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Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Incorporated v Attorney-General [2020] NZHC 1882 (31 July 2020)

Last Updated: 31 July 2020


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-5224
[2020] NZHC 1882
UNDER
the Declaratory Judgments Act 1908
BETWEEN
TE ARA RANGATŪ O TE IWI O NGĀTI TE ATA WAIOHUA INCORPORATED
First Plaintiff
RICHARD TE POU MINHINNICK
Second Plaintiff
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND ON BEHALF OF THE CROWN
First Defendant
................................./continued
Hearing:
4 June to 28 June 2019; further submissions 26 July 2019, 1, 2, 9,
16, 19 and 23 August 2019; final materials 3 December 2019
Counsel:
JP Kahukiwa, JK Harper-Hinton, CJ Orton and RG Ngatai for plaintiffs in 2013 proceedings and second respondent in 2014 proceedings
SM Kinsler, SK Shaw and NF Hodge for first defendant in 2013 proceedings and first respondent in 2014 proceedings
JE Hodder QC, TD Smith and AJ Wicks for second and third defendants in 2013 proceedings and applicants in 2014 proceedings
Judgment:
31 July 2020


JUDGMENT OF FITZGERALD J


This judgment was delivered by me on 31 July 2020 at 1pm, pursuant to Rule 11.5 of the High Court Rules.


Registrar/Deputy Registrar Date...............

Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohua Incorporated v The Attorney-General [2020] NZHC 1882 [31 July 2020]

Defendants continued

NEW ZEALAND STEEL LIMITED
Second Defendant

WAIKATO NORTH HEAD MINING LIMITED
Third Defendant

HERITAGE NEW ZEALAND POUHERE TAONGA
Counterclaim Defendant

CIV-2014-404-1172


UNDER the Judicature Amendment Act 1972 IN THE MATTER of the Iron & Steel Industry Act 1959

BETWEEN NEW ZEALAND STEEL MINING LIMITED
First Applicant

NEW ZEALAND STEEL LIMITED
Second Applicant

AND THE ATTORNEY-GENERAL
First Respondent

RICHARD TE POU MINHINNICK
Second Respondent (Counterclaim Plaintiff)










Solicitors: Corban Revell Lawyers, Auckland

Meredith Connell, Wellington Chapman Tripp, Wellington Crown Law, Wellington

To: J Hodder QC, Wellington

CONTENTS

INTRODUCTION

Overview of factual background [1]

Summary of the plaintiffs’ claims [8]

Summary of the Crown and NZ Steel’s response [9]

Some preliminary points [13]

The structure of this judgment [22]

PROCEDURAL HISTORY

1990 judicial review proceedings [25]

NZ Steel’s 2014 application to be released from its 1990 undertaking [30]

Progression of the 2013 and 2014 proceedings [36]

Plaintiffs granted leave to amend their statement of claim [40] FIRST, SECOND AND THIRD CAUSES OF ACTION – BREACH OF FIDUCIARY DUTY AND/OR DUTY OF GOOD FAITH

Overview of pleaded claims [42]

Key issues for determination [62]

Is the Waiuku Deed voidable for duress, undue influence or is otherwise an unconscionable bargain?

Introduction [63]

1863 – the backdrop of war [65]

The lead up to the Waiuku Deed [85]

The Waiuku Deed [97]

The Confiscation [110]

Events following the Waiuku Deed and Confiscation [113]

Compensation Court [118]

Crown grants [122]

Waiuku No 3 Deed [125]

Issue of new grants in 1878 [126]

Later events [133]

Claims of vitiated consent – a preliminary observation [138]

Duress – legal principles [143]

Duress – discussion [149]

Undue influence - legal principles [179]

Undue influence - discussion [185]

Exploitative/unconscionable bargain — introduction [187]

Unconscionable bargain - legal principles [188]

Unconscionable bargain - discussion [192]

Was the Confiscation ultra vires the 1863 Act?

The purpose and terms of the 1863 Act

The lead up to the passing of the Act [195]
The Bill is passed [200]

The 1863 Act – relevant provisions [204] The “leap frog” argument/no reference to “taking” [212] Was Ngāti Te Ata, or a section of it, or any considerable number thereof,

in rebellion? [231]

Was the Confiscation ultra vires on the basis no consideration was given to whether Ngāti Te Ata, or a considerable number of it, were engaged in

rebellion? [262]

Confiscation for an unlawful purpose/Maioro was never settled? [281]

Profiting from illegal conduct? [287]

Confiscation - conclusion [290]

Does the Crown owe Ngāti Te Ata a fiduciary or other equitable duty?

