RORE PAT STAFFORD AND ATTORNEY-GENERAL Continued …
[2024] NZHC 3110
•30 October 2024
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2010-442-181
[2024] NZHC 3110
BETWEEN RORE PAT STAFFORD
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
Continued …
Hearing: 14–18 and 21–25 August; 04–08, 11–12, 14, 18–21 and 25–27
September; 2–5, 9–10, 19–20 and 24–27 October 2023 [Further material and/or submissions received 28 November,
21 December 2023, 1–2 and 27 February, 28 March, 2, 5 and 10
April, 12 and 19 June, and 1 August 2024] (Heard at Wellington)
K S Feint KC, S M Hunter KC, M S Smith, H K Irwin-Easthope and H Z Yang for Plaintiff
J R Gough, S M Kinsler, HTN Fong, L Dittrich, C E Sinclair and LCY Ewing for Attorney-General
D A Laurenson KC and R L Roff for Accident Compensation CorporationB M Nathan and NSP Laing for Te Whatu Ora – Health
New Zealand and Te Pūkenga – New Zealand Institute of Skills
And TechnologyS V McKechnie and T J Bremner for Fire and Emergency New Zealand
J Every-Palmer KC and QAM Davies for Ngāti Apa ki te Rā Tō
Charitable Trust30 October 2024
Appearances:
Judgment:
JUDGMENT OF EDWARDS J
This judgment was delivered by me on 30 October 2024 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
STAFFORD v ATTORNEY-GENERAL [2024] NZHC 3110 [30 October 2024]
Continued …
AND ACCIDENT COMPENSATION CORPORATION
Second DefendantTE WHATU ORA – HEALTH NEW ZEALAND
Third Defendant
TE PŪKENGA – NEW ZEALAND INSTITUTE OF SKILLS AND TECHNOLOGY
Fourth DefendantFIRE AND EMERGENCY NEW ZEALAND
Fifth Defendant
NGĀTI APA KI TE RĀ TŌ CHARITABLE
TRUST
IntervenerKĀINGA ORA – HOMES AND COMMUNITIES and HOUSING NEW ZEALAND LIMITED
Interested Party
TABLE OF CONTENTS
PART I—EXECUTIVE SUMMARY [1]
Supreme Court judgment [16]
The competing claims and defences [20]
Unallocated Tenths [24]
Allocated Tenths [27]
Occupation Lands [32]
Occupation Reserves [37]
Occupied Tenths [38]
Cultural loss [41]
Limitation Act 1950 [43]
Treaty settlement [45]
Laches and acquiescence [48]
Relief [51]
PART II—OVERVIEW [55]
Key events [56]
The land [57]
Customary Owners [58]
1839 New Zealand Company purchase [63]
1840–1841 [67]
1841 Kaiteretere hui [72]
1841–1843 selection of the Tenths [77]
1844–1845 Spain Commission [82]
1845 Crown grant [92]
1846–1847 Massacre Bay Occupation Reserves [94]
1848 Crown grant [97]
Company failure [99]
Management of the Tenths [100]
Waitangi Tribunal claims and preservation clause [111] Supreme Court judgment [114]
Elias CJ [118]
Glazebrook J [125]
Arnold and O’Regan JJ [131]
William Young J (in dissent) [138]
Terminology [142]
Claim and Defence
Plaintiff ’s claim [156]
Crown’s defence [161]
Te Tiriti o Waitangi and tikanga Māori [168]
Assessing the evidence [189]
PART III—DUTY
Overview [203]
General observations [207]
An outcome-based duty? [219]
Extinguishment of customary title and vesting of land [234] The Crown’s title to land, and the Land Claims Ordinance 1841 [238] When was customary title extinguished? [243] Unallocated Tenths [257]
Allocated Tenths [270]
Are the duties separate to those found by the Supreme Court? [273]
Terms of trust [284]
When did a trust arise and did it come to an end? [306] Occupation Lands [315]
Defining pā, urupā and cultivations [317]
(a)Spain award [323]
(b)Constitutional framework and Crown’s intentions [329]
(c)The way the Customary Owners lived on the land [332]
(d)Deeds of release [337]
(e)The measures used to identify Occupation Lands [350]
(f)Fishing, coastal and public resource areas [358]
(g)Weaving the threads together: how should pā, urupā and
cultivations be construed? [363]
Fixing boundaries [379]
A trust over the Occupation Lands? [399] Occupation Reserves [410]
Occupied Tenths [417]
Summary of conclusions on duty [428]
PART IV—BREACH [434]
Unallocated Tenths [439]
The search for suitable land 1840–1844 [442]
Massacre Bay deed of release [447]
Purchase of the Wairau and the Kaituna reserve [451]
Massacre Bay Occupation Reserves [453]
Governor Grey’s intentions [463]
Was the failure to allocate the rural Tenths justified? [474] Allocated Tenths [491]
Occupation Lands [494]
Occupation Reserves [500]
Occupied Tenths [502]
Summary of findings regarding breach [506]
PART V—LOSS [511]
Unallocated Tenths [514]
Allocated Tenths [517]
Occupation Lands [522]
Occupation Reserves [526]
Occupied Tenths [527]
PART VI—LAND REMEDIES [533]
Constructive trust principles [537]
Certainty of subject matter [545]
Does the proprietary remedy attach to Crown Entity land? [569]
ACC caveats case [574]
Review proceeding [589]
Is the ACC caveats decision binding in this proceeding? [597] Continuous Crown title [608]
Unallocated Tenths [611]
Allocated Tenths [615]
Occupation Lands [625]
Occupation Reserves [635]
Occupied Tenths [636]
Summary of findings regarding land remedies [642]
PART VII—EQUITABLE COMPENSATION [648]
Restoring the trust or compensating the beneficiaries?
Relevant legal principles [661]
Application to this case [674]
Simple or compound interest? [688]
Relevant counterfactual [702]
Unallocated Tenths [706]
Allocated Tenths [713]
Occupation Lands [716]
Occupation Reserves [717]
Occupied Tenths [718]
Summary of findings regarding equitable compensation [721]
PART VIII—CULTURAL LOSS [727]
Methodologies for quantifying cultural loss [734]
Dr Meade’s approach [735]
Alternative approach [741]
Is cultural loss compensable? [747]
Should the law be extended to compensate for cultural loss? [759]
PART IX —LIMITATION ACT 1950 [776]
Statutory scheme [780]
Section 21—actions in respect of trust property [784]
Section 21(1)(a)—the fraud exception [790]
Section 21(1)(b)—the trust property exception [799]
Unallocated Tenths [813]
Claim to land in the hands of the Crown [816] Claim to current market value of land no longer in hands of the Crown [817] Claim to lost rentals [820]
Allocated Tenths [826]
1844 exchanges at Te Maatū [828]
Withdrawal of 47 town Tenths [830]
Replacement tenths from land obtained by the Crown [836]
1853 Whakarewa grant [838]
Occupation Lands [843]
Occupation Reserves [848]
Occupied Tenths [849]
Summary of findings regarding Limitation Act [855]
PART X—TREATY SETTLEMENT [860]
Waitangi Tribunal claims and report [865]
Settlement negotiations [870]
Deeds of settlement and Settlement Act [880]
Adjusting for the settlements [890]
PART XI—LACHES AND ACQUIESCENCE [900]
Relevant legal principles [905]
Forensic prejudice [907]
Change of position and prejudice to third parties [916]
Reasons for the delay [931]
Balancing the equities [940]
PART XII—QUANTUM [945]
Rentals [948]
1845 land values [950]
Vacancy and rental rates [955]
Ex gratia payment [963]
Summary of conclusions on rentals [969]
Unallocated Tenths [971]
Allocated Tenths [984]
Occupation Lands [991]
Occupation Reserves [993]
Occupied Tenths [994]
PART XIII—RELIEF [996]
Receipt of relief by the plaintiff [998]
Further information required [1009]
Interim judgment [1013]
Acknowledgement of counsel and parties [1022] RESULT [1024]
APPENDIX 1
APPENDIX 2
PART I—EXECUTIVE SUMMARY
[1] The land the subject of this proceeding is located at the top of the South Island and is known as Te Tauihu o te Waka a Māui (Te Tauihu), the prow of Māui’s canoe.1
[2] The customary owners of this land were the hapū of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata.2 The plaintiff, Mr Stafford, is a kaumātua and rangatira who represents the descendants of these owners in this proceeding. Both the owners and their descendants are referred to in this judgment as the Customary Owners. By agreement with the plaintiff, those who are descended from the Kurahaupō iwi who were living on the land in the 1840s are also treated as Customary Owners for the purposes of this case.3
[3] In 1839, the New Zealand Company purchased the Te Tauihu land for its proposed settlement in Wakatū, Nelson.4 This was part of a much larger purchase of about 20 million acres in the lower North Island and upper South Island. The purchase was confirmed at a historic meeting between rangatira of the Customary Owners and the New Zealand Company in 1841 at Kaiteretere.5
[4] The main form of payment for this land was the reservation of one-tenth of the allotted land for the Nelson settlement. This land is referred to as the Tenths. The Tenths sections were to be selected in one-acre, 50-acre and 150-acre sections in the town, suburban and rural areas of the new settlement. It was intended that the Tenths would be held on trust for the Customary Owners and managed as an endowment for their future benefit. The Tenths were either to be leased to settlers or used for the building of schools or hospitals for the exclusive use of the Customary Owners. Up until the enactment of the Native Lands Act 1856, the Tenths were inalienable, and even after this date the Tenths could only be alienated in certain circumstances.
1 The region is also referred to as “Te Tau Ihu”. I adopt the spelling used by Mr Rōpata Taylor, a witness for the plaintiff.
2 This was determined by the Native Land Court in 1893. A list of the individual members of those
hapū was produced by that Court.
3 The Kurahaupō iwi comprise Ngāti Apa ki te Rā Tō, Ngāti Kuia and Rangitāne o Wairau.
4 Wakatū is also spelled Whakatū.
5 Kaiteretere is also spelled Kaiteriteri. I adopt the spelling used by Mr Rōpata Taylor, see above n 1.
[5] Following the signing of te Tiriti o Waitangi | the Treaty of Waitangi in 1840 (te Tiriti and the Treaty are used interchangeably in this judgment) and the enactment of the Land Claims Ordinance 1841, the Company’s purchase no longer had any effect. A Crown grant was the only way the Company could obtain land for its proposed settlement. Commissioner William Spain was appointed to make a recommendation to the Crown on whether a grant should be made to the Company. This involved an investigation into the Company’s purchase to determine whether it was made on equitable terms.
[6] Commissioner Spain issued his award in 1845. He recommended that the Company be granted 151,000 acres of land located in the bays now known as Tasman Bay and Golden Bay on condition that 15,100 acres of Tenths were reserved, and pā, urupā and cultivations were excluded. It was implicit in this recommendation that the purchase terms for this land, which included the Tenths, were just and equitable.
[7] The extent of the lands to be excluded as “pā, urupā and cultivations” is a live issue in this case.6 It was intended that the pā, urupā and cultivations would remain in customary ownership and would continue to be occupied by the Customary Owners. These three categories of land are referred to as Occupation Lands in this judgment. In reality, however, these categories are much narrower than the land occupied and used by the Customary Owners at the relevant time.
[8] The Crown accepted the Spain award in 1845. As a result, the Crown obtained the Customary Owners’ land. This included land which had been “sold” by the Customary Owners and from which the Tenths were to be reserved and the Occupation Lands which had not been sold and remained in customary ownership.7 By accepting the Spain award, the Crown took complete control over all the Customary Owners’ land, whether it was sold or not.
6 The meaning to be ascribed to these terms for the purpose of this proceeding is discussed below at [317]–[378].
7 Dr Carwyn Jones, an expert witness for the plaintiff, explains that the concept of “sale” is unknown in tikanga Māori and the Customary Owners likely believed that the arrangement with the Company allowed settlers to live amongst the Customary Owners but subject to their mana and control. I use the word “sale” to distinguish between the Tenths and the Occupation Lands. As I explain in this judgment, I consider the latter were not “sold” by the Customary Owners.
[9] It was from this land that the Tenths were to be reserved and the pā, urupā and cultivations excluded. Those were the terms of the Spain award, and the basis upon which the Crown had obtained the land. The Customary Owners were entirely dependent on the Crown to fulfil those terms. The failure to meet these conditions meant that the Crown obtained land to which it was not entitled, that is, land which was intended to be reserved as Tenths, or which should have been excluded as Occupation Lands.
