Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Incorporated v Attorney-General
[2020] NZHC 1882
•31 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-5224
[2020] NZHC 1882
UNDER the Declaratory Judgments Act 1908 BETWEEN
TE ARA RANGATŪ O TE IWI O NGĀTI TE ATA WAIOHUA INCORPORATED
First Plaintiff
RICHARD TE POU MINHINNICK
Second PlaintiffAND
THE ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE CROWN
First Defendant
……………………………/continued
Hearing: 4 June to 28 June 2019; further submissions 26 July 2019, 1, 2, 9,
16, 19 and 23 August 2019; final materials 3 December 2019
Counsel:
JP Kahukiwa, JK Harper-Hinton, CJ Orton and RG Ngatai for plaintiffs in 2013 proceedings and second respondent in 2014 proceedings
SM Kinsler, SK Shaw and NF Hodge for first defendant in 2013 proceedings and first respondent in 2014 proceedings
JE Hodder QC, TD Smith and AJ Wicks for second and third defendants in 2013 proceedings and applicants in 2014 proceedings
Judgment:
31 July 2020
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 31 July 2020 at 1pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohua Incorporated v The Attorney-General [2020] NZHC 1882 [31 July 2020]
Defendants continued
NEW ZEALAND STEEL LIMITED
Second Defendant
WAIKATO NORTH HEAD MINING LIMITED
Third Defendant
HERITAGE NEW ZEALAND POUHERE TAONGA
Counterclaim Defendant
CIV-2014-404-1172
UNDER the Judicature Amendment Act 1972 IN THE MATTER of the Iron & Steel Industry Act 1959
BETWEENNEW ZEALAND STEEL MINING LIMITED
First Applicant
NEW ZEALAND STEEL LIMITED
Second Applicant
AND THE ATTORNEY-GENERAL
First Respondent
RICHARD TE POU MINHINNICK
Second Respondent (Counterclaim Plaintiff)
Solicitors: Corban Revell Lawyers, Auckland
Meredith Connell, Wellington Chapman Tripp, Wellington Crown Law, Wellington
To: J Hodder QC, Wellington
CONTENTS
INTRODUCTION
Overview of factual background [1]
Summary of the plaintiffs’ claims [8]
Summary of the Crown and NZ Steel’s response [9]Some preliminary points [13]
The structure of this judgment [22]
PROCEDURAL HISTORY
1990 judicial review proceedings [25]
NZ Steel’s 2014 application to be released from its 1990 undertaking [30]
Progression of the 2013 and 2014 proceedings [36]Plaintiffs granted leave to amend their statement of claim [40] FIRST, SECOND AND THIRD CAUSES OF ACTION – BREACH OF FIDUCIARY DUTY AND/OR DUTY OF GOOD FAITH
Overview of pleaded claims [42]
Key issues for determination [62]Is the Waiuku Deed voidable for duress, undue influence or is otherwise an unconscionable bargain?
Introduction [63]
1863 – the backdrop of war [65]
The lead up to the Waiuku Deed [85]The Waiuku Deed [97]
The Confiscation [110]
Events following the Waiuku Deed and Confiscation [113]Compensation Court [118]
Crown grants [122]
Waiuku No 3 Deed [125]
Issue of new grants in 1878 [126]
Later events [133]
Claims of vitiated consent – a preliminary observation [138]Duress – legal principles [143]
Duress – discussion [149]
Undue influence - legal principles [179]
Undue influence - discussion [185]
Exploitative/unconscionable bargain — introduction [187]
Unconscionable bargain - legal principles [188]
Unconscionable bargain - discussion [192]
Was the Confiscation ultra vires the 1863 Act?
The purpose and terms of the 1863 Act
The lead up to the passing of the Act [195]
The Bill is passed [200]The 1863 Act – relevant provisions [204] The “leap frog” argument/no reference to “taking” [212] Was Ngāti Te Ata, or a section of it, or any considerable number thereof,
in rebellion? [231]
Was the Confiscation ultra vires on the basis no consideration was given to whether Ngāti Te Ata, or a considerable number of it, were engaged in
rebellion? [262]
Confiscation for an unlawful purpose/Maioro was never settled? [281]Profiting from illegal conduct? [287]
Confiscation - conclusion [290]
Does the Crown owe Ngāti Te Ata a fiduciary or other equitable duty?
Introduction [296]
Summary of submissions [298]
Earlier authorities on fiduciary duty [304]
Discussion – does a fiduciary duty arise in this case? [371]
Relational duty of good faith [389]
Conclusions on first, second and third causes of action [391]
FOURTH AND FIFTH CAUSES OF ACTION – 1939 AND 1959 TAKINGS OF THE WĀHI TAPU
Overview of pleaded claims [393]
Key issues for determination[406]
Factual background to takingsIntroduction [407]
Lead up to 1939 taking [408]The PWA 1928 taking of Te Papawhero [416]
Compensation for the taking of Te Papawhero and subsequent treatment
of the land [424]Plantings on Waiaraponia [425]
Removal of kōiwi from Te Papawhero [426]
Plantings on Te Kuo [430]Plantings on Tangitanginga [431]
Lead up to the takings of Te Kuo, Waiaraponia and Tangitanginga [432]Takings of Te Kuo, Waiaraponia and Tangitanginga [461]
Compensation for takings [468]
Consideration of iron and steel industry in New Zealand – early
surveys/consideration [475]Iron and Steel Industry Act 1959 [494]
Establishment of the Investigating Company [502]Further additions to Waiuku State Forest [505]
Establishment of NZ Steel [507]
Iron and Steel Industry Amendment Act 1965 [514]
Heads of Agreement and Licence [515]State forest land at Maioro set apart for ironsands mining [518] The Glenbrook expansion and claims in relation to Maioro [520] Negotiations following release of the Tribunal’s report [529]
State-Owned Enterprises Act [537]
Sale of the Crown’s shares in NZ Steel [545]A settlement reached? [554]
Memorandum of Understanding [565]
Proposed 1991 settlement [575]
The proposed 1991 settlement is derailed [577]
Ngāti Te Ata wish to amend the proposed 1991 settlement [584]
Crown withdraws its 1991 settlement offer [591]
Was any one or more of the 1939 and 1959 takings of the wāhi tapu under the PWA 1928 unlawful?
The key statutory provisions [598]
Was the Native Minister’s consent necessary? [612]
Was the 1939 taking for a lawful purpose? [614]
Were the 1959 takings for a lawful purpose? [622]
Was title to the ironsands mineral in the wāhi tapu taken by the Crown
as a consequence of the 1939 and 1959 takings? [626]
Were the 1939 and/or 1959 takings in bad faith or for an ulterior
purpose? [629]
Was there a failure to offer the wāhi tapu back to Ngāti Te Ata? [639]
What was the effect of setting aside the wāhi tapu for the purposes
of ISIA? [642]
Has mining already occurred on Tangitanginga? [661]
The plaintiffs’ claims arising from the “1990 Commitments” – did
a fiduciary duty arise? [665]
SIXTH CAUSE OF ACTION – LEGITIMATE EXPECTATION
Overview of pleaded claims [679]
Key issues for determination [687]Legitimate expectation in the context of Treaty settlement negotiations – overview [688]
Legitimate expectation – legal principles [700]
The plaintiffs’ legitimate expectation claim in this case [712]
AFFIRMATIVE DEFENCES [723]
RESULT AND COSTS
Result [724]
Costs [725]
INTRODUCTION
Overview of factual background
[1] Part of Ngāti Te Ata’s ancestral land lies on the Āwhitu Peninsula at Te-Pūaha- o-Waikato, the mouth of the Waikato River. It is known as “Maioro”. Most of Maioro was purchased by the Crown in November 1864 pursuant to what I will refer to as the “Waiuku Deed”. The sale and purchase excluded a number of wāhi tapu (burial grounds), four of which are in issue in these proceedings, and also provided that various lands (the habitation reserves) would be granted back to members of Ngāti Te Ata by way of Crown grants.
[2] One month later, in December 1864, Maioro (including the four wāhi tapu) was part of several blocks of land confiscated by the Crown pursuant to the New Zealand Settlements Act 1863 (the 1863 Act). This occurred against the backdrop of the Waikato Wars. Crown grants for the wāhi tapu and the habitation reserves were later issued to named members of Ngāti Te Ata.
[3] In September 1939, one of the four wāhi tapu was taken by the Crown under the Public Works Act 1928 (the PWA 1928) for sand dune reclamation purposes. It was later set apart for State forest purposes. In 1959, the remaining three wāhi tapu were taken by the Crown under the PWA 1928 for State forest purposes. Accordingly, by 1959 all of Maioro, including the four wāhi tapu, had been acquired by the Crown by purchase, confiscation and takings under the PWA 1928. Maps showing the location of Maioro on the Āwhitu Peninsula, and the boundaries of Maioro and the four wāhi tapu within it, are reproduced in Schedule One to this judgment. The land within the boundaries of Maioro is also known today as the Waiuku State Forest.
[4] In 1966, the land was set apart for ironsands mining purposes under the Iron and Steel Industry Act 1959 (the ISIA). In the same year, and also pursuant to the ISIA, the Crown granted a licence to New Zealand Steel Limited (NZ Steel) to mine ironsands at Maioro (the Licence). This included the four wāhi tapu which together make up about 21 per cent of the Licence area.
[5] The land continues to be used today for State forest purposes, but as and when trees and other vegetation is cleared, NZ Steel mines the land for ironsands.1 The ironsands supply the Glenbrook Steel Mill. NZ Steel is yet to mine (at least in any significant way) the four wāhi tapu, though it proposes to do so in the future.
[6] Ngāti Te Ata feels a keen sense of loss and grievance at the Crown’s historic conduct in relation to Maioro and the four wāhi tapu. In more recent times, the Crown has accepted that certain land confiscations of the late 1800s breached its obligations under the Treaty of Waitangi (the Treaty). As a result, and in accordance with the Waitangi Tribunal’s recommendations in its 1985 Manukau Report (referred to as “Wai 8”),2 the Crown has engaged in Treaty settlement negotiations with Ngāti Te Ata.
[7] For a variety of reasons and despite the passage of some 30 years, the Crown and Ngāti Te Ata are yet to reach a settlement of Ngāti Te Ata’s Treaty claims. Frustrated at the lack of progress, the plaintiffs commenced these proceedings in 2013.
Summary of the plaintiffs’ claims
[8] The plaintiffs’ pleaded claims are lengthy, overlapping and in parts unclear. But in broad terms, the plaintiffs allege the following:
(a)First, the vendors’ consent to sell Maioro to the Crown under the Waiuku Deed of November 1864 was vitiated by duress or undue influence, or the sale amounted to an unconscionable bargain. These claims rely on the environment created by the Waikato Wars and the threat of Maioro being confiscated in any event.
(b)Second, the confiscation of Maioro in December 1864 (the Confiscation) was ultra vires the 1863 Act, including because Governor Grey could not have been satisfied Ngāti Te Ata or a “considerable number thereof” had been “engaged in rebellion” (being a pre-requisite to confiscation under the Act).