Introduction [296]
Summary of submissions [298]
Earlier authorities on fiduciary duty [304]
Discussion – does a fiduciary duty arise in this case? [371]
Relational duty of good faith [389]

Conclusions on first, second and third causes of action [391]

FOURTH AND FIFTH CAUSES OF ACTION – 1939 AND 1959 TAKINGS OF THE WĀHI TAPU

Overview of pleaded claims [393]

Key issues for determination [406]

Factual background to takings

Introduction [407]

Lead up to 1939 taking [408]

The PWA 1928 taking of Te Papawhero [416]

Compensation for the taking of Te Papawhero and subsequent treatment

of the land [424]

Plantings on Waiaraponia [425]

Removal of kōiwi from Te Papawhero [426]

Plantings on Te Kuo [430]

Plantings on Tangitanginga [431]

Lead up to the takings of Te Kuo, Waiaraponia and Tangitanginga [432]

Takings of Te Kuo, Waiaraponia and Tangitanginga [461]

Compensation for takings [468]

Consideration of iron and steel industry in New Zealand – early

surveys/consideration [475]

Iron and Steel Industry Act 1959 [494]

Establishment of the Investigating Company [502]

Further additions to Waiuku State Forest [505]

Establishment of NZ Steel [507]

Iron and Steel Industry Amendment Act 1965 [514]

Heads of Agreement and Licence [515]

State forest land at Maioro set apart for ironsands mining [518] The Glenbrook expansion and claims in relation to Maioro [520] Negotiations following release of the Tribunal’s report [529]

State-Owned Enterprises Act [537]

Sale of the Crown’s shares in NZ Steel [545]

A settlement reached? [554]

Memorandum of Understanding [565]

Proposed 1991 settlement [575]

The proposed 1991 settlement is derailed [577]

Ngāti Te Ata wish to amend the proposed 1991 settlement [584]

Crown withdraws its 1991 settlement offer [591]

Was any one or more of the 1939 and 1959 takings of the wāhi tapu under the PWA 1928 unlawful?

The key statutory provisions [598]

Was the Native Minister’s consent necessary? [612]

Was the 1939 taking for a lawful purpose? [614]

Were the 1959 takings for a lawful purpose? [622]

Was title to the ironsands mineral in the wāhi tapu taken by the Crown

as a consequence of the 1939 and 1959 takings? [626]

Were the 1939 and/or 1959 takings in bad faith or for an ulterior

purpose? [629]

Was there a failure to offer the wāhi tapu back to Ngāti Te Ata? [639]

What was the effect of setting aside the wāhi tapu for the purposes

of ISIA? [642]

Has mining already occurred on Tangitanginga? [661]

The plaintiffs’ claims arising from the “1990 Commitments” – did

a fiduciary duty arise? [665]

SIXTH CAUSE OF ACTION – LEGITIMATE EXPECTATION

Overview of pleaded claims [679]

Key issues for determination [687]

Legitimate expectation in the context of Treaty settlement negotiations – overview [688]

Legitimate expectation – legal principles [700]

The plaintiffs’ legitimate expectation claim in this case [712]

AFFIRMATIVE DEFENCES [723]

RESULT AND COSTS

Result [724]

Costs [725]

INTRODUCTION

Overview of factual background

Summary of the plaintiffs’ claims

(a) First, the vendors’ consent to sell Maioro to the Crown under the Waiuku Deed of November 1864 was vitiated by duress or undue influence, or the sale amounted to an unconscionable bargain. These claims rely on the environment created by the Waikato Wars and the threat of Maioro being confiscated in any event.

(b) Second, the confiscation of Maioro in December 1864 (the Confiscation) was ultra vires the 1863 Act, including because Governor Grey could not have been satisfied Ngāti Te Ata or a “considerable number thereof” had been “engaged in rebellion” (being a pre-requisite to confiscation under the Act).