[10] By the time Commissioner Spain issued his award, 5,100 acres of Tenths had been reserved. These Tenths were reserved in one-acre sections in the township of Nelson, and in 50-acre sections in Motueka and Moutere. These are referred to as the Allocated Tenths in this judgment. There is no dispute that the Crown held these Allocated Tenths on trust for the Customary Owners.
[11] The plaintiff claims there were various alienations of these Allocated Tenths which resulted in a diminution of the Tenths held on trust. These include: a surrender of Tenths sections in exchange for other sections in Te Maatū, a large wood located in Motueka (referred to as the 1844 exchanges in Te Maatū); the withdrawal of 47 town Tenths as part of the remodelling of Nelson township in 1847; and a grant of Tenths sections to the Bishop of New Zealand in 1853 (referred to as the Whakarewa grant). These transactions, and others, form part of the plaintiff’s claim.
[12] The remaining 10,000 acres of rural Tenths were never reserved. These are referred to as the Unallocated Tenths. The reasons for failing to reserve these rural Tenths are not entirely clear. While there had been difficulties in identifying suitable land for the rural sections, there is no dispute that there was sufficient land available to allocate the rural Tenths. It is possible that Governor Grey changed course away from the Tenths scheme towards a policy of providing large reserves for Māori occupation. However, as I find in this judgment, that change in policy could not relieve the Crown of its obligation to provide these Tenths.
[13] In the early 1840s there appears to have been significant confusion about whether the Tenths were also for occupation purposes. Many of the Allocated Tenths had been reserved from Occupation Lands and were being occupied by the Customary
Owners at the time. These are referred to as the Occupied Tenths in this judgment. However, as was clear from Spain’s award, the Tenths and the Occupation Lands were intended to be kept separate and distinct. The former were to be reserved and held on trust; the latter were to remain in the ownership of the Customary Owners.
[14] The Crown did not take steps to exclude the Occupation Lands underpinning the Occupied Tenths. Nor did it take steps to reserve the Tenth from the land it obtained when it accepted the 1845 Spain award. Reserving Tenths from Occupation Lands set up the conditions for the future loss of the Tenths section in the event that the Occupation Lands were eventually returned to the Customary Owners. Occupation of these Tenths also meant that they were not being used to generate an income or other benefits for the Customary Owners which was a key feature of the Tenths scheme.
[15] However, the Crown did take steps to exclude Occupation Lands located in Western Tasman Bay and Golden Bay (referred to as Blind Bay and Massacre Bay in this judgment). Several Occupation Reserves were set aside in these areas in 1846 and 1847. These remained in customary title and were administered by the Crown with the consent of the Customary Owners who had proprietary interests in those Reserves. There were various rearrangements of these Reserves from 1856 onwards. These rearrangements form part of the plaintiff’s claim in this case.
Supreme Court judgment
[16] Fast forward to 2017 and the delivery of the Supreme Court’s landmark decision in this proceeding.8 The Supreme Court confirmed that the Crown had assumed responsibility to reserve the Tenths and exclude Occupation Lands. The Court made a declaration that the Crown owed fiduciary duties to reserve 15,100 acres for the benefit of the Customary Owners, and, in addition, to exclude their pā, urupā and cultivations from the land obtained by the Crown following the 1845 Spain award.9
8 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 [Supreme Court judgment].
9 At [1].
[17]The Supreme Court also held that:
(a)Mr Stafford had standing to bring the claim.10
(b)The claims were not barred by the Limitation Act 1950 to the extent the claims fell within the terms of s 21(1)(b) of that Act because they seek to recover from the Crown trust property either in the possession of the Crown or previously received by the Crown and converted to its own use.11
(c)The claims were not barred by the settlement of a Waitangi Tribunal claim which included some of the same claims in this proceeding. That was because there was a provision in the settlement legislation allowing the proceeding to continue.12
[18] Issues of liability, defence and relief were remitted to this Court to determine in accordance with the opinions of the Supreme Court.13 This judgment determines those issues.
[19] The duties found by the Supreme Court are unique fiduciary duties which are private in nature. While te Tiriti informs these obligations, they are not obligations that arise out of te Tiriti itself. This is not a claim for breach of te Tiriti. Nor is this a claim which arises out of the general obligations the Crown owes to Māori. The Supreme Court rejected the Crown’s claim that this was a case involving political or public law duties.14 The scope of this claim is fixed by the Supreme Court’s judgment, the pleadings, and the limits of the law.
10 At [2].
11 At [4].
12 At [5] citing Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a- Māui Claims Settlement Act 2014, s 25(6).
13 At [7].
14 At [294] per Elias CJ.
The competing claims and defences
[20] On behalf of the Customary Owners, the plaintiff claims that the Crown breached its fiduciary duties by failing to reserve the Unallocated Tenths (10,000 of the 15,100 acres of Tenths); by alienating the Allocated Tenths; by failing to exclude Occupation Lands (including failures in relation to the Occupation Reserves); and in relation to the Occupied Tenths.
[21] The return of land within the Spain award boundary which is held by the Crown is sought as the primary remedy for these breaches. A monetary award is also sought to compensate for land that is no longer held by the Crown and for the lost opportunity to benefit from both the Tenths and Occupation Lands. A monetary award is also sought to compensate for cultural losses arising out of the alienation of the Customary Owners’ land. In total, the plaintiff claims relief in a sum ranging between $4.4 billion and $6 billion.
[22] The Crown defends the claims on the basis that the Crown did not act disloyally or unfaithfully in relation to the Tenths, and that all Occupation Lands identified at the time were excluded. The Crown challenges the plaintiff’s claim to the return of land, and the calculation of the compensation sought for the lost benefits of this land. The Crown also raises affirmative defences based on laches and acquiescence, the Limitation Act, and the Treaty settlement which those represented by Mr Stafford received following a Waitangi Tribunal ruling in their favour. The Crown stands behind the Treaty settlement process and raises concerns about the impact of this litigation on future Treaty settlements.
[23] I address the various claims and defences by reference to the different land categories involved. My findings are summarised below.
Unallocated Tenths
[24] I find that the failure to reserve 10,000 acres of rural Tenths was a breach of the Crown’s fiduciary duty. There was no legal justification for the failure to reserve these Tenths. Like any other fiduciary or trustee, the Crown was not at liberty to change course or simply decide that it would not reserve these Tenths. The failure to
discharge its fiduciary duty resulted in the Crown taking this land for itself and treating
it as if it was Crown land. Equity cannot countenance such a result.
[25] Accordingly, I find that the land held by the Crown within the Spain award boundary is impressed with a trust in favour of the Customary Owners to the extent of the Unallocated Tenths.
[26] If the Crown no longer holds enough land to meet the full extent of the Unallocated Tenths, then it must pay a sum equal to the current market value of the land. It must also pay a sum of money which represents the value of the opportunity to benefit from the Unallocated Tenths. That sum is to be calculated by reference to the rentals which would have been earned on the land rather than the Customary Owners’ lost opportunities to benefit from the land. The calculation does not include compound interest. This results in a sum significantly less than that sought by the plaintiff.
Allocated Tenths
[27] The plaintiff claimed 15 transactions involving the Allocated Tenths were a breach of fiduciary duty and breach of trust. My factual findings on each of these transactions is set out in Appendix 2 to this judgment. There was only sufficient evidence to find three transactions were a breach of trust, but only two give rise to a remedy.
[28] First, the 1844 exchanges of Tenths in Te Maatū. Te Maatū was a significant resource for the Customary Owners. I find that the 1844 exchange of Tenths was to meet the stipulation made by the Customary Owners that Te Maatū be set aside. The eight Tenths sections received within Te Maatū should have been excluded as Occupation Lands and the Customary Owners should not have had to surrender Tenths to obtain these lands. This exchange resulted in the loss of the surrendered Tenths, amounting to 400 acres. The Crown was required to replace these 400 acres of Tenths from the land it obtained in 1845. It did not. This was a breach of the fiduciary duty to reserve 15,100 acres of Tenths.
[29] Second, the withdrawal of 47 town Tenths in 1847 during the remodelling of the Nelson township. The remodelling was prompted by the Company’s failure to sell all its town sections, with the result that resident purchasers were not concentrated in one place. This had an impact on the costs of infrastructure and the value of the town sections, including the town Tenths. While it was initially proposed that the Tenths sections would be treated the same as the settler and Company sections in the remodelling, that is not what occurred. The only allocated sections withdrawn in the remodelling were the 47 town Tenths and they were not replaced. This was a breach of trust and breach of fiduciary duty.
[30] Third, the 1853 Whakarewa grant. This was a grant to the Bishop of New Zealand for a school at Whakarewa. The grant included just over 918 acres of Tenths. The school was not for the exclusive use of the Customary Owners. I find that this grant was a breach of trust, but there is insufficient evidence to conclude it was a breach of fiduciary duty. Loss is not established in relation to this transaction as the Tenths and the Whakarewa School Trust Board assets have been returned to entities representing some of the Customary Owners.15 The claim is also time-barred under the Limitation Act.
[31] The result is that the plaintiff’s claims in relation to the Allocated Tenths are limited to the acres lost as a result of the 1844 exchanges and the withdrawal of the 47 town Tenths. The Crown holds 400 acres (or less, with the final acreage yet to be determined), and any withdrawn town Tenths on trust for the Customary Owners. It must pay money to compensate for land which is no longer in the Crown’s hands, and money to compensate for the value of the beneficial use of that land (calculated on the basis of lost rentals).
Occupation Lands
[32] The backbone of the plaintiff’s claim is that the Crown breached its fiduciary duty to exclude pā, urupā and cultivations. There are approximately 72 different sites claimed as Occupation Lands (many overlapping). My factual findings on each of the claimed sites are set out in Appendix 1 to this judgment.
15 Ngati Rarua-Atiawa Iwi Trust Empowering Act 1993, preamble.
[33] This is a particularly difficult claim to assess nearly 180 years after the duty arose. There is a lack of evidence regarding many of the sites, and there have been changes in landforms over time due to coastal erosion and flooding. Added to that are different conceptions of what constitutes “pā, urupā and cultivations”. The dynamic and fluid ways in which the Customary Owners lived and related to the land do not translate neatly into defined and ascertainable boundaries. Yet, the law requires those boundaries to be fixed so that the Crown’s fiduciary duty may be enforced. Boundaries are also important for the assessment of damages, as the plaintiff’s claim is calculated on an acreage basis. The scale of the damages sought by the plaintiff means that every acre counts.
[34] I adopt a case-specific, purposive, and pragmatic approach to the meaning of “pā, urupā and cultivations”. The Supreme Court’s decision that the duty only extends to these three categories of land is controlling, and the duty does not extend to all occupied land more generally. The approach I adopt is more liberal than the strict definitions of “pā” and “cultivations” provided in the Spain award, but narrower than that contended for by the plaintiff. I look for multiple strands of evidence to determine whether a site was a pā, urupā or cultivation in 1845.
[35] I find that the Crown breached its fiduciary duty to exclude pā, urupā and cultivations in relation to the following sites: Mātangi Āwhio; Puketūtū; Pounamu; Te Āwhina; Te Kūmera and Raumānuka; Mārahau; and Te Maatū. The boundaries of these sites are fixed by reference to the Tenths sections allocated in the area in 1842 and 1843. Much of this land has already been returned to the Customary Owners, and the plaintiff’s claim is only to the net balance of Occupation Lands lying within the boundaries of these Tenths sections.
[36] By failing to exclude these pā, urupā and cultivations from the land it obtained following the Spain award, the Crown expropriated this land for itself. I find that the Crown holds the net balance of these lands on trust for the Customary Owners. To the extent this land is no longer held by the Crown, then the Crown must compensate the plaintiff for the current market value of that land. However, because the Occupation Lands were occupied and used by the Customary Owners at the time, the lost
opportunity to benefit from these lands has not been proved. The plaintiff’s remedy is therefore limited to the claim to land or the value of that land.
Occupation Reserves
[37]I did not find any breaches established in relation to the Occupation Reserves.
Occupied Tenths
[38] As already noted, some of the Allocated Tenths were reserved from Occupation Lands, rather than the land obtained by the Crown. The Crown’s fiduciary duty required it to re-survey these Allocated Tenths and to separate them from the Occupation Lands. The Occupation Lands had to be returned to the Customary Owners, and the Tenths had to be reserved from the land obtained by the Crown. The Crown’s failure to do this constituted a breach of both fiduciary duties found by the Supreme Court. The Crown’s breach extends to the Occupation Lands listed at [35] above. The Tenths allocated in these sites comprise Occupied Tenths.
