffs say those instructions were given effect to by Colonel Wakefield – when he acquired land for the Company’s Nelson settlement, and by the Crown – pursuant to an agreement between the Company and the Crown in 1840 whereby the Crown was to give effect to certain Company commitments. Thus, the plaintiffs argue, when the Crown in 1845 granted 151,000 acres of land to the Company for the purposes of the Nelson settlement (“the 1845 Crown Grant”), the Crown agreed – as a matter of private law – to hold on trust as an endowment for local Māori and their descendants forever at least 15,100 acres of land (“the Nelson
Tenths”). The plaintiffs seek declarations that the Crown has failed to honour that
1 I refer variously to the New Zealand Company as such, and as “the Company”,
2 The Wakefield family looms large in the early history of New Zealand. Edward Wakefield had
10 children by two wives. Five of those, the champion of systematic colonisation Edward Gibbon himself, and his brothers Colonel William (the leader of the Tory expedition), Captain Arthur R.N. (leader of the Company’s Nelson expedition, killed in 1843 at the Wairau), Felix (a surveyor) and Daniel (an early colonist and later Attorney-General and Supreme Court Judge), played a part in the Company’s endeavours in New Zealand. So also did Edward Gibbon’s son, Edward Jerningham, author of Adventure in New Zealand.
3 During the trial documents in evidence were referred to variously by reference to the original document in question, its reference number in the agreed bundle of documents, its electronic reference on the web site which stored both the agreed bundle and the transcript or to the place
at which it was included in any one of a number of other official and unofficial publications. I generally propose to footnote quotations by reference to the original source of the documents. References to the physical agreed bundle and its electronic equivalent mean little to anybody
other than the parties. Many original documents appeared in a sufficiently different number of
places in official and unofficial publications included, or referred to, in the record to make references to those secondary sources unhelpful. Moreover, where the original document is – as here – sufficiently identified in the text, no footnote will be provided.
obligation, that the Crown is therefore liable for that breach of trust and must be held to account accordingly. The plaintiffs alternatively assert breaches of broader fiduciary or public law duties and seek relief on that basis. That such claims can be brought so long after the relevant acts and omissions is because – at least in part – of the provisions of the Limitation Act 1950. Section 21 of that Act provides that no period of limitation applies to an action by a beneficiary under a trust in respect of any fraud or fraudulent breach of trust by the trustee or to recover from the trustee property or the proceeds thereof in possession of the trustee and converted to his use. Whether or not the plaintiffs’ claims come within those provisions, or are otherwise able to be brought now so long after the relevant events, is an important element of the arguments I heard.
[3] The Crown has acknowledged in Waitangi Tribunal hearings, and again in these proceedings, that it breached Treaty obligations as regards these matters. But the Crown says no private law trust ever came into existence and no obligations enforceable at law in this Court, whether of a private or public law character, were ever breached by it.
[4] The factual basis for the declarations the plaintiffs seek is found in the history of dealings between Māori, the New Zealand Company and the Crown relating to land in the northern South Island, or Te Tau Ihu o te Waka a Maui,4 between 1839 and 1882.5
[5] Five iwi, or hapu as I now understand they were more commonly referred to in the 19th century, Ngāti Awa (Te Ātiawa as they are referred to now and in this judgment), Ngāti Kōata, Ngāti Rārua, Ngāti Tama and Ngāti Toa,6 were the Māori principally involved in those dealings. This case relates specifically to land in what we know now as Nelson itself, and the broader areas of Tasman and Golden Bays – western Te Tau Ihu as it is referred to by the plaintiffs. There the Company and the
Crown dealt with Ngāti Kōata, Ngāti Rārua, Ngāti Tama and Te Ātiawa. Those hapu
4 The prow of the waka of Maui.
5 In 1882 title to and responsibility for native reserves passed from the Crown to the Public
Trustee pursuant to that year’s Māori Reserves Act. The plaintiffs therefore limit the facts upon
which they base their private law claims against the Crown by reference to that date.
6 Where I refer to more than one iwi at a time, I do so alphabetically. As regards the use of macrons, I have adopted – as best as I have been able – the usage of the plaintiffs and the Interveners.
had themselves only arrived in western Te Tau Ihu in the 1820s and 30s as part of the last wave of the southwards movement of Tainui-Taranaki iwi originally – and indirectly – initiated by the new weapon, muskets, in the far north. Generally, they conquered and displaced the local iwi, Ngāti Apa, Ngāti Kuia and Rangitane. The one notable exception to that pattern was Ngāti Koata’s peaceful arrival on Rangitoto, or D’Urville Island, where they settled with Rangitane.
[6] That history, as put before the Court in this case, is well recorded and richly detailed. It exists in the traditional, oral, history of Māori themselves. It has been the subject of a considerable number of government inquiries and reports. These include:
(a) Commissioner Spain’s 1845 “Report on the New Zealand Company’s
Purchase of Nelson District” (“the Spain Report”);
(b)Alexander Mackay's 1873 Compendium (“the Mackay Compendium”) of “Official Documents relative to Native Affairs in South Island”, including Mackay’s own narrative of these events;7
(c) Mackay's 1892 and 1893 Māori Land Court judgments (“the Mackay Decisions”) determining those individual Māori beneficially entitled to the land then vested in the Public Trustee as comprising the Nelson Tenths, both in terms of iwi affiliation and individual identity, and
their proportionate entitlements to that land;
7 The entry of Alexander Mackay in Te Ara Encyclopaedia of New Zealand, described therein as farmer, explorer, linguist, magistrate, land court Judge, includes the follows:
By the early 1960s Alexander Mackay seems to have attained a respectable position in Nelson society. He married Hannah Sarah Gibbs at Collingwood on 23 May 1863; they were to have at least six children. Hannah’s father, William Gibbs, was a member of the Nelson Provincial Council, and had been a resident magistrate and goldfields warden.
In 1864 Mackay was appointed resident magistrate and commissioner of native reserves in
the South Island. He no doubt gained this latter appointment because of his familiarity with Māori language and culture. He appears to have administered the reserves efficiently and in a way which earned him the approbation of the Māori. He used the knowledge gained in this position to compile, in 1971, the voluminous Compendium of official documents relative to native affairs in the South Island. Mackay was appointed native reserves Commissioner in New Zealand in 1882 and a judge of the Native Land Court in 1884. Poutini Ngai Tahu petitioned for him to be returned to his previous position. Mackay had also served as a trust Commissioner for the district of Wellington under the terms of the Native Lands Frauds Prevention Act 1870.
(d)Roland Jellicoe’s 1929 Report on the Native Reserves in Wellington and Nelson under the control of the Native Trustee;8 and
(e) the 1975 Report of the Sheehan Commission of Inquiry into Māori
Reserved Land.
[7] Recently that history featured significantly in the Waitangi Tribunal’s 2008
Te Tau Ihu o te Waka a Maui Report. It is also the subject of a considerable body of academic history, including that which has been produced in the process of the Tribunal’s inquiries. This history forms part of broader considerations of aboriginal title, and interactions between the British Crown and aboriginal peoples in such texts as Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights and Lords of the Land, Indigenous Property Rights and the Jurisprudence of Empire.9 The preparation and presentation of historical accounts for this case has added further detail and thrown light on aspects of that history not previously uncovered.
[8] In View from the Summit, Sir Edmund Hillary’s 1999 autobiography,10 the author describes himself as being – on his first visit to Europe in 1949 – “a citizen of a new country with little history”.11 Taken together the material mentioned above shows, as regards this thin slice of the history of New Zealand alone, just how wrong the great Sir Ed was in his assessment of this country as having “little history”. But it is, fairly obviously I think, quite beyond the scope of my task to record that history in anything like the detail found in that material. Production of this judgment in anything approaching a timely fashion simply precludes my doing so. But to
consider the plaintiffs’ claims, as responded to not only by the Attorney-General for
the Crown but also by the Interveners,12 it is necessary to record relevant elements of
8 Roland Jellicoe was at the time Assistant Accountant to the Native Trust Department.
9 P G McHugh Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford
University Press, Oxford, 2011); M Hickford, Lords of the Land, Indigenous Property Rights and the Jurisprudence of Empire (Oxford University Press, Oxford 2011). I emphasise that these texts were not put in evidence before me and that I have done little more than browse them. I mention them, as with the other publications referred to here, to emphasise the relative narrowness of the material by reference to which I am preparing this judgment, and therefore the extreme risk I run of error on matters both historical and legal.
10 Sir Edmund Hillary View from the Summit, The Remarkable Memoir by the First Person to
Conquer Everest (Doubleday, London, 1999).
11 At p 65.
12 The interests of the Interveners and the role they played in the hearing are discussed in more detail at [20] – [25].
that history, at least as it was put before me in evidence. That applies particularly to the 1845 Crown Grant, and the circumstances surrounding its making. For it was that Grant which – borrowing a term from the now superseded law of floating charges and company debentures that was also used in a leading Canadian decision the plaintiffs rely on13 – “crystallised” the private law trusts of the Nelson Tenths they assert. Having said that, it is important to note that the history of the process whereby the Company and the Crown acquired land from Māori in western Te Tau Ihu and whereby, and in what was in no way a straightforward or linear process,
private title to land was issued to landowners, is replete with ambiguities and uncertainties that I cannot resolve. This is a trial, not an inquiry. What I will try to do is identify those elements of that history which the parties say are relevant to their respective positions. I do this largely by reference to the documentary record, as supplemented by the traditional and academic history that was put in evidence before me. For a more reliable and comprehensive narrative of these events I can do no better than to refer readers to the Waitangi Tribunal’s Te Tau Ihu report.
[9] Before turning to that task, it is helpful to set out details of the parties to these proceedings, the claims that are before the Court and a number of other preliminary matters.
The parties
The significance of contemporary Treaty negotiations
[10] The status and interests of the plaintiffs and Interveners are best understood in the context of recent negotiations between iwi and the Crown to settle historic Treaty claims in Te Tau Ihu o te Waka a Maui.
[11] The subject matter of these proceedings, the Crown’s alleged failures as regards the creation and maintenance of the trusts of the Nelson Tenths, is one of the grievances which was advanced before the Waitangi Tribunal in its inquiry into Te Tau Ihu. The WAI 56 claim, initially brought by the second plaintiff, Mr Stafford,
and Hohepa Solomon, “on behalf of Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te
13 Guerin v The Queen [1984] 2 S.C.R. 335 (CSC) at 355, per Wilson J.
Ātiawa on behalf of the Wakatū Incorporation and on behalf of all Māori people affected by this claim”, related specifically to that grievance. Aspects of that grievance were advanced in other claims considered in those hearings.
