Rore Pat Stafford v Accident Compensation Corporation

• Jurisdiction: New Zealand
• Judge: Gilbert J,Courtney J,Williams J
• Judgment Date: 15 May 2020
• Neutral Citation: [2020] NZCA 164
• Court: Court of Appeal
• Docket Number: CA125/2018
• Date: 15 May 2020

Between

Rore Pat Stafford

Appellant

and

Accident Compensation Corporation

Respondent

[2020] NZCA 164

Court:

Gilbert, Williams and Courtney JJ

CA125/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌOTI PĪRA O AOTEAROA

Indigenous, Property — appeal against an order for removal of a caveat — the appellant's claim arose in the context of his claim in separate proceedings where he claimed that the Crown breached its fiduciary obligations to the customary owners following the clearing of native title to a large tract of land during the colonial period — Crown Entities Act 2004 — Land Transfer Act 1952

Counsel:

K S Feint and M S Smith for Appellant

D A Laurenson QC and R L Roff for Respondent

J R Gough for Attorney-General as Intervener

• A The appeal is dismissed.

• B There is an order that the caveat be removed. That order is to lie in court for 20 working days. Leave is reserved to seek to vary that period.

• C The cross-appeal is dismissed.

• D The appellant must pay the respondent costs for a standard appeal on a band A basis, with certification for second counsel, plus usual disbursements.

JUDGMENT OF THE COURT

REASONS

Gilbert J	[1]
Courtney J	[36]
Williams J (dissenting) [158]

Gilbert J

Table of Contents

Introduction	[1]
Mr Stafford's claim	[2]
ACC land	[11]
The caveat	[15]
High Court judgment	[16]
Appeal and cross-appeal	[19]
Judicial review proceeding	[22]
Analysis
Can a direction under s 103 or s 107 of the Crown Entities	[23]
Act be made to ACC not to sell the ACC land? Section 443 — tenths reserve	[24]
Sections 442 and 439 — non-tenths reserves	[29]
Interest derived from ACC?	[32]

Introduction

1 This is an appeal against an order for removal of a caveat. The question is whether Mr Stafford, the caveator, has a tenable claim to an interest derived from the registered proprietor in the particular land over which he has registered the caveat. 1 The land is situated in central Nelson and the Accident Compensation Corporation (ACC) is the registered proprietor of it (the ACC land).

Mr Stafford's claim

2 Mr Stafford's claim to an interest in the ACC land arises in the context of his claim in separate proceedings currently before the High Court. In those proceedings, Mr Stafford claims that the Crown breached its fiduciary obligations to the customary owners following the clearing of native title to a large tract of land in the greater Nelson region (of which the ACC land forms part) during the colonial period.

Mr Stafford is kaumatua of Ngati Rarua and Ngati Tama and a descendent of the Maori customary owners of the land. He is pursuing the claim on their behalf

3 Mr Stafford's claim that the Crown breached its fiduciary obligations to the customary owners failed at first instance in the High Court 2 and again on appeal to this Court. 3 However, Mr Stafford succeeded in his further appeal to the Supreme Court. 4 The Supreme Court found that the Crown owed fiduciary obligations to the customary owners Mr Stafford represents. 5

4 The following brief summary of Mr Stafford's breach of fiduciary obligation claim (which is not focused on the ACC land) is drawn from the Supreme Court's judgment in Proprietors of Wakatu v Attorney-General, particularly the reasons of Elias CJ who set out the historical background in considerable detail. 6

5 In 1839, William Wakefield agreed to purchase for the New Zealand Company (the Company) a vast area of land in the lower North Island and upper South Island together comprising some 20 million acres. 7 The purchase was agreed to by the customary owners on the basis that one tenth of the land would be reserved to them (the tenths). The Company subsequently offered allotments to settlers, each comprising a one-acre town lot, a 50-acre suburban lot and a 150-acre rural lot. 8

6 Following the signing of the Treaty of Waitangi in 1840 and the Land Claims Ordinance 1841, all pre-Treaty sales were declared null and void unless allowed by the Crown. This would be dependent on commissioners confirming the purchases had been made on equitable terms. Only upon receiving such confirmation would native title be cleared, enabling the land to pass to the Crown. 9

