Minhinnick v Attorney-General

• Jurisdiction: New Zealand
• Court: Court of Appeal
• Judge: Cooper P
• Judgment Date: 06 November 2025
• Neutral Citation: [2025] NZCA 584
• Year: 2025
• Docket Number: CA485/2020

Between

Richard Te Pou Minhinnick

Appellant

and

Attorney-General

First Respondent

New Zealand Steel Limited

Second Respondent

Waikato North Head Mining Limited

Third Respondent

[2025] NZCA 584

Court:

Cooper P, French and Gilbert JJ

CA485/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Indigenous, Statutory Interpretation — acquisition and confiscation of ancestral land — unconscionable bargain — legitimate expectation — meaning of “rebellion” under the New Zealand Settlements Act 1863 — Public Works Act 1928 — Iron and Steel Industry Act 1959 — Treaty of Waitangi

The issues were: whether the 1864 Deed was an unconscionable bargain, whether the confiscation and 20th-century takings under the PWA were unlawful; whether the MOU was enforceable and whether any legitimate expectations arose from it.

The Court held the sale under the Deed was not voidable as an unconscionable bargain, duress or undue influence. Ngāti Te Ata had not been at a serious disadvantage or pressured by the context of negotiations and the threat of possible confiscation, nor was there direct evidence establishing theapplication of illegitimate pressure. The vendors signed the Deed because they saw an advantage, they were familiar with the process of selling land, and they bargained over the price. The 1990 MOU had not created binding or enforceable obligations requiring the Crown to return the wāhi tapu or remove them from the mining licence. Nor had the Crown breached any legitimate expectation that Ngāti Te Ata's Treaty of Waitangi claims would have been fairly addressed by now.

The purpose of the NZSA supported a wide definition of “rebellion”. The conception of rebellion focussed on the subversion of Crown authority. Overall, the statutory scheme made it clear that any engagement in the Waikato War by Māori against the Crown was intended by Parliament to constitute “rebellion”. The New Zealand Settlements Acts Amendment Act 1866 validated any illegality in the confiscation.

The takings of the wāhi tapu under the PWA 1928 and the inclusion of the wāhi tapu in the mining licence issued under the ISIA: were not unlawful on the basis that the Crown failed to consider the special status of the land and had not breached a fiduciary duty owed by the Crown to consider and protect their interests. In each case the Crown acted in accordance with powers conferred by statute.

In relation to the issues arising from the 1990 commitments: the MOU had not bound the Crown to return the wāhi tapu and remove them from the mining licence. The Crown had not breached a legitimate expectation of Ngāti Te Ata that its claims of breach of the Crown's Treaty of Waitangi obligations would have been fairly addressed by now and not rendered nugatory by Crown action or omission. Those conclusions mean there was no need to address the affirmative defences.

Counsel:

M C Harris and S M Wilson for Appellant

S M Kinsler and C E Sinclair for First Respondent

J E Hodder KC and T D Smith for Second and Third Respondents

• A The application for leave to file an amended notice of appeal is granted.

• B The appeal is dismissed.

• C There is no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper P)