[12] Since the publication of the Tribunal’s 2008 report the Tainui-Taranaki iwi Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa have initialled deeds with the Crown to settle their Treaty claims. Such settlements would, when those deeds have been formally executed and legislated for, extinguish any private law rights that might exist in regard to the Nelson Tenths, including those which the plaintiffs claim in these proceedings. Formal execution of those deeds, and the passage of settlement legislation, is currently on hold pending the outcome of these proceedings. That is a matter of considerable tension between the parties.
[13] By commencing these proceedings, the plaintiffs can be understood as saying they are not satisfied with either or both of the process for, and substantive outcome of, the negotiations which have led to the initialling of those deeds by those Tainui- Taranaki iwi, and the settlements they foreshadow.
The plaintiffs
[14] The Proprietors of Wakatū (“Wakatū”), the first plaintiff, is a Māori incorporation, originally established pursuant to s 15A of the Māori Reserved Land Act 1955 by the Wakatū Incorporation Order 1977, and now constituted under Part 13 of the Te Ture Whenua Māori Act 1993. As such, Wakatū is an incorporation of the persons who are the beneficial owners of the land the legal title of which is vested in Wakatū. That land was described in the explanatory note to the Wakatū Incorporation Order as “the land commonly known as the Nelson-Motueka and South Island Tenths”. That land comprised Māori reserved land under the Māori Reserved Lands Act 1955 that was, in 1977, the residue of:
(a) 5,100 acres of land identified in maps prepared in or around 1845 as constituting (part of) the Nelson Tenths, and
(b)some 1,563 acres of land in Massacre (Golden) Bay designated as, what became known as, Occupation Reserves in 1846 and 1847.14
Traditional, customary and collective, interests in that land had been individualised over time through the nineteenth century in a process which culminated in the Mackay Decisions. In 1977, that land totalled some 1,393.8 hectares, or – by my calculation – 3,066 acres in all. The plaintiffs and the defendants disagree as to the significance, for this case, of the inclusion in that land of those Golden Bay occupation reserves. Other than that, and in very general terms, the plaintiffs acknowledge that, as regards the land vested in Wakatū in 1977, the Crown generally honoured the trusts of the Nelson Tenths they say were originally created in 1845. This case concerns the land in respect of which the plaintiffs say the Crown did not honour that trust.
[15] Wakatū was established with 11,064,710 shares, being one share for every dollar of assessed value of the land transferred to it. Each shareholder in Wakatū was allocated the number of shares which represented the value of their proportionate beneficial interest in the land vested in Wakatū.
[16] The incorporated owners of Wakatū comprise some, but not all, of the members of the four Tainui-Taranaki iwi of western Te Tau Ihu – Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa. At the same time, there are members of Wakatū who are not members of any of those iwi.
[17] Wakatū participated in the Tribunal’s Te Tau Ihu o te Waka a Maui inquiry as
kaitiaki of WAI 56. The significance of that role is a matter of dispute between the plaintiffs and the Interveners.
14 There was some confusion, at least in my mind, associated with the use of the term Occupation Reserves in this case. The plaintiffs in their pleadings defined Occupation Reserves to mean pā (villages), burial grounds and cultivations that were by their status as such excluded from any sale of land to the New Zealand Company recognised by the Crown, and therefore by definition not to form part of the reservation from that land of the Tenths. The term Occupation Reserves was also used by the plaintiffs and the defendant to refer to land in Massacre or Golden Bay, originally comprising some 1,560 acres, the residue of which was transferred to Wakatū in 1977. From the defendant’s perspective, the so-called Occupation Reserves were a proper use of the Tenths Reserves, as it had always been intended that those reserves might be occupied by Māori.
[18] Mr Rore Pat Stafford, the second plaintiff, is a kaumātua of Ngāti Rārua and Ngāti Tama descent. Mr Stafford says, in terms of the declarations sought, that he is a beneficiary of the claimed trusts of the Nelson Tenths.
[19] The Te Kāhui Ngahuru Trust, the third plaintiff, was established in 2010 by the second plaintiff as settlor for the purpose of representing the beneficiaries of the claimed trusts of the Nelson Tenths and facilitating the pursuit and resolution of the beneficiaries’ claims against the Crown arising out of issues associated with the Nelson Tenths.
The Interveners
[20] Following the plaintiffs commencing these proceedings against the Attorney- General, six separate parties sought intervener status. They were:
(a) Ngāti Kōata Iwi Trust (“the Ngāti Kōata Trust”);
(b) Ngāti Rārua Iwi Trust (“the Ngāti Rārua Trust”);
(c) Ngāti Tama Manawhenua ki te Tau Ihu Trust (“the Ngāti Tama
Trust”);
(d) Tainui Taranaki ki te Tonga Limited (“Tainui Taranaki Ltd”); (e) Te Runanga o Ngāti Kuia Trust (“the Ngāti Kuia Trust”); and (f) Ngāti Apa ki te Rā Tō Trust (“the Ngāti Apa Trust”).
[21] The Ngāti Kōata, Ngāti Rārua and Ngāti Tama Trusts are iwi trusts whose beneficiaries include members of Wakatū, the first plaintiff. Those iwi trusts, together with the Te Ātiawa Iwi Trust and Wakatū itself, are the shareholders in Tainui Taranaki Ltd. Tainui Taranaki Ltd is the mandated entity which led the negotiations between the Tainui-Taranaki iwi and the Crown to settle their Treaty grievances in Te Tau Ihu o te Waka a Maui.
[22] The Ngāti Apa and Ngāti Kuia Trusts are also iwi trusts from Te Tau Ihu. Their beneficiaries are members of those iwi from whom, by conquest originally, the Tainui-Taranaki iwi achieved mana whenua in the area. Together with Rangitane, they are known as the Kurahaupo iwi, a reference to their being descended from the crew of the Kurahaupo waka.
[23] As recorded in my ruling of 7 December 2010 and minute of 2 February
2011, the Ngāti Kōata, Ngāti Rārua, Ngāti Tama, Ngāti Apa and Ngāti Kuia Trusts
were each separately granted intervener status with respect to the questions of: (a) standing and representation;
(b) relief; and
(c) the inter-related issues of the nature of the Crown’s obligations in the
1840s, and to whom such obligations were owed.
[24] I declined Tainui-Taranaki Ltd’s application for intervener status as I considered its presence would add little if anything to that of the Ngāti Kōata, Ngāti Rārua and Ngāti Tama Trusts.
[25] As matters transpired, the Ngāti Rārua and Ngāti Kōata Trusts, represented by Mr Castle, and the Ngāti Tama Trust, represented by Mr Ferguson and Ms Williams, were the Interveners (“the Tainui-Taranaki Intervener Trusts”) who took an active part in these proceedings. Mr Castle maintained a watching brief for Ngāti Kuia, Mr Davies – from more of a distance – for Ngāti Apa.
Te Ātiawa
[26] The fourth Tainui-Taranaki iwi of western Te Tau Ihu, Te Ātiawa, took no part in this case. In a memorandum of 16 November filed by Ms Ertel on behalf of the eponymous iwi trust Te Ātiawa Manawhenua ki te Tau Ihu Trust, Te Ātiawa advised that it had “made a conscious decision not to participate in these proceedings because the proceedings are against the Crown and Te Ātiawa does not see it[s] role
to support the Crown in defending litigation brought against it by other Māori”. I
acknowledge that position.
The defendant
[27] The defendant is the Attorney-General, sued as representative of the Crown. The Crown accepts that it is responsible for obligations assumed or otherwise incurred by the British Imperial Crown in New Zealand in the relevant colonial period.
An overview of the case
The plaintiffs’ claims
[28] In their written closing submissions the plaintiffs summarised the gist of their case as originally pleaded and ultimately – somewhat differently – argued at two points.15 The following propositions emerge from those two summaries taken together:
(a) In consideration for the surrender of land in Nelson the Company promised to hold one-tenth of the land it acquired from Māori on trust for the benefit of the chiefs, their families and tribes. That promise was the true consideration flowing from the Company to local Māori for the acquisition of land in western Te Tau Ihu.
(b)Under an 1840 agreement between the Crown and the Company, the Crown agreed to assume responsibility for creating those “Nelson Tenths” in fulfilment of, and according to the tenor of, the stipulations agreed to by the Company. From 1842 onwards the Crown assumed that responsibility.
(c) The conscience of the Crown was affected by that assumption of
responsibility. This in turn placed Māori in a position where they had
to, and did in fact, repose trust and confidence in the Crown.
15 At paras 4 and 255 respectively.
(d)Commissioner Spain in his 1845 inquiry found that the resident Māori of western Te Tau Ihu had alienated 151,000 acres of their customary land on the basis that one-tenth, that is the 15,100 acres constituting the Nelson Tenths, would be reserved for them, along with their pā, cultivations and burial grounds. This was accepted by Governor FitzRoy when he made and issued the 1845 Crown Grant.
(e) The 1845 Crown Grant crystallised the trusts of the Nelson Tenths creating equitable property rights over that land in favour of local Māori, as well as saving and excepting from the land the subject of that grant their pā, cultivations and burial grounds.
(f) Notwithstanding that entitlement to one-tenth, after 1845 the Crown did not fulfil the commitment. As a result, the full one-tenth was never allocated, pā, cultivations and burial grounds were not separated out, and the Crown removed land which had originally been reserved.
(g)The Crown was the recipient of the shortfall in the promised reserves of one-tenth, that is, the Crown was unjustly enriched.
(h)At no stage did Māori agree to that change in position, or to the diminution of their property rights that was involved. They had no control over the situation, because the Crown was acting on their behalf and managing their interests.
[29] Six separate causes of action were pleaded. There was, the plaintiffs said, a common thread running through each of the six pleaded causes of action: namely, the unconscionable action of the Crown in “representing” the interests of tangata whenua of western Te Tau Ihu but failing to protect their entitlement to one-tenth of the land acquired for the Nelson settlement. The result was that the Crown retained land that it did not own.