1 Once mining is complete, new trees are planted.

2 Waitangi Tribunal Manukau Report (Wai 8, 1985).

(c) Third, and given (a) and (b) above, neither the Waiuku Deed nor the Confiscation were effective to extinguish Ngāti Te Ata’s native customary title in Maioro, and both transactions were in breach of a fiduciary duty and/or a duty of good faith owed by the Crown to Ngāti Te Ata at that time.

(d) Fourth, the 1939 and 1959 takings of the wāhi tapu under the PWA 1928 were unlawful and/or for an improper purpose (in reality, being taken for mining purposes and not for sand dune reclamation or State forest), and/or were in breach of equitable duties owed by the Crown to Ngāti Te Ata.

(e) Fifth, the sale of the Crown’s shares in NZ Steel in 1987 to Equiticorp Holdings Ltd (Equiticorp) breached the Crown’s obligations under the Treaty, breached equitable obligations owed by the Crown to Ngāti Te Ata and/or was inconsistent with the principles established by the Court of Appeal in New Zealand Māori Council v Attorney-General (the Lands case).3

(f) Sixth, the Crown and Ngāti Te Ata entered into a binding commitment in 1990 to remove the wāhi tapu from the Licence area which the Crown has failed to implement.

(g) Seventh, various commitments made by the Crown in the 1990s in the context of the Treaty settlement negotiations gave rise to a fiduciary duty on the part of the Crown which the Crown has breached.

(h) Finally, a legitimate expectation arose from the parties’ Treaty settlement negotiations to the effect that Ngāti Te Ata’s Treaty claims would have been fairly dealt with by now and would not be rendered nugatory by reason of the Crown’s actions and inactions. The plaintiffs say the Crown is in breach of this legitimate expectation.





3 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA).

Summary of the Crown and NZ Steel’s response

(a) First, the alleged equitable obligations never came into existence. In particular, it says the facts in this case are quite different to the factual circumstances in Proprietors of Wakatū v Attorney-General (Wakatū) in which the Supreme Court found the Crown did owe fiduciary duties to the original customary owners of land which was to have been (but was not) reserved for their benefit.4

(b) Second and in any event, the plaintiffs have failed to establish the Crown’s actions in acquiring Maioro were inconsistent with any such equitable obligations; rather, the Waiuku Deed effected a valid sale and purchase of Maioro and the Confiscation was lawful under the law as it stood at the time.

(c) Third, the wāhi tapu were lawfully taken under the PWA 1928 for legitimate public works purposes.

(d) Fourth, the grant of the Licence to NZ Steel was lawful under the terms of ISIA.

(e) Fifth, the sale of the Crown’s shares in NZ Steel was not in breach of any equitable obligations, the Treaty or the principles established in the Lands case. In particular, NZ Steel has never been a state-owned enterprise for the purposes of the State-Owned Enterprises Act 1986 (SOE Act) to which the Lands case was directed. Further and in any event, given the Crown retains ownership of the land over which the Licence is granted, the share sale has not impaired the Crown’s ability to provide meaningful cultural and commercial redress to Ngāti Te Ata for historical Treaty breaches.


4 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.

(f) Finally, the difficult and protracted Treaty negotiations do not give rise to the duties and/or representations contended for by the plaintiffs.

(a) whether the Waiuku Deed is voidable for duress, undue influence or was an unconscionable bargain;

(b) the lawfulness of the 1864 Confiscation;

(c) whether the Crown owed Ngāti Te Ata a private law fiduciary duty and/or a duty of good faith;

(d) the lawfulness of the public works takings of the wāhi tapu in 1939 and 1959; and

(e) what, if any, legally enforceable obligations on the part of the Crown arise out of the Treaty settlement negotiations.

Some preliminary points

recent decades. I also heard expert historian evidence from Mr Roimata Minhinnick (a leading member of Ngāti Te Ata, whose roles include lead negotiator for the Ngāti Te Ata Claims Support Trust, a former research officer for the Waitangi Tribunal, and who has devoted very substantial time and energy to researching the history of Maioro and Ngāti Te Ata’s claims), and Mr James Brent Parker (Senior Historical Researcher at Crown Law, where Mr Parker has been employed for the past 24 years). I also heard evidence from others involved in the forestry and mining industries, as well as the Treaty settlements process and the negotiation of Ngāti Te Ata’s claims.