7 In 1845, William Spain, who had been appointed commissioner to investigate the 1839 purchases, reported that the purchase of land in the Nelson districts had been

on equitable terms given the tenths reserves to be set aside for the customary owners and the additional payments made to them. 10 He recommended that the Company be granted 151,000 acres of land in the districts of Wakatu ( Nelson) (11,000 acres already surveyed), Waimea (38,000 acres already surveyed), Moutere (15,000 acres already surveyed), Motueka (42,000 acres partly surveyed) and Massacre Bay (Golden Bay) (45,000 acres partly surveyed). 11 However, all pa, urupa and cultivations (occupied lands) were to be excluded from the purchase. 12 This recommendation became known as the Spain award and was issued under the Land Claims Ordinance on 31 March 1845. 13

8 The tenths reserves, comprising a total of 15,100 acres, included 100 one-acre town sections at Wakatu and 100 50-acre suburban sections at Moutere and Motueka. These sections had been surveyed and selected by August 1842, prior to the issuance of the Spain award in 1845. 14 The remaining tenths reserves, the larger rural reserves, had not been fully surveyed and selected at that stage. 15 All occupied lands were to be excluded, with title to this land remaining with the relevant customary owners.

9 Mr Stafford says that the Crown breached its fiduciary obligations to the customary owners by failing to reserve some of these lands. Specifically, Mr Stafford claims the Crown breached its fiduciary duty to the customary owners by: 16

• (a) failing to reserve the rural sections comprising 10,000 acres; 17

• (b) failing to exclude all occupied lands; 18

• (c) reducing the suburban tenths reserves by exchanges before 1882, primarily as a consequence of failing to exclude occupied lands in the selection of suburban reserve sections; 19

• (d) reducing the number of town reserve sections from 100 to 53, approved by Governor Grey without lawful authority in 1847; 20 and

• (e) Governor Grey granting 918 acres of suburban tenths reserve land at Whakarewa to the Bishop of New Zealand for a school in 1853. 21

10 The Supreme Court upheld Mr Stafford's claim that the Crown owed fiduciary obligations to reserve 15,100 acres of land for the benefit of the customary owners and, in addition, to exclude the occupied lands. 22 The Crown acknowledged that the intended rural reserves of 10,000 acres were never reserved. However, the Court had insufficient information to enable it to determine remaining questions of liability, defence and relief and accordingly remitted the matter back to the High Court to determine these issues. 23

ACC land

11 The ACC land comprises 11 parcels of land in seven titles. Five parcels are on one of these titles. These five parcels form part of what was section 443 which had been selected in 1842 and set aside as one of the town tenths reserves. The other six parcels, each on a separate title, were not included in the original 100 town tenths sections. Two of these six parcels originally comprised section 442 and the other four parcels formed part of the original section 439. Sections 443 and 442 are adjoining sections. Section 439 is next to section 442 but separated by Morrison Street. The point to note here is that while section 443 can be regarded as a specific trust asset (by virtue of its inclusion in the town tenths reserves) to be held by the Crown and administered for the benefit of the customary owners, sections 442 and 439 were not in that category.

12 Section 443 was not one of those town tenths reserve sections relinquished with Governor Grey's approval when the total number was reduced from 100 to 53 in 1847. It does not therefore fall within the scope of Mr Stafford's claim summarised at [9(d)] above. Section 443 and the other tenths reserves were administered first by the Board of Management of Native Reserves and then the Commissioner of Crown Lands prior to administration being passed to the Native Reserves Commissioners under the Native Reserves Act 1856. Administration then passed to the Public Trustee pursuant to s 8 of the Native Reserves Act 1882. The tenths reserves were administered by the Public Trustee until 1920, when the Native Trustee (later known as the Maori Trustee), took over administration pursuant to s 13 of the Native Trustee Act 1920.

13 Part of section 443 (not forming part of the ACC land) was transferred by the Maori Trustee to the Nelson Club in 1969. In 1970, the Maori Trustee transferred another part of section 443 (which forms part of the ACC land) to Newman Bros Ltd. The remaining part of section 443 was transferred to the Proprietors of Wakatu Inc in 1977.

14 ACC acquired the ACC land for investment purposes in October 2008. ACC subsequently entered into an agreement to sell the property with settlement to take place on 31 January 2018. On becoming aware of the sale, Mr Stafford lodged a caveat against the seven titles to the ACC land to prevent any dealings with it.

The caveat

15 The caveat relevantly reads:

Estate or Interest Claimed by the Caveator

1. The Caveator claims a beneficial interest in the Registered Proprietor's land described in Schedule A attached (the “Land”) by virtue of a trust express or implied in respect of the Land held by the Registered Proprietor as trustee for the benefit of the Caveator as beneficiary.

2. The Caveator's beneficial interest in the Land is recognised in the Supreme Court judgment of Proprietors of Wakatu et al v Attorney-General [2017] NZSC 17.

3. The document attached as Schedule B sets out the connection...