1 Once mining is complete, new trees are planted.
2 Waitangi Tribunal Manukau Report (Wai 8, 1985).
(c)Third, and given (a) and (b) above, neither the Waiuku Deed nor the Confiscation were effective to extinguish Ngāti Te Ata’s native customary title in Maioro, and both transactions were in breach of a fiduciary duty and/or a duty of good faith owed by the Crown to Ngāti Te Ata at that time.
(d)Fourth, the 1939 and 1959 takings of the wāhi tapu under the PWA 1928 were unlawful and/or for an improper purpose (in reality, being taken for mining purposes and not for sand dune reclamation or State forest), and/or were in breach of equitable duties owed by the Crown to Ngāti Te Ata.
(e)Fifth, the sale of the Crown’s shares in NZ Steel in 1987 to Equiticorp Holdings Ltd (Equiticorp) breached the Crown’s obligations under the Treaty, breached equitable obligations owed by the Crown to Ngāti Te Ata and/or was inconsistent with the principles established by the Court of Appeal in New Zealand Māori Council v Attorney-General (the Lands case).3
(f)Sixth, the Crown and Ngāti Te Ata entered into a binding commitment in 1990 to remove the wāhi tapu from the Licence area which the Crown has failed to implement.
(g)Seventh, various commitments made by the Crown in the 1990s in the context of the Treaty settlement negotiations gave rise to a fiduciary duty on the part of the Crown which the Crown has breached.
(h)Finally, a legitimate expectation arose from the parties’ Treaty settlement negotiations to the effect that Ngāti Te Ata’s Treaty claims would have been fairly dealt with by now and would not be rendered nugatory by reason of the Crown’s actions and inactions. The plaintiffs say the Crown is in breach of this legitimate expectation.
3 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA).
Summary of the Crown and NZ Steel’s response
[9] The Crown denies that its actions in acquiring Maioro were unlawful or in breach of equitable obligations owed to Ngāti Te Ata. It says:
(a)First, the alleged equitable obligations never came into existence. In particular, it says the facts in this case are quite different to the factual circumstances in Proprietors of Wakatū v Attorney-General (Wakatū) in which the Supreme Court found the Crown did owe fiduciary duties to the original customary owners of land which was to have been (but was not) reserved for their benefit.4
(b)Second and in any event, the plaintiffs have failed to establish the Crown’s actions in acquiring Maioro were inconsistent with any such equitable obligations; rather, the Waiuku Deed effected a valid sale and purchase of Maioro and the Confiscation was lawful under the law as it stood at the time.
(c)Third, the wāhi tapu were lawfully taken under the PWA 1928 for legitimate public works purposes.
(d)Fourth, the grant of the Licence to NZ Steel was lawful under the terms of ISIA.
(e)Fifth, the sale of the Crown’s shares in NZ Steel was not in breach of any equitable obligations, the Treaty or the principles established in the Lands case. In particular, NZ Steel has never been a state-owned enterprise for the purposes of the State-Owned Enterprises Act 1986 (SOE Act) to which the Lands case was directed. Further and in any event, given the Crown retains ownership of the land over which the Licence is granted, the share sale has not impaired the Crown’s ability to provide meaningful cultural and commercial redress to Ngāti Te Ata for historical Treaty breaches.
4 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.
(f)Finally, the difficult and protracted Treaty negotiations do not give rise to the duties and/or representations contended for by the plaintiffs.
[10] NZ Steel takes a neutral position on the issues arising between the plaintiffs and the Crown. It firmly rejects, however, any suggestion that its Licence is invalid. NZ Steel says that whatever occurred as between the Crown and Ngāti Te Ata before 1966 is irrelevant to the validity of the Licence, which was lawfully granted pursuant to the statutory terms of the ISIA.
[11] The Crown and NZ Steel also advance a number of affirmative defences, namely that the plaintiffs lack standing to bring the pleaded claims, and/or the claims are time-barred or subject to the doctrines of laches and acquiescence in any event.
[12] The competing cases summarised above give rise to the following key issues for determination:
(a)whether the Waiuku Deed is voidable for duress, undue influence or was an unconscionable bargain;
(b)the lawfulness of the 1864 Confiscation;
(c)whether the Crown owed Ngāti Te Ata a private law fiduciary duty and/or a duty of good faith;
(d)the lawfulness of the public works takings of the wāhi tapu in 1939 and 1959; and
(e)what, if any, legally enforceable obligations on the part of the Crown arise out of the Treaty settlement negotiations.
Some preliminary points
[13] Before going any further there are a number of preliminary points helpful to note at this stage.
[14] First, at the time this matter was originally set down for trial (in April 2016, which was later vacated – see [37] below), it was agreed the hearing would deal with matters of liability only. This became relevant at the hearing as a number of the plaintiffs’ causes of action allege the Crown holds Maioro and/or the wāhi tapu on constructive trust for Ngāti Te Ata. Both the Crown and NZ Steel submit that whether, and if so, what form of constructive trust arises as a result of any finding of breach by the Crown is properly a matter for determination in the second phase of these proceedings.
[15] Second, the difficulty in resolving disputed facts relating to events which took place some 160 years ago will be immediately apparent. In addition, factual findings concerning those historical events can only be made on the basis of admissible evidence put before the Court in these proceedings. The plaintiffs and the Crown produced a lengthy (and helpful) statement of agreed facts. But that statement did not extend to much of the historical events which took place over the period from around 1860 to the early 1900s. Many of the facts relevant to the plaintiffs’ claims were in dispute and were the subject of competing (expert historian) evidence. Further, while the historical record before the Court is fulsome, it is by no means complete. Much has also been written and said about events in New Zealand in the late 1800s. But to the extent matters of fact are in dispute in these proceedings, the Court cannot look beyond the evidence presented before it at the hearing.
[16] In this context, the plaintiffs did not call all the witnesses for whom they had produced briefs of evidence, and in particular, Dr Vincent O’Malley (a leading historian and expert on the Waikato Wars) and Professor Richard Boast QC OMNZ (a Professor of Law at Victoria University specialising in legal history and Māori land law). I do not know what evidence Dr O’Malley and Professor Boast would have given. The plaintiffs initially suggested their briefs simply be taken as read. That would have been inappropriate given the witnesses were not available for cross- examination. I have therefore not read or taken into account Dr O’Malley or Professor Boast’s evidence.
[17] Third, and in terms of the evidence that was adduced at trial, much was in the form of historical documentary records, as well as more contemporary materials from
recent decades. I also heard expert historian evidence from Mr Roimata Minhinnick (a leading member of Ngāti Te Ata, whose roles include lead negotiator for the Ngāti Te Ata Claims Support Trust, a former research officer for the Waitangi Tribunal, and who has devoted very substantial time and energy to researching the history of Maioro and Ngāti Te Ata’s claims), and Mr James Brent Parker (Senior Historical Researcher at Crown Law, where Mr Parker has been employed for the past 24 years). I also heard evidence from others involved in the forestry and mining industries, as well as the Treaty settlements process and the negotiation of Ngāti Te Ata’s claims.
[18] Some of the evidence I heard was strictly hearsay. There was nevertheless no formal objection taken by any party to the evidence adduced at trial. I accordingly proceed on the basis the evidence was admitted by agreement pursuant to s 9 of the Evidence Act 2006. Where appropriate however, I have taken these matters into account when considering the weight to be given to particular items of evidence. This has been particularly necessary in the case of some of the historical materials, which are not complete and thus the full context to certain events and communications is unknown.
[19] The fourth preliminary point is that it is not the purpose of this judgment to make findings or comment on the moral aspects of the Crown’s acquisition of Maioro, and in particular, the Confiscation of 1864. Few, including the Crown, would now view the Confiscation as fair or right and as already noted, the Crown accepts that certain confiscations of the late 1800s were wrongful.5 Rather, aspects of the plaintiffs’ claim require me to determine the lawfulness of actions taken by the Crown under the law as it stood at the time. The Confiscation was effected by the exercise by the Governor in Council of statutory powers vested in him by the 1863 Act. As Lord Diplock said in McEldowney v Forde, “[t]he views of the courts as to whether particular statutory or subordinate legislation promotes or hinders the common weal
5 See, for example, Waikato Raupatu Claims Settlement Act 1995 (the 1995 Act), s 6, in which the Crown made an apology, including that “[t]he Crown acknowledges that the subsequent confiscation of land and resources under the New Zealand Settlements Act 1863 of the New Zealand Parliament were wrongful, have caused Waikato [which is defined as including Ngāti Te Ata] to the present time to suffer feelings in relation to their lost lands akin to those of orphans, and have had a crippling impact on the welfare, economy and development of Waikato”. Ngāti Te Ata’s claims in relation to Maioro (as part of the “Waiuku Block”) are excluded from the settlement under the 1995 Act; s 8(2)(b).
is irrelevant”.6 Accordingly, the sole inquiry for the Court on this aspect of the plaintiffs’ claim is whether the Confiscation was a lawful exercise of the powers granted by the 1863 Act.
[20] Fifth, it is appropriate to comment on some of the language and terms used in this judgment. Many of the historical materials include terms or descriptors such as “Natives”, “friendly” or “loyal” tribes, “hostile” Māori, “rebels”, “rebellion” and other similar language. These terms were used frequently at the hearing, given it is how much of the underlying documentary evidence is framed. For the same reason, these terms are used at times in this judgment. I acknowledge, however, that they are not terms which are always appropriate or employed in more contemporary times. I accordingly mean no disrespect by the use of them in this judgment.
[21] Finally, it is appropriate to record at the outset, and commend counsel for, the responsible and respectful manner in which the hearing was conducted.
The structure of this judgment
[22] Mr Kinsler, counsel for the Crown, described the plaintiffs’ claims as giving rise to a “galaxy of issues”.7 Despite the relatively brief summary of the claims earlier in this judgment, that is a fair description. The claims span events over a period of some 150 years and give rise to a large number of complex and in some instances, novel, questions of law.
[23] For these reasons, this judgment is long. In order to assist the reader digest the detail of the plaintiffs’ claims, I have not set out in one section of the judgment a summary of all the causes of action pleaded and the relief sought. Nor have I included in one section of the judgment the full factual background to all the claims. Rather, I have split the claims into what I consider to be their logical groupings and included in each resulting section of my judgment a summary of the pleaded claims, the relief sought, the factual background relevant to those claims and then my findings in relation to them. I have also not always dealt with the claims in the order pleaded; for
6 McEldowney v Forde [1971] AC 632 (HL) at 658, cited with approval in Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 242.
7 Mr Kahukiwa, counsel for the plaintiffs, similarly described the plaintiffs’ claims as “epic”.
example, I have found it helpful to address the fifth cause of action (alleged unlawful taking of the wāhi tapu under the PWA 1928) before the fourth cause of action (breach of alleged equitable duties as a result of the takings). And to avoid overburdening an already lengthy judgment, I have not set out in relation to every cause of action the parties’ detailed submissions. Rather, the parties’ submissions will be evident from my discussion of the claims themselves.8
[24]The balance of this judgment is accordingly structured as follows:
(a)First, I outline the procedural history to these proceedings which provides helpful context and background to the present claims.