  1. See, for example, Waikato Raupatu Claims Settlement Act 1995 (the 1995 Act), s 6, in which the Crown made an apology, including that “[t]he Crown acknowledges that the subsequent confiscation of land and resources under the New Zealand Settlements Act 1863 of the New Zealand Parliament were wrongful, have caused Waikato [which is defined as including Ngāti Te Ata] to the present time to suffer feelings in relation to their lost lands akin to those of orphans, and have had a crippling impact on the welfare, economy and development of Waikato”. Ngāti Te Ata’s claims in relation to Maioro (as part of the “Waiuku Block”) are excluded from the settlement under the 1995 Act; s 8(2)(b).
is irrelevant”.6 Accordingly, the sole inquiry for the Court on this aspect of the plaintiffs’ claim is whether the Confiscation was a lawful exercise of the powers granted by the 1863 Act.

The structure of this judgment

  1. McEldowney v Forde [1971] AC 632 (HL) at 658, cited with approval in Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 242.

7 Mr Kahukiwa, counsel for the plaintiffs, similarly described the plaintiffs’ claims as “epic”.

example, I have found it helpful to address the fifth cause of action (alleged unlawful taking of the wāhi tapu under the PWA 1928) before the fourth cause of action (breach of alleged equitable duties as a result of the takings). And to avoid overburdening an already lengthy judgment, I have not set out in relation to every cause of action the parties’ detailed submissions. Rather, the parties’ submissions will be evident from my discussion of the claims themselves.8

(a) First, I outline the procedural history to these proceedings which provides helpful context and background to the present claims.

(b) Second, I summarise the plaintiffs’ first, second and third causes of action which largely (though not wholly) concern the 1864 purchase and then confiscation of Maioro. It is fair to say that the legal consequences of these events were the focus of the plaintiffs’ evidence and submissions at the hearing.

(c) Third, I address the plaintiffs’ fourth and fifth causes of action, which deal with the takings of the wāhi tapu in 1939 and 1959 and aspects of the later Treaty settlement negotiations.

(d) Fourth, I address the plaintiffs’ sixth cause of action, which alleges the Treaty settlement negotiations and other surrounding circumstances gave rise to a legitimate expectation on the part of Ngāti Te Ata.

(e) Finally, I address the Crown and NZ Steel’s affirmative defences.











  1. I mean no disrespect to counsel for dealing with the detailed and helpful submissions I did receive in this way.

PROCEDURAL HISTORY

1990 judicial review proceedings

(a) The Crown undertook not to remove the four wāhi tapu from the Licence area until the Court issued a final decision on the orders sought in NZ Steel’s statement of claim; and

(b) NZ Steel undertook not to mine the four wāhi tapu pending final resolution of the judicial review proceedings or further order of the Court.

9 M170/90.

in the same proceedings. This made broader allegations, including an alleged breach by the Crown of fiduciary duties said to be owed to Ngāti Te Ata and that the MOU was an enforceable contract. The relief sought included orders that the Minister responsible for administering the ISIA exercise his powers under the Act to remove Maioro (i.e. not only the wāhi tapu) from the Licence area.

NZ Steel’s 2014 application to be released from its 1990 undertaking


  1. The plaintiffs’ statement of claim in the present proceedings states that the 1990 proceedings “were put on hold” to allow negotiations to continue.

11 New Zealand Steel Mining Ltd v Butcher [2014] NZHC 155.

12 At [38].

13 At [39], stating: “The fact that the Waitangi Tribunal has found that that was a wrong does not make it justiciable. That is, the High Court has no power to criticise, let alone read down or set aside a statute.”

14 Noting that these aspects of Ngāti Te Ata’s counterclaim in the 1990 proceedings “have been reformatted but essentially reiterated in the recent 2013 proceedings” (at [40(a)]).

15 At [43]–[48].

16 At [49], referring to Paki v Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125. Fogarty J noted that at the time of his judgment, the point was yet to be considered by the Supreme Court in Paki. I discuss the Supreme Court’s judgment in Paki at [335] to [348] below.

17 At [53].

18 The meant the only part of the judicial review proceedings left on foot was Ngāti Te Ata’s counterclaim (referred to at [28] above), which is now proceeding CIV-2014-404-1172, i.e. one of the proceedings the subject of this judgment.

19 At [78]. NZ Steel says this protocol, the “Maioro Kōiwi Protection Plan”, was agreed with a senior Ngāti Te Ata representative in 1998.