[30] In order to understand those individual causes of action, and the relationship between them, it is necessary to anticipate – albeit in summary terms – a central part
of the factual narrative. The plaintiffs identify the Crown’s alleged breaches of
equitable obligation by reference to three conceptually distinct areas of land:
(a) First, the plaintiffs say that in 1845 the Crown failed in various ways to give effect to the reservation of the full one-tenth of the original
151,000 acres recognised in the 1845 Crown Grant as having been acquired by the New Zealand Company from Te Tau Ihu Māori. This land is referred to as “the Shortfall”. By 1850, when the New Zealand Company ceased activity, the plaintiffs say the amount of land actually reserved (“the Nelson Tenths Reserves”) comprised only
3,953 of the stipulated 15,100 acres, meaning the Shortfall as such comprised 11,047 acres.
(b)Secondly, the plaintiffs say the Nelson settlement ultimately comprised 172,000 acres, so that the Nelson Tenths Reserves should have comprised 17,200. Breaching its obligations the Crown failed to reserve the additional 2,100 acres, described by the plaintiffs as “the Uplift”.
(c) Thirdly, between 1850 and 1882 the Crown disposed of part of the land comprising the original 3,953 acres reserves of the Nelson Tenths Reserves so that, by 1882 when the Public Trustee became trustee, those reserves only comprised 2,774 acres. That loss of land is referred to as “the Diminution”.
[31] The first three causes of action allege breaches of, or derive from, the pleaded express trust as it relates to those three areas of land. The nature of that express trust changed during the hearing. As initially pleaded, and reflecting the emphasis placed on the lists of owners prepared for the purposes of the Mackay Decisions, the trust property – the Nelson Tenths Reserves – was said to have vested beneficially in those owners in 1845 in proportions identified by Mackay in 1895. It was not, however, a vested trust that the plaintiffs finally contended for. Rather they claimed that the Nelson Tenths Reserves constituted an endowment to be held by the Crown on trust and in perpetuity for – in very general terms – the benefit of those whānau
and hapu of Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa who held mana whenua over, that is were the customary owners of, land sold to the New Zealand Company in western Te Tau Ihu as recognised and validated by Spain’s 1845 Crown Grant.
[32] By reference to the claim for an express discretionary trust, as thus clarified, the plaintiffs’ six causes of action can be seen as falling into two groups of three. The first group relates to the claimed express trust. Thus:
(a) The first cause of action alleges that the Crown’s failure to reserve the Shortfall and to hold it on trust was a breach of the terms of that express, private law, trust. Alternatively, if that trust had not – for whatever reason – come into existence, the Shortfall was subject to a resulting or constructive trust in favour of the customary owners who had dealt with the New Zealand Company and Spain between 1842 and 1845.
(b)The second cause of action alleges that, as trustee in terms of the express, private law, trust, the Crown had a duty as “trustee/fiduciary” to reserve the Uplift. Its failure to do so was unconscionable and amounted to equitable fraud.
(c) The third cause of action alleges that the land comprising the Nelson Tenths Reserves in fact recognised by the Crown as such by 1850 was, in terms of the express trust, inalienable. Therefore, the Crown breached that trust in the way it disposed of those reserves so as to give rise to the Diminution.
[33] The second group of three causes of action is based on more general equitable principles. Thus:
(a) The fourth cause of action reframes the claims in respect of the Shortfall and Uplift as claims based on a breach of fiduciary duties that the plaintiffs say were owed to Māori by the Crown in connection with dealings with customary lands in the Nelson region in the 1840s.
This pleading owes much to Canadian authority, and observations of Cooke P in the series of cases which start with the Lands Case.16 It is alleged that breach of these duties gave rise to a remedial constructive trust in respect of the Shortfall and Uplift.17
(b)The fifth cause of action reframes the plaintiffs’ claims in respect of the Shortfall and Uplift in terms of an allegation of unconscionable or fraudulent behaviour on the Crown’s part in “reneging” on its obligation to reserve a “full one-tenth”, thus also giving rise to a constructive trust. In closing the plaintiffs made clear that it was an institutional constructive trust they were arguing for. That constructive trust was said to have come into existence in 1850, when lands that had been vested in the Company – but not on-sold – reverted to the Crown. On the basis that the Nelson Tenths Reserves had been part of the Crown Grant from the Crown to the Company, the land that thus reverted included those reserves. In my view, a more straight forward and understandable construction of the concept of the Nelson Tenths as originally formulated, and of both the 1845 and 1848 Grants, was that such land as constituted those Tenths did not vest in the Company at all, but was retained by the Crown.
(c) The sixth cause of action alleges a more general relational duty of good faith owed by the Crown to Māori of the type reflected on by Hammond J in Paki v Attorney-General.18 The plaintiffs say that duty was breached, again giving rise to a remedial constructive trust in respect of the Shortfall and Uplift.
[34] By way of relief, and reflecting the case as argued at trial, the plaintiffs seek declarations that:
16 New Zealand Māori Council v Attorney General [1987] 1 NZLR 641 (CA).
17 The plaintiffs originally pleaded that the Crown’s breach of relevant fiduciary duties also gave rise to a resulting trust. As I understood matters, that pleading was not advanced in their final submissions.
18 Paki v Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125.
(a) the Crown was obliged to reserve and hold on trust in perpetuity, the
15,100 acres representing the one-tenth of the land subject to the 1845
Crown Grant, and also one-tenth of any further land acquired by the
Company for the Nelson settlement, and that it failed to do so;
(b)to the extent the Crown owns land in the Nelson settlement area which should have been so held as part of the Nelson Tenths Reserves, that land is now held on constructive trust as a perpetual endowment for the benefit of the descendents of the customary owners of that land at the time their title to it was extinguished; and
(c) to the extent that the Crown has converted land that should have formed part of the Nelson Tenths Reserves for its own use it is obliged to restore the endowment to the position it would have been in if no such breach of trust had occurred, either by transferring substitute land, paying compensation for the value of land based on current values, or accounting for the profits of sale of land.
The Attorney-General’s response
[35] The Attorney’s position involves three essential arguments:
(a) First, and perhaps most importantly, the Crown was throughout acting as government and in a fundamentally public capacity. Thus, and as in Tito v Waddell,19 the many and various references to trusts and reservations were to trusts of the higher, or public law, sense. As the Crown has acknowledged in the Waitangi Tribunal, and as it acknowledged before the Court, it did fail to meet those obligations in Te Tau Ihu, not only as regards the Nelson Tenths but more generally.
Those acknowledged breaches of higher governmental duty are real and meaningful, as is the process the Crown has put in place to settle Treaty grievances in Te Tau Ihu and as are the settlements that,
pending these proceedings, have been put on hold.
19 Tito v Waddell [1977] Ch. 106, [1977] 2 WLR 496 (Ch).
(b)Moreover, and even seen in terms of private law requirements, no trust of any sort came into existence and the claims of fiduciary or more general duties of good faith cannot be sustained.
(c) Finally, the plaintiffs do not have standing to bring these claims, and the plaintiffs’ claims more generally are barred either by the Statute of Limitation or by the doctrine of laches for delay. Very specifically, the rule against perpetuities prevented the creation of the express trust for (perpetual) endowment purposes contended for by the plaintiffs.
The position of the Interveners
[36] The Tainui-Taranaki Intervener Trusts agree generally with the historic factual narrative advanced by the plaintiffs, and with what the plaintiffs say are the legal consequences of that narrative in terms of breaches by the Crown of relevant legal duties.
[37] Therefore they endorse the claims of equitable rights made by the plaintiffs. In doing so, however, they emphasise that those claims are only part of the claims that the iwi of western Te Tau Ihu, and Te Tau Ihu more generally, have against the Crown and that were investigated by the Waitangi Tribunal. They say that those rights properly belong to the customary collective groups who held them in 1845 and thereafter, and that they, and not the plaintiffs, are the proper representatives today of those groups. The plaintiffs therefore do not have standing to bring these claims. They also expressed the view that there are members of their iwi who are not, but should be, recorded on the lists of owners prepared for the purposes of the Mackay Decisions, which the plaintiffs consider to be complete.
[38] Moreover, should the Court uphold these private law claims, no relief should be granted as the proper beneficiaries of those claims, represented by the Interveners, want and intend to settle those claims as part of their Treaty settlements with the Crown.
[39] In their applications for intervener status the Ngāti Apa and Ngāti Kuia Trusts
said that members of their iwi were wrongly excluded from beneficial ownership of
the Nelson Tenths Reserves at the time of the Mackay Decisions. It would appear that this position involves a denial of the claims of Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa to complete mana whenua over land in western Te Tau Ihu at the time of relevant land dealings between Māori, the New Zealand Company and subsequently the Crown.20 What the Ngāti Apa and Ngāti Kuia Trusts said, therefore, was that if as a result of these proceedings relevant trusts are recognised by this Court, then there are members of their iwi who should be beneficiaries of those trusts. As those contentions were not advanced before me, I am not in a
position to consider them further.
Evidence
Admissibility issues
[40] Given that this case focuses, some 170 years later, on events that principally occurred in the 1840s, and that the plaintiffs assert that a significant private law trust was created by the Crown in 1845 – the terms of which the Crown has failed to comply with since the time of its creation – it is perhaps not surprising that issues relating to the availability and admissibility of evidence were raised. At the same time as I considered the Interveners’ joinder applications in my rulings of
7 December 2010, I also ruled on a number of objections the Attorney-General had to evidence the plaintiffs wished to adduce. Those objections related to the admissibility of evidence foreshadowed in a brief prepared by Mr Paul Morgan and
issues relating to the admissibility of documents in the Mackay Compendium.
20 Ngāti Apa has signed a Deed of Settlement with the Crown. It contains the following statements:
2.12 The New Zealand Company’s original scheme for European settlement provided that one tenth of all land purchased would be reserved for Māori. Commissioner Spain recommended that Tenths Reserves be set aside for Māori in the land the company received. Under the 1840 agreement the Crown was responsible for carrying out these reserve arrangements. In the 1850s the Tenths Reserves
established in Nelson were vested in an endowment trust for the owners.
2.13 The ownership of the Nelson Tenths Reserves was determined by the Native Land Court in 1892. Meihana Kereopa provided the main evidence on behalf of Ngāti Apa and the Kurahaupo tribes. He argued that the iwi had remained in occupation of land in Tasman Bay and Whakatu. However, the Court based its decision on the view that rights of conquest as at 1840 – supported by occupation – was sufficient proof of exclusive ownership. As a result of this determination, Ngāti Apa and other Kurahaupo people were excluded from the income and other benefits derived from the Nelson Tenths Reserves. Ngāti Apa and the other unsuccessful Kurahaupo claimants maintain that this judgment was incorrect.
