Stafford v Attorney-General

• Jurisdiction: New Zealand
• Judge: Edwards J
• Judgment Date: 30 October 2024
• Neutral Citation: [2024] NZHC 3110
• Court: High Court
• Docket Number: CIV-2010-442-181

Between

Rore Pat Stafford

Plaintiff

and

Attorney-General

First Defendant

Accident Compensation Corporation

Second Defendant

Te Whatu Ora – Health New Zealand

Third Defendant

Te Pūkenga – New Zealand Institute of Skills and Technology

Fourth Defendant

Fire and Emergency New Zealand

Fifth Defendant

Ngāti Apa Ki Te Rā Tō Charitable Trust

Intervener

Kāinga Ora – Homes and Communities and Housing New Zealand Limited

Interested Party

[2024] NZHC 3110

Edwards J

CIV-2010-442-181

IN THE HIGH COURT OF NEW ZEALAND

NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA

WHAKATŪ ROHE

Contract, Indigenous, Trusts — claim for damages against the Crown for breach of fiduciary duties to the customary owners of land located at the top of the South Island — breach of fiduciary duties — private law duties owed to customary owners — Treaty of Waitangi

The issues were whether the Crown breach its fiduciary duties and whether the customary owners suffered loss as a result of those breaches.

The Court held the Crown breached its fiduciary duties. The Crown failed to reserve 10,000 acres of Tenths. Like any other fiduciary or trustee, the Crown was not at liberty to decide it would not reserve those Tenths for the customary owners. The Crown engaged in transactions which resulted in the loss of some of the Tenths which had been reserved. The Crown failed to exclude pā, urupā and cultivations from eight of approximately 72 claimed sites of Occupation Lands. The Crown allocated Tenths over pā, urupā and cultivations instead of reserving them from Crown land. As a result of those breaches, the Crown obtained land which should have been held in trust for the customary owners, or which should have remained in customary ownership.

The customary owners suffered a loss of land and the loss of the beneficial use of the Tenths. That loss was represented by the rentals that would have been generated. Loss of use of the pā, urupā and cultivations was not proved because there was evidence the customary owners were occupying those sites at the relevant time.

The Limitation Act 1950 did not bar all of the claims because a statutory exception applied to claims for the recovery of trust property still in the Crown's hands, or for trust property converted by the Crown to its own use. The plaintiff had not acted unreasonably in waiting to commence his claim, the customary owners had persisted in their efforts to seek redress for the Crown's actions since at least 1854.

The Court made interim findings that the Crown held certain land on trust for the benefit of the customary owners. The plaintiff was entitled to the payment of compensation. That sum included the current market value of the land which was held on trust but was no longer in the Crown's hands. It also included compensation for the value of the beneficial use of the Tenths which was represented by a calculation of the lost rental income.

This was a novel claim, not previously recognised in the common law. While the Court considered the common law could accommodate the head of loss, further information was required before developing the law in this new direction. Treaty settlements received by the plaintiff included a cultural redress package which compensated for this loss to some extent. The form of relief could not be settled until the final acreage of land to be returned and other issues were determined. The final monetary award was likely to be substantially less than NZ $1 b. An award of that nature against the Crown was not unprecedented in New Zealand and was a consequence of the Crown's breach of its private law fiduciary duties owed to the customary owners.

Appearances:

K S Feint KC, S M Hunter KC, M S Smith, H K Irwin-Easthope and H Z Yang for Plaintiff

J R Gough, S M Kinsler, HTN Fong, L Dittrich, C E Sinclair and LCY Ewing for Attorney-General

D A Laurenson KC and R L Roff for Accident Compensation Corporation

B M Nathan and NSP Laing for Te Whatu Ora – Health New Zealand and Te Pūkenga – New Zealand Institute of Skills And Technology

S V McKechnie and T J Bremner for Fire and EmergencyNew Zealand

J Every-Palmer KC and QAM Davies for Ngāti Apa ki te Rā Tō Charitable Trust

JUDGMENT OF Edwards J

This judgment was delivered by me on 30 October 2024 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