(b)Second, I summarise the plaintiffs’ first, second and third causes of action which largely (though not wholly) concern the 1864 purchase and then confiscation of Maioro. It is fair to say that the legal consequences of these events were the focus of the plaintiffs’ evidence and submissions at the hearing.
(c)Third, I address the plaintiffs’ fourth and fifth causes of action, which deal with the takings of the wāhi tapu in 1939 and 1959 and aspects of the later Treaty settlement negotiations.
(d)Fourth, I address the plaintiffs’ sixth cause of action, which alleges the Treaty settlement negotiations and other surrounding circumstances gave rise to a legitimate expectation on the part of Ngāti Te Ata.
(e)Finally, I address the Crown and NZ Steel’s affirmative defences.
8 I mean no disrespect to counsel for dealing with the detailed and helpful submissions I did receive in this way.
PROCEDURAL HISTORY
1990 judicial review proceedings
[25] Issues concerning Maioro first came before this Court in 1990 when in the context of the Treaty settlement negotiations with Ngāti Te Ata, the Crown proposed to remove the four wāhi tapu from the Licence area. This was set out in an October 1990 Memorandum of Understanding (MOU) between Ngāti Te Ata and the Crown. The MOU also recorded that Ngāti Te Ata would propose conditions under which mining could proceed on the balance of Maioro.
[26] NZ Steel was concerned at these developments and that it had not been consulted on them. In October 1990, shortly after receiving a copy of the MOU, it commenced judicial review proceedings and sought urgent interim orders preserving the status quo.9 The basis of NZ Steel’s application for judicial review was its view that the removal of the four wāhi tapu from the Licence was ultra vires the ISIA. Ngāti Te Ata was joined to the proceedings.
[27] In November 1990, two undertakings were given in the place of interim orders and the substantive judicial review proceedings were set down for a hearing in April 1991. The undertakings given were as follows:
(a)The Crown undertook not to remove the four wāhi tapu from the Licence area until the Court issued a final decision on the orders sought in NZ Steel’s statement of claim; and
(b)NZ Steel undertook not to mine the four wāhi tapu pending final resolution of the judicial review proceedings or further order of the Court.
[28] In November 1990, Ngāti Te Ata filed a statement of defence in the judicial review proceedings alleging, inter alia, that the wāhi tapu had been unlawfully taken under the PWA 1928 and thus could not confer on the Crown any right to the ironsands. A month later in December 1990, Ngāti Te Ata filed a counterclaim against the Crown
9 M170/90.
in the same proceedings. This made broader allegations, including an alleged breach by the Crown of fiduciary duties said to be owed to Ngāti Te Ata and that the MOU was an enforceable contract. The relief sought included orders that the Minister responsible for administering the ISIA exercise his powers under the Act to remove Maioro (i.e. not only the wāhi tapu) from the Licence area.
[29] In the event, the April 1991 substantive hearing did not take place.10 There matters rested, at least in the context of the judicial review proceedings themselves, for the next 23 years.
NZ Steel’s 2014 application to be released from its 1990 undertaking
[30] In 2014, NZ Steel applied to discontinue the 1990 judicial review proceedings and consequently to be released from its November 1990 undertaking. In determining NZ Steel’s application, Fogarty J noted the context in which NZ Steel had given its undertaking, namely in anticipation of the substantive judicial review proceedings being heard a few months later in April 1991.11 Instead of that occurring, however, some 23 years had passed and the mining of the four wāhi tapu areas had become embroiled in the larger question of an overall Treaty settlement between Ngāti Te Ata and the Crown.
[31] Fogarty J also considered, in a preliminary way, the merits of Ngāti Te Ata’s counterclaim. He declined to engage on any suggested challenge to the Crown’s stance in the Treaty settlement negotiations, including its decision to suspend negotiations as a result of the present proceedings being filed. He said that decision- making in the Treaty settlement negotiation context was essentially an act of executive government not capable of being judged by the High Court.12 Fogarty J also declined to engage on complaints in relation to Crown actions that were empowered by a statute, including the Confiscation itself.13
10 The plaintiffs’ statement of claim in the present proceedings states that the 1990 proceedings “were put on hold” to allow negotiations to continue.
11 New Zealand Steel Mining Ltd v Butcher [2014] NZHC 155.
12 At [38].
13 At [39], stating: “The fact that the Waitangi Tribunal has found that that was a wrong does not make it justiciable. That is, the High Court has no power to criticise, let alone read down or set aside a statute.”
[32] Fogarty J then addressed the pleaded fiduciary duties and alleged breaches thereof.14 He noted statements by the Court of Appeal in the Lands case to the effect that the parties to the Treaty owed each other obligations of good faith.15 He noted the Court of Appeal in Paki v Attorney-General had later rejected the suggestion that the Lands case stood for the proposition that the Treaty itself gave rise to enforceable fiduciary duties.16
[33] Fogarty J accepted that if the real purpose of taking the wāhi tapu in 1939 and 1959 could be shown to be for mining rather than the stated purposes under the PWA 1928, “it might found an argument that the statutory powers of compulsory acquisition were exercised with lack of good faith and not for the [sic] proper purpose”.17 But he noted that even if that were the case, the remedy would not be one of constructive trust (as pleaded), given the public law presumption that all government action has its intended legal effect until set aside for error of law.
[34] For those reasons, together with the very lengthy passage of time, Ngāti Te Ata’s continuing opportunity to negotiate a settlement with the Crown under the Treaty framework and that its underlying counterclaim was against the Crown and not NZ Steel, Fogarty J granted NZ Steel’s application.18 The Judge was also mindful of what he referred to as NZ Steel’s “policy to respond with considerable care if human remains are uncovered during the excavation and there is protocol in place in that regard”.19
[35] Fogarty J’s judgment was upheld by the Court of Appeal.20 The Court noted that while it was not in dispute that Ngāti Te Ata’s case was arguable, NZ Steel’s undertaking had been given in circumstances where the substantive hearing was
14 Noting that these aspects of Ngāti Te Ata’s counterclaim in the 1990 proceedings “have been reformatted but essentially reiterated in the recent 2013 proceedings” (at [40(a)]).
15 At [43]–[48].
16 At [49], referring to Paki v Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125. Fogarty J noted that at the time of his judgment, the point was yet to be considered by the Supreme Court in Paki. I discuss the Supreme Court’s judgment in Paki at [335] to [348] below.
17 At [53].
18 The meant the only part of the judicial review proceedings left on foot was Ngāti Te Ata’s counterclaim (referred to at [28] above), which is now proceeding CIV-2014-404-1172, i.e. one of the proceedings the subject of this judgment.
19 At [78]. NZ Steel says this protocol, the “Maioro Kōiwi Protection Plan”, was agreed with a senior Ngāti Te Ata representative in 1998.
20 Ngāti Te Ata v New Zealand Steel Mining Ltd [2015] NZCA 547, [2016] NZAR 38.
expected to be held only a matter of months later, when instead “an extraordinary amount of time” had passed since the undertaking had been given.21 And rather than part of a reciprocal exchange with the Crown, the Court viewed NZ Steel’s undertaking as having come to serve as interim relief for Ngāti Te Ata against NZ Steel. The Court was not persuaded Ngāti Te Ata had shown the requisite degree of prejudice to require NZ Steel’s undertaking to remain in place, noting that loss of the undertaking may require Ngāti Te Ata to seek interim relief against NZ Steel in due course. The Court saw no requisite injustice in that.22
Progression of the 2013 and 2014 proceedings
[36] The progress of the present 2013 proceedings (and the counterclaim from the 1990 proceedings, which have been case managed together) has been fraught with delay and disruption. It is unfortunate it took some six years for the claims to come to a substantive hearing.
[37] A three-week fixture due to commence in April 2016, which had been allocated on an urgent basis and with a compressed timetable at the plaintiffs’ request, was vacated, also at the plaintiffs’ request. A replacement three-week fixture was allocated for October 2017, but later rescheduled to May 2018 given senior counsel for NZ Steel’s unavailability. But the May 2018 fixture was also vacated at the plaintiffs’ request. In granting that application, the Court recognised the plaintiffs should be given every reasonable opportunity to have their case heard by the Court, though noted that right was not unlimited and the plaintiffs were required to accept responsibility to
21 At [31].
22 At [32]. At the hearing before me, Mr Minhinnick was highly critical of the Court of Appeal’s finding of no substantial prejudice to Ngāti Te Ata. It appears Mr Minhinnick interprets the Court’s finding as a suggestion there would be no prejudice to Ngāti Te Ata from mining the wāhi tapu. But that is not what the Court of Appeal determined. It found no prejudice arising from NZ Steel being released from its undertaking, given NZ Steel did not propose to mine the wāhi tapu prior to the hearing of the plaintiffs’ claims in any event; the plaintiffs’ ability to seek interim relief in the future if required; and those protections it saw arising from the Heritage New Zealand Pouhere Taonga Act 2014. Though in a later decision in these proceedings, and against the Crown’s opposition, Powell J concluded that authority was not in fact required under the Heritage New Zealand Pouhere Taonga Act, the ISIA being a “complete code” in relation to ironsands mining in New Zealand; Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2550 at [60]. In reaching this conclusion, Powell J took a similar approach to Kós J in his earlier decision in New Zealand Steel Ltd v Attorney General [2013] NZHC 3524, in which his Honour found the Resource Management Act 1991 similarly did not apply to require the Crown to seek and obtain resource consents before undertaking forestry clearance on Maioro in preparation for mining.
pursue the claim from that point. A new three-week fixture was allocated to commence on 4 June 2019. Shortly beforehand, the plaintiffs again applied to vacate the fixture. Venning J declined that application. The matter accordingly came before me in June 2019, though in the event, the hearing extended to four weeks.
[38] The final matter the Court has dealt with on an interlocutory basis is Ngāti Te Ata’s standing, as an iwi, to be a party to and prosecute its claims. That issue came before Venning J and he delivered a judgment in November 2018.23 The Judge held that as the claims seek substantive relief against the Crown and affect the legal rights of NZ Steel, legal personality was required to advance them.24 Venning J accordingly dismissed the plaintiffs’ application in the 2013 proceedings for joinder of Ngāti Te Ata in its own right or to replace the existing first plaintiff. He also granted the Crown and NZ Steel’s applications in the 2014 proceedings that Ngāti Te Ata’s counterclaim was stayed until a plaintiff with standing to prosecute it was presented to the Court for joinder.
[39] In the event, Mr Richard Te Pou Minhinnick consented to becoming the second plaintiff in the 2013 proceedings and the counterclaim plaintiff in the 2014 proceedings. There was no objection to this, save that the Crown and NZ Steel maintain their affirmative defence that both plaintiffs lack standing to prosecute the claims.
Plaintiffs granted leave to amend their statement of claim
[40] During the course of the substantive hearing before me and over the opposition of the Crown and NZ Steel, I granted the plaintiffs leave to file a third amended statement of claim in the 2013 proceedings.25 Mr Kahukiwa also confirmed that the counterclaim in the 1990 judicial review proceedings was effectively “parked”, having been substantially (if not wholly) overtaken by the 2013 proceedings.
23 Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2886, [2019] NZAR 12.
24 Whata J reached a similar conclusion in Ngāti Te Ata v Minister for Treaty of Waitangi Negotiations [2017] NZHC 2058 at [5].