[41] The defendant objected to Mr Morgan’s brief on the basis that it contained a large amount of inadmissible and irrelevant hearsay and opinion evidence. For the plaintiffs, the position was that Mr Morgan’s evidence, which reflected much oral history relating to the Nelson Tenths’ claims, was admissible either as hearsay, because it would pass the reliability threshold test, or as opinion, because it was expert opinion, and because it was generally relevant. On the question of the admissibility of evidence based on oral traditions, both the plaintiffs and the defendant referred me to very helpful analyses contained in two Canadian
decisions.21 Having considered that material, and relevant New Zealand authority,22
I concluded:23
In terms of the Evidence Act 2006, the admissibility gateways for traditional, oral evidence would appear to involve a mixture of rules relating to opinion and hearsay evidence, and general questions of relevance (probative value). As a matter of principle, and noting the approaches outlined in the various cases referred to, I think it would be surprising if appropriate evidence of oral history was not admissible simply because it did not fit easily within the concepts of hearsay and opinion evidence as it is most commonly dealt with.
[42] Having now heard a range of evidence from traditional, including oral, sources I confirm that view.
[43] By my assessment, the evidence from the plaintiffs and the Interveners – a significant part of which was derived from traditional, oral accounts of the collective histories of whānau, hapu and iwi – was of probative value, albeit deserving of differing weight. The Crown’s objections at the preliminary hearing to that evidence were not raised again. That evidence helped me start to better understand the world of those Māori who were dealing with the New Zealand Company and the Imperial British Crown in the 1840s. That world was, of course, completely different to the world of those who represented the Company and the Crown. The differences between those two worlds were – by common assessment of the witnesses before me
– of such significance as to preclude their being a shared understanding at the time of
the significance of those encounters. As Mr Phillips for Ngāti Rārua put it, for
21 Delgamuukw v British Columbia [1997] 3 SCR 1010 (CSC); Mitchell v MNR [2001] 1 SCR 911 (CSC).
22 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA); Te Waka Hi Ika o Te
Arawa v Treaty of Waitangi Fisheries Commission HC Auckland CP395/93, 17 June 2003;
Takamore Trustees v Kapiti Coast District Council [2003] NZRMA 433 (HC).
23 Wakatu Incorporation v The Attorney-General HC Nelson CIV 2010-442-181, 7 December 2010 at [45].
example, there is no real distinction for Māori between the land (whenua) and the
people (tangata). So how – he asked – could the land be sold?
[44] Similarly the Crown’s original objection to the admissibility – as proof of the truth of its contents – of the Mackay Compendium, and other official reports and published histories, came to nothing at trial. In my ruling of 7 December 2010
I found the Mackay Compendium admissible pursuant to s 129 and also – albeit with less certainty – pursuant to s 141(2) of the Evidence Act 2006. Given the significance of the Mackay Compendium for the plaintiffs and the Interveners, it is appropriate to record that analysis in a little detail. But first, just what is the Mackay Compendium?
[45] Compiled by Alexander Mackay and printed for the Government in New Zealand by G Didsbury, Government Printer, at Wellington in 1871, the object of the Mackay Compendium is described in its introduction as follows:
The purchase of land from the Natives of the South Island, and the settlement of reserves for them, whether effected by the New Zealand Company or by the Government, have led to the accumulation of a mass of documents of great value bearing on the original titles of the different properties acquired for the purposes of European settlement; and it was with a view to preserve from oblivion transactions which had led to the extinction of the Native Title over so large an area, that the Native Minister, Mr. McLean, instructed me to collect and classify papers touching on the subject. Such a work of reference was rendered all the more necessary from the fact that the extension of the negotiations, spreading in many cases over a period of years, necessitated the employment of different officers to conclude, from time to time, the various portions of a purchase. It was therefore, imperative, in order to understand each transaction as a whole, to collate the reports and arrange them in their proper sequence; and this, from the previous state of the scattered documents, could not be done without difficulty.
Notwithstanding the sparse Native population of the Middle Island, many obstacles were encountered in reconciling the conflicting interests of different tribes, and in obtaining, with a clear title the excession of the extensive tracts of territory required for the use of the in-pouring European population. The investigation of the Native claims to lands under treat, involved also the question of the rights of the conquered aboriginal race, as well as those of the conquering tribes.
The reports of the officers intrusted [sic] with the duties of purchasing land from the Native owners, together with other papers, will fully explain the nature of the several negotiations.
[46] The Mackay Compendium includes narratives produced by Mackay himself, copies of various deeds of sale of land and of the voluminous official correspondence which dealt with these issues, together with copies of the various, and numerous, reports prepared relating to land issues in the South, or Middle, Island. It is a fascinating document.
[47] Clearly, however, admissibility is a matter for the Evidence Act 2006.
[48] Section 129 of that Act provides:
129 Admission of reliable published documents
(1) A Judge may, in matters of public history, literature, science, or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.
(2) Subpart 1 of Part 2 (which relates to hearsay evidence) and subpart 2 of Part 2 (which relates to opinion evidence and expert evidence) do not apply to evidence referred to under subsection (1).
[49] Further, s 141(2) of the Evidence Act provides that documents that purport to have been printed or published by authority of the New Zealand Government or by the Government Printer are presumed to be what they purport to be and to have been so printed and published and to have been published on the date on which they purport to have been published. Section 141(5) goes on to provide that subpart (1) of Part 2 (relating to hearsay evidence) does not apply “to evidence offered under the section”.
[50] At the hearing of the Attorney’s objections in November last year the plaintiffs relied on those provisions, and especially s 129, to submit that the Mackay Compendium was to be considered by me as a reliable source of information on the subjects to which it relates, and admissible as proof of the truth of its contents.
[51] The Attorney took a more limited view of the admissibility provided by s 129 and s 141. As regards s 129, admissibility for truth of contents was limited, in the case of the Mackay Compendium, to documents authored by Mackay himself, and not to the contents of other documents which were simply copied. As regards s 141, it was Mr Goddard’s submission, in essence, that the section only established the
authenticity of a document. On that basis, where s 141(5) refers to “evidence offered under the section”, it was essentially referring to the evidence of authenticity provided by the section, and not to the content of the documents themselves.
[52] As I observed to similar effect, but somewhat more cautiously, in my ruling of 7 December, I am now quite satisfied that the admissibility pathways provided by s 129 and by s 141 are not limited in the manner Mr Goddard submitted.
[53] As regards s 129, the question for the Judge is whether he or she considers the relevant documents to be “reliable sources of information on the subjects to which they respectively relate”. If he or she does, then the document is admissible. In my view that indicates that, as so admissible, it is admitted not simply as being an authentic document, but one which may be relied on to support propositions of fact. Similarly, as regards s 141, I note that pursuant to s 141(2) a document is presumed to be authentic. Given that, I cannot see how s 141(5) could serve any purpose if it was limited in the manner Mr Goddard submits. Although not referred to by counsel in submission (as best as I recall), or by me in my ruling, those findings are I consider consistent with the analysis of the precursor to s 129, s 42 of the Evidence
Act 1908, in Te Runanga o Muriwhenua Inc v Attorney-General.24
Waitangi Tribunal historical accounts
[54] In the course of his evidence, Professor Williams observed on at least one occasion that it needed to be understood that historical accounts produced by historians for parties bringing their grievances to the Waitangi Tribunal were, and were expected and understood to be, in part at least, advocacy of those grievances. I think it is appropriate to record that observation. The Professor makes a similar
observation in his recent book A Simple Nullity.25 I also note that cross-examination
of witnesses for the plaintiffs, Interveners and the Attorney did on occasions reveal the perhaps not unrelated phenomenon that the views expressed by witnesses in
previous accounts were not necessarily those they had expressed in this case in their
24 Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 (CA) at 653 ff.
25 David Williams A Simply Nullity?: The Wi Parata case in New Zealand Law and History
(Auckland University Press, 2011)
evidence-in-chief. In my assessment, those are matters that, at the end of the day, go to the weight to be given to the evidence of relevant witnesses.
An overview of the evidence before the Court
Oral evidence
[55] I heard oral evidence over some five weeks. For the plaintiffs, evidence was provided by:
(a) Mr Paul Morgan (Paul Te Poa Karoro Morgan) Chairman of Wakatū and, on his father’s side, of Ngāti Rārua;
(b)Lynne Stafford, married to the second plaintiff Rore Stafford and, through that relationship, involved in the affairs of that whānau and of Wakatū;
(c) Michael Ingram, the property manager of Wakatū, of Te Ātiawa and
also Te Arawa;
(d) James Wheeler, Deputy Chairman of Wakatū, of Te Ātiawa;
(e) Rōpata Taylor, an executive member of Wakatū and, on his father’s side, of all the four Tainui-Taranaki iwi: Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa, as well as having connections to the Kurahaupo iwi Ngāti Apa and Ngāti Kuia.
[56] Messrs Morgan, Wheeler and Taylor, and Ms Stafford gave their evidence as members of particular whānau and hapu who today, by their description, hold ahi kā rights, that is who are tangata whenua, in western Te Tau Ihu. As such, they spoke of their traditional understanding of the events which formed the basis of the plaintiffs’ claims. They spoke also of the participation by those groups in the Mackay hearings and of their efforts, over time, to – as Mr Morgan put it – achieve one main objective: the development of their lands, water and resources “for the benefit of the owners and ahi kā so that we can live and prosper as a people in accordance with the
vision of our tupuna when they agreed to welcome European settlement”. More
particularly:
(a) Mr Morgan provided a detailed narrative of the arrival of the Tainui- Taranaki iwi in western Te Tau Ihu. He emphasised the significance of whānau and hapu groupings as the collective groups holding mana whenua at the particular locations. He spoke of the creation of the Te Kāhui Ngahuru Trust and the Ngāti Rārua Ātiawa Iwi Trust. In terms of the overall narrative of the encounters between Europeans and Māori in western Te Tau Ihu, he described the Motueka area, including the very significant “Big Wood”, “Te Maatu” near modern day Motueka, as the “melting pot” for interactions between Māori and Europeans. This observation is important as it is in that area the plaintiffs say a significant part of the Diminution occurred when – responding to pressures on the ground – suburban sections originally comprising part of the Nelson Tenths Reserves were exchanged for suburban sections in that area which, although actually occupied by Māori, had been allocated to settlers, thus avoiding a real source of tension between Māori and those settlers.
(b)Ms Stafford’s evidence spoke of the history of her husband Rory Stafford’s involvement in the affairs of Wakatū and the broader issues relating to the Nelson Tenths Reserves.
(c) Michael Ingram, Property Manager of Wakatū, provided detailed evidence which compared the land transferred to Wakatū in 1977 with the original Nelson Tenths Reserves.
