Stafford v Attorney-General - [2021] NZHC 335

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-341

[2021] NZHC 335

UNDER the Judicial Review Procedure Act 2016; Part 30 of the High Court Rules; the Declaratory Judgments Act 1908; and the Common Law

IN THE MATTER

of an application for judicial review and/or declaratory judgments

BETWEEN

RORE PAT STAFFORD

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

ACCIDENT COMPENSATION CORPORATION

Second Respondent

FIRE AND EMERGENCY NEW ZEALAND

Third Respondent (discontinued)

KĀINGA ORA – HOMES AND COMMUNITIES

Fourth Respondent

NELSON MARLBOROUGH DISTRICT HEALTH BOARD

Fifth Respondent

HOUSING NEW ZEALAND LIMITED
Sixth Respondent

RADIO NEW ZEALAND LIMITED

Seventh Respondent (discontinued)

NELSON MARLBOROUGH INSTITUTE OF TECHNOLOGY

Eighth Respondent

STAFFORD v THE ATTORNEY-GENERAL [2021] NZHC 335 [2 March 2021]

TRANSPOWER NEW ZEALAND LIMITED
Ninth Respondent (discontinued)

Hearing: 10-13 August 2020; further submissions received 9 February 2021

Counsel:

K S Feint QC, M Smith and H Irwin-Easthope for Applicant

J R Gough, S M Kinsler and W I Gucake for First Respondent D L Laurenson QC and R L Roff for Second Respondent

V E Casey QC, R E Brown and G F Dawson for Fourth and Sixth Respondents

Judgment:

2 March 2021

JUDGMENT OF ELLIS J

Table of Contents
Paragraph No.

BACKGROUND [5]

The tenths [6]

Wai 56 [12]

The Wakatū proceedings [18]

The Settlement Act [24]

The RFR process [27]

Preservation of Wakatū proceedings [30] Caveats over Settlement Act land [34]

Wakatū in the Court of Appeal [39]

The Supreme Court decisions [42]

The request for a moratorium [46]

The ACC property [55]

First application for judicial review [57]

The ACC caveat proceedings in the High Court  [59] The present application for judicial review  [68]
Black Horse Gully properties  [71]
Amended applications for review and interim orders  [73]
Interim arrangements  [75]
Transfer decision  [78]

The impugned decision [80]

Third amended statement of claim [86]

The Attorney-General’s further reasons [89]

The letters [97]

The Court of Appeal’s ACC caveat decision [98]

The majority decision and Williams J’s dissent [103]

Potential application of s 103 and s 107 [110]

Observations on the reach of the Wakatū claim [113] The Attorney-General’s August 2020 affidavit [123]

The amended prayers for relief [127]

Relevant propositions emerging [131]

ANALYSIS  [140]
Could and should a moratorium have been directed under the CEA?           [141]
Would a s 107 direction be barred by s 113?  [147] Is the direction sought properly within the ambit of s 107?  [151] Could there be an obligation to direct?  [158]

If not s 103 or s 107, then what?  [165]
And what about land owned by the Crown “proper”?  [176]
CONCLUSIONS  [184]

[1] In Proprietors of Wakatū v Attorney-General the Supreme Court held that the Crown owed fiduciary duties to the customary owners of certain land at the top of the South Island (Te Tau Ihu), and their descendants, to abide by undertakings given to the owners some 175 years ago.1 In essence those undertakings were that—in return for the owners’ consent to the grant of…

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: [2021] NZHC 335
Decision Date: 2 March 2021

CaseChat Overview and Summary

The case of Stafford v Attorney-General concerns a judicial review application brought by Rore Pat Stafford, who seeks to protect certain land from disposal by the Crown and Crown entities until the resolution of his historical claim. Stafford, a descendant of customary land owners in Te Tau Ihu, seeks the return of land that was not reserved for the customary owners as promised in 1839. The case revolves around the Crown's refusal to impose a moratorium on the disposal of land within the Spain award area, as requested by Stafford. The Crown argues that the direction sought would not be in the public interest and would risk its relationships with other iwi and the future settlement process. The Court held that the Crown's decision not to issue a direction under the Crown Entities Act 2004 was correct in law, as the Act does not empower such a direction. However, the Court also found that the Crown should have advised Crown entities to notify Stafford of any proposed disposals within the Spain award area, as a matter of good faith. The Court ordered further submissions from the parties on the appropriate relief, including declaratory relief and the costs of any potential applications for interim relief.

Orders