25 I declined, however, to grant leave to make amendments which would have required further and not insubstantial evidence to be called, in all likelihood necessitating a (further) adjournment of the substantive fixture.
[41]With that background in mind, I turn now to the causes of action.
FIRST, SECOND AND THIRD CAUSES OF ACTION – BREACH OF FIDUCIARY DUTY AND/OR DUTY OF GOOD FAITH
Overview of pleaded claims
[42] In their first cause of action, the plaintiffs say the Crown owed Ngāti Te Ata a fiduciary duty and/or duty to act in good faith to only extinguish Ngāti Te Ata’s property rights by fair conduct and on fair terms. Further content of the alleged fiduciary duty and/or duty of good faith is said to be:
(a)to deal with the land for the benefit of Ngāti Te Ata;
(b)to only grant rights or licences in respect of the land on terms consistent with Ngāti Te Ata’s interests;
(c)to ensure proper compensation is paid for the use of land subject to Ngāti Te Ata’s tupuna (aboriginal) title;
(d)not to alienate land that is subject to Ngāti Te Ata’s tupuna title;
(e)not to alienate land subject to a Treaty claim, or interests in land that may be subject to a Treaty claim, without taking steps to ensure Ngāti Te Ata would not be disadvantaged by such action; and
(f)not to impair the interests of Ngāti Te Ata.
[43] The following additional matters are said to form the content of the alleged duty of good faith:
(a)to cooperate with Ngāti Te Ata to achieve a shared purpose;
(b)to act honestly; and
(c)to act reasonably, having regard to the other party’s interests.
[44]The above duties are said to arise from the following:26
(a)that Ngāti Te Ata’s tupuna title pre-dates British colonisation of New Zealand;
(b)the Crown’s “assumption of an obligation to protect that property right”;
(c)the signifying of a partnership and special relationship between the Crown and Ngāti Te Ata as a result of their entry into the Treaty;
(d)instructions given on behalf of the Crown to successive Governors of New Zealand in relation to their treatment of Māori and how their land was to be acquired;
(e)Ngāti Te Ata’s customary interests being subject or vulnerable to the actions of the Crown;
(f)a relationship of trust between Ngāti Te Ata and the Crown which arose out of the terms of the Treaty and the history of diplomacy and negotiations between the Crown and Ngāti Te Ata; and
(g)by the enactment of:
(i)section 73 of the New Zealand Constitution Act 1852 (the Constitution Act) (which conferred on the Crown the right of pre-emption in respect of Māori land); and
26 I have referred here only to those aspects of the relationship between the Crown and Ngāti Te Ata which existed at the time of the Waiuku Deed and Confiscation; a raft of much later matters and statutory provisions are referenced in this part of the plaintiffs’ statement of claim, but it is difficult to see how, for example, the enactment of a statutory provision in, say 1928, 1949 or 1959 (as suggested at [164.11] of the third amended statement of claim) could give rise to a fiduciary duty or duty of good faith owed and said to have been breached in 1864. It appears that the later events and statutory provisions are intended to be further “manifestations” or reflections of the underlying fiduciary duty/relationship of good faith. I address those aspects of the pleading, to the extent required, under the later causes of action which address 20th century events.
(ii)sections 2, 3 and 4 of the 1863 Act, which set out the process for the confiscation of Māori land.
[45] In his closing submissions, Mr Kahukiwa placed particular (and indeed almost exclusive) emphasis on the Treaty itself and s 73 of the Constitution Act.27
[46] The above equitable duties are said to be owed to all members of Ngāti Te Ata, as identified by Ngāti Te Ata tikanga.
[47]The plaintiffs further plead that:
Any acquisition by the Crown of the legal interests in Ngāti Te Ata’s land could not extinguish its title in the land, except by the lawful operation of statute or with the free consent of Ngāti Te Ata to the acquisition.
[48]In this context, the plaintiffs say that:
(a)in the environment created by the Waikato Wars, and knowing the land could be subject to confiscation in any event, those members of Ngāti Te Ata who sold their interests in Maioro to the Crown did so under duress and/or undue influence and/or was an unconscionable bargain, such that the Waiuku Deed is voidable and did not effect a valid transfer of Maioro from Ngāti Te Ata to the Crown; and
(b)the Confiscation was ultra vires the 1863 Act, given Ngāti Te Ata had not been engaged in rebellion against the Crown, and/or no consideration was given to whether Ngāti Te Ata, a section of it or any considerable number of it, had been engaged in rebellion, and/or the Confiscation was for an improper purpose given the members of Ngāti Te Ata posed no security threat to the Crown.
27 This was for the purpose of drawing on Canadian authorities which have found that the statutory right of pre-emption under Canadian legislation gave rise to fiduciary duties owed by the Crown to First Nations.
[49] The plaintiffs say the Crown’s acquisition of Maioro in the above circumstances was a breach of the Crown’s fiduciary duty and/or duty of good faith and as a result, the Crown held Maioro on constructive trust for Ngāti Te Ata.
[50] The plaintiffs then refer to a range of events since 1864 (such as the setting apart of Maioro for State forest purposes and then for the purposes of the ISIA; the granting of the Licence; the mining of Maioro; and the sale of the Crown’s shares in NZ Steel) and say they all involved the Crown breaching its (pre-existing) equitable duties to Ngāti Te Ata and failing to account to Ngāti Te Ata as trustee.28
[51] The plaintiffs seek a range of declarations on the first cause of action, including that:
(a)the Waiuku Deed is voidable for want of legitimate consent on the part of the Ngāti Te Ata vendors;
(b)the Crown’s conduct leading up to the Waiuku Deed involved a breach of its fiduciary duties or duty of good faith;
(c)the Confiscation was ultra vires the 1863 Act;
(d)in purporting to confiscate Maioro, the Crown breached its fiduciary duties or duty of good faith; and
(e)from the time of the Waiuku Deed, the Crown held the land acquired under the Deed on constructive trust for Ngāti Te Ata.
[52] The plaintiffs also seek an account of profits and/or an inquiry as to damages, and an order that the Crown return that portion of Maioro that remains in Crown ownership to Ngāti Te Ata.
[53] The second cause of action partly, though not wholly, overlaps with the first cause of action. It does not, however, rely on findings of a fiduciary duty or a duty of
28 In this context, the plaintiffs rely on the concept of a “post-surrender breach” as discussed by the Federal Court of Canada in Semiahmoo Indian Band v Canada (1998) 148 DLR (4th) 523 (FCA).
good faith. Rather, it alleges that the fact the Waiuku Deed did not effect a valid transfer of Maioro from Ngāti Te Ata to the Crown and/or the Confiscation was ultra vires the 1863 Act, gave rise to a constructive trust over the lands acquired in favour of Ngāti Te Ata. Again, it is pleaded that the Crown has failed to account to Ngāti Te Ata for income, royalties and revenue derived from Maioro.
[54] In the alternative under the second cause of action, the plaintiffs say the Crown unlawfully invaded the Waikato and initiated an armed conflict and thus sought to profit from its own unlawful attack by:
(a)confiscating Maioro; and
(b)using the threat of such confiscations and the climate of fear created by the invasion to enter into the Waiuku Deed.
[55] The plaintiffs say the Crown’s attempt to profit from its own unlawful attack gave rise to a constructive trust over Maioro. Similar relief is sought on this cause of action as that sought under the first cause of action.
[56] Although not (expressly) pleaded, Mr Kahukiwa also raised two further arguments at the hearing concerning the validity of the Confiscation:
(a)First, that when exercising his powers under the 1863 Act, the Governor was required to undertake a three-step process, with separate Orders in Council for each step, and could not effectively “leap frog” from declaring a District under s 2 of the 1863 Act to reserving the land and thereby clearing it of title pursuant to s 4.29
(b)Second, that the Order in Council which effected the Confiscation did not expressly “take” the land in question (but merely “reserved” it), and thus was not effective in extinguishing pre-existing title and interests.
29 This was referred to at the hearing as the “leapfrog” argument.
[57] The Crown made substantive submissions in response to these arguments and I accordingly address them in this section of my judgment.
[58] The third cause of action is styled “Breach of fiduciary duty and/or relational duty of good faith in relation to events since 1864 relating to Maioro”. This cause of action is contingent on the establishment of the equitable duties and/or a constructive trust under the first and/or second causes of action.30
[59] The plaintiffs say that the Crown breached its (pre-existing) fiduciary duty and/or duty of good faith in a range of ways, by:
(a)dealing with Maioro in a manner inconsistent with Maioro’s title at tikanga;
(b)failing to take into account that Maioro was not beneficially owned by the Crown but held on trust for Ngāti Te Ata;
(c)failing to consult with and/or act cooperatively with Ngāti Te Ata when making significant decisions about the acquisition and use of Maioro;
(d)deliberately withholding relevant information from Ngāti Te Ata and/or misrepresenting the true position with a view to deceiving Ngāti Te Ata when making decisions about Maioro (including in connection with the setting aside of the land for the purposes of the ISIA);
(e)setting apart Maioro and granting the Licence under the ISIA when the beneficial ownership in the land and ironsands was held on trust for Ngāti Te Ata;
30 In his closing submissions, Mr Kahukiwa confirmed that there are two instances in which the plaintiffs say a “fresh” fiduciary duty arose on the part of the Crown (i.e. not dependent on the relationship and events of the 19th century): namely a duty arising from s 15 of the Public Works Act 1928 [PWA 1928] (pursuant to which the Native Minister’s consent was required before taking “Native Land” for public works), and from certain commitments said to have been made by the Crown to Ngāti Te Ata in the 1990s. I discuss each of these alleged duties when addressing the fourth and fifth causes of action.
(f)knowingly alienating the Crown’s interests in NZ Steel to a third party at a time when Maioro was subject to a Treaty claim and thereby preventing the Crown from being able to provide cultural and commercial redress for Treaty claims;
(g)alienating the Crown’s interests in NZ Steel in an “improvident, unreasonable and dishonest way thereby rendering itself liable as constructive trustee for the value it received”;
(h)failing to ensure that Ngāti Te Ata’s interests in Maioro would be protected and not impaired (including, for example, by failing to ensure various protections for kōiwi, urupā or wāhi tapu or rehabilitation of the land under the terms of the Licence; and granting the Licence on terms unfavourable to Ngāti Te Ata);
(i)profiting from its position as fiduciary, by way of the sale of its shares in NZ Steel, collecting royalties from mining and benefiting from the export of ironsands;
(j)since 1987, failing to abide the “Treaty claim protective mechanisms”, being the combined effect of certain statutory provisions31 and the Lands case to protect Māori;
(k)failing to remove the wāhi tapu from the Licence; and
(l)facilitating further mining on Maioro.
[60] The plaintiffs say that despite Maioro belonging to Ngāti Te Ata, the Crown has refused to return it or account for revenues earned as a result of the Crown’s purported ownership.
31 Being the State-Owned Enterprises Act 1986 [SOE Act], the Conservation Act 1987 and the Crown Forest Assets Act 1989 and other statutes in which the principles of the Treaty of Waitangi are referenced.