[39] In addition to the loss of Occupation Lands (as already discussed), the Crown’s breaches set up the conditions for the future loss of the Tenths, and the loss of the benefits that would have been generated by those Tenths. The Crown obtained the land that would have been used to re-survey and reserve the Tenths and treated it as Crown land. In doing this, the Crown converted this land to its own use.
[40] I find that the Crown holds the land from which the Occupied Tenths would have been reserved on trust for the Customary Owners. To the extent there is a shortfall in the amount of land held on trust, then the Crown must pay a sum representing the current market value of that shortfall. The Crown must also pay a sum representing the value of the beneficial use of that land calculated on a lost rental basis.
Cultural loss
[41] The plaintiff’s claim incudes a claim for cultural loss arising out of the Customary Owners’ alienation from the land. A sum ranging from $150–$252 million is sought by the plaintiff.
[42] The common law has not previously recognised this head of loss. While I consider the common law can accommodate this head of loss (as it does with claims for pain and suffering), further information is required before developing the law in this new direction. That further information includes an in-depth analysis of relevant policy issues (such as whether it is preferable for the loss to be remedied at the political level through Treaty settlements), and the interrelationship with the equitable principles which govern this case. It also includes tikanga implications, such as the validation of the methodologies used to quantify the loss, and whether, and if so how, the return of land may compensate for this loss. Finally, the fact that the Treaty settlement received by those represented by Mr Stafford included a cultural redress package means the cultural harm experienced in this case has already been compensated to some extent. For these reasons, I dismiss the claim for cultural loss.
Limitation Act 1950
[43] The Limitation Act 1950 (since repealed) applies to this claim. Under s 21(1)(b) of that Act a limitation period does not apply to claims to recover trust property in the possession of the trustee, or previously received by the trustee and converted to the trustee’s own use.
[44] I find that the plaintiff’s claims in relation to the Unallocated Tenths, Occupation Lands, and Occupied Tenths fall within s 21(1)(b) of the Limitation Act. I also find the plaintiff’s claims in relation to the 1844 exchanges in Te Maatū and the claim to the Tenths which were withdrawn during the 1847 remodelling of the Nelson township fall within s 21(1)(b). This includes the claim to recover land, the market value of the land no longer in Crown ownership, and the claim for lost rentals (which represents the value of the land to generate benefits for the Customary Owners). Both the land, and its capacity to generate benefits for the Customary Owners, were converted by the Crown when it took the land for itself and used it as Crown land.
Treaty settlement
[45] In 2012 and 2013 deeds of settlement were executed in relation to claims that the Crown had breached the Treaty in the Te Tauihu area. These deeds were given effect to by the Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o
Te Waka-a-Māui Claims Settlement Act 2014 (Settlement Act). Section 25(6) of that Act preserves the ability of the plaintiff to obtain relief in this proceeding.
[46] The fact of the Treaty settlement does not act as a complete defence to this claim. As the Supreme Court found, Parliament was seeking to preserve the rights of the Customary Owners to access the Courts to vindicate their property rights when it enacted s 25(6).
[47] Nevertheless, there is an overlap between the Treaty claims and this proceeding, and so there is a risk of double recovery between that which was received as part of the settlement and the relief ordered in this proceeding. A precise calculation of the extent of any double recovery is not possible. The only evidence before the Court is two alternative sums put forward by the plaintiff. I adopt the higher of these alternatives being the sum of $48 million assessed by the plaintiff’s expert witness. This sum is to be deducted from the monetary award made in the plaintiff’s favour.
Laches and acquiescence
[48] The Crown says that it is prejudiced by the delay in bringing this claim, and the acquiescence of the Customary Owners in the actions of the Crown. This prejudice includes the settlement of Treaty claims in the Tauihu area.
[49] I address the lack of evidence due to the passage of time on a case-by-case basis. Many of the plaintiff’s claims in relation to the Occupation Lands and transactions involving the Allocated Tenths are unsuccessful on this basis. However, the evidential prejudice to the Crown is not such that it acts as a complete defence.
[50] Moreover, the plaintiff did not act unreasonably in waiting to commence this claim. The Customary Owners have persisted in their efforts to seek redress for the Crown’s actions since at least 1854. The impact of adverse Court decisions (found to be wrongly decided by the Supreme Court) and a background of impoverishment attributable to the deprivation of lands also explains the delay. When these factors are weighed against the nature of the claim, the balance of equities favours the plaintiff, and laches and acquiescence do not operate as a defence.
Relief
[51] As summarised above, I find that the Crown holds land within the Spain award boundary on trust for the Customary Owners. The trust only extends to land held by the Crown itself (referred to as the core Crown in this judgment) and does not extend to Crown entity land as sought by the plaintiff. I follow the Court of Appeal in a related case in reaching that conclusion.16
[52] The Crown must also pay a sum of money calculated according to the current market value of the land that it no longer holds on trust. And, it must pay a sum of money that compensates for the value of the beneficial use of the Tenths. That sum of money is to be calculated according to the rentals which would have been generated by those Tenths. Compound interest is not recoverable. While the Crown concedes that simple interest is payable, I reserve my decision on this issue pending receipt of further submissions from the parties.
[53] The extent of the land held on trust, and the sum of money that must be paid, cannot be finally determined until account has been taken of all land returned to the Customary Owners (either directly or via entities representing their interests). The evidence currently before the Court suggests the monetary award (before interest) will be substantially less than $1 billion, but it will nevertheless be a significant sum of money. Substantial awards in private law litigation, including against the Crown, are not unprecedented. Indeed, a damages award in the hundreds of millions was made against the Crown in Equiticorp Industries Group Ltd (in stat man) v The Crown (no 3) (Judgment no 51) in 1996.17 The award made in this case is simply the consequence of the Crown breaching its private law fiduciary duties owed to the Customary Owners.
[54] Finally, I make no apologies for the length of this judgment. The issues raised by this case are factually and legally complex. It is also a case of public interest and there are very large sums of money at stake. My reasoning is set out in some detail in
16 Stafford v Accident Compensation Corporation [2020] NZCA 164, [2020] 3 NZLR 731 [ACC Caveats case].
17 Equiticorp Industries Group Ltd (in stat man) v The Crown (no 3) (Judgment no 51) [1996] 3 NZLR 690 (HC).
the hope that it will assist in the final resolution of this long simmering dispute, whether it be in this Court, another Court, or by different means altogether.
PART II—OVERVIEW
[55] This part of the judgment provides an overview of this case. The key events and the Supreme Court judgment are summarised in this part. The terminology used in the judgment is defined, and the plaintiff’s claim and the Crown’s defence are also summarised. The role of te Tiriti and tikanga in determining this claim, and the approach I have adopted in assessing the evidence is also set out in this part.
Key events
[56] Many of the key events giving rise to the plaintiff’s claim are not seriously in dispute. The parties agreed a statement of facts relating to relevant events leading up to and including 1977. The background is comprehensively covered in the judgments of Clifford J in the High Court,18 and Elias CJ in the Supreme Court.19 What follows is a short summary of the key events which are relevant to the issues I must determine.
The land
[57] As already noted, this case concerns land at the northernmost region of the South Island known to Māori as Te Tauihu o te Waka a Māui. The land lies between Nelson and Aorere and includes land in Tasman Bay and Golden Bay (known as Blind Bay and Massacre Bay respectively in the 1840s and referred to as such in this judgment). A map of the relevant area may be found in Appendix 1.
Customary Owners
[58] The plaintiff, Mr Rore Stafford, is a kaumātua of Ngāti Rārua and Ngāti Tama descent. He is a direct lineal descendant of Ramari Herewini and her father Poria, who were both named as beneficial owners of the Tenths.
18 Proprietors of Wakatū Inc v Attorney-General [2012] NZHC 1461 at [74]–[190] [High Court judgment].
19 Supreme Court judgment, above n 8, at [96]–[293] per Elias CJ.
[59] Mr Stafford represents the Customary Owners of the land who are descended from Ngāti Rārua, Ngāti Awa (now known as Te Ātiawa), Ngāti Tama and Ngāti Kōata. They arrived in Te Tauihu in the 1820s and 1830s as a result of migrations from the Tainui-Taranaki region.
[60] The Customary Owners who were beneficiaries of the Tenths were named in a list compiled by the Native Land Court in 1893. Through their hapū and whānau affiliations, these Customary Owners also had interests in the pā, urupā and cultivations in the area.20
[61] Before the arrival of the Customary Owners, the Kurahaupō iwi (Ngāti Apa ki te Rā Tō, Ngāti Kuia, and Rangitāne o Wairau) lived in the area. Ngāti Apa ki te Rā Tō Charitable Trust (Ngāti Apa) intervened in this hearing to ensure the descendants of Kurahaupō ancestors (tūpuna) were included as beneficiaries in respect of any relief ordered in the proceeding.
[62] Shortly before the hearing, an agreement was reached with the plaintiff by which the Kurahaupō tūpuna were also acknowledged as Customary Owners for the purposes of this proceeding. I refer to the Customary Owners as including the Kurahaupō tūpuna and their descendants unless the context requires otherwise.
1839 New Zealand Company purchase
[63] The New Zealand Company (the Company) was formed in 1839 for the purpose of promoting colonisation in New Zealand. In May 1839, the Company’s principal agent, Colonel William Wakefield, sailed for New Zealand.21
[64]A key feature of the Company’s scheme for the purchase of land was the
reservation of one-tenth of the allotted land for the benefit of Māori. This was referred
20 High Court judgment, above n 18, Appendix 2 sets out the iwi and hapū affiliations identified with particular locations. That Appendix is to be read and understood by reference to the mana whenua rights exercised by the different groups at different times as explained in Paul Morgan’s evidence given in the first High Court trial.
21 Colonel William Wakefield was the brother of Captain Arthur Wakefield. Also mentioned in this judgment is the eldest Wakefield brother, Edward Gibbon Wakefield, who was an influential member of the New Zealand Company: see Supreme Court judgment, above n 8, at [17], n 9 per Elias CJ.
to in Colonel Wakefield’s instructions from the Company and in other deeds of purchase. These Tenths were regarded as the “true” consideration for the purchase and were to be held for the benefit of the Māori vendors of the land.
[65] In October and November 1839, the Company entered into deeds of purchase with Ngāti Toa at Kāpiti (Kāpiti deed), and Ngāti Awa in Queen Charlotte (Queen Charlotte deed). Under those deeds the Company purported to purchase large tracts of land (over 20 million acres) in the lower North Island and upper South Island.
[66] Both deeds included a clause guaranteeing that a portion of the land ceded by the Māori vendors would be reserved by the Company and held in trust for the benefit of “the chiefs, their tribes and families”.22 While these deeds of purchase did not specify the proportion of land to be set aside, the Supreme Court confirmed that it was one-tenth of the land granted to the Company.23
1840–1841
[67] Te Tiriti o Waitangi was signed on 6 February 1840. The differences between the Māori and English texts have been the subject of debate. That debate is not directly relevant to this claim, and I will refer to both versions of the document by reference to the Māori and English names which are used interchangeably.
[68] Under arts 1 and 2 of the English version of the Treaty, the power of government was ceded by Māori in exchange for a Crown guarantee of the “full exclusive and undisturbed possession” of their lands, subject to the Crown’s right of pre-emption over those lands if Māori wished to sell.
[69] In November 1840, the Company and the Imperial Government entered into an agreement (1840 Agreement). That agreement set out the terms of the Company’s entitlement to a Crown grant in New Zealand. Under cl 13 of the 1840 Agreement the Crown agreed to reserve the Tenths from the land to be granted to the Company. It
22 Supreme Court judgment, above n 8, at [108] per Elias CJ.
23 At [14] and [152]–[154] per Elias CJ.
also reserved the Crown’s right “in respect of all other lands” to make such arrangements as “shall seem just and expedient for the benefit of Māori”.24
[70] New Zealand was constituted a separate colony under Imperial legislation which authorised its creation.25 Provision was made for the administration of the new colony through a Governor and Legislative Council. The Charter adopted under that legislation (1840 Charter) gave the Governor “full power and authority”, but subject to Māori rights of occupation and enjoyment of land.26 Similar provisions were found in the Royal Instructions to the Governor which accompanied the Charter, and which the Governor was obliged to follow.27
[71] The Land Claims Ordinance was passed in 1841. It declared pre-Treaty land purchases null and void unless allowed by the Crown.28 However, such purchases could be allowed by the Crown after an investigation by an appointed Commissioner. The Commissioner was required to inquire into the circumstances of the acquisition and the price paid to establish whether the purchase had been made on equitable terms. The Commissioner was then required to make a recommendation as to the terms of any grant.29 As already noted, Commissioner William Spain was appointed to investigate the Company’s purchases in Te Tauihu.
