Analysis: Proprietors of Wakatū and Others v Attorney-General [2017] NZSC 17

Carwyn Jones

Victoria University, Wellington

On 28 February 2017, the New Zealand Supreme Court issued one of the most important decisions from a New Zealand court in the last 25 years. In Wakatū v Attorney-General, the majority found that the Crown owed fiduciary duties to reserve 15,100 acres of land for the benefit of the customary Māori owners. This is a very different pathway for dealing with Māori claims of historical land loss than the systematised and politically negotiated settlements that have predominated since the mid-1990s.

This case relates to the purchase of land from Māori in the Nelson area in the north of the South Island in 1839. Importantly, this purchase took place before the Treaty of Waitangi was signed between Māori and the British Crown in 1840. The Treaty of Waitangi is regarded as ‘a founding document of government in New Zealand’. The Treaty provided for the British Crown to establish governmental authority in New Zealand and guaranteed that Māori rights would be protected, including rights and authority in relation to land. Under the Treaty, Māori also granted the Crown the exclusive right of pre-emption over lands which the customary owners wished to sell.

The Crown’s exclusive right to purchase land from Māori and to extinguish native title was the basis of the Land Claims Ordinance adopted by the Governor and Legislative Council in 1841. The Land Claims Ordinance 1841 provided a mechanism whereby any private purchase of land from Māori that was purported to be have been made before 1840 would be investigated by Commissioners to validate the purchase.

The 1839 purchase of land that was the subject of this case was investigated in 1845 in accordance with the Land Claims Ordinance. Commissioner William Spain determined that the Māori of the area had sold 151,000 acres of land on the basis that one-tenth would be reserved for them. Lands which were used for occupation, cultivation or burial grounds were also to be retained by Māori. However, the full one-tenth was never allocated and other sites were not separated out from the purchase as they ought to have been under the terms of the Crown grant. After the land was cleared of native title by Commissioner Spain’s award in 1845, the Crown managed parts of the land which had been identified as forming part of the one-tenth reserve. The plaintiffs in this case alleged that the Crown failed to set aside the complete area of land that was promised to be reserved and so was in breach of fiduciary duties it owed to beneficiaries of the reserve land.

In the High Court, Clifford J found that there was no express trust created because there was not sufficient certainty of intention to create a trust relationship. Nor did Clifford J find that a constructive trust existed. Rather, he took the view that it would not be appropriate to overlay ‘a private law characterisation of arrangements’ that he deemed to be ‘fundamentally political matters’. Clifford J also considered the possibility of the existence of other fiduciary duties, however, he ultimately concluded that the plaintiffs could not be said to represent the customary owners of the land and as such did not have standing to bring a claim of breach of fiduciary duty.

The Court of Appeal upheld the decision of the High Court, except it determined that the second plaintiff, Mr Rore Stafford, a tribal elder, did have standing to bring a claim of breach of fiduciary duty by virtue of his customary leadership role of at least part of the wider collective group.

The Supreme Court, by a 4-1 majority, overturned the Court of Appeal’s decision. It unanimously dismissed the cross-appeal by the Attorney-General against the determination of the Court of Appeal that Mr Stafford has standing to pursue the claim.

The majority did not agree with the Court of Appeal’s view that the Canadian case of Guerin v The Queen could be distinguished from the present case. In her judgment, Elias CJ noted (at [385]):

The obligation to act in the interests of the Indian band in Guerin is entirely comparable with the obligation which arose through alienation under the Land Claims Ordinance through the terms approved in Spain’s award. As in Guerin, fiduciary obligations arose because the Crown acted in relation to “independent legal interests” (in Guerin, as in the present case, existing property interests) and on behalf of Maori. The Crown’s obligations in the present case are, if anything, amplified by the nature and extent of Maori property and its recognition in New Zealand from the first engagements of the Crown in the Treaty of Waitangi. The resulting obligation, as was recognised in Guerin, was “in the nature of a private law duty”; in this “sui generis relationship” it was “not improper to regard the Crown as a fiduciary”.

In summary, the majority found that:

1. The Crown did owe fiduciary duties to the customary owners in respect of the intended reserve land;
2. Mr Stafford had standing to bring a claim based on the breach of those duties; and
3. Mr Stafford’s claim was not time-barred by the Limitation Act 1950.

There are many interesting aspects to this decision (see, for example, recent commentary by Professor Alex Frame and Professor David Williams). From a public law perspective, perhaps the overarching point to note is that this is the first time that the New Zealand courts have recognised that the Crown has enforceable fiduciary duties to Māori in relation to 19th century land purchases. That is, the Supreme Court of New Zealand has recognised private law duties can exist in the context of Māori claims of historical land loss. This is significant because, for the past thirty years, those issues have been dealt with through the Treaty of Waitangi framework in the Waitangi Tribunal (a quasi-judicial commission of inquiry) and then by negotiated redress. The Treaty of Waitangi is not independently legally enforceable in the domestic courts and the Waitangi Tribunal’s recommendations are, for the most part, non-binding.

The Wakatū decision relies on the particular set of circumstances that were at play in the purchase and validation process and, clearly, does not create a general fiduciary duty on the Crown owed to all Māori. At the same time, the circumstances in Wakatū are unlikely to be unique. In any case, even if the political negotiation process continues to dominate the settlement of historical land claims, from now on, those negotiations will all take place in the shadow (or the light?) of the Wakatū decision. The relationship between Māori and the Crown will continue to sit firmly within the public law sphere, but the parameters of that relationship will inevitably be shaped by the pressures of the kinds of private law duties that were found to exist in Wakatū.

The Wakatū case itself now returns to the High Court to determine issues of liability, defence and relief. Many people, not least those engaged in the negotiation of historical land claims, will be watching the outcome with interest.

By Carwyn Jones, a Māori scholar of Ngāti Kahungunu descent. He is a Senior Lecturer in the Faculty of Law at Victoria University of Wellington and holds a PhD in Law from the University of Victoria, British Columbia. His primary research interests relate to the Treaty of Waitangi, legal issues affecting Māori, and indigenous legal traditions. Before joining the Faculty of Law in 2006, Carwyn worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. He is the author of New Treaty, New Tradition – Reconciling New Zealand and Māori Law (UBC Press and VUP, 2016) and co-editor of the Māori Law Review.