20 Ngāti Te Ata v New Zealand Steel Mining Ltd [2015] NZCA 547, [2016] NZAR 38.

expected to be held only a matter of months later, when instead “an extraordinary amount of time” had passed since the undertaking had been given.21 And rather than part of a reciprocal exchange with the Crown, the Court viewed NZ Steel’s undertaking as having come to serve as interim relief for Ngāti Te Ata against NZ Steel. The Court was not persuaded Ngāti Te Ata had shown the requisite degree of prejudice to require NZ Steel’s undertaking to remain in place, noting that loss of the undertaking may require Ngāti Te Ata to seek interim relief against NZ Steel in due course. The Court saw no requisite injustice in that.22

Progression of the 2013 and 2014 proceedings

21 At [31].

22 At [32]. At the hearing before me, Mr Minhinnick was highly critical of the Court of Appeal’s finding of no substantial prejudice to Ngāti Te Ata. It appears Mr Minhinnick interprets the Court’s finding as a suggestion there would be no prejudice to Ngāti Te Ata from mining the wāhi tapu. But that is not what the Court of Appeal determined. It found no prejudice arising from NZ Steel being released from its undertaking, given NZ Steel did not propose to mine the wāhi tapu prior to the hearing of the plaintiffs’ claims in any event; the plaintiffs’ ability to seek interim relief in the future if required; and those protections it saw arising from the Heritage New Zealand Pouhere Taonga Act 2014. Though in a later decision in these proceedings, and against the Crown’s opposition, Powell J concluded that authority was not in fact required under the Heritage New Zealand Pouhere Taonga Act, the ISIA being a “complete code” in relation to ironsands mining in New Zealand; Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2550 at [60]. In reaching this conclusion, Powell J took a similar approach to Kós J in his earlier decision in New Zealand Steel Ltd v Attorney General [2013] NZHC 3524, in which his Honour found the Resource Management Act 1991 similarly did not apply to require the Crown to seek and obtain resource consents before undertaking forestry clearance on Maioro in preparation for mining.

pursue the claim from that point. A new three-week fixture was allocated to commence on 4 June 2019. Shortly beforehand, the plaintiffs again applied to vacate the fixture. Venning J declined that application. The matter accordingly came before me in June 2019, though in the event, the hearing extended to four weeks.

Plaintiffs granted leave to amend their statement of claim


23 Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2886, [2019] NZAR 12.

24 Whata J reached a similar conclusion in Ngāti Te Ata v Minister for Treaty of Waitangi Negotiations [2017] NZHC 2058 at [5].

25 I declined, however, to grant leave to make amendments which would have required further and not insubstantial evidence to be called, in all likelihood necessitating a (further) adjournment of the substantive fixture.

FIRST, SECOND AND THIRD CAUSES OF ACTION – BREACH OF FIDUCIARY DUTY AND/OR DUTY OF GOOD FAITH

Overview of pleaded claims

(a) to deal with the land for the benefit of Ngāti Te Ata;

(b) to only grant rights or licences in respect of the land on terms consistent with Ngāti Te Ata’s interests;

(c) to ensure proper compensation is paid for the use of land subject to Ngāti Te Ata’s tupuna (aboriginal) title;

(d) not to alienate land that is subject to Ngāti Te Ata’s tupuna title;

(e) not to alienate land subject to a Treaty claim, or interests in land that may be subject to a Treaty claim, without taking steps to ensure Ngāti Te Ata would not be disadvantaged by such action; and

(f) not to impair the interests of Ngāti Te Ata.

(a) to cooperate with Ngāti Te Ata to achieve a shared purpose;

(b) to act honestly; and

(c) to act reasonably, having regard to the other party’s interests.

(a) that Ngāti Te Ata’s tupuna title pre-dates British colonisation of New Zealand;

(b) the Crown’s “assumption of an obligation to protect that property right”;

(c) the signifying of a partnership and special relationship between the Crown and Ngāti Te Ata as a result of their entry into the Treaty;

(d) instructions given on behalf of the Crown to successive Governors of New Zealand in relation to their treatment of Māori and how their land was to be acquired;

(e) Ngāti Te Ata’s customary interests being subject or vulnerable to the actions of the Crown;

(f) a relationship of trust between Ngāti Te Ata and the Crown which arose out of the terms of the Treaty and the history of diplomacy and negotiations between the Crown and Ngāti Te Ata; and