(d)Mr Wheeler’s evidence related to the interests of his whānau at Motueka, particularly as coming through his great-grandmother and his grandmother, not only relating to the whānau’s interests in the Nelson Tenths Reserves, but also to their individualised entitlements to occupation reserve land;
(e) Mr Rōpata Taylor’s own whakapapa links show the close interrelationships between all iwi groups in Te Tau Ihu, which makes these matters so complex. That complexity is, in my view, reflected by the fact that the Taylor whānau brought a claim in that capacity to the Waitangi Tribunal regarding land that had been vested in Wakatū. To emphasise the importance of whānau and hapu as tangata whenua, Mr Taylor’s evidence covered the history of his own family as they had, over time, lived at various places in Te Tau Ihu, and – in that narrative – the importance of the Pounamu Pā at Motueka and of Marahau for them. There, as in other areas, lands originally selected as part of the Nelson Tenths Reserves were later designated as occupation reserves for his family.
[57] Professor David Williams gave expert evidence in his capacity as a professor of law and an eminent legal historian.
[58] Dr John and Hillary Mitchell, who have made their life’s work the history of the tangata whenua of Te Tau Ihu, gave evidence, particularly on the question of who held the customary interests in land throughout the relevant period. They also undertook considerable new analysis of the lists prepared for the purposes of the Mackay Decision. Dr John Mitchell is of Ngāti Tama and Te Ātiawa.
[59] For the Interveners Ngāti Kōata and Ngāti Rārua, evidence was given by:
(a) Roma Hippolite, a member of Ngāti Kōata and chairperson of Tainui Taranaki Ltd and a “very small shareholder” (his own description) in Wakatū;
(b) Lorraine Eade of Ngāti Rārua; and
(c) Arthur Phillips of Ngāti Rārua
[60] Mr Hippolite’s evidence acknowledged Ngāti Kōata’s general support for the merits of the claims the plaintiffs advance. At the same time, however, he emphasised Ngāti Kōata’s early arrival in Te Tau Ihu – relative to the other Tainui-
Taranaki iwi, in terms of a tuku – or gift or pledge – of land from Tutepourangi to Ngāti Kōata following the Waiorua battle on Kapiti in the mid 1820s. Importantly, he emphasised the role of iwi then and now as the proper representatives of the people and that, in contrast, Wakatū was a legal entity which represented a sub group of entitled people as regards their individualised interests in land which had originally comprised part of the Nelson Tenths Reserves.
[61] Mrs Eade spoke of her involvement in the Ngāti Rārua iwi trust and of her understanding of the history of the claims made to the Waitangi Tribunal arising out of events in Te Tau Ihu. She expressed some views on the tension between the individualised title recognised by law as a result of the Mackay Decisions and subsequent actions, and the traditional communal, or collective, title that hapu and iwi leaders had had the responsibility to look after for the people.
[62] Mr Phillips set out aspects of the Ngāti Rārua traditional historical accounts.
[63] As matters transpired, witnesses who had provided statements of evidence for the purpose of the intervention applications, and who had been intended to give evidence before me, did not do so. As I understood matters, that reflected tensions and sensitivities within and between the various parties to this litigation.
[64] For the Crown, evidence was given by three historian witnesses:
(a) Dr Ashley Gould, who had written a report on the New Zealand
Company for the Waitangi Tribunal’s Te Tau Ihu inquiry.
(b)Mr James Parker, who is senior historical researcher at the Crown Law Office and who provided a comprehensive brief recording, in great detail, the history of the land comprising the Nelson Tenths Reserves.
(c) Professor Alan Ward, another pre-eminent legal historian.
[65] The transcript of that evidence runs to some 1,900 pages, noting that the transcript does not include the briefs as read, albeit generally only in part and then in a summarised form.
[66] In this overview I have endeavoured to give something of the flavour of the evidence I heard, particularly from the plaintiffs’ and the Interveners’ witnesses. Towards the end of the case, Mr Castle for Ngāti Kōata and Ngāti Rārua asked that I take care to properly record the traditional history that had been put in evidence before me. I say at once that I have not tried to do so. Such a task is simply beyond the scope of this judgment. It has already been done or at least attempted by the Waitangi Tribunal, a body with far more expertise than me. But no disrespect should be taken from my decision not to do so. I have, however, endeavoured to capture the gist of that evidence and to reflect it in my discussion of the issues raised by this case. In doing so, I consciously decided not to refer by name to anyone other than the witnesses themselves. Much of the traditional evidence I heard was, of course, concerned with important persons whose names today carry, by mere mention, much knowledge, history and significance. I decided, however, not to refer to such persons by name as, inevitably, I would have been able to refer to some only, and not all.
Documentary evidence
[67] By the end of the case, the common bundle comprised some
30 (approximately) Eastlight folder equivalents. I was provided with a map book that included copies of over 30 original, or parts of original, survey maps dating back to the earliest days of the Nelson settlement. Many of these are, in their own right, works of considerable artistic merit, to say nothing of their historical value. I was, in addition, referred to the three volume Te Tau Ihu report of the Waitangi Tribunal, that Tribunal’s Te Whanganui a Tara me ona Takiwa (Wellington District) report, the three volume history of Te Tau Ihu prepared by Hillary and John Mitchell, and Edward Jerningham’s work of diary and propaganda, Adventure in New Zealand.
[68] I have already mentioned the range of previous inquiries. The narratives and findings of those inquiries were included in the common bundle, and were referred to by many of the witnesses from time to time.
[69] The Interveners also provided the Court with material of particular significance to a proper understanding of their histories generally, and more specifically their role in these matters. Ngāti Rārua lent to the Court the taonga
which is their copy of the Mackay Compendium. Ngāti Rārua also produced taonga comprising the written manuscripts of Tinirau Piripi (Uncle Tinni as he is known to Ngāti Rārua) which record efforts of Ngāti Rārua in the 1920s to address the issue of the Nelson Tenths, and the “Red Book’ authored by Mr Arthur Phillips and others recording Ngāti Rārua’s history more generally.
[70] I acknowledge all those sources of information and evidence.
[71] A statement of agreed facts prepared by the Crown in consultation with the plaintiffs became a most helpful document. It set out the commonly accepted narrative of the complicated interwoven events in England and in New Zealand from April 1839 onwards to Mackay’s Decisions in 1893.
[72] More than a little overwhelmed by that vast range of information and evidence, I asked the plaintiffs and the defendant to separately nominate what they considered to be the 20 most important documents from the historic record. Appendix I to this judgment sets out those lists. As can be seen, there was a considerable degree of commonality, the combined “Top Twenty” containing some
30 documents. As the plaintiffs submitted in closing, and for the purposes of this case and with one or two notable exceptions, most of the facts I need to consider are recorded in that statement of agreed facts and the combined “Top Twenty” documents, to which I have just referred.
[73] Against that background, I will now record what I consider to be the relevant factual context for the claims the plaintiffs advance in this case.
The factual context
The tangata whenua of western Te Tau Ihu in 1839 and the immediately succeeding years
[74] I heard a great deal of evidence on the related questions of who were the tangata whenua of Te Tau Ihu in the period 1839 to 1845 and of the origins, and significance today, of the lists of the beneficial owners of the Nelson Tenths
Reserves produced in 1892, 1893 and 1895 for the purposes of the Mackay
Decisions.
[75] The traditional evidence from witnesses for both the plaintiffs and the Tainui- Taranaki Interveners provided me with an understanding of the significance of the various migrations, or heke, of the 1820s and 1830s undertaken by the Tainui- Taranaki people which brought them to western Te Tau Ihu. As explained to me, Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa did not move to Te Tau Ihu en masse. Rather particular whānau and hapu, or sections of particular whānau and hapu, from those iwi settled in a staged series of heke, with land allocated in various locations as different groups arrived. They acquired customary title through a combination of take raupatu (conquest), take tuku (gift)) and take ahi kā roa (keeping the fires alight, occupation) and in other recognised traditional ways.
[76] The Mitchell’s more detailed evidence was that by 1839 the pattern of mana whenua in Te Tau Ihu was dictated by the pattern of settlement, in which each kainga (village) was established around a chief or chiefs and each kainga was home to extended whānau, with most residents at each kainga related to the chief by blood or marriage. The whānau or hapu (an extended whānau or cluster of whānau could equally be described as a hapu) tended to establish themselves at locations where their neighbouring communities were relatives and/or close allies.
[77] Thus, whilst it was true that Ngāti Kōata, Ngāti Rārua, Ngāti Tama and Te Ātiawa were the iwi who held mana whenua in the Nelson settlement district in the early 1840s (and still do), it was important to recognise that not all whānau and hapu of those iwi had those mana whenua rights and responsibilities. For example, in Motueka not all Te Ātiawa and Ngāti Rārua whānau had mana whenua rights and responsibilities there, as the Ngāti Rārua-Atiawa Iwi Trust example illustrates.26
Conversely, there were Te Ātiawa people from Motueka, such as Mr Taylor, who had
26 The Ngāti Rarua-Atiawa Iwi Trust was established by empowering legislation of the same name to receive lands comprising assets of the Whakarewa School Trust Board, a significant part of which had originated as Nelson Tenths Reserves. That it was the Ngāti-Rarua-Atiawa Iwi Trust that received those lands in 1993, and more specifically descendants of members of those iwi whose names were listed in the list prepared for the Mackay Decisions, reflected that pattern of settlement and manawhenua rights.
no cultural affiliation or ahi kā rights or responsibilities to Waikawa in eastern Te Tau
Ihu.
[78] The Mitchells also gave evidence that, in western Te Tau Ihu, the Company – following Captain Arthur Wakefield’s arrival in 1842 – and the Crown – in the person of Spain in 1845 – dealt exclusively with chiefs and others affiliated with Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa who had conquered and occupied the Nelson settlement land. That evidence was not seriously challenged by Crown witnesses.
[79] For the plaintiffs and the Tainui-Taranaki Interveners, the position was that those people were the tangata whenua, and not the conquered and displaced Kurahaupo iwi.
[80] At the end of oral argument I asked the parties to provide me with an overview of Māori occupation within western Te Tau Ihu from Rangitoto west by reference to location and iwi/hapu affiliation. As a result I was provided by the plaintiffs and the defendant with a list, which appears as Appendix 2 to this judgment. As can be seen, hapu and whānau of those four iwi were living at locations throughout that area. The basis of the preparation of that table is reflected in notes I have appended, which formed part of the minute in which that table was provided to me. That list had not been confirmed by counsel for the iwi Interveners at the time it was filed. They were, however, to file a further memorandum if required. They did not do so.