[61] By way of relief on the third cause of action, the plaintiffs seek declarations including that the Crown’s setting apart of Maioro as an “ironsands area” and granting the Licence was unlawful, and thus “rendering the Licence invalid”. A declaration is also sought that the Crown holds all profit made in relation to Maioro as trustee for Ngāti Te Ata.
Key issues for determination
[62] I address the plaintiffs’ allegations under the first, second and third causes of action by reference to the following key issues:
(a)Is the Waiuku Deed voidable by reason of duress and/or undue influence, or otherwise is an unconscionable bargain?
(b)Was the Confiscation ultra vires the 1863 Act?32
(c)At the time of the Waiuku Deed and/or the Confiscation, did the Crown owe a private law fiduciary duty and/or duty of good faith to Ngāti Te Ata?
(d)If the answer to (c) is yes, what was the content of that duty?
(e)If the answer to (a) or (b) above is yes, did the Crown’s acquisition of Maioro breach any fiduciary duty and/or duty of good faith?
(f)Assuming a fiduciary duty and/or duty of good faith was owed by the Crown to Ngāti Te Ata, has the Crown further breached that duty and/or failed to account to the person(s) to whom the duty is owed, in any of the ways summarised at [59] above?
32 Or alternatively, was the Crown’s reliance on the Confiscation unconscionable or did it result in the Crown being unjustly enriched or otherwise wrongly profiting from its actions in the Waikato Wars?
Is the Waiuku Deed voidable for duress, undue influence or is otherwise an unconscionable bargain?
Introduction33
[63] The plaintiffs’ allegation that the climate created by the Waikato Wars gave rise to duress is particularised in the third amended statement of claim as follows:34
(a)waka (including Te Toki-a-Tāpiri) belonging to Ngāti Te Ata were taken and 21 waka were destroyed (in or around July 1863);
(b)plundering of kāinga (about July and August 1863);
(c)imprisonment of elderly men; and
(d)killings giving rise to the emergence of the hapū known as “Rangatira Kore”.
[64] This provides the framework for consideration of this aspect of the plaintiffs’ claims.
1863 – the backdrop of war
[65] On 9 July 1863, Governor Grey issued a notice which was taken by officials to various Māori settlements in South Auckland including Māngere, Pukaki, Ihumātao, Kirikiri, Pōkeno and Tuakau. The notice required Māori in those settlements to take an oath of allegiance to the Queen and to hand over their arms. It warned Māori who refused to sign that they should withdraw to the Waikato on the southern side of the Mangatāwhiri River or they would be removed. The notice was not taken to Ngāti Te Ata settlements located on the Āwhitu Peninsula, though I accept Mr Minhinnick’s evidence that it was likely some members of Ngāti Te Ata were present at settlements to which the notice was taken.
33 Both Mr Minhinnick and Mr Parker gave detailed evidence of events which took place in the lead up to the Waiuku Deed, the Confiscation and beyond. I mean no disrespect to either by referring to a small portion only of their evidence in this and later factual sections of my judgment. Given the already lengthy nature of this judgment, I have focussed only on those factual matters relevant to the plaintiffs’ pleaded causes of action.
34 Third amended statement of claim at [24.1].
[66] Ngāti Te Ata was viewed at that time as a “friendly” or “loyal” iwi. For example, Mr Minhinnick referred to warnings given by both Ahipene Kaihau and Hori Tauroa (the pre-eminent chiefs of Ngāti Te Ata at the time) to the Government in early July 1863 of impending attacks by Māori, and a desire on the part of the two chiefs to gather together and protect European settlers at Waiuku.35
[67] Following Governor Grey’s notice of 9 July 1863, many Māori residing in the South Auckland settlements decided to leave. Soon after, and against the warning of Waikato (which had laid down an “aukati”, or boundary, at the Mangatāwhiri River), troops under General Cameron crossed the River on 12 July 1863.
[68] I interpolate to note that in the Waikato Raupatu Claims Settlement Act 1995, the Crown acknowledged that:36
…its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in its dealings with the Kiingitanga and Waikato in sending its forces across the Mangataawhiri in July 1863 and in unfairly labelling Waikato as rebels.
[69] Returning to the factual chronology, on 13 July 1863, Ahipene Kaihau and other members of Ngāti Te Ata moved into the Waiuku township to protect the European settlers.
[70] On 15 July 1863, Governor Grey issued a further notice to “the Chiefs of the Waikato” which was published in the New Zealand Gazette. It referred to the threat to settlements in Waikato and Auckland and stated:
I now call on all well-disposed Natives to aid the Lieutenant-General, to establish and maintain those posts, and to preserve peace and order.
Those who remain peaceably at their own villages in Waikato or move in such districts as may be pointed out by the Government will be protected in their persons, property, and land.
Those who wage war against Her Majesty, or remain in arms, threatening the lives of Her peaceable subjects, must take the consequences of their acts, and
35 Dispatches from Hori Tauroa and Ahipene Kaihau to Major Speedy (Waiuku Resident Magistrate) on 4 and 5 July 1863 respectively. Photographs of Ahipene Kaihau, by all accounts an extremely impressive and well-respected leader of his time, are reproduced in Schedule Two to this judgment.
36 Section 6. As noted earlier, “Waikato” is defined in s 7 of the Act to include Ngāti Te Ata and claims in relation to the Waiuku Block are excluded from the settlement (s 8(2)(b)).
they must understand that they will forfeit the right to the possession of their lands guaranteed to them by the Treaty of Waitangi, which lands will be occupied by a population capable of protecting for the future the quiet and unoffending from the violence with which they are now so constantly threatened.
[71] I mention this notice as it makes it clear that the concept of confiscating “rebel” land was established and already being communicated at this time (despite the 1863 Act not being passed until December 1863). Governor Grey’s notice also provides some context to later arrangements concerning the Waiuku Deed, discussed later in this section of my judgment.
[72] On 17 July 1863, Crown forces besieged opposing Māori at Meremere. On the same day, the Colonial Secretary issued instructions to the Officer Commanding the Garrison for the “seizure of canoes belonging to hostile natives in the Manukau”. The instructions stated that waka were not to be destroyed but were to be taken to Onehunga. The instructions also suggested that waka belonging to Ngāti Te Ata were not to be seized:
Canoes on the North Shore and up the Waiuku Creek, unless known to belong to hostile tribes [are] not to be interfered with.
[73] Mr Minhinnick refers to extracts from “The New Zealand Wars: A History of the Māori Campaigns and the Pioneering Period”37 as support for the fact that, despite these instructions, in or around July 1863, 21 large waka belonging to Ngāti Te Ata were confiscated and destroyed by the Auckland Naval Volunteers (ANV).
[74] Mr Parker doubts the account referred to by Mr Minhinnick is correct, at least in relation to the timing. Having studied the text to which Mr Minhinnick refers, Mr Parker notes that it is based on the recollections of a Mr Henry Parker in 1918, 55 years after the events in question. Mr Henry Parker was a member of the ANV. His account, said to be of events in July 1863 and in relation to Ngāti Te Ata waka, refers to shots being fired and a Seaman Thomas Barron being hit in the ankle by a slug from a Māori gun. However, Mr Parker notes that Seaman Barron himself applied in 1876 for a New Zealand war medal and described what had happened in July 1863,
37 James Cowan The New Zealand Wars: A History of the Maori Campaigns and the Pioneering Period: Volume I (1845-64) (R.E Owen, Wellington, 1955) at 324.
namely slipping off the Harrier Man of War while trying to tie seized waka to it and suffering a “severe injury to my leg”. Mr Parker doubts that incident concerned Ngāti Te Ata waka, given Henry Parker’s report indicates the ANV were in the Mangere and Papakura areas at that time. Mr Parker also notes a statement by Henry Parker in 1892 in support of a further application by Seaman Barron for a medal, noting that Barron had been shot “while storming of a Māori stronghold in upper Thames district in the year 1863. He also received injuries while on service at Papakura Creek in the same year”.38
[75] Mr Parker also refers to a report of 25 July 1863 by the Officer “Commanding Detachment ANV” describing the expedition to round up waka from around Manukau. Mr Parker states:
The report states the detachment was accompanied by a Mr Puckey (Edward Puckey of the Native Department) and that between 19 to 25 July it had visited Māngere, Puponga (near Cornwallis on the North Head of the Manukau Harbour where the expedition spent the night), Papakura Creek, Pukekohe, Ihumātao and Oruronga (Orurangi). In all they moved 17 canoes to Onehunga. The substance of this report is confirmed by a newspaper account published on 24 July [1863].
[76] Mr Parker also considers that confusion has arisen and led to the view that Ngāti Te Ata waka were destroyed in July 1863 because reports refer to another expedition of the ANV in November 1863. The source to which Mr Minhinnick refers39 does not date the expedition, but refers to the flagstaff at Manukau Heads being cut down by Māori while the expedition was underway. Mr Parker confirms that the flagstaff was cut down during the night of 7 November 1863.
[77] On the basis of the above evidence, it seems unlikely that a large number of Ngāti Te Ata waka were seized and destroyed in or around July 1863. But the report of the November 1863 expedition nevertheless refers to the taking of waka, including the “after-portion” (the stern) of Te Toki-a-Tāpiri, a magnificent Ngāti Te Ata waka now on display at the Auckland Museum. The report of that expedition states that
38 It nevertheless seems that some, albeit not necessarily Ngāti Te Ata, waka were destroyed in July 1863, as on 24 July 1863, the Minister of the Colonial Defence wrote to the Commander of the Colonial Defence Corps at Ōtāhuhu reprimanding him for allowing his men to destroy the waka, being inconsistent with the orders only to seize and secure them.
39 JC Firth Nation Making: A Story of New Zealand (Longmans, Green and Co, London, 1890) at 166–175.
with the exception of Te Toki-a-Tāpiri, waka were destroyed. The report also refers to men under the command of a Captain Lloyd (who I discuss further below) conducting an expedition to Āwhitu and taking 16 “old men” prisoner, most likely being members of Ngāti Te Ata.40 As to that event, the author of the report, a member of the ANV expedition, states:
In a couple of days, despatches arrived from head quarters. Imagine our disgust at being informed that we had attacked a friendly village! And that our prisoners were all peaceable and friendly Māoris!!
The Captain was instructed to release his prisoners forthwith, and restore all the captured property. Whether the thirty muskets were actually returned, we had no means of knowing.
[78] Accordingly, while not in July 1863 but more likely in November 1863, I am satisfied a number of Ngāti Te Ata waka were seized and destroyed. I am also satisfied that, as pleaded, a number of elderly Ngāti Te Ata men were held prisoner, though were released some two days later.41
[79] Turning back to events earlier in 1863, on 7 August 1863, Edward Puckey (of the Native Department) reported that a meeting between Ngāti Te Ata and Ngāti Tipa had taken place at Waiuku. On 10 August 1863, Pene Te Wharepū (a Waikato chief) wrote to Ruihana (a Ngāti Tipa chief) asking Ngāti Tipa and Ngāti Te Ata to join him at Meremere. Mr Parker states that at that time, Māori were building entrenchments at Meremere to resist the Colonial troops.