TABLE OF CONTENTS

PART I — EXECUTIVE SUMMARY	[1]
Supreme Court judgment	[16]
The competing claims and defences	[20]
Unallocated Tenths	[24]
Allocated Tenths	[27]
Occupation Lands	[32]
Occupation Reserves	[37]
Occupied Tenths	[38]
Cultural loss	[41]
Limitation Act 1950	[43]
Treaty settlement	[45]
Laches and acquiescence	[48]
Relief	[51]
PART II — OVERVIEW	[55]
Key events	[56]
The land	[57]
Customary Owners	[58]
1839 New Zealand Company purchase	[63]
1840–1841	[67]
1841 Kaiteretere hui	[72]
1841–1843 selection of the Tenths	[77]
1844–1845 Spain Commission	[82]
1845 Crown grant	[92]
1846–1847 Massacre Bay Occupation Reserves	[94]
1848 Crown grant	[97]
Company failure	[99]
Management of the Tenths	[100]
Waitangi Tribunal claims and preservation clause	[111]
Supreme Court judgment	[114]
Elias CJ	[118]
Glazebrook J	[125]
Arnold and O'Regan JJ	[131]
William Young J (in dissent)	[138]
Terminology	[142]
Claim and Defence
Plaintiff's claim	[156]
Crown's defence	[161]
Te Tiriti o Waitangi and tikanga Māori	[168]
Assessing the evidence	[189]
PART III — DUTY
Overview	[203]
General observations	[207]
An outcome-based duty?	[219]
Extinguishment of customary title and vesting of land	[234]
The Crown's title to land, and the Land Claims Ordinance 1841	[238]
When was customary title extinguished?	[243]
Unallocated Tenths	[257]
Allocated Tenths	[270]
Are the duties separate to those found by the Supreme Court?	[273]
Terms of trust	[284]
When did a trust arise and did it come to an end?	[306]
Occupation Lands	[315]
Defining pā, urupā and cultivations	[317]
(a) Spain award	[323]
(b) Constitutional framework and Crown's intentions	[329]
(c) The way the Customary Owners lived on the land	[332]
(d) Deeds of release	[337]
(e) The measures used to identify Occupation Lands	[350]
(f) Fishing, coastal and public resource areas	[358]
(g) Weaving the threads together: how should pā, urupā and
cultivations be construed?	[363]
Fixing boundaries	[379]
A trust over the Occupation Lands?	[399]
Occupation Reserves	[410]
Occupied Tenths	[417]
Summary of conclusions on duty	[428]
PART IV — BREACH	[434]
Unallocated Tenths	[439]
The search for suitable land 1840–1844	[442]
Massacre Bay deed of release	[447]
Purchase of the Wairau and the Kaituna reserve	[451]
Massacre Bay Occupation Reserves	[453]
Governor Grey's intentions	[463]
Was the failure to allocate the rural Tenths justified?	[474]
Allocated Tenths	[491]
Occupation Lands	[494]
Occupation Reserves	[500]
Occupied Tenths	[502]
Summary of findings regarding breach	[506]
PART V — LOSS	[511]
Unallocated Tenths	[514]
Allocated Tenths	[517]
Occupation Lands	[522]
Occupation Reserves	[526]
Occupied Tenths	[527]
PART VI — LAND REMEDIES	[533]
Constructive trust principles	[537]
Certainty of subject matter	[545]
Does the proprietary remedy attach to Crown Entity land?	[569]
ACC caveats case	[574]
Review proceeding	[589]
Is the ACC caveats decision binding in this proceeding?	[597]
Continuous Crown title	[608]
Unallocated Tenths	[611]
Allocated Tenths	[615]
Occupation Lands	[625]
Occupation Reserves	[635]
Occupied Tenths	[636]
Summary of findings regarding land remedies	[642]
PART VII — EQUITABLE COMPENSATION	[648]
Restoring the trust or compensating the beneficiaries?
Relevant legal principles	[661]
Application to this case	[674]
Simple or compound interest?	[688]
Relevant counterfactual	[702]
Unallocated Tenths	[706]
Allocated Tenths	[713]
Occupation Lands	[716]
Occupation Reserves	[717]
Occupied Tenths	[718]
Summary of findings regarding equitable compensation	[721]
PART VIII — CULTURAL LOSS	[727]
Methodologies for quantifying cultural loss	[734]
Dr Meade's approach	[735]
Alternative approach	[741]
Is cultural loss compensable?	[747]
Should the law be extended to compensate for cultural loss?	[759]
PART IX — LIMITATION ACT 1950	[776]
Statutory scheme	[780]
Section 21 — actions in respect of trust property	[784]
Section 21(1)(a) — the fraud exception	[790]
Section 21(1)(b) — the trust property exception	[799]
Unallocated Tenths	[813]
Claim to land in the hands of the Crown	[816]
Claim to current market value of land no longer in hands of the Crown	[817]
Claim to lost rentals	[820]
Allocated Tenths	[826]
1844 exchanges at Te Maatū	[828]
Withdrawal of 47...