[81] More specifically the plaintiffs’ case – as to the people for whose benefit the express trust of the Nelson Tenths was established – was based on Mackay’s (1892 and 1893 Māori Land Court) Decisions.
[82] In his 1892 decision Mackay – in response to an application by the Public Trustee under s 16 of the Native Reserves Act 1892 – first identified the hapu whose members were beneficially entitled to “the New Zealand Company’s Sections situate in the City of Nelson and the suburban Districts of Moutere and Motueka”, and the respective interests of those hapu. Mackay determined that the Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa hapu held customary sway in western Te Tau Ihu.
Ngāti Toa did not as, though a conqueror, they had not occupied and cultivated there, but rather at Cloudy Bay and Pelorus. Ngāti Kuia and Rangitane did not, as their rights had been “entirely extinguished” by the conquest by Te Rauparaha and his allies. Having made that determination, Mackay requested the four hapu to furnish lists of the persons being “the survivors of the Vendors, including those who are deceased” so that the identity of individual owners and their proportionate shares could be determined. Ultimately three separate lists were prepared in 1892, 1893 – incorporated into Mackay’s Decision of that year – and 1895. Mackay’s second
judgment in 1893, at least as provided to me,27 appeared to have used the 1893 list to
enumerate individual beneficial owners and their proportionate shares. But, as matters transpired, it was the 1895 list, containing 254 names, that in the words of the Mitchells:
... became the starting point for all subsequent determinations of succession, first to validate the genealogical claim, and then to calculate the successors’ proportionate interest.
Since 1977, when ownership of the Nelson Tenths estate and the administration of the register of the Nelson Tenths Reserves owners transferred from the Māori Trustee to Wakatū Incorporation, the 1895 List of
285 names and their proportionate interests still stands, and will always stand, as the basis for determining succession to individual shareholdings in
the Incorporation. The proportionate shareholdings of whānau trusts,
established to represent some collectives of shareholders in Wakatū
Incorporation, is similarly determined by the individual proportionate interests of the trust beneficiaries.
[83] Those matters were of considerable importance given the way the plaintiffs originally articulated their express trust claim, namely that pursuant to that trust, beneficial ownership of the Nelson Tenths Reserves vested in 1845 in individual beneficiaries as private individualised property, rather than as collective or customary property. It was therefore necessary for the plaintiffs to establish that, at least as recorded in the 1895 list, the 254 tupuna were all those individual beneficial owners. As already noted, as finally articulated, the trust of the Nelson Tenths was said to involve land being held as a permanent endowment on discretionary trusts for the benefit of those whānau and hapu of Ngāti Kōata, Ngāti Rārua, Ngāti Tama and
Te Ātiawa who held mana whenua over land sold to the New Zealand Company in
27 The Mitchells in their evidence questioned whether Mackay had attached to his 1893 judgment a list of individual beneficial owners and their proportionate entitlements. The copy of that judgment included in the “Top Twenty” appeared to do so.
western Te Tau Ihu as recognised and validated by Spain’s 1845 Crown Grant. The question, therefore, of certainty as regards the identity of individual beneficial owners of vested, proportionate shares, largely fell away. In my view, and as I think was accepted, if it was good enough for the New Zealand Company or the Crown to acquire the land in question from the traditional owners pursuant to transactions in the late 1830s and early 1840s, then by the same token a discretionary trust could in principle be created for that class of persons as regards part of the land so conveyed. The question became whether the plaintiffs had established that was, as a matter of fact and law, what the Crown had done. Much of the very detailed evidence of hapu and iwi membership became, in that context, of considerably less relevance than had at one point appeared to be the case.
[84] None of this evidence, therefore, would have been especially controversial in this case were it not for one matter. That is, findings of the Waitangi Tribunal in its Te Tau Ihu o te Waka a Maui report on the question of customary rights in western Te Tau Ihu are, amongst the parties to this litigation at least, controversial. As relevant, and very much in summary, the Tribunal at 9.6.3(2)(e) concluded:
It follows ... that we consider that Ngāti Rārua, Ngāti Tama, Te Ātiawa, and Ngāti Kōata had the strongest customary interests as at 1844. The rights of the first three tribes were based on take raupatu, followed by itinerant resource use, residence, and cultivation, and by the beginnings of intermarriage with the defeated peoples and the burial of placenta and the dead in the land. The rights of Ngāti Kōata were derived from take tuku, and from itinerant resource use, occasional residence in the company lands, intermarriage, and burial of the placenta and the dead in the land.
The Kurahaupo tribes had surviving rights despite their defeat, and the potential for them to recover and strengthen with every year ... Their right to continue peacefully recovering from the ‘conquest’ was, as with the Ngāti Toa right to take up ahi ka, foreclosed by the Spain decision of 1844 and the Crown grants of 1845 and 1848.
[85] I cannot, as a matter of history or customary law, resolve the debates that that finding has engendered. What I can say, however, is that on the basis (I emphasise) of the evidence presented to me, I consider that whatever the traditional rights or wrongs of that approach may have been, the New Zealand Company and the Crown as a fact dealt with whānau and hapu of the four Tainui-Taranaki iwi Ngāti Kōata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa, when land for the Nelson settlement was acquired. Accordingly, if a private law trust was established for Māori on whose
behalf that land had been “sold” to the New Zealand Company in the early 1840s, then it was those Māori who – as a matter of private law at the time and as “vendors”
– would have been the beneficiaries of any such trust.
1839-1856: The creation of the Nelson Tenths Reserves
[86] The plaintiffs’ case focuses on what they describe as the crystallising effect of the 1845 Crown Grant: that is, in the context of Company and Crown commitments to Māori of western Te Tau Ihu made during and since Colonel Wakefield’s first encounters with Māori in the Cook Strait area in 1839, the 1845 Crown Grant established the (private law) trusts of the Nelson Tenths. Irrespective of the legal characterisation of these events, by 1856 – when the first native reserves legislation
was passed28 – reserves had been created in Nelson/Wakatū, and the wider western
Te Tau Ihu area, which then and since have been known as the Nelson Tenths Reserves. Those reserves are, again as a matter of fact and whether or not a trust ever came into existence, clearly traceable to the place of reserves in the New Zealand Company’s colonising plans. I will set out the narrative of those matters – as relevant to this case – under three subheadings:
(a) the origins of the Company’s plans for reserves;
(b) the origins and significance of the 1845 Crown Grant; and
(c) the Nelson Tenths Reserves from 1845 to 1856.
The origins of the Company’s plans for reserves
[87] By the time the Tory set sail for Cook Strait in May 1839, plans to settle New Zealand had been afoot for some time. From the outset, the creation of reserves for Māori were a key element of those plans. The concept of reserves was not new. Reserves had featured in many of the British Empire’s colonising activities. But the Company’s tenths scheme can be seen as deriving from the ideas of the
Reverend Montague Hawtrey, a humanitarian supporter of systematic colonisation.
28 The Native Reserves Act 1856. An earlier attempt at legislation in this area, the Native Trust
Ordinance 1844, never came into force.
Hawtrey argued for making indigenous peoples “equal in the field” with the colonists. Land would be reserved for the chiefs and their families. The interspersing of those landholdings among settler holdings was crucial. Hawtrey appears to have envisaged that title would descend by primogeniture and that a Māori upper class would emerge alongside landed settlers.
[88] Edward Gibbon Wakefield’s 1837 treatise, The British Colonisation of New Zealand, Being an Account of the Principles, Objects and Plans of the New Zealand Association, recorded and drew on those views. In their 1838 Bill for the Provisional Government of British Settlements in the Islands of New Zealand (The Baring Bill), Francis Baring and Sir George Sinclair record an early expression of the then New Zealand Association’s colonising ambitions. In very broad terms, members of the New Zealand Association would be vested as Commissioners with powers of government in New Zealand. Clause 29 of that bill, in Jellicoe’s description “opposed by the Ministry and thrown out in the House of Commons by a large majority”, provided for the Company to create reserves of land for natives because it was desirable:
... that the former native owners of lands within ceded territories should continue to possess landed property within British settlements, in order that they may preserve in civilized life a relative superiority of condition over the lower orders of inhabitants of the native race.
Such lands were, clause 29 went on to provide, to:
be held on such trusts for such native owners as aforesaid, and their families and descendents, by such persons, and in such manner, for their or some of their behalf, as the said Commissioners, with the approbation of the said Protector of the native inhabitants, shall from time to time direct.
[89] Those ideas found expression, as indicated at the outset of this judgment, in the New Zealand Company’s instructions to Colonel William Wakefield on his departure for New Zealand. In those instructions the Company acknowledged that Māori would benefit little, if at all, from either of their initial sales of land to, or first contacts with, settlers. Indeed, those instructions note “If the advantage of the natives alone were consulted, it would be better, perhaps, that they should remain for ever the savages that they are”. Moreover, the land to be acquired from Māori was, before the economic impact of colonisation, worth nothing more than a trifle. The
[302] Thus, by my assessment, when Spain was carrying out his inquiries he was mediating competing interests: to the extent therefore that he arranged for “exchanges” of land prior to the recommendations he made in his 1845 report, I do not think those actions can be categorised as a breach of fiduciary duty. At that point, I do not think such a duty could exist.
[303] So, the question at this point becomes to what extent was the Crown acting pursuant to that right as regards the customary land in question here? Clearly, the end point of such action would, in general terms and as the Crown was not
purchasing for itself, be the issue of the grant which extinguished customary title. That occurred either with the issue of the 1845 or the 1848 Grant. The Crown says the 1845 Grant never came into effect. But I am not sure that matters here. I say that for the following reason. At least as I understand it, after the 1848 Grant the Crown did not purport further to exercise its right of pre-emption as regards the Tenths Reserves land recognised by that Grant. On that basis I conclude that, as regards that land, from at least 1848 onwards the Crown was “free” from the contextual influence that in exercising the right of pre-emption it must necessarily balance the interests of Māori, from whom land is being acquired, and of those claiming to have made pre-1840 purchases and, more generally, of the broader population which the Crown represented. Thus, dealings after 1848 with the Nelson Tenths Reserves recognised by the 1848 Grant would be, by the Crown’s own case as that Grant was effective to extinguish customary title, free from that influence. Nor did I understand that, as a matter of fact, the 47 town sections removed in 1847 from the Tenths Reserves recognised at the time of the 1845 Crown Grant were ever subsequently “acquired” by the Crown as part of the process of “tidying up” the
Crown’s title to land that I now understand took place throughout the 19th century.