[80] On 15 August 1863, Ahipene Kaihau and Hori Tauroa wrote to Governor Grey informing him that members of Ngāti Te Ata had left to “go to Waikato". The letter is of some importance to matters discussed later in this judgment, so I set out the relevant aspects of it in full:
…. The ground of their going was from a letter written by Peno (Te Wharepu) to Ruihana inviting him to go to him and Ruihana asked Ngatiteata to go with him – we both (Ahipene and Hori Tauroa) held them to no purpose, they would not listen to us.
Ngatiteata had no desire to go but they were allured by men and deceived - by which their desire to go burst forth. Another cause was their envy of us both
40 Other reports refer to nine men being taken prisoner.
41 The arrest was described in contemporaneous reports as giving rise to “great bodily fear” on the part of members of Ngāti Te Ata.
for the lands which we possess and the monies which are given to us (by the Government) from that cause they went that you might have grounds against us to punish us – then would their hearts be satisfied.
Now O friend our tribe left in an evil way because we listened to your policy for which we have shut them outside for persisting to go, and for their continuing to trample on the law and on your words also.
O friend great is our darkness through their going away – now they are separated from us and the remainder of the Tribe have joined themselves to us
– altogether those who left are 18 men (not counting Ihaia and Ranaira) and the women who went with them would make the number thirty, those who remain with us are thirty men and forty one women numbering together seventy one – not counting the children …
[81] I referred at [77] above to a certain “Captain Lloyd”. He was in charge of the militia forces operating around Waiuku, Mauku and Pukekohe in 1863, and featured prominently in the evidence given at trial, portrayed as leading his men in a number of expeditions which generally harassed Ngāti Te Ata and plundered its property. He was described “as perhaps a little mad” by one military volunteer’s later account of his time under his command.
[82] Captain Lloyd was notified of his commission as a Captain in the militia on 3 August 1863 and arrived two days later in Waiuku to take up his duties.42 The evidence seems tolerably clear that he caused a number of problems in the area in the second half of 1863, which led to various complaints about his and his men’s conduct, from both Māori and Government agents alike.
[83] The Crown does not strongly dispute that some of Captain Lloyd’s expeditions likely involved interactions with Ngāti Te Ata (and other local Māori) and in some cases (particularly in November 1863) property being taken or destroyed. For example:
(a)On 16 August 1863 (the day after Ahipene Kaihau and Hori Tauroa informed Governor Grey that some Ngāti Te Ata had joined Waikato), Captain Lloyd’s expedition to the north bank of the Waikato River
42 There was some debate at the hearing as to when he actually took up his command, but I have not found it necessary to resolve that particular matter.
resulted in two pigs belonging to Ahipene Kaihau being killed. Captain Lloyd’s own report of the expedition records:
Ahipene a chief of this place who has not joined the Rebels expresses his great dissatisfaction at my men having marched along the coast towards Waikato Heads.
I regret to say two wild pigs were killed by my party which has caused complaint to be made by that chief – and who has been to the Resident Magistrate concerning the same. On hearing of which I directed that they should be paid for.
(b)Around 20 August 1863, Captain Lloyd’s expedition to the south bank of the Waikato River resulted in waka being destroyed and property being confiscated. This led to the Resident Magistrate of the Lower Waikato making a written complaint to FD Fenton of the Colonial Defence Office about Captain Lloyd’s activities. On 27 August 1863, Thomas Russell, the Minister for Colonial Defence, annotated the letter of complaint as follows:
Referred to General Galloway, who is about to visit Waiuku.
If Capt Lloyd has been guilty of the acts of folly described in this letter, I don’t think him fit to hold the position he now has at Waiuku & Gen. Galloway will be supported by the Government in whatever course he may see fit to take upon the investigation of this case at Waiuku.
(c)Captain Lloyd strongly refuted the allegations. They were duly investigated by General Galloway, who generally found Captain Lloyd to have followed his instructions, though observed that he had “displayed a little too much energy”.43
(d)On 24 October 1863, Puckey wrote to the Native Department stating that Captain Lloyd had destroyed waka belonging to “friendly Māori”. On 27 October 1863, the Native Secretary replied and informed him that if it was found that the waka belonged to friendly Māori, they were to be paid for.
43 It is not known whether Ahipene Kaihau, Hori Tauroa or any other members of Ngāti Te Ata were aware that Captain Lloyd’s actions were investigated at this time.
(e)Expeditions in early November 1863 (including that discussed at [78] above) involved entering a whare and property being taken. On 6 November 1863, Puckey forwarded to the Native Department a list of property belonging to “friendly Māori” which he said had been destroyed by volunteers under Captain Lloyd’s command. A newspaper report of the time described events as follows:
The ‘Lady Barkley’ then proceeded to Waiuku, where she arrived on Tuesday morning. The object of the visit being to remove any canoes lying in the creeks. The same day, the brigade, assisted by a part of the Waiuku force, under Captain Lloyd, secured a number of canoes belonging to the Waiuku natives. This step the natives do not object to; but they allege that their whares were entered by the men, and clothing and other property carried away. It is certain that other articles besides canoes came under the inspection of the men, and that Captain Lloyd ordered the men under his charge to leave the articles in their places. The civil and native authorities intended to institute a search on board the steamer today, in order to ascertain if the allegations, of property having been carried away, were true; but the very gusty afternoon has, I believe, delayed their intention. The natives have not made any unpleasant demonstration on the matter, but they are apprehensive that if the distinction between their property and rebel property becomes overlooked, the distinction between their persons and those of rebels will be overlooked.
(f)On 7 November 1863, Hori Tauroa wrote to Puckey asking for the return of one of the waka taken by the Lady Barkley and complaining about damages to property caused by the volunteers. On 17 November 1863, Captain Lloyd was instructed by his superiors that one of the seized waka was to be given up to Hori Tauroa (though no mention was made of the complaints regarding damage to property).
(g)On 9 November 1863, Puckey left Waiuku at the suggestion of the “native chiefs”, and accompanied by 20 armed Māori visited the deserted settlements at Ruhina “on the Waikato, near the heads”. During this expedition, they found a large number of waka and destroyed 17 of them belonging to “friendly Māori” and two belonging to “hostile Māori”. Mr Parker notes that in probable response to those actions, on 13 November 1863, the Resident Magistrate at Waiuku wrote to the Native Department noting that the “friendly natives wish
to know what measures the Government intends to take to prevent any more ill-treatment befalling them”.
(h)On 18 November 1863, the Minister of the Colonial Defence ordered Major General Galloway to write to Captain Lloyd informing him of the complaints and that the Government was determined to investigate them. Captain Lloyd was later ordered to go to Auckland to answer to the complaints.44
(i)Also on 18 November 1863, Puckey wrote to the Native Department stating that the friendly Māori remained afraid following the arrest of some of them. Further correspondence followed on 5 December 1863 concerning the property and arrest.
(j)On 19 December 1863, the Resident Magistrate, Waiuku, reported to the Native Department and enclosed a letter from Ahipene Kauhau stating his men would assist in taking waka to Mangatāwhiri.
[84] Also over this period, the evidence demonstrates shared concern by those members of Ngāti Te Ata remaining at Waiuku and Government agents in relation to a threatened attack on Waiuku or the surrounding areas:
(a)On 6 September 1863, Ahipene Kaihau received a warning that 300 to 400 hostile Māori were planning an attack on Mauku, Pukekohe and Tuakau. Ahipene Kaihau passed this news to Puckey, who in turn passed it to Captain Lloyd.
(b)On 18 September 1863, Puckey reported that Ngāti Te Ata wanted arms and ammunition and that he believed an attack on Waiuku was imminent.
44 Again, it is unknown whether Ahipene Kaihau, Hori Tauroa or any other members of Ngāti Te Ata were aware of this at the time.
(c)On 19 September 1863, Captain Lloyd reported that Hori Tauroa had come to his aid with a party of armed men and had warned him there were 400 hostile Māori waiting for the opportunity to attack Waiuku.
The lead up to the Waiuku Deed
[85] The land which was the subject of the Waiuku Deed comprised what were then known as the Waiuku North and South Blocks. I discuss in more detail below the precise land area the subject of the purchase, but for present purposes, it is sufficient to note that the two Blocks broadly covered all of the Āwhitu Peninsula (excluding areas which had already been purchased by the Crown).
[86] There is no contemporaneous (direct) evidence of the particular basis upon which the Waiuku North and South Blocks were purchased by the Crown in November 1864 and then confiscated one month later in any event. This is a confusing aspect of the history of the Crown’s acquisition of the land, and an example of the impact the effluxion of time has on establishing precisely what occurred. Nevertheless, to attempt to put these events in context, it is necessary to trace through what does remain of the contemporaneous record about the lead up to the Waiuku Deed and subsequent Confiscation.
[87] A useful starting point is perhaps late July 1863, when Alfred Domett, the Colonial Secretary, wrote to the Superintendent of Auckland Province informing him that it was the Government’s intention to bring a large number of men in from Australia and elsewhere as military settlers, to form settlements along the frontier on land taken from Māori then considered to be in rebellion. Domett stated that:
The formation of such a line of settlements will probably require the acquisition of some lands, the property of friendly Natives, which must be bought in the usual way.
(emphasis added)
[88] In parallel, plans leading to the enactment of the 1863 Act progressed. In his opening speech to Parliament in October 1863, and echoing the contents of the notice
published in the New Zealand Gazette on 15 July 1863, Governor Grey referred to measures to prevent any attack on Auckland and neighbouring settlements:45
…[t]he Ministers accordingly undertook to be responsible for the adoption of a plan of operations for the defence of the district about Auckland which I had proposed to them and for the occupation by military settlers of the land of hostile Natives in its neighbourhood…
[89] It appears that negotiations with Ngāti Te Ata about a possible acquisition of land on the Āwhitu Peninsula had begun in early 1864.46 An instruction from Charles Heaphy (the Chief Surveyor to the General Government) to a surveyor in March 1864 referred to “the land about to be purchased at Waiuku”. Heaphy’s instructions included the laying out of roads to join roads already laid out in land on the Āwhitu Peninsula already purchased by the Crown. Mr Parker stated it was unlikely the Crown would have been able to survey lines of roads on the Waiuku Blocks without the agreement of loyal Ngāti Te Ata members. Mr Minhinnick agreed.
[90] A further indication that negotiations were taking place during the first half of 1864 is that some members of Ngāti Te Ata requested advances, more land and Crown grants in the period leading up to the Waiuku Deed. By way of example:
(a)There were a number of applications for advances of monies “on account of land” over the period February 1864 to July 1864.
(b)On 3 August 1864, Paora Te Iwi (one of the vendors under the Waiuku Deed)47 wrote a letter summarised in the Native Department correspondence Register as “one thousand acres of land will not satisfy him”.
(c)Also on 3 August 1864, the Register of inwards correspondence to the Native Department (the Register) records a letter summarised as “the
45 (October 21 1863) D NZPD 735.
46 Mr Minhinnick accepted in cross-examination that negotiations leading to the November 1864 Waiuku Deed had been conducted over a long period of time.
47 Mr Minhinnick noted that Paora Te Iwi also belonged to Ngāti Tamaoho, but was a vendor under the Deed by reason of whakapapa (genealogical ties) to Ngāti Te Ata. Ahipene Kaihau also married Paora Te Iwi’s daughter, Te Rangi.
