Proprietors of Wakatu v Attorney-General

• Jurisdiction: New Zealand
• Judge: Harrison,French JJ,Harrison J
• Judgment Date: 19 December 2014
• Neutral Citation: [2014] NZCA 628
• Docket Number: CA436/2012
• Court: Court of Appeal
• Date: 19 December 2014

BETWEEN

Proprietors Of Wakatū

First Appellant

Rore Pat Stafford

Second Appellant

Rore Pat Stafford, Paul Te Poa Karoro Morgan, Waari Ward-Holmes And James Dargaville Wheeler As Trustees Of Te Kōhui Ngahuru Trust

Third Appellants

and

Attorney-General

Respondent

and

Ngāti Rārua Iwi Trust And Ngāti Kōata Trust

Interveners

[2014] NZCA 628

Court:

Ellen France, Harrison and French JJ

CA436/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against the High Court's dismissal of claims against the Crown for breaches of trust and fiduciary duty — appellants said that under an 1845 grant of land, the Crown agreed to reserve one-tenth of the land for reserves for Maori — argued that the circumstances of the grant gave rise to private trust and equitable obligations on the part of the Crown and that there had been breaches of those obligations which the appellants could enforce — whether there was standing to bring the claims — whether there was a breach of fiduciary duty — whether there were limitation and/or laches defences.

Counsel:

A R Galbraith QC, K S Feint and K C Johnston for Appellants

D J Goddard QC, J R Gough and J M Prebble for Respondent

T J Castle for Interveners Ngāti Rarua Iwi Trust and Ngāti Kōata Trust

• A The appeal is allowed in part. We make a declaration that Mr Stafford has standing to bring this proceeding.

• B The appeal is otherwise dismissed.

• C The appellants must pay the respondent costs for a complex appeal on a band B basis and usual disbursements. We certify for second counsel.

JUDGMENT OF THE COURT

REASONS

Ellen France J	[1]
Harrison and French JJ	[202]

ELLEN FRANCE J

Table of Contents

	Para No
Introduction	[1]
The issues	[10]
Standing	[12]
Effect of the Settlement legislation	[31]
A fiduciary duty?	[42]
The approach in the High Court	[43]
The historical narrative	[46]
The concept of reserves – the early period	[47]
The 1840 agreement and its aftermath	[57]
Other developments in the early 1840s	[61]
The Spain investigation	[72]
The 1845 Crown grant and subsequent events	[81]
Summary of the key events	[91]
Does the Crown owe duties to the appellants as a fiduciary?	[92]
Might a fiduciary duty arise?	[96]
Application of these principles to the present case	[121]
Express trust	[147]
Certainty of intention	[148]
Certainty of subject matter	[154]
Certainty of objects	[162]
Resulting trust	[165]
Constructive trust	[169]
Breaches	[171]
Limitation and laches	[191]
Costs	[199]
Result	[201]

Introduction

1 In 1839 Colonel William Wakefield of the New Zealand Company arrived in New Zealand. Later that year he entered into deeds with Ngāti Toa chiefs at Kāpiti and with Te Ātiawa chiefs at Queen Charlotte Sound to acquire, on similar terms, their interests in about 20 million acres of land in the southern North Island and northern South Island (Te Tau Ihu o Te Waka a Maui) including areas that later became the Nelson settlement.

2 Reflecting the New Zealand Company's instructions to Colonel Wakefield, both deeds included a promise to reserve to the chiefs, their tribes and families a “portion of the land ceded by them, suitable and sufficient for the residence and proper maintenance of the said chiefs, their tribes, and families” and to hold that land “in trust by them for the future benefit of the said chiefs, their families, tribes, and successors, for ever”.

3 There were various exchanges between the Imperial Government and the New Zealand Company. Matters culminated in the enactment of the Land Claims Ordinance 1841 4 Vict 2. That Ordinance confirmed the Crown's right of pre-emption, that is, that all titles to land in New Zealand, other than aboriginal or customary titles, would be null and void unless allowed by the Crown. The Ordinance also provided for the recognition, after investigation by Commissioners, of claims to land that had been acquired, before the arrival of the Crown right of pre-emption, from chiefs or other aboriginal inhabitants on equitable terms.

4 An inquiry into the relevant land claims was duly undertaken by Commissioner William Spain. Commissioner Spain reported that the New Zealand Company was entitled to a Crown grant of 151,000 acres of land being in the several districts of the settlement of Nelson and surrounding areas. Commissioner Spain stated that this was “saving and always excepting” the pa, burial grounds and cultivation areas of Maori, the “entire quantity of land so reserved for the Natives being one-tenth of the 151,000 acres” awarded to the Company. The Crown grant of 1845 provided for a grant of 151,000 acres of land in the northern part of Te Tau Ihu to the New Zealand Company “[s]aving and always excepted” the pa, burial places and cultivation grounds of Maori, the “entire quantity of land so reserved for the Natives being one-tenth of 151,000 acres” granted to the Company.