Thus, from 1845 onwards the Crown’s dealing with the land recognised in the 1845
Grant as reserve land can be seen as not being affected by the Crown’s right of pre- emption. But that does not, in and of itself, mean the Crown was a fiduciary for Māori as regards its dealings with that land.
[304] By their own terms, each of the 1845 and 1848 Grants reserve land – they save and except it, and except and reserve it, from the land granted to the Company. In the 1848 Grant the land is referred to generically as native reserves. No concept of trust is referred to. Moreover, I do not think the concept of a reserve for Māori in and of itself points to a fiduciary obligation for the Crown as regards the land reserved. By 1845, the 1842 arrangements made for the administration of those reserves in Nelson (albeit a point in time when Māori title to that land had not been extinguished) had fallen into disuse. It is Superintendent Richmond, in his capacity as such, who in 1847 gave effect to the surrender of town reserve sections associated with the “reduction” of the size of the town. Matters were somewhat regularised in
1848 with the appointment of Pointer, Carkeek and Tinline as a Board of
Management. Their job was to examine and inquire into the present state of those
reserves and to make such steps as they considered just and equitable to promote the regular increase of a fund from those reserves. Any recommendations that that Board made had to be approved by the Superintendent himself. Any proceeds of the reserve were to be paid into the local treasury under the head of the “Native Reserve Fund” to be kept distinct from the ordinary revenue.117
[305] By 1 July 1853 that Board of Management had been replaced by the Commissioner of Crown Lands in Nelson. That would appear to have remained the position until the enactment of the Native Reserves Act 1856 on 6 August that year, and the appointment of Dommett, Pointer and Brunner as Commissioners of Native Reserves for the Nelson District pursuant to that Act on 1 December that year. That legislation provided, amongst other things, for Commissioners to dispose of land, subject to the consent of the Governor. If, after that point in time, any fiduciary duty could be said to exist, in my view it would have to be found in the provisions of that legislation.
[306] But the plaintiffs made no argument that the source of a relevant fiduciary duty was those statutory provisions. Given the significance of s 18(1) in the Canadian context, on reflection I find that a little surprising. That may reflect the plaintiffs’ concentration on the crystallising effect of the 1845 Crown Grant and the associated argument that supervening legislation or Crown grants had not extinguished the equitable entitlements created by the 1845 Crown Grant. As regards that latter argument, the plaintiffs relied on authority (Ngati Apa in particular) that Māori interests in land could be extinguished by Parliament only if it legislated in the clearest possible terms to that effect. But that principle, as I understand the cases, refers to customary interests in land. What is clear is that the interests the plaintiffs have, and that their predecessors had, in the Nelson Tenths Reserves are not customary interests, but rather creatures of English (New Zealand) law. My conclusion is that, from 1856 onwards, those interests were governed by the successive statutory regimes relating to native reserves (including the Nelson
Tenths Reserves) and that therefore the nature and extent of Crown (other than
117 Letter from Colonial Secretary to Superintendent of Nelson 21 January 1848. The letter refers to certain expenditures that had been previously made “in anticipation of the funds of the Trust” and the necessity for those obligations to be borne in mind.
Treaty) obligations would fall to be established by reference to those successive schemes.
[307] The focus therefore becomes the period between 1845 and 1856. In my view, it is in this period that the argument for a particular fiduciary duty is strongest. During this period the Nelson Tenths Reserves town sections were reduced from 100 to 53; exchanges were agreed by the Board of Management in 1849 and the Tenths Reserves were further reduced when in 1853 429 acres were provided for the school at Whakarewa. Those actions are not affected by the nature of the Crown’s role when exercising its pre-emptive right, which I consider counts against the existence of a duty of absolute loyalty to Māori. Those actions occurred before the establishment in 1856 of the explicitly statutory regime created by the Reserves Act of that year. The more I have thought about it, the more it seems to me that the Crown could not have been acting in a vacuum, in terms of some form of enforceable legal accountability to Māori, during that period.
[308] Having said that, however, I find it hard to reconcile what I understand to be the factual realities, namely the very imperfect and incomplete arrangements which developed over time whereby reserves, including the Nelson Tenths Reserves, were recognised and administered, with the concept of there being in existence at the same time a fiduciary duty owed by the Crown to Māori as regards the administration of those reserves. By my assessment, the whole process of administering native reserves did, in the situation that existed at that time, in fact involve the consideration of the competing interests of the settlers of the Nelson area. Clearly, the plaintiffs are arguing that as regards the Nelson Tenths Reserves those interests were not a legitimate consideration for the Crown and should not have factored in its thinking. Rather the Crown should have concerned itself solely with the interests of local Māori in the reserves that had been identified, and in the preservation and inalienability of those reserves. Yet, when the legislative arrangements were put in place, the Native reserves were not inalienable and a considerable degree of flexibility was given to the administrators in determining what was or was not a proper use of those reserves.
[309] Balanced against those considerations, however, there is a clear point of similarity with the context in Canada which has given rise, at least as I understood the cases put before me, to a sui generis fiduciary duty: that is, it applies as regards land that had been recognised as a reserve. That is also the situation here. That is, at least as I consider it can be conceptualised, once the Nelson Tenths Reserves had been recognised then it can be argued that the need for the Crown to “balance” competing interests had ceased. That is, the balancing, undertaken in the process whereby Crown grants were made, had resulted in a recognition of reserves. Thereafter, the fact that the Crown was government did not prevent it from acting as a fiduciary for Māori, as no-one but Māori had an interest in the recognised reserves. Moreover, there would appear to have been public recognition at the time – as reflected in the comments of the Nelson Examiner referred to at [113] – of the outcome of the selection process and of the position of local Māori as significant beneficial landowners in the new settlement.
[310] I conclude, therefore, that there is in this timeframe a set of circumstances in existence in the context of which the Crown’s strongest argument, namely that to recognise private law duties would be fundamentally incompatible with its role as government, does not have force. But that very time and fact specific argument was not the one which the plaintiffs made, nor one which the Crown responded to. I therefore feel some hesitation in taking it further myself. Moreover, there is the whole question of standing to be considered. If the plaintiffs do not have standing to pursue such a claim, then I can take it no further.
Standing
[311] As the plaintiffs themselves accepted and acknowledged in their closing submissions, the fiduciary duty they argued for was one owed to the hapu/whānau from whom the land was acquired, that is the customary and collective groups who had aboriginal title or mana whenua over the land. The position had moved on considerably, therefore, from the position at the start of the trial when Wakatū, as an incorporation of the current owners of individualised beneficial interests originally held by the persons shown in the 1895 list, argued that as it represented those owners, it had standing to enforce a trust that had originally been created for the
persons on that 1895 list. Reflecting that change in focus, the plaintiffs therefore submitted that the Tenths Owners, as that term was defined in the pleadings by reference to the 1893-1895 lists, were those “hapu/whanau”, albeit their successors comprised in a modern day entity as a direct result of the laws and policies of the Crown. Wakatū, therefore, had standing.
[312] I do not accept that argument. Wakatū is a statutory incorporation, comprising those persons who are the owners of private and individualised beneficial interests in land vested legally in Wakatū. The objects of Wakatū as an incorporation are to use, manage and administer any land or interests in land for the time being vested in or owned by the incorporation. Wakatū is not itself a customary, collective group, albeit that many, but not all, of its members are persons who do belong to the relevant customary, collective groups.
[313] I acknowledge the contest, essentially between Wakatū and the Interveners, as to who are the relevant customary, collective groups. The Interveners’ argument was very much that the iwi they each represent are those groups. The plaintiffs’ claim, based particularly on customary evidence as to the pattern of mana whenua in western Te Tau Ihu, was that the relevant customary and collective groups were comprised of whānau and hapu groupings which differed from location to location across the area. They argued that the term iwi as it was now used described a larger
and broader group than would have been referred to by that term in the 19th century.
The Interveners contested that claim as well. I am not well qualified to resolve that dispute. Based on the evidence I heard, my sense is that even if the plaintiffs are correct in that mana whenua or ahi kā rights are particularised from location to location in whānau and hapu groupings, that nevertheless those groupings enjoy and exercise those rights as part of a larger collective, which in the 19th century and now is properly referred to as the iwi represented by the Interveners. Be that as it may, what is clear to me is that as a matter of private law Wakatū simply does not represent those interests: rather it is an incorporation comprising individuals in their
capacity as holders of individualised property rights, even though those rights do derive originally from membership of customary groups. But in my view Wakatū does not represent those customary groups. Therefore, Wakatū does not have standing to pursue the claim articulated in these proceedings: that the Crown owed a
particular fiduciary duty to the customary collective groups holding mana whenua in western Te Tau Ihu in the 1840s. I acknowledge that, over time, Wakatū has seen itself as an entity able to protect and promote broader issues relating to the Nelson Tenths. But it was a tension in this case from the outset that an entity established to bring together individualised, English law, legal interests in land should contend that it was the appropriate plaintiff to bring a customary, collective claim.
[314] I think it is also important, when considering standing in this case, to recognise that standing is not simply a matter raised by the Crown, as defendant, but also by the Interveners. The Interveners are modern collective entities. There are clearly ongoing debates and tensions as to the extent to which such modern collective entities can and do represent groups with separate identities within the
overall collective.118 Reference was also made during the case to the tensions
created within collective groups by the Crown’s “large natural grouping” policy, a matter which has also been commented on in the Haronga decision.119 I also acknowledge the commitment and care with which the Mitchells have researched the whakapapa of the Tainui-Taranaki iwi of western Te Tau Ihu and, as part of that, the history of the land now legally vested in Wakatū for its beneficial owners, the members of Wakatū. Notwithstanding those considerations, I have reached the view
that Wakatu did not have standing to bring the claim articulated here.
[315] In my view, it is also very clear that the third plaintiffs do not have standing. I think it is sufficient here to observe that merely by creating a trust a settlor cannot vest in that trust property that is not the settlor’s to vest. Therefore the third plaintiffs could not say that part of the property they held on trust comprised the property, that is the chose in action, that is the right to bring these claims against the Crown.
[316] Mr Stafford individually is a member, and kaumatua, of two of the customary groups (Ngāti Rarua and Ngāti Tama) whose interests the plaintiffs asserted. As regards the breach of private trust, as a member of the beneficiary group (namely a
descendent of the customary owners of land when that land was acquired in the
118 See John Dawson and Abby Suszko “Courts and Representation Disputes in the Treaty
Settlement Process”, (2012) 1 NZL Rev 35.