1841 Kaiteretere hui
[72] Captain Arthur Wakefield led the Company’s second expedition to establish the Nelson settlement. In October 1841, he and others from the Company met with rangatira of the Customary Owners at Kaiteretere.
[73] By this time, it was unlawful for the Company to purchase land directly from Māori, and so the Company offered gifts to the value of £980 15s to the rangatira present to confirm the purchases under the Kāpiti and Queen Charlotte deeds.
24 At [779] which sets out cl 13 of the 1840 Agreement.
25 At [296] per Elias CJ citing New South Wales and Van Diemen’s Land Act 1840 (Imp) 3 & 4 Vict c 62, s 3.
26 Charter and Letters Patent for erecting the Colony of New Zealand 1840.
27 Royal Instructions (5 December 1840).
28 Land Claims Ordinance 1841 4 Vict 2, s 2.
29 Sections 3–6.
[74] Evidence given on behalf of the plaintiff establishes that the Customary Owners were in favour of the settlers coming to live amongst them, and pointed out where they could live and where they could not. However, it is unlikely that the Customary Owners intended to permanently alienate their land, and most likely understood the arrangement as an invitation to outsiders to settle amongst them.
[75] There is some suggestion that the Tenths were discussed at this meeting, and the plaintiff says that there was an agreement that Te Maatū, a large wood in Motueka, would be excluded from sale.
[76] There were several other meetings between Arthur Wakefield, his group, and the Customary Owners in 1842 and 1843.
1841–1843 selection of the Tenths
[77] In February 1841, the Company released a prospectus outlining its scheme for the proposed Nelson settlement. It was to consist of 221,100 acres, of which 201,000 acres were to be offered for sale to settlers and a further 20,100 acres were to be reserved for Māori.
[78] Each allotment was to comprise a town section of one acre, a suburban section of 50 acres,30 and a rural section of 150 acres. The sections were to be selected via a ballot determining the priority of selection. The Tenths were selected on the same basis.
[79] A selection of town and suburban sections took place in 1842 and 1843. The selection of 5,100 acres of Tenths (100 one-acre town Tenths, and 100 50-acre suburban Tenths) were selected at the same time. As already noted these are referred to as the Allocated Tenths in this judgment.
[80] The rural Tenths were never selected. The Company had hoped to provide rural sections from the lands in the Wairau, a district south of Nelson. Attempts by the Company to survey the lands in the Wairau met with fierce opposition and eventually
30 Occasionally the suburban sections were referred to as accommodation sections in the evidence.
lead to an affray in which both Māori and Company officials were killed. As discussed later in this judgment, Commissioner Spain found that the Wairau had not been sold and this land was not included in his recommendation for a grant.31 It was only much later that the Wairau land was purchased by Governor Grey and settler rural sections were allocated there.
[81] The plaintiff claims that many of the Tenths selected in 1842 and 1843 were allocated over pā, urupā and cultivations and so were occupied by the Customary Owners at the time. These are referred to in this judgment as the Occupied Tenths.
1844–1845 Spain Commission
[82] As already noted, the Crown appointed Commissioner Spain to inquire into the circumstances of the Company’s purchases under the Kāpiti and Queen Charlotte deeds, and to make a recommendation as to a Crown grant to the Company.
[83] The Spain Commission hearing commenced on 19 August 1844. It was adjourned two days later after the only Māori witness, Te Iti, gave evidence casting doubt on the Company’s claims. The Company was permitted to make additional payments to settle its claim. Effectively, the Spain inquiry became an arbitration with Spain acting as arbitrator to determine the quantum of additional compensation to be paid.
[84] The Company made additional payments totalling £800. Of this sum, £200 was paid to Ngāti Rārua, £200 to Ngāti Tama of Motueka, £100 to Te Atiawa of Motueka, and £10 to the rangatira Ngāpiko of Ngāti Rārua and Ngāti Tama. The residue of £290 was to be paid to the Customary Owners at Massacre Bay (who refused to accept it at this time).
[85] An exchange of Tenths was also arranged during the adjournment to meet the stipulation that Te Maatū be excluded from the purchase. Eight suburban Tenths sections, totalling 400 acres, were surrendered in order to secure the Te Maatū
31 See below at [445].
sections. This exchange forms part of the plaintiff’s claim and is discussed further in Appendix 1.32
[86] Three deeds of release were entered into by the Company and some of the Customary Owners on 24 August 1844. The deeds signed by the Customary Owners were written in Māori. The deeds excepted from the Company’s purchase pā, cultivations, wāhi tapu and wāhi rongoā. The meaning of wāhi tapu and wāhi rongoā are considered further when addressing the scope of the Crown’s duty to exclude pā, urupā and cultivations.33
[87] After initially refusing to accept further payment from the Company, the Customary Owners at Massacre Bay eventually acquiesced and signed a deed of release in 1846. The deed of release differed to the other three deeds in that it did not refer to wāhi tapu and wāhi rongoā.
[88] On 31 March 1845, Commissioner Spain issued his decision (Spain award). He found that Ngāti Toa did not have authority to sell all the land in Te Tauihu, but that the further payments made by the Company cured any deficiency in the original purchase. Spain made certain findings in relation to exchanges of Tenths made in Te Maatū. These are discussed in Appendix 1.34 Spain also found that the Wairau had not been sold by Ngāti Toa.
[89] Commissioner Spain recommended that the Company be granted 151,000 acres of land, considerably less than the 221,100 acres sought by the Company. The land was located as follows:
(a)Wakatū or Nelson district: 11,000 acres.
(b)Waimea district: 38,000 acres.
(c)Moutere district: 15,000 acres.
32 See Appendix 1 at [78]–[99].
33 See below at [370], [375] and [377].
34 See Appendix 1 at [59]–[99].
(d)Motueka district: 42,000 acres.
(e)Massacre Bay district: 45,000 acres.
[90]The Spain award saved and excepted pā, urupā and cultivations from any
Crown grant as follows:
All the pas, burying-places, and grounds actually in cultivation by the Natives, situate within any of the before-described lands hereby awarded to the New Zealand Company as aforesaid, the limits of the pas to be the ground fenced in around their Native houses, including the ground in cultivation or occupation around the adjoining houses without the fence; and cultivations, as those tracts of country which are now used by the Natives for vegetable productions, or which have been so used by the aboriginal natives of New Zealand since the establishment of the Colony; and also excepting all the Native reserves upon the plans hereunto annexed, marked No.1A, No.1B, coloured green, the entire quantity of land so reserved for the Natives being one-tenth of the 151,000 acres hereby awarded to the said Company...
[91] The plans annexed to the Spain award only showed the 5,100 acres of town and suburban Tenths identified in the districts surveyed in 1842 and 1843. Despite being referred to in the Spain award, the plans did not reflect the 1844 exchanges of Tenths. Nor did the Spain award identify the location of the rural Tenths which were yet to be surveyed.
1845 Crown grant
[92] On 29 July 1845, Governor Robert Fitzroy issued a Crown grant of 151,000 acres of land in Nelson to the Company (1845 grant). Excepted from that grant were “pas, burial places and grounds actually in cultivation” and the “Native reserves” (that is, the Tenths).
[93] The Company did not accept the grant as it was dissatisfied with the award of 151,000 acres given that the proposed settlement required 221,100 acres. The Company also considered the terms of the grant provided insufficient security of title due, in part, to the indeterminacy of the pā, urupā and cultivations to be excluded.
1846–1847 Massacre Bay Occupation Reserves
[94] Efforts to locate suitable land for the rural sections continued throughout this period. Land in western Blind Bay and Massacre Bay was identified, but there were concerns about the quality of this land.
[95] In the meantime, Governor George Grey had replaced Governor Robert Fitzroy. One of the first steps taken by Governor Grey was to negotiate the purchase of the Wairau from Ngāti Toa.35 That purchase included the reservation of a large block of land known as the Kaituna Reserve for the Māori vendors.
[96] The reservation of large blocks of land for the “present and future wants” of Māori appears to have been Governor Grey’s preferred policy at the time.36 In 1846 and 1847, surveys were carried out in Massacre Bay and some land was reserved as Occupation Reserves. These Occupation Reserves remained in customary title, but they were managed together with the Tenths. Part of the plaintiff’s claim extends to dealings with these Occupation Reserves. Whether Governor Grey intended for these Occupation Reserves to be allocated in lieu of the rural Tenths is a matter addressed when considering whether the failure to reserve 10,000 acres was a breach of fiduciary duty.37
1848 Crown grant
[97] Negotiations between the Company and Governor Grey for a Crown grant continued after 1845. Another Crown grant of land to the Company was issued in 1848 (1848 grant). Instead of a fixed acreage, this grant described the boundaries of a large block of land at the top of the South Island. All land the subject of the 1845 grant was included, together with the Wairau land which had been purchased by Governor Grey by this time. Excepted and reserved from the 1848 grant were “pahs, burial places, and [the Tenths] … which are more particularly delineated and described upon the plans annexed hereto”.
35 This purchase is contentious but that dispute is not relevant to the claim in this proceeding, so I do not discuss it.
36 See below at [354]–[357].
37 See below at [474]–[490].
[98] The plans annexed to the 1848 grant included the 1842 surveys of the Tenths, corrected to reflect the exchanges already effected. The plans also included the Occupation Reserves made in Massacre Bay and western Blind Bay. The rural Tenths had not been identified nor surveyed.
Company failure
[99] The Company was coming under increasing financial strain in the 1840s. The Imperial Government responded to the Company’s situation by enacting the New Zealand Company Loans Act 1847 (Imp).38 For present purposes it is sufficient to record that a loan was made to the Company under the provisions of this Act which was secured over the Company’s land. Under that Act all land held by the Company which was surplus to the settlements was held on trust for the Crown and was to be returned to the Crown to the extent it was not required for settlement allotments.39 Ownership of the land would also revert to the Crown if the Company surrendered its charter—as it did in 1850. The balance of the land the subject of the 1848 Crown grant was vested in the Crown as domain lands at this time.
Management of the Tenths
[100] In 1841, Governor Hobson appointed Edmund Halswell as “Protector of Aborigines in the Southern District of this Island and Commissioner for the Management of the Native Reserves”. Management of the Tenths was transferred from Halswell to a Board in 1842. The Board comprised the then Chief Justice, Sir William Martin (who resigned shortly afterwards), Bishop Selwyn and George Clarke Senior (Chief Protector of Aborigines).
[101] From 1842 to 1845, Henry Thompson, and later his successor Alexander McDonald, acted as managers of the Tenths on instructions from Bishop Selwyn. The Native Trust Ordinance 1844 set out a statutory framework for management of the Tenths, but it was not brought into effect.
38 New Zealand Company Loans Act 1847 (Imp) 10 & 11 Vict c 112.
39 Section 19.
[102] There was no formal appointee to manage the Tenths between January 1845 and 1848, with George Clarke Junior acting as a temporary agent during this time. In 1848 Lieutenant-Governor Eyre appointed another Board of Management. They administered the Tenths until 1853 when Governor Grey replaced the Board of Management with the Commissioner of Crown lands.
[103] The New Zealand Native Reserves Act was enacted in 1856 to provide a system of management for the Tenths. This Act also applied to land which remained in customary title (such as the Occupation Reserves) with the consent of the Customary Owners.
[104] Importantly, the Act included powers of alienation of the Tenths. The Commissioners, with the Governor’s assent, were empowered to set apart lands for special endowments for schools or hospitals or other institutions for the benefit of Māori.
[105] The Native Reserves Amendment Act was passed in 1862. Under that amendment, the Governor had the power to dismiss the Commissioners and the Governor and the Executive Council were empowered to exercise any power vested in the Commissioners.40
[106]In 1882, the Tenths were vested in the Public Trustee under s 8 of the Native
Reserves Act 1882. This marks the end of the period covered by the plaintiff’s claim.