5 As matters transpired, one tenth of the 151,000 acres granted to the Company was not reserved. The history of the land that did become part of what are known as the Nelson Tenths or Tenths Reserves is itself a history of neglect of the interests of Māori. The remnants of the Nelson Tenths ultimately vested in the first appellant, the Wakatu Incorporation (Wakatū) in 1977. 1 Mr Rore Pat Stafford, the second appellant, is a kaumatua of Ngāti Rārua and Ngāti Tama descent. The third appellant, Te Kāhui Ngahuru Trust, was established in 2010 by Mr Stafford as settlor for the purpose of representing the beneficiaries of trusts claimed over the Nelson Tenths and facilitating the pursuit and resolution of the beneficiaries' claims against the Crown arising out of issues associated with the Nelson Tenths.

6 This appeal relates specifically to land in what is now known as Nelson itself and the broader areas of Tasman and Golden Bays, in western Te Tau Ihu. There the Company and the Crown dealt with Ngāti Kōata, Ngāti Rārua, Ngāti Tama and Te Atiawa.

7 In the High Court, the Ngāti Kōta;, Ngāti Rārua, Ngāti Tama, Ngāti Apa and Ngāti Kuia Trusts were each separately granted intervener status with respect to questions of standing and representation, relief, and the interrelated issues of the nature of the Crown's obligations in the 1840s and to whom such obligations were owed. 2 Before this Court, the Ngāti Kōata and Ngāti Rārua Trusts maintained their intervener status and participated in the hearing.

8 The appellants say that the circumstances of the relationship created by the 1845 Crown grant give rise to private trust and equitable obligations and that there have been breaches of those obligations which they can enforce. In the High Court, Clifford J rejected the claims concluding there was no express trust and that the appellants did not have standing to bring the claim for a fiduciary duty. 3

9 The appellants appeal. 4 The Crown supports the judgment on other grounds. The interveners support the conclusion that the appellants have no standing.

The issues

10 The central issue on appeal is whether the Judge was wrong to conclude that the Crown did not owe any private trust or equitable obligations to the appellants. There are associated issues about the standing of the appellants to bring these claims and as to whether any claim is barred by the Limitation Act 1950 and/or laches. The issues raised by the appeal can be dealt with by considering the following questions:

• (a) Do the appellants have standing?

• (b) What is the effect of legislation settling the historical claims of local iwi in relation to the Nelson Tenths?

• (c) Was there a fiduciary duty?

• (d) Were the three certainties required to establish an express trust present?

• (e) Was the Judge correct to dismiss the claim of a resulting trust?

• (f) Was the Judge correct to reject the claim based on a constructive trust?

• (g) Did the Crown breach any legally enforceable obligations it owed or might have owed?

• (h) Are the claims barred because of limitation and/or laches?

11 I deal with each issue in turn.

Standing

12 The appellants challenge the findings that they had no standing to bring claims of breach of fiduciary duty and, aside from Mr Stafford, of breach of trust. I deal first with the position of Wakatu.

13 The Wakatū Incorporation was established by the Wakatu Incorporation Order 1977. Its establishment followed a recommendation from the Commission of Inquiry into Māori Reserved Land (the Sheehan Commission) in 1975. 5 The Commission recommended that control of the land be returned to the Māori owners. The owners agreed to the establishment of a Māori incorporation to administer and manage what remained of the Tenths and occupation reserves in Nelson, Motueka and Golden Bay. 6 The Wakatu Incorporation Order provided that the beneficial owners of the land in the schedule to the Order, being reserved land within the meaning of the Māori Reserved Land Act 1955, were constituted a Māori incorporation. 7 The objects of the Incorporation were twofold, namely, to receive from the Māori Trustee all land transferrable by him to the Incorporation in accordance with the relevant provisions of the Maori Reserved Land Act and to “use, manage, and administer any land or interest in land for the time being vested in or owned by the Incorporation”. 8 Accordingly, on the incorporation of Wakatū, the Māori Trustee's control and oversight of the Tenths Reserves was revoked. The Incorporation is now governed by Te Ture Whenua Māori Act 1993.

14 As Paul Morgan, Chairman of Wakatū, explains most of the current owners of the remaining Tenths Reserves, that is those owners in the Incorporation, whakapapa back to the tupuna or ancestors who lived in western Te Tau Ihu in 1841 and who were identified by the...