119 Haronga v Waitangi Tribunal [2011] NZSC 53.
1840s) Mr Stafford would have had standing. The position is different as regards the claim for breach of fiduciary duty: if there is such a duty, in my view it is owed – as I think the plaintiffs accepted – to the relevant customary groups. There is no evidence that Mr Stafford represents those groups in this proceeding. If the argument is that those groups are not properly represented by the Interveners, then the appropriate course would have been to undertake some form of application for representative status. No such application was made. I therefore conclude that Mr Stafford did not have standing to bring the breach of fiduciary claim that, by my assessment, is the strongest claim that the plaintiffs identified. Be that as it may, it is appropriate to recognise Mr Stafford’s enormous and lifelong commitment to these matters. In saying that, I also recognise the commitment of the Interveners who, in a situation of some internal stress within these closely related groups of people, sought to promote the interests they considered would best advance their member’s position.
Limitation
[317] As all acknowledged, the question of the applicability of the Limitation Act
1950, and relevant common law and equitable principles is fraught with difficulty. I do not propose to add to this overly lengthy judgment by endeavouring to resolve those difficult questions when that is not now necessary.
Result
[318] The result is that the plaintiffs have not established any of the six causes of action pleaded and are accordingly not entitled to relief.
[319] There was no discussion of the question of costs. If any issue of costs arises, I suggest a joint memorandum be filed setting out an agreed approach to resolve that issue.
“Clifford J”
APPENDIX 1
Plaintiff’s’
Doc. No. Plaintiffs’ “Top Twenty” documents
DateDef's doc? (& No.)
1 Instructions from NZ Company to Colonel
Wakefield 29 April 1839 No
Kapiti & Queen Charlotte Deeds 25 October 1839
5 November 1839
Yes (2)
Yes (3)
3 Evidence of Edward Gibbon Wakefield and
John Ward to Select Committee of New
Zealand 13-17 July 1840 Yes (7)
4 Instructions from NZ Company to Halswell 10 October 1840 Yes (8)
5 1840 Agreement 18 November 1840 Yes (4)
6 NZ Company Terms for Purchase of Lands
in Second Settlement (Nelson prospectus) 15 February 1841 Yes (6)
7 Evidence of William Wakefield, Edward
Jerningham Wakefield and John Brook to
1842 Spain inquiry 9-17 June 1842 No
8 Selection of Nelson Town and Suburban
Tenths Reserves 1842 No
9 Letter from the Colonial Secretary to the
Chief Justice 26 July 1842 Yes (9)
10 Letter from Samuel Stephens concerning
his 1842 meeting with Te Poa Karoro 15 January 1843 No
11 Letter from Commissioner Spain 29 January 1843 No
12 Report of Commissioner Spain 12 September 1843 No
13 Minutes of conference at Major
Richmond’s, Wellington, January 1844 29 January 1844 Yes (12)
14 Letter from Lord Stanley to Governor
Fitzroy 18 April 1844 No
15Evidence of Te Iti, McShane, Tytler, MacDonald and Duffey to Spain inquiry,
Nelson, 1844 20-21 August 1844 No
16 Deeds of release (original in Te Reo Māori) 24 August 1844 Yes (13)
17 Commissioner Spain’s Report and Award
on the NZ Companky Purchase 31 March 1845 Yes (14)
18 Crown grant to the NZ Company, Governor
Fitzroy 29 July 1845 Yes (15)
19 Plan annexed to 1845 Crown grant 19 July 1845 No
20 Native Land Court judgment and orders 21 November 1892 No
14 March 1893 No
Def's
Doc. No.
Defendant’s “Top Twenty” documents
Date
Pltfs’ doc
(& No.)
1 Marquis of Normanby to Captain Hobson 14 August 1839 No
2 Kapiti Deed 25 October 1839 Yes (2)
3 Queen Charlotte Sound Deed 5 November 1839 Yes (2)
4 1840 Arrangement 18 November 1840 Yes (5)
5Royal Charter and Letters Patent – Lord russell to Governor Hobson with enclosed
Royal instructions of 4 December 1840 5 December 1840 No
6 New Zealand Company Terms for Purchase
of Lands in the Second Settlement 15 February 1841 Yes (6)
7 July 1840 Evidence to the House of Lords
Select Committee on New Zealand 13 July 1840 Yes (3)
8 Ward to Halswell 10 October 1840 Yes (4)
9 Letter Colonial Secretary to the Chief Justice 26 July 1842 Yes (9)
10 Parliamentary Under Secretary George
Hope to Somes 10 January 1843 No
11 Notation by “W.S.” [William Swainson A-G]
on note by Connell 5 August 1843 No
12 Minutes of Conference at Major Richmond’s 19 January 1844 Yes (13)
13 Deed of release
Massacre Bay Deed
24 August 1844
23 May 1846
Yes (16)
No
14 Commissioner Spain’s Report, Award,
Minutes of proceedings, schedule of
presents 31 March 1845 Yes (17)
15 Copy of Nelson Crown grant 29 July 1845 Yes (18)
16 Letter Superintendent of Southern Division
to Wakefield 9 August 1845 No
17 Grey Memorandum, Enclosure No. 17, Grey
to Gladstone 14 September 1846 No
18 Letter Fox to Wakefield 3 April 1847 No
19 Letter Governor Grey to Earl Grey 7 April 1847 No
20 Copy of Nelson Crown grant 1 August 1848 No
APPENDIX 2
Place / Kainga Hapu affiliation (in the 1840s) East of the Nelson Settlement:
Rangitoto (D’urville Island) Ngāti Koata
Wakapuaka Ngāti Tama
Ngāti Koata
Within Nelson Settlement:
Wakatu (seasonal occupation) Ngāti Rarua Ngāti Tama Ngatiawa Ngāti Koata
Waimea (seasonal occupation) Ngati Rarua Ngāti Tama Ngatiawa Ngāti Koata
Motueka Ngāti Rarua
Ngāti Tama
Ngatiawa (with Ngāti Rahiri as sub-group) Marahau Ngatiawa
Ngāti Rarua (according to the plaintiffs, relying
on their customary evidence)
Ngatiawa (with Ngāti Hine as sub-group) Moutere (seasonal occupation) Ngāti Rarua
Ngatiawa
Taupō Ngatiawa
Ngāti Tama
Ngarara Huarau Ngatiawa
Ngāti Tama Takapou Ngāti Rarua Ngāti Tama
Tata Ngāti Rarua
Motupipi Ngatiawa (with Hinetui as sub-group)
Ngāti Rarua
Ngāti Tama Takaka Ngāti Tama Ngāti Rarua
Parapara Ngatiawa
Ngāti Tama
Aorere Ngatiawa (with Ngāti Hinetui as a sub-group)
Ngāti Tama (according to the plaintiffs, relying on
their customary evidence)Ngāti Rarua
West of Nelson Settlement:
Waikato Ngāti Rarua (according to the plaintiffs, relying
on their customary evidence) Ngatiawa
Ngāti Tama
Tomatea
[aka Tamatea]
Ngatiawa (with Ngāti Hinetui as a sub-group)
Pakawau Ngatiawa (with Ngāti Hinetui as a sub-group) West Wanganui/Wanganui Ngāti Rarua
Anaweka
[aka Te Anaweka/Te Anahoeka]
Ngāti Rarua
Ngatiawa (with Ngāti Hinetui as a sub-group)
Tini Ngāti Rarua
Notes:
1. The information on location of hapu was principally sourced from the Mitchells’
published works, Te Tau Ihu O Te Waka Vols 1 and 3.
2. The plaintiffs state that they rely on customary evidence they produced at Court on mana whenua to the extent that the customary ownership is relevant to the Court’s findings. They also state that in recording the general location of the iwi, they do not wish the Court to overlook the plaintiffs’ detailed evidence regarding mana whenua rights being exercised at a hapu/whānau level, reflecting the pattern of settlement across Te Tau Ihu. Mana whenua of hapu/whānau in the Nelson Settlement area was not necessarily shared by hapu/whānau located in other parts of Te Tau Ihu (such as Wairau). For instance, the plaintiffs note that of the five Ngāti Rarua hapu, Ngāti Paretona, Te Arawaere, Ngāti Turangapeke, Ngāti Pareteata and Ngāti Kairarunga, it was principally the Turangapeke and Pareteata whānau who settled in western Te Tau Ihu (the five hapu are referred to in the Ngāti Rarua Traditional History, section 1, p
3, and refer to the evidence of Paul Morgan as to the settlement of Turangapeke and
Pareteata, at [28] and [46]. In relation to Te Atiawa, the plaintiffs note that the hapu
Kaitangata was based on Collingwood (Paul Morgan, [47]), and Ngāti Hinetui at Motupipi and further west, whereas other Te Atiawa hapu were based in eastern Te Tau Ihu. Further, the plaintiffs rely on their evidence in relation to Kurahaupo.
3. The defendant has sought to provide information only on the location of the four iwi at the relevant period. The defendant notes that some of the sites are listed in the table because the plaintiffs consider they were areas of seasonal occupation, in particular: Wakatu, Moutere and Waimea. The defendant has not located evidence to support permanent occupation at such areas. The plaintiffs have also relied on customary evidence for citing certain iwi as being present, or having rights, in certain areas. The defendant does not necessarily agree with such inclusions and has recorded in the table what has been inserted at the plaintiffs’ request. The defendant has not sought to provide information on the presence or absence of the Kurahaupo iwi in this memorandum.
APPENDIX 3
Year Number Source Notes
18422,500 Blue Book of Statistics 1842 Estimated – no census taken.
18432,942 Report on the Settlement of Nelson in New Zealand by William Fox.
18443,079 Report on the Settlement of Nelson in New Zealand by William Fox.
18452,933 Report on the Settlement of Nelson in New Zealand by William Fox.
18462,853 Report on the Settlement of Nelson in New Zealand by William Fox.
18472,917 Report on the Settlement of Nelson in New Zealand by William Fox.
1848 3,089 Nelson Examiner, 27
January 1849
As at October 1843. End of year. December 1845. December 1846. December 1847.
Figures from
December 1848.
Note:
The table sets out years and numbers of settlers in the Nelson settlement. Fox’s figures, between 1843 and 1847, include settlers in the town of Nelson and in the surrounding ‘country’ districts. Fox’s Report does not contain any further detail on what is meant by country districts; these areas may relate to areas where selections had taken place.
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