TABLE OF CONTENTS

	Para No
INTRODUCTION	[1]
Overview of factual and procedural background	[4]
Amended notice of appeal	[33]
Issues for determination	[44]
Summary of our conclusions	[50]
Structure of the judgment	[54]
PROCEDURAL HISTORY	[56]
Procedural issues for this Court	[56]
The O'Malley and Boast briefs of evidence	[57]
The status of the 2014 proceedings	[71]
The statement of defence to Ngāti Te Ata's 1990 claim	[75]
AFFIRMATIVE DEFENCES	[79]
Submissions	[81]
Our view	[89]
THE WAIUKU DEED AND CONFISCATION	[99]
Our approach to the historical evidence	[101]
Background to the Waiuku Deed and Confiscation	[109]
Ngāti Te Ata's relationship with Maioro	[112]
The economic prosperity of Ngāti Te Ata	[116]
The Taranaki conflict	[121]
Sales of land by Ngāti Te Ata before November 1864	[125]
The Waikato War	[128]
Alleged harassment of Ngāti Te Ata	[139]
The lead up to the Waiuku Deed	[144]
The New Zealand Settlements Act 1863	[152]
The Waiuku Deed	[158]
The Confiscation	[165]
Later events	[168]
The immediate aftermath	[168]
The Compensation Court	[174]
The October 1865 Crown grants	[178]
The New Zealand Settlements Acts Amendment Act 1866	[179]
Waiuku No 3 Deed	[180]
Issue of new grants in 1878	[181]
Was the sale under the Waiuku Deed vitiated?	[186]
Judgment under appeal	[189]
Duress	[189]
Unconscionable bargain	[196]
Undue influence	[198]
Unconscionable bargain	[200]
Undue influence	[218]
Duress	[221]
Our view	[226]
Our approach on appeal	[226]
Analysis—unconscionable bargain	[234]
Analysis—undue influence and duress	[262]
Was the Confiscation lawful?	[274]
What is the correct interpretation of the word “rebellion” under the New Zealand Settlements Act 1863?	[278]
Judgment under appeal	[278]
Appellant's submissions	[279]
Crown submissions	[290]
Was Ngāti Te Ata, or a section of it, or any considerable number thereof, in rebellion?	[294]
Judgment under appeal	[294]
Appellant's submissions	[295]
Crown submissions	[297]
Is the Crown entitled to justify confiscation on the basis that a “considerable number” of Ngāti Te Ata were in rebellion when the confiscation wrongly stated that Ngāti Te Ata was an iwi in rebellion?	[301]
Appellant's submissions	[301]
Crown submissions	[302]
Even if there was jurisdiction under the New Zealand Settlements Act 1863, did the Governor exceed his statutory power by declaring all the land in the district confiscated?	[304]
Judgment under appeal	[304]
Appellant's submissions	[305]
Crown submissions	[307]
Did the New Zealand Settlements Acts Amendment Act 1866 validate any illegality in the Confiscation?	[308]
Judgment under appeal	[308]
Appellant's submissions	[309]
Crown submissions	[310]
Our view	[313]
The correct interpretation of the word “rebellion” under the New Zealand Settlements Act 1863	[316]
Statutory text	[316]
Purpose	[320]
Context	[324]
Effect of the Waikato Raupatu Claims Settlement Act 1995	[330]
Were a considerable number of Ngāti Te Ata in rebellion?	[337]
The effect of the New Zealand Settlements Acts Amendment Act 1866	[370]
Did the Waiuku Deed and/or Confiscation breach a fiduciary duty to consider and protect the interests of Ngāti Te Ata?	[374]
Judgment under appeal	[376]
Appellant's submissions	[382]
Crown submissions	[395]
Existence of duty	[395]
Application of duty	[406]
Our view	[410]
THE 1939 AND 1959 TAKINGS AND ISSUE OF THE LICENCE	[458]
Background to the Public Works Act 1928 takings and the Licence	[460]
Sand dune reclamation	[460]
The taking of Te Papawhero	[467]
The takings of Waiaraponia, Te Kuo and Tangitanginga	[475]
Compensation for the takings of Wairaponia, Te Kuo and Tangitanginga	[496]
The genesis of New Zealand's iron and steel manufacturing industry	[500]
The Glenbrook Steel Mill expansion project	[517]
The claims in respect of the 1939 and 1959 takings, and the issue of the Licence	[528]
The causes of action pleaded in the High Court	[528]
Judgment under appeal	[535]
The issues to be determined	[538]
Appellant's submissions	[539]
NZ Steel submissions	[545]
Crown submissions	[554]
Our view	[557]
Were the 20th century actions of the Crown unlawful by reason of its alleged failure to consider the special status of the wāhi tapu?	[557]
Did the Crown breach a fiduciary duty owed to Ngāti Te Ata?	[569]
1990 COMMITMENTS AND TREATY OF WAITANGI NEGOTIATIONS
Background	[577]
Claims arising from the 1990 commitments	[644]
Judgment under appeal	[644]
The arguments on appeal	[648]
Did the memorandum of understanding give rise to binding and enforceable obligations on the Crown?	[658]
Legitimate expectation	[665]
Judgment under appeal	[668]
The arguments on appeal	[671]
Did the memorandum of understanding give rise to a legitimate expectation?	[682]
Affirmative defences	[691]
COSTS	[692]
RESULT	[693]

INTRODUCTION

1 The factual matrix of this appeal spans some 150 years and the claims pursued by the appellant are wide-ranging. They reflect long-standing grievances of Ngāti Te Ata against the Crown, arising from the acquisition and confiscation of land in the shadow of the Waikato War that broke out in July 1863. The proceeding involves a challenge to the lawfulness of the acquisition of land by the Crown pursuant to an agreement executed by representatives of Ngāti Te Ata and the subsequent exercise of powers of the Crown to confiscate land under the New Zealand Settlements Act 1863. There is a particular concern relating to four blocks of land known as Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga (the four wāhi tapu areas) located within Maioro on the Āwhitu Peninsula north of the mouth of the Waikato River. Over the years since 1938, those blocks were used for afforestation in an attempt to stabilise the sand dunes on the peninsula and then as part of the land used for the establishment of New Zealand Steel's manufacturing activities based on the mining of the ironsands in the area.

...