Waiuku natives want four thousand acres instead of three thousand. Asking for increase of Pension as he has 62 people to feed”.
(d)On 6 August 1863, the Register records correspondence from Hori Tauroa summarised as “wants more land”.
(e)On 23 August 1863, the Register records correspondence from Ahipene Kaihau summarised as “wishes 1000 acres of the land arranged for by Mr Turton to be returned to him”.48
(f)On 24 August 1864, the Register records a letter from Hori Tauroa, summarised as “Hori Tauroa applying for 1200 acres of land in addition to the proposed arrangement of Mr Turton”.
[91] Mr Minhinnick agreed that these matters indicated, at least in a “general sense”, a negotiation of the sale and purchase of land.
[92] A document written in or around May 1864, most likely by Frederick Whitaker, the then Premier and Attorney General, provides additional context and perhaps explains the interaction between the Waiuku Deed and the subsequent Confiscation. The document recorded the following:
The arrangement made with Ahipene Kaihau and his party was this.
The whole block of land at Waiuku to be surveyed & the necessary & convenient roads laid off. The land then to [illegible] divided into convenient Lot[s] for sale and occupation. Ahipene & his party to be allowed to select out of their own land such Lot[s] as they require for their own use & to receive Crown grants. The Rebel land to belong to the Government & Ahipene & party to be paid for all the land belonging to them which they do not require for their own use & give up to the Government.
FW
[93] On 5 May 1864, Thomas Russell, the Minister of Colonial Defence, requested that Heaphy “divide the whole Waiuku Block into convenient lots for sale and occupation [and] to lay off necessary and convenient roads”.
48 Henry Turton was Commissioner for the Investigation of Native Title, and was involved in negotiating the Waiuku Deed with the Ngāti Te Ata vendors.
[94] Also in early May 1864, Henry Turton was appointed Commissioner for the Investigation of Native Title. One of his assignments was to negotiate the purchase of the Waiuku Blocks. On 25 June 1864, he reported on a visit he had made to Waikato Heads to acquire information about the “Waiuku Block”, which had revealed what he considered might be a valid claim by Ngāti Tipa to the southern portion of the Block. Turton also reported on discussions he had with Ahipene Kaihau and Hori Tauroa at this time to:
…arrange with them for a final meeting of the whole tribe at Waiuku. They would like to have the question settled, with themselves alone, at Auckland, without regard to the rest of the Tribe: but to that proposal I would not agree, for a moment, and therefore obliged them to consent to meet me on the ground, with the rest of the people, as soon as possible….
As soon as Mr Rogan has returned from Whangarei (if in the meantime I shall have heard from W Marshall, of Waikato), I shall request of the Government that he may be allowed to accompany me to Waiuku, for the final settlement of the case, since he has been associated with the whole transaction from the commencement.
In the meantime, I will search out, & look over the various Maps, Papers etc to be found in the Public Offices, in reference to that Block, so as to enable me to recommend to the Government a reasonable and equitable sum to be paid over to the non-belligerents of the Ngatiteata Tribe…
[95] Newspaper reports of 1 August 1864 referred to Turton and Rogan’s visits and gave the impression negotiations for the purchase were largely complete (referencing land to be purchased, land to be confiscated, land to be excluded from the purchase and prices to be paid). But on 13 October 1864, the Acting Native Secretary sent a reply to what he referred to as a “private letter” from Turton, stating:
…in reply to inform you that as the Natives appear to be so exorbitant and unreasonable, the Government will not at present go on with the purchase.
[96] Neither Mr Minhinnick nor Mr Parker were able to locate Mr Turton’s “private letter” or any other correspondence relating to it. The broader context to this correspondence is therefore unknown.49 Mr Minhinnick accepted, however, that the letter reflected a negotiation that was “hard fought”.
49 It is also not known whether the terms upon which the Waiuku Deed was entered into were the same or similar to those for which the vendors were pushing in October 1864, or whether they were inferior.
The Waiuku Deed
[97]The Waiuku Deed was entered into on 2 November 1864.
[98] Before turning to the terms of the Deed itself, it is helpful to show how the land purchased under it corresponded with the land confiscated a month later.
[99] The Waiuku Deed covered the entire Āwhitu Peninsula as shown by the boundaries in the map below:
[100] While strictly being within the boundaries of the land the subject of the Waiuku Deed, the Deed stated that land which had already been acquired by the Crown was not subject to its terms. This included the larger blocks to the north of the Peninsula, referred to in the above map as the “Manukau” and “Ramaroa and Opoia” blocks. A
337 For earlier discussion of the topic in Treaty-related circumstances, see Heron J’s observations as to legitimate expectation in the context of an application for interim relief in New Zealand Maori Council v Attorney-General HC Wellington CP 785/90, 21 September 1990 at 8 (though on appeal the matter was dealt with on the basis of a failure to take into account relevant considerations: Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA) at 135, 139, 142 and 144); Lord Woolf’s comments on legitimate expectation in New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC) [the Broadcasting case] at 525 (albeit in the context of a specific assurance given by the Crown to the appellant and the courts as to how the Crown proposed to protect the Māori language if broadcasting assets were transferred to a new state-owned enterprise); Thomas J’s (dissenting) judgment in New Zealand Māori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 183–185. See also Sid Dymond “Treaty-Based Judicial Review: The Treaty Settlement Negotiation Process and Legitimate Expectation” [2018] 6 Te Tai Haruru: Journal of Māori and Indigenous Issues 2 for a helpful discussion of legitimate expectation in the Treaty settlement negotiation context.
principled reason why it ought not to be held to it. At least in the context of procedural legitimate expectation, and like the decision-making in Ririnui v Landcorp Farming Ltd, entertaining such a claim is not transgressing into high policy or political content. Rather, a claim of procedural legitimate expectation is focused on notions of procedural propriety and natural justice.
[696] That is not to say such claims in the Treaty settlement space would necessarily be easy. As discussed further below, the bar is set relatively high for claims of legitimate expectation, including establishing the relevant commitment or promise said to have been made by the public authority concerned, and that a public authority may depart from promises or commitments made where there is good reason to do so. Particularly in the context of Treaty settlement negotiations, and given the undoubted high policy and political content of such negotiations, it may be difficult for a court to conclude, other than in the most obvious of cases, that there is no good reason for a departure from an earlier commitment or promise.
[697] The difficulties would be even greater with a claim of substantive legitimate expectation which, as noted earlier, does not appear to have ever been the subject of a successful claim in New Zealand. Granting substantive relief is much more likely to usurp the role of the executive.338 Difficult issues may also arise as to whether the claim ultimately involves direct enforcement in the courts of the principles of the Treaty, which as the law presently stands, is not possible.
[698] Given the conclusions I have reached on the legitimate expectation advanced in this case, I do not say anything further about these complex issues. Irrespective of the place of procedural or substantive legitimate expectation in the context of Treaty settlement negotiations, the claims in this case cannot in my view succeed. The necessary promise or undertaking has not been made out and/or no breach is established in any event.
338 An example of this would be to enforce the legitimate expectation advanced in the plaintiffs’ further written submissions on this cause of action, namely to order the restoration of Maioro.
[699] In the following sections of my judgment, I will first address the established principles attaching to legitimate expectation claims and then explain why I have concluded that the plaintiffs’ legitimate expectation claim must fail.
Legitimate expectation – legal principles
[700] A leading decision of this Court which considered the concept of legitimate expectation in some detail is Randerson J’s judgment in New Zealand Assoc for Migration and Investments Inc v Attorney-General.339 The principles to be drawn from Randerson J’s judgment have largely been carried through into subsequent relevant decisions.340
[701] In New Zealand Assoc for Migration and Investments Inc v Attorney-General, Randerson J surveyed earlier authorities on the doctrine, including the Privy Council’s 1983 decision in Attorney-General of Hong Kong v Ng Yuen Shiu,341 in which the Board observed that:342
… when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. … The principle [is] that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty.
(emphasis added)
[702] The Privy Council in New Zealand Māori Council (the Broadcasting case) considered a qualification that a successful challenge to an assurance of that type would depend in part on whether there was any “satisfactory reason” not to comply with it.343 In New Zealand Assoc for Migration and Investments Inc Randerson J observed that this qualification:344
… reflects two key policy considerations which often lie at the heart of legitimate expectation cases. On the one hand there is a public interest in
339 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC).
340 The following analysis draws on my earlier review of the legal principles of legitimate expectation in Hugh Green Ltd v Auckland Council [2018] NZHC 2916.
341 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC).
342 At 638.
343 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.
344 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [140].
holding a public authority to promises made in the interests of proper public administration and allowing people to plan with some assurance. On the other, there is also a public interest in allowing governments and other public authorities to change policy from time to time when it is perceived to be appropriate to do so. Indeed, the adoption of new policy to meet changing circumstances may be viewed as the duty of any government in furthering the public interest.
[703] Randerson J further observed that a legitimate expectation (both in a procedural and substantive sense) is to be distinguished from a “mere hope that a course of action will be pursued or a particular outcome gained”.345 He stated:346
To amount to a legitimate expectation, it must, in the circumstances (including the nature of the decision-making power and of the affected interest) be reasonable for the affected person to rely on the expectation…
[704] In terms of the distinction between procedural and substantive legitimate expectation, Randerson J noted an expectation may be merely procedural in nature, but that there was “also some authority for the proposition that, in some circumstances, substantive benefits may be recognised”.347 He stated, however, that “the Courts normally stop short of granting relief in terms of a substantive outcome”.348
[705] The Judge also referred349 to the leading English Court of Appeal decision in R (Bibi) v Newham London Borough Council, in which the Court observed that where a legitimate expectation of some benefit was found, the Court would not order the authority to honour its promise, because to do so would be to assume the powers of the executive.350 Rather, the appropriate response was to ask the decision-maker to take the legitimate expectation properly into account in the decision-making process.
[706]Randerson J also stated the following:351
The intensity of the Court's scrutiny of the decision may also vary. Where very specific promises are made to an individual or a small class with serious
345 At [143], citing Haoucher v Minister v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 682 and White v New Zealand Stock Exchange [2000] NZAR 297 (HC) at 314.
346 At [143] citing R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 (CA).
347 At [145].
348 At [145].
349 At [144]–[146].
350 R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 (CA) at 41.
351 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [158].
consequences for them if the promises are not kept, the Court's approach is likely to be one of particularly close examination of the decision to ensure that the legitimate expectations of individuals are not unfairly or unreasonably thwarted. The Court will be astute to ensure the decision maker has conscientiously considered the position of those affected, has sound and logical reasons for reneging on the promises made, and has otherwise acted lawfully, fairly, and reasonably in the administrative law sense. In other cases, such as where the policy choices are very much in the macro-political field and there are strong countervailing grounds to support the course adopted, the Court may give greater recognition to the wider public interest in enabling governments to adjust policy including, when change is required and how, in their judgment, it is to be achieved. Even so, the Court will not in those situations, forego its proper constitutional role on judicial review of ensuring that the decision maker has acted in accordance with law, fairly and reasonably.
[707]The Judge concluded his survey of the authorities by observing that:352
In no case, however, could I envisage a Court directing that a substantive benefit (such as a licence or permit) be granted. That would be to usurp the function of the executive.