[107] By this time, the plaintiff claims that the Tenths had been diminished by exchanges and grants undertaken since they were first selected in 1842. These are discussed in Appendix 2 to this judgment. The transactions which assume prominence in this case include the 1844 exchanges in Te Maatū; the 1847 remodelling of the Nelson township; and the 1853 grant to the Bishop of New Zealand (Bishop Selwyn) in 1853.
[108]In 1892 the Public Trustee applied to the Native Land Court to ascertain the
people beneficially interested in the Tenths situated in Nelson, Moutere and Motueka.
40 Sections 2 and 3. See also Supreme Court judgment, above n 8, at [281] per Elias CJ.
In 1893, Judge Alexander Mackay approved a list of 253 individuals who were descendants or successors of the Customary Owners. The Customary Owners represented by the plaintiff are the descendants of those on that list.
[109] Judge Mackay also confirmed that income from the Tenths was collected in a general fund, and the hapū of the Customary Owners had an interest in that fund which was proportionate to the extent of land to which they were entitled at the time of sale to the Company.
[110] In 1920 the Tenths were transferred to the Native Trustee (later to become the Māori Trustee). Following the Sheehan commission of inquiry into Māori reserved land in New Zealand, the remaining Tenths were vested in the Proprietors of Wakatū (Wakatū) under the Wakatū Incorporation Order 1977.41 Wakatū holds those Tenths on trust for the Customary Owners.
Waitangi Tribunal claims and preservation clause
[111] The Nelson Tenths were the subject of a claim to the Waitangi Tribunal (Wai 56) filed in 1986. The background to the claim is addressed in more detail in pt X of this judgment.
[112] For present purposes it is sufficient to note that the Crown accepted before the Tribunal that it had committed several breaches of Treaty principles, including in relation to the Tenths. The Tribunal reported on the claims in 2008. Negotiations between the Crown and various iwi settlement entities then followed with negotiations suspended when this proceeding was filed in the High Court in 2010.
[113] Negotiations recommenced and deeds of settlement were subsequently signed. The Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Maui Claims Settlement Act 2014 (defined above as the Settlement Act) came into force on 23 April 2014. Under that Act, the Crown is discharged from any liability including legal or equitable liability in relation to “historical claims” including those
41 See Bartholomew Sheehan Report of Commission of Inquiry into Maori Reserved Land
(Government Printer, 1975).
concerned with the Tenths.42 There is, however, a saving provision for the present proceeding (the preservation clause).43 The scope of that clause and the impact of the settlement is considered further in pt X of this judgment.
Supreme Court judgment
[114] The decision of the Supreme Court sets the parameters of this judgment. The determination of liability, defences, and relief must be in accordance with the opinions of that Court.44 It is therefore necessary to consider the findings of that Court and understand the reasoning which sits behind them. What follows is a short summary of the key points, with the more detailed analysis of any particular issue addressed in this judgment where relevant.
[115] The Supreme Court’s primary finding, by majority, was that the Crown owed fiduciary duties to the Customary Owners. A declaration was made in the following terms:45
… the Crown owed fiduciary duties to reserve 15,100 acres for the benefit of the customary owners and, in addition, to exclude their pa, urupa and cultivations from the land obtained by the Crown following the 1845 Spain award.
[116]The Court’s decision on other issues may be summarised as follows:
(a)The Court unanimously agreed Mr Stafford had standing to pursue the claim.46
(b)A majority, comprising Elias CJ, Glazebrook, Arnold and O’Regan JJ, held that Mr Stafford’s claims were not barred by the Limitation Act to the extent they seek to recover from the Crown trust property either in the possession of the Crown or previously received by the Crown and converted to its use. Any other issues relating to limitation (including
42 Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Maui Claims Settlement Act 2014, s 25.
43 Section 25(6).
44 Supreme Court judgment, above n 8, at [7].
45 At [1].
46 At [2].
the availability of a limitation defence to any claim for equitable compensation, and whether the claims were barred by laches) were remitted to this Court.47
(c)A majority, comprising Elias CJ, Glazebrook, Arnold and O’Regan JJ, held that Mr Stafford’s claims were not barred by the Settlement Act. Whether it caused prejudice to the Crown, however, was to be taken into account in considering the application of the doctrine of laches.48
[117]Although the majority agreed on these key points, the reasoning of each of the
majority Judges differed slightly, as described below.
Elias CJ
[118] The former Chief Justice considered the Spain award constituted the basis on which the land became Crown land. Her Honour said that it was in the clearance of native title (through the Land Claims Ordinance procedure) and the vesting of land in the Crown that the trust and fiduciary obligations to the Māori vendors were founded.49
[119] Drawing on the Canadian decision in Guerin v The Queen, Elias CJ considered the Crown’s obligations owed to the Customary Owners were in the nature of a “private law duty”.50
[120] The Judge went further than that, finding that the fiduciary obligations owed were obligations of trust.51 That trust arose as a result of the Crown’s role in obtaining the surrender of customary title, and through the Crown’s assumption of responsibility to provide the Tenths.52 The Judge found that when the Crown received the lands cleared of customary title, the lands were “necessarily impressed with trusts” to fulfil the conditions upon which Spain had approved the sale of the land as being on
47 At [4].
48 At [5].
49 At [91] per Elias CJ.
50 At [385] citing Guerin v The Queen [1984] 2 SCR 335 at 385 per Dickson J.
51 At [393].
52 At [394].
equitable terms—namely the exclusion of the Occupation Lands and the reservation of the Tenths.53
[121] The Judge’s findings of trust extended to the Occupation Lands.54 Underpinning her reasoning was the fact that customary title to the Occupation Lands had been cleared by the Spain award process.55
[122] As for breach, Elias CJ considered that it had been established in relation to the rural Tenths and that there was sufficient certainty of subject matter for a trust to arise in relation to these lands.56 The Judge also considered that the failure to exclude the Occupation Lands was a breach of trust,57 as were the exchanges and grants made by the Crown prior to 1862.58 Her Honour held that the Tenths were not intended to be occupied, and the failure to separate the Occupation Lands and the Tenths sections resulted in losses to the Tenths estate.59 However, Elias CJ considered the extent of the breach and the nature of the loss required further consideration.60
[123] Her Honour considered the assets of the trusts were converted to the use of the Crown, and to that extent s 21(1)(b) of the Limitation Act preserved the claim.61 As to laches the Judge observed that the Crown had not shown evidential prejudice that would justify a claim being barred for delay, and the historical record was relatively intact.62 However, it was not possible to determine the application of the doctrine of laches because that doctrine was so closely linked with assessments of breach which were yet to be finally determined.63
53 At [405].
54 At [437].
55 At [405] and [437].
56 At [571]–[572] and [578]–[579].
57 At [437].
58 At [438]–[439].
59 At [443].
60 At [437].
61 At [453].
62 At [459].
63 At [94].
[124] The Chief Justice also agreed with Ellen France J in the Court of Appeal that the claims for breach of trust and fiduciary duty were not barred by the provisions of the Settlement Act.64
Glazebrook J
[125] Glazebrook J also considered the obligations owed by the Crown were fiduciary in nature but adopted a conditional contract analysis to reach that result. In the Judge’s assessment, the Company could be seen as having equitable title to the land, with that interest remaining contingent on the outcome of the Spain inquiry process and the Crown’s acceptance of that award.65 The Judge found that the Crown took assignment of the Company’s conditional contract in relation to the Tenths, meaning that the Company’s contingent equitable interest was effectively transferred to the Crown.66
[126] Glazebrook J considered that the Tenths, including the Unallocated Tenths, were held on trust.67 Her Honour found the non-allocation of the rural Tenths was a breach of trust, and that the losses from the town and suburban Tenths and the exchanges may also have been in breach of trust.68 However, in the absence of detailed findings on breach in the lower Courts, no definitive findings on particular alleged breaches could be made.69
[127] While customary title had been extinguished over the Tenths, Glazebrook J considered it had not been extinguished over the Occupation Lands as they did not form part of the Spain award or subsequent grant. To the extent Occupation Lands were treated as not belonging to the Customary Owners therefore, the Judge considered there had been an expropriation of that land.70
64 At [93], citing Proprietors of Wakatu v Attorney-General [2014] NZCA 628, [2015] 2 NZLR 298 at [39] per Ellen France J [Court of Appeal judgment].
65 At [561] per Glazebrook J.
66 At [565].
67 At [571]–[582].
68 At [587].
69 At [587].
70 At [585].
[128] Glazebrook J said that the claim was not statute barred as it fell within the savings provision in s 21(1)(b) of the Limitation Act to the extent that it was a claim for return of trust land or proceeds.71 The Judge noted that there may be an issue as to whether the Crown benefitted from some of the land lost to the Tenths, but considered that this did not mean that any claim for equitable compensation fell outside the exception in s 21(1)(b).72
[129] As for laches, the Judge held there was no forensic prejudice to the Crown that would support a laches claim, and the records for the crucial periods of 1840 to 1845 were relatively intact.73 However, the Judge accepted that laches might be available where it was impossible to form a view as to what happened and where it was difficult for the Crown to identify the extent of Occupation Lands wrongly treated as domain lands.74
[130] Her Honour considered that the Settlement Act would not preclude the claim from proceeding but cautioned against double recovery.75 She said it would be for the Crown to show double recovery but that a broad view of the settlement would be appropriate in this exercise.76
Arnold and O’Regan JJ
[131] Arnold and O’Regan JJ delivered a single judgment. Their Honours agreed that the Crown owed fiduciary duties in relation to the Tenths and Occupation Lands.77 Like Elias CJ, the Judges adopted the approach in Guerin and determined that the Crown’s fiduciary duties arose out of the Crown’s assumption of responsibility for ensuring that the Tenths were dealt with as had been agreed with the Company, and that the Occupation Lands were excluded from sale.78 They declined to determine
71 At [686].
72 At [687].
73 At [690].
74 At [691].
75 At [716].
76 At [717].
77 At [726] per Arnold and O’Regan JJ.
78 At [726] citing Guerin v The Queen [1984] 2 SCR 335.
whether there was an express or other form of trust as that was not the central focus of argument.79
[132] In relation to the Occupation Lands, Arnold and O’Regan JJ made two points. First, they said that to the extent that the Occupation Lands were wrongly swapped for Tenths, then this fell within their Tenths analysis.80 Second, to the extent the complaint was that the Occupation Lands were wrongly taken by the Crown, and became Crown domain lands, then the analysis was different.81 The Judges referred to the fact that the Occupation Lands were to be excluded from the Crown grants on the basis they had never been sold. Given the Crown’s acceptance of that position, and the fact that full title to land could only come through the Crown, the Crown was under a fiduciary duty in relation to any Occupation Land to which it wrongly took title.82
[133] As to breach, their Honours said that while there appeared, on the face of it, to be breaches by the Crown, it was not appropriate to undertake a detailed consideration of the question of breach, much less make any findings.83
[134] In considering the Limitation Act defence, their Honours confirmed that the statute did not preclude the possibility of a remedy for breach.84 However, their analysis was confined to recovery of property or the proceeds of property.85 The Judges referred to a distinction drawn in Paragon Finance Plc v DB Thackerar and Co between a trustee who has acquired property when already a trustee, and those upon whom an obligation to account as if a trustee is imposed as a result of wrongful conduct.86 In relation to fiduciary obligations, that distinction was between those whose fiduciary obligations preceded the acts complained of, and those whose liability in equity was occasioned by the acts of which complaint was made.87 The Judges considered the Crown was in the former category which led them to conclude:88
79 At [726].
80 At [786].
81 At [786].
82 At [786].
83 At [789].
84 At [813].
85 At [814].
86 At [815] citing Paragon Finance Plc v DB Thakerar and Co [1999] 1 All ER 400 (CA) at 408-409.
87 At [815] citing Paragon Finance Plc v DB Thakerar and Co [1999] 1 All ER 400 (CA) at 414.
88 At [815].
… to the extent the appellants claim recovery of land that came into the hands of the Crown that should have been part of the Tenths reserves as envisaged by the Spain award but was not included in those reserves, no limitation defence is available to the Crown.
