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Stafford v Attorney-General

Stafford v Attorney-General

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Case Copied 5 May 2022 46 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA162/2021
[2022] NZCA 165

BETWEEN	RORE PAT STAFFORD Appellant
AND	ATTORNEY-GENERAL First Respondent ACCIDENT COMPENSATION CORPORATION Second Respondent KĀINGA ORA – HOMES AND COMMUNITIES Third Respondent HOUSING NEW ZEALAND LIMITED Fourth Respondent NELSON MARBOROUGH DISTRICT HEALTH BOARD Fifth Respondent NELSON MARLBOROUGH INSTITUTE OF TECHNOLOGY LIMITED Sixth Respondent

Hearing:	14 and 15 September 2021 (further material received 20 October 2021)
Court:	Miller, Clifford and Gilbert JJ
Counsel:	K S Feint QC, M S Smith and H K Irwin-Easthope for Appellant J R Gough, S M Kinsler and S L Gwynn for First Respondent V E Casey QC, R E Brown and G F Dawson for Third and Fourth Respondents No appearance for Second, Fourth and Fifth Respondents
Judgment:	5 May 2022 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe Attorney-General’s cross-appeal is dismissed.
CThe appellant must pay the Attorney-General’s costs for a standard appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Table of Contents

Introduction [1]

Background [9]

The Wakatū decision [9]

Overview [18]

The substance of the Review Proceedings [18]

Interim relief — the process to date [26]

Mr Stafford’s 2012 caveats  [26]
Mr Stafford seeks agreement with the Crown  [31]
Mr Stafford lodges further caveats  [34]
A request for greater protection  [37]
Mr Stafford requires the Crown to account  [38]
The Review Proceedings  [40]

The High Court decision [49]

ACC settles [54]

This appeal [56]

Mr Stafford  [56]
The Attorney-General  [61]
Kāinga Ora  [70]

Further developments [73]
Analysis [74]

Overview [74]
A power and a duty? [79]

Result [97]

Introduction

In 1839 the New Zealand Company (the Company) purported to purchase from Māori customary owners some 20 million acres of land on both sides of the Cook Strait, including lands in western Te Tau Ihu: that is the top of the South Island comprising what we now know as Nelson City and the wider areas of Tasman Bay and Golden Bay.
The appellant, Rore Pat Stafford, is one of the descendants of those customary owners. Mr Stafford is himself a kaumātua of those descendants, and has been recognised as having standing as such in these proceedings.
In 2010, Mr Stafford commenced proceedings in the High Court against the Crown claiming that, when awarding land to the Company in terms of the Spain Award,[1] the Crown’s failure to give effect to the arrangements for the Nelson Tenths[2] and the Occupation Lands[3] was a breach of trust which the Crown must now remedy (the Trust Proceedings).
[1]The Spain Award, and the terms of the Company’s offer of land to subscribing settlors, provided for the grant of urban, suburban, and rural lots. Those lots were to comprise one acre, 50 acres and 150 acres respectively. The urban and suburban lots were duly surveyed, balloted and allotted. The rural sections were never surveyed. Hence no rural sections were balloted and allotted to Māori.
[2]In 1845,…

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] NZCA 165
Decision Date: 5 May 2022 at 10.30 am

CaseChat Overview and Summary

The appeal was heard by Miller, Clifford and Gilbert JJ. The appellant, Rore Pat Stafford, sought to obtain a moratorium on the sale of land within the area of the Spain Award held by the Crown and Crown entities, arguing that the Crown had assumed fiduciary duties in relation to that land. The Crown had refused to direct a moratorium, arguing that it lacked the power to do so. The High Court had rejected Mr Stafford's application, finding that the Crown had not erred in its decision, but had endorsed a strengthened Land Protection Mechanism. Mr Stafford appealed, arguing that the Crown had a power and a duty to establish the moratorium he sought. The appeal was dismissed. The Court held that the Supreme Court's decision did not provide a basis for the positive obligation Mr Stafford asserted to place a moratorium on land sales within the area of the Spain Award. Whether and to what extent the duties associated with the fiduciary obligation now created remedies, including a right to land, could only be determined in the Trust Proceedings. The Court also found that the Reviewable Decision was a reasonable decision, one which was open to the Ministers to make. The obvious check on that reasonableness, in this context, was whether the Reviewable Decision, and the mechanisms established pursuant to it to protect the interests of Mr Stafford as recognised by the Ministers, provided appropriate and reasonable protection. The Court found that, in terms of the issues before it, the relationship between Mr Stafford and Kāinga Ora remained unresolved.

Orders