Stafford v Attorney-General - [2022] NZSC 108

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 53/2022
[2022] NZSC 108

BETWEEN	RORE PAT STAFFORD Applicant
AND	ATTORNEY-GENERAL First Respondent KĀINGA ORA – HOMES AND COMMUNITIES Second Respondent HOUSING NEW ZEALAND LIMITED Third Respondent HEALTH NEW ZEALAND (PREVIOUSLY KNOWN AS NELSON MARLBOROUGH DISTRICT HEALTH BOARD) Fourth Respondent NELSON MARLBOROUGH INSTITUTE OF TECHNOLOGY LIMITED Fifth Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	K S Feint KC, S M Hunter KC, M S Smith and H K Irwin‑Easthope for Applicant J R Gough and S M Kinsler for First Respondent V E Casey KC, R E Brown and G F Dawson for Second and Third Respondents
Judgment:	9 September 2022

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicant must pay the first, second and third respondents one set of costs of $2,500.

____________________________________________________________________

REASONS

Introduction

The applicant, Rore Stafford, has applied for leave to appeal from a decision of the Court of Appeal.[1] The Court dismissed Mr Stafford’s appeal from a decision of the High Court declining to grant relief in judicial review proceedings.[2] To put the application for leave in context, we need to say something about the background to the proceedings.

Background

[1]Stafford v Attorney‑General [2022] NZCA 165 (Miller, Clifford and Gilbert JJ) [CA judgment].

[2]Stafford v Attorney‑General [2021] NZHC 335 and Stafford v Attorney‑General [2021] NZHC 1466 (Ellis J).

In Proprietors of Wakatū v Attorney‑General, this Court declared that the Crown owed fiduciary duties to reserve 15,100 acres (the Tenths) for the benefit of the customary owners of land in the Nelson area and to exclude their pā, urupā and cultivations (the Occupation Land) from the land obtained by the Crown following the 1845 Spain award.[3] The Court remitted questions of liability, loss and remedy to the High Court for determination at trial. The trial to determine those issues is set down for hearing in August 2023 (the remedies proceeding).
[3]Proprietors of Wakatū v Attorney‑General [2017] NZSC 17, [2017] 1 NZLR 423. The Court of Appeal in the present proceedings explained that the Spain award area “is the area from which the New Zealand company was to select the 151,000 acres that it had purchased from the Māori customary owners” following the review by Commissioner Spain in terms of the Lands Claims Ordinance 1841: CA judgment, above n 1, at [89].
Mr Stafford is a kaumatua of the descendants and has standing to represent the descendants of the Māori customary land owners. He is a plaintiff in the remedies proceeding.
Since this Court’s decision, Mr Stafford has sought to ensure that the remaining land in the Crown’s possession which comprises of the Tenths or the Occupation Land and other land which could form part of relief in the remedies proceeding is protected from disposal. He sought a moratorium preventing the sale of land in these categories held by the “core” Crown, Crown entities and agents, and state‑owned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZSC 108
Decision Date: 9 September 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with an application for leave to appeal from Rore Stafford, a kaumatua of the descendants of Māori customary land owners, against the Attorney-General and other respondents. The application sought to challenge the Court of Appeal's decision to dismiss Mr. Stafford's appeal from the High Court's decision to decline granting relief in judicial review proceedings. The primary focus of the appeal was on the adequacy of the interim relief provided to protect the land in the Spain award area from disposal.

The legal issues before the court included whether the Crown had a duty to prevent further disposal of land owned by the Crown or Crown entities pending the resolution of the remedies proceeding, whether the Crown's obligations under Te Tiriti o Waitangi | the Treaty of Waitangi supported and informed that obligation, whether Crown land included that which was owned by Crown entities, and whether the Court of Appeal was correct to find that Mr. Stafford's position was adequately protected in terms of interim relief. The court considered these issues in the context of the interim relief provided through undertakings given by the Attorney-General and other Crown entities.

The court found that the matters raised in the appeal, such as the scope of "Crown" land and the nature and extent of the Crown's fiduciary duties, were of general or public importance and would ultimately be addressed in the remedies proceeding. The court considered that these issues were better ventilated when they actually arise, particularly if and when there was a proposed sale or other disposition of land in the area encompassed by the Spain award. The court also noted that the undertakings provided to date were sufficient to alert Mr. Stafford to any such proposed sale or disposition of land. As a result, the application for leave to appeal was dismissed, and Mr. Stafford was ordered to pay one set of costs of $2,500 to the first, second, and third respondents.

Orders