[135] Both Judges agreed with Glazebrook J that it was not clear that the Crown had benefited from some of the land lost to the Tenths.89
[136] As for laches, their Honours agreed with Elias CJ and Glazebrook J that the historical record was relatively intact and there was no prejudice to the Crown sufficient for a laches defence.90 However, they considered there may be shortcomings in the historical record in relation to allegations of breach which may provide a basis for the Crown to claim a laches defence.91
[137] The Judges thought it necessary to consider the impact of the Settlement Act before determining whether a laches defence was available to the Crown but did not consider it to preclude the plaintiff from pursuing the claim.92 Like Glazebrook J, the Judges considered that, when determining the nature and extent of any remedy for breach, the Court should attempt to ensure there is no double recovery.93
William Young J (in dissent)
[138] William Young J considered most of the claims advanced on behalf of the Mr Stafford as unsound but his primary basis for dismissing the appeal was the limitation periods prescribed under the Limitation Act.94
[139] His Honour considered the 1845 Spain award and subsequent Crown grant as “proposals which were never implemented”.95 The critical event in William Young J’s analysis was the 1848 grant. The Judge found that the 1848 grant had the practical effect of extinguishing customary title and identifying the reserves in respect of which
89 At [816].
90 At [817].
91 At [817] and [818].
92 At [819].
93 At [826].
94 At [828] per William Young J dissenting.
95 At [880].
there was to be a trust.96 However any claim for breach of trust was barred by the Limitation Act.97
[140] As for the rural Tenths, the Judge considered that the trust argument failed on the basis that the 1845 grant was not accepted and the claim was otherwise statute barred.98
[141] In relation to questions of standing, the Judge accepted that Mr Stafford had standing in his personal capacity only, but not to pursue claims on behalf of anyone else.
Terminology
[142] There are several terms used in this judgment which require definition and explanation.
[143] The Customary Owners refers to those on the 1893 Native Land Court list and their descendants who are represented by the plaintiff in this case. The Customary Owners also includes the Kurahaupō iwi as per the agreement reached between the plaintiff and Ngāti Apa shortly before the hearing.
[144] The interests of the Customary Owners in relation to the Tenths is different to the interests in relation to the Occupation Lands. All Customary Owners are beneficiaries and intended beneficiaries of the Tenths. However, different groupings of those Customary Owners will have different customary interests in the Occupation Lands through their hapū or whanaū.
[145] The use of the word Tenths in this judgment requires some comment. Professor Bain Attwood gave expert evidence for the Crown. He cautioned against using the term “Tenths” as he said that term was not generally used in the 1840s. Instead, the Tenths were referred to as “Native Reserves”.
96 At [909].
97 At [941].
98 At [910] and [941].
[146] That may be so, but the problem is that “Native Reserves” appears to have been used for all categories of land. There was no distinction between those Native Reserves allocated over areas that were occupied (for example, the potato cultivations in Te Maatū) and those Native Reserves which were Tenths.
[147] The use of “Native Reserves” to refer to different categories of land appears to have occasioned significant confusion in the 1840s. That confusion is apparent in some of the evidence filed in this case. To avoid that confusion plaguing this judgment, I have used “Tenths” to refer to land that was intended to be reserved and held in trust for all Customary Owners. The Tenths are distinguished from the Occupation Lands and Occupation Reserves which were intended to remain in the customary ownership.
[148] The Unallocated Tenths is used by the plaintiff to refer to several sub-categories of land. I have used Unallocated Tenths to refer to the 10,000 acres of rural Tenths.
[149] The plaintiff sometimes refers to the Unallocated Tenths as including those Tenths which he says should have been selected to make up any shortfall resulting from the Occupied Tenths and the alienations and exchanges of Tenths. I do not use the Unallocated Tenths to refer to this category of land, instead referring to these sections as replacement Tenths in this judgment.
[150] The Allocated Tenths are the 5,100 acres of town and suburban Tenths which were surveyed and allocated in 1842 and 1843. Some of these Allocated Tenths were allocated over Occupation Lands meaning they became Occupied Tenths. Accordingly, there is an overlap between these two categories of land.
[151] The Occupation Lands refers to the pā, urupā and cultivations which the Crown was required to exclude from the land it obtained after 1845. The meaning of “pā, urupā and cultivations” is considered later in this judgment.99 For reasons explained in that same part, I consider customary title in these lands was not
99 See below at [317]–[378].
extinguished by the Spain award. The intention was for these lands to remain in the ownership of those Customary Owners who had a proprietary interest in these lands.
[152] The Occupation Reserves refer to the lands reserved in Massacre Bay and western Blind Bay in 1846 and 1847. These lands remained in customary title, but they were administered together with the Tenths. Although the Occupation Reserves comprised Occupation Lands, the duties owed in relation to the management and alienation of these lands was somewhat different as I explain below.100
[153] The Occupied Tenths captures two sub-categories of land. The first subcategory captures the Allocated Tenths which were allocated over Occupation Lands. This category of land is essentially a hybrid involving both Occupation Lands and the Tenths. The second subcategory captures those Tenths which were reserved from land obtained by the Crown but which were subsequently occupied by Māori. I will refer to this subcategory as Occupied Tenths (post) to distinguish it from the first subcategory.
[154] Finally, the Tenths shortfall is used by the plaintiff to refer to the acres missing from the 15,100 acres of the Tenths estate. The Tenths shortfall is said to have been occasioned by the failure to reserve the rural Tenths; the failures in relation to the Occupied Tenths; and the alienations and exchanges of the Allocated Tenths.
[155] For reasons which will become clear in the course of this judgment, I have found it necessary to draw a distinction between the act or breach which is said to contribute to the Tenths shortfall, and the nature of the loss which arises. Accordingly, I do not use Tenths shortfall in the same way as the plaintiff.
Claim and Defence
Plaintiff ’s claim
[156] The plaintiff’s claim follows the Supreme Court decision. The plaintiff says that the Supreme Court has already mapped out the relevant legal principles and gone a considerable way to determining his claim.
Section 13. The only issue between the parties is whether the Occupation Lands extend beyond the sites already reserved.
[276] I consider the best evidence of boundaries is that established by the reserves that were set aside at the time. On the basis of that evidence, I am not satisfied that the Crown breached its duties in relation to these sites.
Te Waikoropupū Springs
[277] Te Waikoropupū Springs area covers the springs itself and extends back to Waingaro. It is claimed as a wāhi tapu site. Ms Mitchell recalled her grandmother taking visitors to the site to cleanse themselves (especially their feet) before they would leave Mohua and carry on the journey. The site was also used for spiritual purposes such as karakia and other blessings. There were no reserves made in this area.
[278] The significance of this site and relationship of the Customary Owners to it is one which New Zealanders in this century can understand. However, I am not certain that the importance of wāhi tapu sites to Māori in general (beyond the protection of urupā) were understood in the 1840s. As I have explained elsewhere in this judgment, the fiduciary duty found by the Supreme Court focused only on pā, urupā and cultivations. In the context of this proceeding, I am not satisfied that the failure to set aside this area as a pā, urupā or cultivation site was a breach of the Crown’s fiduciary duty.
Rangi-ata (Rangihaeata)
[279]Ms Mitchell’s evidence is that Rangihaeata was a significant papakāinga site
with burial caves at the headland.
[280] Dr Williams cites the Mitchells’ evidence that those associated with this area include Ngāti Tama rangatira Inia Ohau, also known as Rangiata Inia Ohau and Wi Ngaparu of Ngāti Tama. The latter signed the 1844 deeds of release as “Ko Wiremu o Rangi-ata”.
[281] No Occupation Reserves were created in this area. That is significant given other Occupation Reserves were created in nearby areas, including on the other side of Tākaka River.
[282] While I accept that there is some evidence of occupation in the area, that evidence is, on its own, insufficient evidence of a pā, cultivation or urupā which would engage the Crown’s fiduciary duty. Breach is not established in relation to this site.
Pariwhakaoho, Puramāhoi and Te Waikaha
[283] Pariwhakaoho, Puramāhoi, Te Waikaha are claimed as papakāinga, cultivations and urupā sites.
[284] Dr Williams and Mr Parker agree that Occupation Reserves W, X, Y, and Z were initially set aside and were then later consolidated into Pariwhakaoho Section 79. The only issue therefore is the extent of the Occupation Lands.
[285] I consider the best evidence of the boundaries of these sites is the Occupation Reserves set aside at the time. Breach is not established in relation to these sites.
Onekaka
[286]Onekaka is claimed as a kāinga and cultivation site.
[287] Ms Mitchell said the area was quite a transient area which was used for fishing and mahinga kai. Before the Native Land Court, Ngāpiko claimed that Onekaka was owned by Hikaka of Ngāti Rārua.
[288]There were no reserves made in this area despite it being located between
Tukurua and Puramāhoi where Occupation Reserves were set aside.
[289] The evidence regarding this site is insufficient to conclude that it was a pā, or a site of cultivations at the relevant time. Breach is not established in relation to this site.
Tukurua
[290] Dr Williams and Ms Mitchell both say that Tukurua was an important papakāinga site with cultivations and urupā. This site was reserved as Occupation Reserve T and Reserve U which was the urupā.
[291] The boundaries of the Occupation Reserves may not be entirely accurate, but nearly 180 years later they provide the most reliable evidence of the size of these Occupation Lands. Breach is not established in relation to this site.
Parapara
[292]Dr Williams records that Parapara was a Ngāti Tama papakāinga site led by the
rangatira Henare Te Ranga.
[293] Dr Williams and Mr Parker agreed that Parapara was initially reserved in the 1848 Crown Grant and then abolished and replaced by other sections. Therefore, the issue in relation to this site is whether the full extent of the Occupation Lands were reserved.
[294] The boundaries of the Occupation Reserves are the best evidence of the size of the Occupation Lands at the time. There is no breach in relation to this site.
Aorere
[295] The plaintiff claims this as an important pā site with cultivations and mahinga kai. There were numerous and extensive reserves made in this area. To the extent the Occupation Lands claimed extend beyond these reserves then the boundaries of the Occupation Reserves are to be preferred. Breach is not established in relation to this site.
APPENDIX 2 TABLE OF CONTENTS
Tenths sections 157, 159, 160, 161, 183, 187, 241 and 242 [1]
1844 exchanges during Spain Commission hearing [2]
1847 remodelling of Nelson settlement [3]
1848 exchange of Tenths section 203 Nelson [14]
1849 exchanges [16]
1853 Whakarewa grant [17]
1858 exchange of sections 142 and 143 Motueka [30]
1864 exchange of sections 139, 140 and 141 Motueka [33]
1864 sale of section 344 Nelson [39]
1864 sale of section 161 Motueka [42]
1869 exchange of sections 266 and 269 Nelson [45]
1870 sale of sections 145 and 146 Motueka [47]
1874 sale of section 205 Nelson [53]
1856 abolitions of the Occupation Reserves [55] 1863 redesignation of 12 suburban Tenths sections as Occupation
Reserves [58]
Tenths sections 157, 159, 160, 161, 183, 187, 241 and 242
[1]This claim is addressed under the Te Maatū heading in Appendix 1.
1844 exchanges during Spain Commission hearing
[2]This exchange is addressed under the Te Maatū heading in Appendix 1.
1847 remodelling of Nelson settlement
[3] In 1847 there was a remodelling of the Company’s plan for the Nelson settlement. This was prompted by difficulties encountered by the Company at the outset in selling the sections. The Company’s proposal for the Nelson township comprised 1000 allotments, including the 100 town Tenths sections which were allocated in 1842. By this time only 530 of the 900 allotments for sale had been sold. Some of the purchasers were overseas, and those that were resident were not concentrated in one place. That increased the costs of infrastructure and had a negative impact on the value of the town sections.
[4] There were several schemes proposed by the Nelson settlers to address this issue. None of these schemes proposed a reduction in the Tenths estate. Indeed, some of the documents regarding these early proposals recorded that as Tenths sections had generally been allocated where the Customary Owners were in actual occupation, “it would be neither right nor expedient to attempt any alteration”.1
[5] However, one of the schemes promoted in 1847 involved landowners giving up the sections they had selected in 1842 and participating in a re-selection of a reduced number of town and suburban sections. That proposal included a proportionate reduction in the Tenths to limit them to one-tenth of the land actually sold to the settlers, with the remainder available for re-selection. That is, the Tenths were to be reduced from 100 to 53 town Tenths sections.
1 “Proposed Adjustment of the Nelson Land Question” Nelson Examiner and New Zealand Chronicle (24 January 1846).