[708] The above principles remain, in my view, the touchstone of the doctrine of legitimate expectation in New Zealand. They were referred to with approval by the Court of Appeal in GXL Royalties Ltd v Minister of Energy.353
[709] The Court of Appeal revisited the doctrine of legitimate expectation in Comptroller of Customs v Terminals (NZ) Ltd.354 The Court largely reiterated those principles set out by Randerson J in New Zealand Assoc for Migration and Investments Inc v Attorney-General.355 In doing so, the Court did not distinguish between a procedural and substantive legitimate expectation. It set out a three-stage inquiry in all such cases, being:
(a)First, “to establish the nature of the commitment made by the public authority, whether by a promise or settled practice or policy.”356 This
352 At [159].
353 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [21]–[22].
354 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137. The Supreme Court heard, and dismissed, an appeal against the judgment but on different grounds to the legitimate expectation issue: Terminals (NZ) Ltd v Comptroller of Customs [2013] NZSC 139, [2014] 1 NZLR 121.
355 Randerson J was by then a member of the Court of Appeal and in fact delivered the Court of Appeal’s judgment in Comptroller of Customs.
356 At [125].
was said to be “a question of fact to be determined by reference to all the surrounding circumstances.”357
(b)Second, “to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate.”358 This “involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.”359
(c)Third, and said to often be the most difficult part of the inquiry, “is to decide what remedy, if any, should be provided if a legitimate expectation was established.”360
[710] In commenting on the relief which might have been granted had a legitimate expectation been established in the case before it, the Court of Appeal observed that while the decision-maker might be ordered to follow a process that he or she has expressly or impliedly undertaken to follow, relief in the form of a substantive outcome “is rarely, if ever, granted”.361
[711] The Court of Appeal returned to legitimate expectation in Green v Racing Integrity Unit Ltd.362 The case was one of an alleged procedural legitimate expectation. The Court adopted the three-step approach set out in its earlier decision in Comptroller of Customs v Terminals (NZ) Ltd. As to the first step, Harrison J, delivering the decision of the Court, stated:363
We accept that success at the first step – establishing the existence and content of the expectation pleaded – might not come in the form of an explicit promise. A promise can be implied from past practice or policy. But where the expectation is in the form of a practice or policy, as alleged here, its existence and content must equally be established to the level of a commitment or undertaking. The existence and content of such a practice or policy must be both unambiguous, and settled in the sense that it is regular and well established.
(footnotes omitted)
357 At [125].
358 At [126].
359 At [126].
360 At [127].
361 At [155].
362 Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623.
363 At [14].
The plaintiffs’ legitimate expectation claim in this case
[712] The key matters relied on by the plaintiffs as giving rise to the legitimate expectation are summarised at [680] above.
[713] Turning to the proprietary elements of the Wai 8 and Wai 31 claims, it is not clear why this is relevant to whether a legitimate expectation has arisen. The nature of Ngāti Te Ata’s claims in Wai 8 and Wai 31, or the Tribunal’s recommendations on them, are not a promise, undertaking, policy or practice of the Crown. That the claims include proprietary elements might be relevant to the extent of the Court’s scrutiny of the case, in the sense discussed by Randerson J in New Zealand Assoc for Migration and Investments Inc. Or to frame the point in another way, where rights are at stake, the Court is likely to be more willing to intervene. But they do not cast light on whether the Crown has through its statements, practice or policy, engendered an expectation in Ngāti Te Ata or the plaintiffs.
[714] The plaintiffs’ statement of claim then refers to “the matters comprising the promises set out above in [84]–[121]” of the third amended statement of claim. But this is simply the narrative section of the statement of claim setting out the broad facts and course of Treaty negotiations over the period 1980 to 1998. As best as I can understand the case advanced by the plaintiffs (including through the further written submissions filed), those promises funnel down to entry into the 1990 MOU and the statement that the wāhi tapu would be removed from the Licence area. But for the reasons I rejected the argument that the MOU gave rise to a binding contractual commitment, I cannot accept that the MOU, or the course of the negotiations leading up to it, gave rise to the type of promise or undertaking that might found a legitimate expectation. In particular, the MOU was a statement of the negotiating position reached by both parties at a particular point in time, but to which neither party saw itself as being bound, made clear by the fact the MOU was quickly superseded by later negotiations – in which both parties advanced differing positions over time.
[715] I do not consider “the spirit and intent” of the Deputy Prime Minister’s communication of 24 February 1987 alters the analysis. The then Deputy Prime Minister stated that land subject to a claim to the Waitangi Tribunal which was
transferred to a state-owned enterprise would remain subject to that claim. But NZ Steel was never a state-owned enterprise under the SOE Act and was not therefore subject to the Treaty clause in that Act which was the focus of the decision in the Lands case. As the Crown notes, the Crown retains ownership of the land the subject of Ngāti Te Ata’s claims in any event. The Crown further says that its sale of its shares in NZ Steel did not and has not impaired the Crown’s ability to provide redress for historical breaches of the Treaty. While I accept that the sale of the shares has not prevented the Crown from providing redress, it has made the process more difficult – evidenced by, for example, NZ Steel’s immediate response to the proposals set out in the 1990 MOU, which had otherwise brought the Crown and Ngāti Te Ata so close to a concluded settlement. I return to the issue of the Crown’s sale of its shares in NZ Steel further below, in the context of the allegation that the Crown has breached any legitimate expectation found to have arisen by reason of that sale.
[716] The plaintiffs also point to the findings in the Lands case as supporting the alleged legitimate expectation. But that decision reflects the Court’s statement of the common law. It does not support a finding of an unambiguous promise or undertaking on the part of the Crown.
[717] Finally, the plaintiffs aver that the fact there was “no good reason” for Ngāti Te Ata to be denied fair redress in settlement of the claims also gives rise to the legitimate expectation. But I consider these matters more relevant to the inquiry of whether there has been any satisfactory reason for the Crown to depart from any legitimate expectation that is established.
[718] Added to the difficulty of pointing to particular assurances, conduct or policies to support the legitimate expectation pleaded in this case, the pleaded expectation is in broad and somewhat ambiguous terms and/or it would be impossible to determine whether there has been any satisfactory reason for a departure from it in any event. For example, how is a court to approach what is a “fair” resolution of Ngāti Te Ata’s claims “by now”? The absence of a satisfactory legal yardstick by which an issue can be resolved points to that issue being of a non-justiciable nature.364 At the very least,
364 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [27].
the absence of such a yardstick tends to demonstrate that an unambiguous promise, policy or practice has not been established. And as the extensive negotiation history set out earlier in this judgment demonstrates, there have been a whole host of reasons why the claims have not been resolved to date, including changes in negotiating position by both sides; actions by NZ Steel as a third party; the interruption caused by the cross-claim to Maioro which was referred to the Māori Appellate Court; and the introduction of legislation (principally the Resource Management Act). The issues raised by this aspect of the legitimate expectation case fall squarely in my view within Arnold J’s explanation in Ririnui v Landcorp Farming Ltd of why the courts will not ordinarily traverse into the realm of Treaty settlement negotiations.
[719] The second aspect of the pleaded legitimate expectation is framed in somewhat more concrete terms. But even if it could be said that the Crown’s conduct, promises or policies amounted to a legitimate expectation that Ngāti Te Ata’s claims would not be rendered nugatory by Crown action or omission, to “enforce” such an expectation (for example, through a claim at the time to prevent the Crown from selling its shares in NZ Steel) would arguably be to give direct effect to a principle of the Treaty (Somers J observing in the Lands case that “it would be contrary to the principles of the Treaty to allow a situation to arise in which proper redress or proper consideration could not be given to past breaches”).365 It is to be recalled that the decision in the Lands case was achieved through the mechanism of s 9 of the SOE Act, Cooke P concluding his judgment by stating:366
…[B]ut let what opened the way to enabling the Court to reach this decision not be overlooked. Two crucial steps were taken by Parliament in enacting the Treaty of Waitangi Act and in insisting on the principles of the Treaty in the State-Owned Enterprises Act. If the judiciary has been able to play a role to some extent creative, that is because the legislature has given the opportunity.
[720] Further and in any event, as noted, the Crown’s sale of shares in NZ Steel was not subject to s 9 of the SOE Act. The plaintiffs also submit that this Court’s decision in Equiticorp highlights that “the Crown was well prepared to conclude an arrangement that simply suited its own interest”, presumably to demonstrate that there
365 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 693.
366 At 668.
was no satisfactory or good reason for departing from any legitimate expectation established. But as noted earlier, this Court’s decision in Equiticorp did not concern the sale of the Crown’s shares in NZ Steel to Equiticorp; rather it was limited to the separate buy-back transaction. The Equiticorp decision itself cannot therefore provide the basis for the Court to conclude there was no good or satisfactory reason for the Crown to depart from the pleaded legitimate expectation. Rather, the Crown’s decision-making around the sale of its NZ Steel shares, in the context of the significant losses to the taxpayer discussed earlier, and any consequential impact on the Crown’s response to the Waitangi Tribunal’s recommendations in the Wai 8 claim, again fall squarely in the realm of policy, political and fiscal considerations that are properly the domain of the executive rather than the courts.
[721] Finally, I am not persuaded the sale of the Crown’s shares in NZ Steel have rendered Ngāti Te Ata’s claims nugatory in any event. The introduction of NZ Steel as a third party into the “negotiating mix” certainly adds a layer of difficulty. But the fact the parties have come close to resolving Ngāti Te Ata’s claims demonstrates they remain capable of resolution.
[722]For these reasons, the sixth cause of action must fail.
AFFIRMATIVE DEFENCES
[723] As I have dismissed the plaintiffs’ claims, it is not necessary to address the affirmative defences advanced by each of the Crown and NZ Steel. Further, the outcome on some of the affirmative defences (including standing and whether the claims are subject to statutory time limitation bars) would have depended on which and to what extent the plaintiffs’ claims were successful, and/or what consequences flow from any findings on liability (for example, whether an institutional or remedial constructive trust arose, and if so when). It is therefore inappropriate in my view to seek to determine the affirmative defences in a vacuum.
RESULT AND COSTS
Result
[724] I have dismissed the plaintiffs’ claims. In doing so, I do not ignore the fact that Ngāti Te Ata has a number of valid Treaty grievances, a point not substantively challenged by the Crown. In my view, the claims advanced in these proceedings are, in substance, quintessential Treaty claims and ought to be resolved through the Treaty settlement process. My sincere hope is that the Crown and Ngāti Te Ata can now move forward to resolve Ngāti Te Ata’s grievances in relation to the acquisition and subsequent treatment of Maioro without further delay.
Costs
[725] The Crown and/or NZ Steel may wish to be heard on costs. To the extent the parties are unable to agree costs, the Crown and NZ Steel may each file a costs memorandum within 20 working days of the date of this judgment. The plaintiffs may file a memorandum in response within a further 10 working days. No memorandum is to be longer than 10 pages in length.
[726] Unless any party requests a hearing on costs, I will thereafter determine costs on the papers.
Fitzgerald J
SCHEDULE ONE
SCHEDULE TWO
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