Rore Pat Stafford v Accident Compensation Corporation

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeGilbert J,Courtney J,Williams J
Judgment Date15 May 2020
Neutral Citation[2020] NZCA 164
Docket NumberCA125/2018
Date15 May 2020

[2020] NZCA 164

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌOTI PĪRA O AOTEAROA

Court:

Gilbert, Williams and Courtney JJ

CA125/2018

Between
Rore Pat Stafford
Appellant
and
Accident Compensation Corporation
Respondent
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

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

The issue was whether S had a tenable claim to an interest derived from ACC.

The Court held that the caveat did not explain any basis for the claimed interest in the parcels of land that formed part of what was section 443 (land that was included in the tenths reserves). Nor was there any reference in Wakatū to any claim having been made in respect of that land or any other land falling into the same category. The caveat did not assert a tenable claim to an interest in that part of the ACC land. It was a specific trust asset, but it was dealt with accordingly. The non-tenths reserves were not selected as one of the original 100 one-acre town tenths reserves. That land therefore fell outside the second category that S claimed an institutional constructive trust over (land included in the tenths reserves and then subsequently removed).

There was nothing in the Spain award suggesting it was envisaged that those particular sections would be part of the tenths reserves. However, the plans attached to the Spain award did not necessarily conform to the stipulations in the text of the award, particularly because not all the occupied lands had been identified and surveyed at that time. It was arguable that the Crown could be called to account for the shortfall and the land it acquired (excluding the identified tenths and the occupied lands, neither of which could be touched for the purpose of making up the shortfall) was impressed with a trust until that was done.

S' substantive claim was not against ACC, it was against the Crown for its alleged breaches of fiduciary obligations dating from the time of its acceptance of the Spain award in 1845. ACC did not come into existence until 150 years later. ACC was a legal entity separate from the Crown. It was not suggested that ACC assumed fiduciary obligations to the customary owners and it could not be said to have breached, in the period up to 1882, the obligations found to have been owed by the Crown. Any judgment S may obtain in the substantive proceedings currently before the HC would not be enforceable against ACC, which was not even a party to that proceeding. Any interest S may have in the ACC land was not derived from ACC as the registered proprietor.

The appeal was dismissed. The issue of whether the HC had discretion to sustain a caveat under s143 LTA was moot. ACC's cross appeal on that aspect of the judgment should be dismissed.

  • 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 439non-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...

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