[6] Governor Grey approved this proposal but he did so on the basis that the Tenths sections should be subject to the same conditions as the settler sections in any remodelling. That approval was initially for a reduction of both the town and suburban Tenths sections. However, in February 1848 it was decided that the suburban Tenths would not be reduced, with the concern being that if the proposal was “likely to create any misunderstandings with the Natives, it had perhaps better not be done”.2
[7] Forty-seven town Tenths were withdrawn from the scheme.3 Richmond, the Nelson Superintendent, selected the Tenths sections to be withdrawn. He said he had retained Tenths with frontages or those that were likely to become valuable. Re-selections took place over April and May 1848. The Crown did not allocate any substitute Tenths for the sections withdrawn. Dr O’Malley said in cross-examination that the Tenths were the only sections withdrawn, and the Company and settler allocations were not so reduced. Mr Parker agreed with this evidence.
[8] There was very little evidence about what happened to these sections after they were withdrawn.4 It seems that the 47 withdrawn town Tenths were not excluded from the 1848 grant to the Company. Counsel for the plaintiff’s written submissions referred to the Company having “gained” 47 acres from the Tenths, with that land reverting to the Crown in 1850 following the collapse of the Company. Dr O’Malley referred to the later sale of these sections during cross-examination. There is no dispute that the withdrawn Tenths were not replaced. On the basis of this evidence, I accept that the withdrawn 47 town Tenths became Crown land and were permanently lost to the Customary Owners. Clifford J summed up the position in the first High Court judgment:5
2 Letter from William Fox (Resident Agent of the Company) to Matthew Richmond (Superintendent of Nelson) (5 February 1848) in Alexander MacKay Compendium of Official Documents Relative to Native Affairs in the South Island (Government Printer, Wellington, 1873) vol 2 at 273.
Tenths sections 20, 21, 46, 47, 191, 194, 253, 256, 303, 382, 387, 529, 551, 561, 575, 608, 625,
626, 650, 706, 718, 722, 768, 777, 778, 784, 797, 798, 828, 831, 855, 858, 860, 897, 926, 939,
941, 943, 945, 951, 953, 954, 956, 1051, 1084, 1088 and 1091. Section 303 falls within the boundary of the Eel Ponds—a claimed occupation site. However, I have found this site did not fall within the definition of pā, urupā and cultivations to which the fiduciary duty relates: see Appendix 1 at [32]–[38].
4 Mr Parker provided title history summaries for Tenths alienated to 1882 as an appendix to his 2023
brief of evidence. There were no submissions made in reliance on this evidence.
5 Proprietors of Wakatū Inc v Attorney-General [2012] NZHC 1461 at [158].
As can be seen from the great congruence between the Company’s 1842 survey plans and the maps of Nelson today, the “reduction” [of town Tenths] was but a temporary phase in the development of Nelson, whilst the loss to the Nelson Tenths Reserves was permanent.
[9] The Crown says there is no evidence that Governor Grey acted disloyally, in bad faith, or contrary to the best interests of the Customary Owners at the time. The attempts to explore alternatives and the otherwise “thin” nature of the evidence as to Governor Grey’s reasons for the decisions taken at the time, are emphasised by counsel for the Crown. Crown counsel also submits that if the decision to withdraw was not made then there was a real risk that the Nelson settlement would have failed which would not have been in the interests of the Customary Owners.
[10] The points Crown counsel make are relevant to the nature of the breach, but they do not suggest there was no breach at all. Nor do they provide reasonable justification for what occurred. The Crown held the 47 town Tenths sections on trust. The terms of that trust prohibited the Crown from alienating the Tenths. The withdrawal of 47 Tenths sections was in breach of the terms of trust and resulted in a loss of trust property.
[11] Whether that breach of trust was also a breach of fiduciary duty is relevant to remedy and to the application of the Limitation Act. I accept that there is little evidence concerning Governor’s Grey’s reasons for the decision made at the time. I also accept that the little evidence which does exist suggests that Governor Grey only approved the proposal on the basis that the Tenths sections would be subject to the same conditions as the settler sections in any remodelling. Given the risks to the Nelson settlement if the remodelling did not go ahead, then this points to an initial decision made in good faith.
[12] However, it is hard to get past the fact that, whatever Governor Grey may have said or intended initially, the end-result was that only the Tenths sections were withdrawn. I agree with counsel for the plaintiff that the discriminatory end-result was the most egregious aspect of the re-modelling. That speaks to disloyalty on the part of the Crown. The interests of the settlers and the Company were preferred over the interests of the Customary Owners and trust assets were permanently alienated.
This represents a breach of fiduciary duties owed by the Crown in its capacity as trustee.
[13] Accordingly, I find that the withdrawal of 47 Tenths sections was not legally justified and represented a breach of trust and a breach of fiduciary duty. It does not appear that any of these sections have been returned to Wakatū or any of the Customary Owners, but I require confirmation of that fact before finding that the total acreage lost was 47 acres.
1848 exchange of Tenths section 203 Nelson
[14] In 1848, Tenths section 203 Nelson was exchanged for Tenths section 733 Nelson. Tenths section 203 overlapped with the Eel Ponds that the Customary Owners claim as Occupation Lands. The plaintiff says that the alienation of Tenths section 203 was a breach of the ongoing duty to return this section to the Customary Owners.
[15] I have found that the Eel Ponds did not meet the definition of pā, urupā and cultivations.6 Accordingly, the exchange did not breach the Crown’s duty in relation to the Occupation Lands. Nor did it breach the duty in relation to the Tenths. Section 733 was another Tenth section and the exchange was approved on the basis that the sections were of materially the same value. There was no loss to the Tenths estate. Breach is not proved in relation to this exchange.
1849 exchanges
[16]This claim is addressed under the Te Maatū heading in Appendix 1.
1853 Whakarewa grant
[17] On 25 July and 4 August 1853, Governor Grey issued two grants of land to the Bishop of New Zealand for a school at Whakarewa. The total grant was of 1,078 acres of land, with just over 918 acres comprising Tenths sections. The grant was both for the building of the school itself and an endowment for the school. The school was not for the exclusive use of the Customary Owners.
6 See Appendix 1 at [32]–[38].
[18] Few details now exist about the decision to make the grant. About this time, the Board of Management for the Tenths had been abolished, and it appears that the decision may have been made by Governor Grey himself. The factors which informed his decision and the terms upon which the grant was made (for example, whether the land would revert back to the Tenths trust if the school purpose failed) are unknown.
[19] The sections granted to the Bishop were Tenths sections 6, 22, 137, 138, part 145, part 146, part 147, part 157, part 159, part 160, part 162, part 163, part 164, part 181, part 186, 218, 219, 220, 221, 222, 223, 240, 241, 242 and 243. In his 2011 evidence Mr Parker produced a plan showing the approximate location of these sections (coloured red):
[20] As can be seen, many of the Tenths the subject of the grant were located in and around Te Maatū. Others fell within the boundaries of sites which the plaintiff claims should have been excluded as Occupation Lands, namely: Matakinokino, Wakapaetuarā, Raumānuka, Te Kūmera, Piri Kahikatea, Puketūtū, Pounamu, Putarepo, and Te Maatū itself.7
7 I have found that Tenths section 159 was also an Occupied Tenth, see Appendix 1 at [112(a)].
[21] The grant appears to have been controversial at the time and there was opposition to it from several different quarters. However, there also appeared to be support from some of the Customary Owners as evidenced in letters from Tamihana Ngāpiko and Te Iti sent in December 1853. Nevertheless, opposition to the grant subsequently grew when the Customary Owners were asked to move from some of the land, and petitions for the land to be returned were also made after the school closed in 1881.
[22] Under the Ngati Rarua-Atiawa Iwi Trust Empowering Act 1993 all Tenths the subject of the grant were returned to Ngāti Rārua-Ātiawa Iwi Trust. 8 Other assets of the Whakarewa school trust board were also vested in the Ngāti Rārua-Ātiawa Iwi Trust.9 The beneficiaries of that trust are the descendants of Ngāti Rārua and Te Ātiawa manawhenua ki Motueka iwi who were named in the 1892 and 1893 lists of the Native Land Court as beneficiaries of the Tenths.10
[23] Counsel for the Crown submits that the 1853 grant was not in breach of trust. The Crown says that the initial grant of the land for a school is consistent with the terms of the trust and was supported by the Customary Owners at Motueka. Any opposition is said to have only come later in relation to administrative decisions made by the Anglican Church and not the Crown. In any event, the Crown says that if the 1853 grant was a breach of trust, the breach is limited and does not fall within s 21(1)(b) of the Limitation Act as no trust property or proceeds were converted by the Crown for its own use.
[24] I have found that many of the Tenths the subject of the grant were Occupied Tenths.11 The Crown’s failure to exclude the underpinning Occupation Lands, and to reserve the Tenths from the land obtained by the Crown, were breaches of the fiduciary duties found by the Supreme Court. The focus of this section therefore is on whether the grant of the other Tenths was in breach of trust and breach of fiduciary duty.
8 Ngati Rarua-Atiawa Iwi Trust Empowering Act 1993, schs 1 and 3.
9 Sch 3.
10 Schs 2 and 3.
11 Those being Tenths sections part 145, part 146 and part 147 (Puketūtū); part 157 (Pounamu); and part 157, part 159, 160, part 162, part 163, part 164, 219 and 220 (Te Maatū).
[25] There can be little doubt that the Whakarewa grant was in breach of trust. The Tenths were inalienable prior to 1856. While the terms of trust permitted the building of structures on the Tenths, those had to be for the exclusive benefit of the Customary Owners. The intended school was not for the exclusive benefit of the Customary Owners. The fact that some of the Customary Owners may have consented to the grant is not enough to establish acquiescence. The Tenths were for the benefit of all Customary Owners. There is no evidence that all Customary Owners consented to the grant. Breach of trust is established.
[26] The question is whether this breach was also a breach of fiduciary duty. I accept that any alienation of trust property must be considered a breach of fiduciary duty. The Crown’s duty was to preserve the Tenths for the Customary Owners and not give it away to third parties. The alienation of trust property is inherently disloyal.
[27] The difficulty here is that there is very little evidence to determine whether the grant was intended to be a permanent alienation, or whether it was intended that the land would revert to the Tenths estate if the school failed. The latter situation would still be a breach of trust, but it may be more difficult to establish that it was also a breach of fiduciary duty. The terms of trust allowed the land to be used for the building of institutions, such as a school for the Customary Owners. The grant was generally consistent with those terms except that the school was not for the exclusive use of the Customary Owners. Moreover, there is no suggestion that the Crown was acting in bad faith in making the grant. Rather, the Crown may have genuinely believed that the grant would benefit the Customary Owners. The apparent support of some of the rangatira of the Customary Owners no doubt strengthened that view. If the land was to be returned to the Tenths trust in the event the school purpose failed, then arguably the breach of trust was more like a breach of reasonable skill and care in the management of trust assets rather than a breach of fiduciary duty.
[28] The fact that the land and assets of the Whakarewa trust were eventually returned to some of the Customary Owners is also relevant here. The return of land compensates for any breach of fiduciary duty. And, arguably, the return of the Whakarewa trust assets compensates for any loss of use of those Tenths. In the
absence of evidence and submissions to the contrary, it seems that any breach of trust has been remedied.
[29] Weighing the evidence in totality, I consider there is sufficient evidence to find that the Whakarewa grant was a breach of trust, but there is insufficient evidence to conclude that it is also a breach of fiduciary duty. Moreover, I am not persuaded that the plaintiff has proved loss in relation to this transaction. The claim fails on this ground but would falter at the Limitation Act stage in any respect for reasons explained in the judgment. Accordingly, I find that that plaintiff is unable to prove his claim in relation to this transaction.
1858 exchange of sections 142 and 143 Motueka
[30] In 1858, Tenths sections 142 and 143 Motueka, comprising 90 acres, were exchanged for 90 acres of Tenths section 165 Motueka (which had been amalgamated with Tenths section 180 Motueka).
[31] A small part of Tenths section 143 falls within the boundary of Puketūtū in Motueka which the plaintiff claims as Occupation Lands. The plaintiff says that this part of Tenths section 143 should have been returned to the Customary Owners and should not have been part of the suburban sections at all.
[32] For the reasons discussed in relation to Puketūtū, I have found this site comprised Occupation Lands which should have been excluded from the land obtained by the Crown following 1845.12 The boundary of this site is limited to the net balance of Tenths sections 144–147. I could not be certain that the boundary of this site included part of Tenths section 143. Accordingly, this part of section 143 was not considered Occupation Lands. Because the same acreage (90 acres) of Tenths was maintained in the exchange there was no breach of trust in relation to this transaction.
1864 exchange of sections 139, 140 and 141 Motueka
[33] In 1864, Tenths sections 139, 140 and 141 Motueka, totalling 148 acres, were exchanged for 150 acres in section 9 Tākaka which falls within the boundary of
12 See Appendix 1 at [113]–[119].
Motupipi which the plaintiff claims as Occupation Lands.13 Section 9 was originally owned by Mr Thorpe. He was also the lessee of Tenths sections 139, 140 and 141 Motueka.
[34] Dr O’Malley gave evidence that the exchange had arisen because the Customary Owners at Motupipi had been promised a reserve in return for their giving up cultivations east of the Motupipi river.
[35] Mr Parker agrees, referring to the fact that James Mackay, the Assistant Native Secretary, wrote to the Commissioners of Native Reserves seeking consent to the exchange. This was approved by the Native Minister in February 1863. However, before the exchange took place, the Governor took back the powers of the Commissioners appointed under the Native Reserves Act 1856, and subsequently delegated them to James Mackay. Mr Parker considers it likely that the exchange was able to proceed after this time and he refers to a deed dated 11 June 1864 recording the exchange, which was endorsed by the Executive Council on 21 July 1863.
[36] The exact status of section 9 after this exchange is not clear. It appears to have been recorded as a Tenth in the returns tabled under the Native Reserves Act 1873 and the subsequent amendments but appears to have ceased to be a Tenth after 1896. It is not clear to me from the evidence that section 9 was in fact occupied after this exchange—although presumably that was its purpose.
[37] I have found insufficient evidence that Motupipi was a site of Occupation Lands. To the extent that the plaintiff’s claim relates to the alienation of Occupation Lands then it cannot succeed.
[38] As for the exchange of the Tenths, then it is relevant that it took place after the enactment of the Native Reserves Act in 1856. That statute afforded broad powers of management and disposition, including the alienation of Tenths in certain circumstances.14 Given those broad powers, I cannot be satisfied on the evidence that
13 Section 9 Tākaka is referred to as section 9 Motupipi in the plaintiff’s closing submissions.
14 See judgment above at [103]–[104] and [304].
this exchange was in breach of the Crown’s duties. Breach is not established in relation to this transaction.
1864 sale of section 344 Nelson
[39]In July 1864, 0.71 acres of Tenths section 344 Nelson was sold to settlers for
£70. The proceeds were used to buy Tenths section 58 Picton which consisted of 46 acres, zero roods and 28 perches.15 Tenths section 344 was divided into two parts, with the smaller part falling with the boundaries of the Eel Ponds, claimed by the plaintiff as Occupation Lands.
[40] The plaintiff says that the sale was of the larger portion of Tenths section 344 (which was not occupied). He says this was a breach of fiduciary duty as the land purchased in replacement, Tenths section 58 Picton, was not the same kind. That is because the Picton section was well outside the Spain award boundary and was not Occupation Lands of the Customary Owners.
[41] I have found that the Eel Ponds were not Occupation Lands. Accordingly, the transaction did not involve the alienation of those lands. Beyond that, the nature of this alleged breach is different to the others. It does not challenge the alienation per se, but the conditions of the exchange. That exchange appeared to be authorised under the terms of the Native Reserves Act 1856. There was no evidence nor submissions directed towards the loss sustained by the Customary Owners as a result of this transaction. Ultimately, I consider there to be insufficient evidence relating to this transaction to conclude it was in breach.
1864 sale of section 161 Motueka
[42] In November 1864, one acre of Tenths section 161 Motueka was sold to the Central Board of Education for £100. Part of Tenths section 161 had been included in the 1853 Whakarewa grant. Counsel for the plaintiff proceed on the basis that the part alienated in 1864 was not the part included in this grant.
15 “Schedule of Native Reserves in the Province of Nelson” in Alexander MacKay Compendium of Official Documents Relative to Native Affairs in the South Island (Government Printer, Wellington, 1873) vol 2 at 333.
[43] Tenths section 161 falls within the boundary of Te Maatū and Putarepo claimed by the plaintiff as Occupation Lands. For the reasons explained in relation to Te Maatū, I consider these were Occupation Lands and the failure to exclude Tenths section 161 constitutes a breach of the Crown’s fiduciary duty to exclude Occupation Lands.
[44] However, the alienation of the Tenths section was permitted by 1864 and there is insufficient evidence to conclude that the transaction constituted a separate breach of trust.
1869 exchange of sections 266 and 269 Nelson
[45] In 1869, Tenths sections 266 and 269 (totalling 1.85 acres) were exchanged for Nelson Tenths section 946 (one acre) and an equality of exchange payment of £55. The plaintiff says the net reduction of 0.85 acres was not replaced and that this amounted to a breach of the Crown’s duties in relation to the Tenths.
[46] There was limited information about this exchange. Again, it took place at a time when the Crown reserved broad powers of management and disposition. On the basis of the evidence adduced at trial, I am not satisfied that the exchange constituted a breach of the Crown’s duties.
1870 sale of sections 145 and 146 Motueka
[47] In 1870 a sale of 13,875 acres comprised in parts of Tenths sections 145 and 146 Motueka were sold to the Nelson Province for £100 for use as a cemetery. These parts of the Tenths did not form part of the Whakarewa grant. However, they fall within the claimed area of Puketūtū.
[48] The genesis of the sale appears to be a request by settlers for parts of sections 146 and 147 for a cemetery. James Mackay advised against the sale. That was because it was intended at that time that the seaward portions of sections 144, 145, 146 and 147 be vested in Ngāti Tama. That allocation was made on 17 December 1862.
[49] Nothing happened in response to the request for the cemetery. However, in December 1870, an Order in Council was issued pursuant to the Native Reserves Act 1856 and its 1862 amendment that vested parts of Tenths sections 145 and 146 in the Nelson Council. Those Tenths sections vested (145 and 146) were therefore different to those originally requested in the petition (146 and 147). In 1879 the cemetery was permanently reserved.
[50] The plaintiff says that this transaction breached the Crown’s duty in relation to Occupation Lands as it represented an alienation of those lands, or alternatively it breached the obligation in relation to the Tenths. I have already found that Tenths sections 145 and 146 were Occupation Lands and Occupied Tenths.
[51] However, if I was found to be wrong in these determinations, then I would hesitate before making any findings in relation to the subsequent alienation of this land. The evidential picture is patchy in relation to this transaction. There is an eight-year delay before the land was sold, and a further nine years before it was used for a cemetery. The initial sections requested by the settlers are different to those eventually vested, and it is not clear why there was a change. Other sections falling within this boundary were vested in Ngāti Tama and there is no evidence of objection by Ngāti Tama to the sale at the time (although the absence of evidence does not mean there was no opposition). The fact that the sale was affected by Order in Council also suggests that different considerations may have been at play in the decision to alienate this land.
[52] I consider there to be insufficient evidence to conclude that the alienation of these Tenths sections was a breach of the Crown’s fiduciary duties.
1874 sale of section 205 Nelson
[53] In 1874 Tenths section 205 Nelson was sold to the Nelson Provincial Government for £200 for a school site. This section fell within the boundaries of the Eel Pond in Nelson. The plaintiff claimed the Eel Pond as Occupation Lands and says the alienation of Tenths section 205 was a further breach of the obligation to return these lands to the Customary Owners.
[54] As noted previously, I found that the Eel Pond did not fall within the definitions of pā, cultivation or urupā and so did not fall within the scope of the Crown’s fiduciary duty. Accordingly, alienation of this section was not an alienation of Occupation Lands. The plaintiff does not claim that the sale of this Tenths section also constituted a breach of the trust obligations in relation to the Tenths. There is insufficient evidence to prove such a claim in any event. Accordingly, breach is not established in relation to this section.
1856 abolitions of the Occupation Reserves
[55] A series of rearrangements of Occupation Reserves and other sections were made in 1856 by Donald McLean, Land Purchase Commissioner. Some of these claims are addressed in Appendix 1 in relation to particular sites.
[56] Some of the Reserves appear to have been abolished and replaced.16 However, there is insufficient evidence to be able to ascertain why this was done, or whether it was done with the consent of the Customary Owners. Moreover, the alleged loss that was suffered as a result of these exchanges is not always obvious or particularised.
[57] Even if there was a fiduciary duty in relation to the management of the Occupation Reserves, there is insufficient evidence to conclude the abolition of them was a breach.
1863 redesignation of 12 suburban Tenths sections as Occupation Reserves
[58] In February 1863, James Mackay was Commissioner with responsibility for the Tenths. Mackay recommended that 12 suburban Tenths be allotted to local hapū and whānau for occupation purposes. The plaintiff claims that this resulted in a net loss to the Tenths estate of 600 acres.
16 For example, Dr Williams gave evidence that Reserves L, M and N at Mārahau “could have been incorporated into Section 27, abolished, or replaced”; Reserve B at Anapai/Anapae/Anapahi was abolished and replaced with a reserve at Waiharakeke; Takapau Reserves R and S, and Anatimo Reserve R, were replaced with Section 9, square 12 of 26a 2r; Tata and Ligar Bay Reserves M, N, O, P and Q were abolished and replaced by 100 acres at Tata; Tākaka Reserve D was incorporated into Tākaka section 13.
[59] Mackay’s recommendation was endorsed by the Native Minister at the time. Mackay recorded the arrangement in relation to eight of the sections in an undated memorandum:17
Sections 126, 127, 129 and 132 were sub-divided at the same time amongst members of the [Ngati Rārua] and [Ngāti Awa] tribes who had been overlooked at the previous apportionment.
The whole of the Native reserve sections at [Mārahau] were given up to Teira and his people, and Sections Nos. 111, 113, 117 and 118 at Sandy Bay were apportioned as follows:—
Section 111, for Peti and her children and their relatives; Section 113 for Teira and Munu and their children and relatives; Section 117 for Wiremu Waiti, Warena, Hakopa te Nukaroa, and Iraia, and Section 118, for Wiremu and his relatives.
[60]As for the other four sections, Dr O’Malley explains:18
In addition to these eight sections, in December 1862 Mackay had recommended that “the seaward portion of Native sections 147, 146, 145, and 144, and the point between section 144 and the River Moutere should be given for the use of the Natives of the [Ngāti Tama] tribe resident at Motueka”.
[61] The evidence on the status of these Tenths sections is not entirely clear. Despite the evident intention to reallocate these Tenths as Occupation Reserves (either in 1856 or in 1862), they nevertheless remained as Tenths.19
[62]The 12 Tenths sections fall within three sites of Occupation Lands:
(a)Te Kūmera and Raumānuka (Tenths sections 126, 127, 129 and 132).
(b)Mārahau (Tenths sections 111, 113, 117 and 118).
(c)Puketūtū (Tenths sections 144, 145, 146 and 147).
17 James Mackay Junior “Memorandum” in Alexander MacKay Compendium of Official Documents Relative to Native Affairs in the South Island (Government Printer, Wellington, 1873) vol 2 at 310.
18 Footnotes omitted.
19 See Native Reserves Act 1873, sch D; and Native Reserves Amendment Act 1896, sch 1.
[63] I have already found that each of these sites was Occupation Lands and the failure to exclude pā, urupā and cultivations was a breach of fiduciary duty.20 I have also found that each of these Tenths were Occupied Tenths. The Crown breached its fiduciary duty in failing to allocate these Tenths from land obtained from the Crown. This was a breach of fiduciary duty that gives rise to a proprietary remedy and a claim for the lost benefits arising from these Tenths. The plaintiff’s claim is already established in relation to these sections and the subsequent reallocation in 1862 does not add anything to those conclusions.
[64] If I am found to be wrong in my conclusions regarding these 12 sections, then I would hesitate before finding the redesignation in 1862 was a breach of fiduciary duty. That is because the redesignation was made pursuant to broad statutory powers of management and disposition. The exercise of a statutory discretion is different in kind to the breach of fiduciary duties found by the Supreme Court. Moreover, it is difficult to second guess the exercise of that discretion at this remove in time and on the available evidence. Accordingly, I would not have separately concluded that the redesignation of these 12 Tenths in 1863 was a breach of trust and breach of fiduciary duty.
20 See Appendix 1 at [113]–[119] (Puketūtū), [148]–[154] (Te Kūmera and Raumānuka) and
[207]–[220] (Mārahau).
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