(g) by the enactment of:

(i) section 73 of the New Zealand Constitution Act 1852 (the Constitution Act) (which conferred on the Crown the right of pre-emption in respect of Māori land); and




26 I have referred here only to those aspects of the relationship between the Crown and Ngāti Te Ata which existed at the time of the Waiuku Deed and Confiscation; a raft of much later matters and statutory provisions are referenced in this part of the plaintiffs’ statement of claim, but it is difficult to see how, for example, the enactment of a statutory provision in, say 1928, 1949 or 1959 (as suggested at [164.11] of the third amended statement of claim) could give rise to a fiduciary duty or duty of good faith owed and said to have been breached in 1864. It appears that the later events and statutory provisions are intended to be further “manifestations” or reflections of the underlying fiduciary duty/relationship of good faith. I address those aspects of the pleading, to the extent required, under the later causes of action which address 20th century events.

(ii) sections 2, 3 and 4 of the 1863 Act, which set out the process for the confiscation of Māori land.

Any acquisition by the Crown of the legal interests in Ngāti Te Ata’s land could not extinguish its title in the land, except by the lawful operation of statute or with the free consent of Ngāti Te Ata to the acquisition.

(a) in the environment created by the Waikato Wars, and knowing the land could be subject to confiscation in any event, those members of Ngāti Te Ata who sold their interests in Maioro to the Crown did so under duress and/or undue influence and/or was an unconscionable bargain, such that the Waiuku Deed is voidable and did not effect a valid transfer of Maioro from Ngāti Te Ata to the Crown; and

(b) the Confiscation was ultra vires the 1863 Act, given Ngāti Te Ata had not been engaged in rebellion against the Crown, and/or no consideration was given to whether Ngāti Te Ata, a section of it or any considerable number of it, had been engaged in rebellion, and/or the Confiscation was for an improper purpose given the members of Ngāti Te Ata posed no security threat to the Crown.







27 This was for the purpose of drawing on Canadian authorities which have found that the statutory right of pre-emption under Canadian legislation gave rise to fiduciary duties owed by the Crown to First Nations.

(a) the Waiuku Deed is voidable for want of legitimate consent on the part of the Ngāti Te Ata vendors;

(b) the Crown’s conduct leading up to the Waiuku Deed involved a breach of its fiduciary duties or duty of good faith;

(c) the Confiscation was ultra vires the 1863 Act;

(d) in purporting to confiscate Maioro, the Crown breached its fiduciary duties or duty of good faith; and

(e) from the time of the Waiuku Deed, the Crown held the land acquired under the Deed on constructive trust for Ngāti Te Ata.

  1. In this context, the plaintiffs rely on the concept of a “post-surrender breach” as discussed by the Federal Court of Canada in Semiahmoo Indian Band v Canada (1998) 148 DLR (4th) 523 (FCA).
good faith. Rather, it alleges that the fact the Waiuku Deed did not effect a valid transfer of Maioro from Ngāti Te Ata to the Crown and/or the Confiscation was ultra vires the 1863 Act, gave rise to a constructive trust over the lands acquired in favour of Ngāti Te Ata. Again, it is pleaded that the Crown has failed to account to Ngāti Te Ata for income, royalties and revenue derived from Maioro.

(a) confiscating Maioro; and

(b) using the threat of such confiscations and the climate of fear created by the invasion to enter into the Waiuku Deed.

(a) First, that when exercising his powers under the 1863 Act, the Governor was required to undertake a three-step process, with separate Orders in Council for each step, and could not effectively “leap frog” from declaring a District under s 2 of the 1863 Act to reserving the land and thereby clearing it of title pursuant to s 4.29

(b) Second, that the Order in Council which effected the Confiscation did not expressly “take” the land in question (but merely “reserved” it), and thus was not effective in extinguishing pre-existing title and interests.





29 This was referred to at the hearing as the “leapfrog” argument.

(a) dealing with Maioro in a manner inconsistent with Maioro’s title at tikanga;

(b) failing to take into account that Maioro was not beneficially owned by the Crown but held on trust for Ngāti Te Ata;

(c) failing to consult with and/or act cooperatively with Ngāti Te Ata when making significant decisions about the acquisition and use of Maioro;

(d) deliberately withholding relevant information from Ngāti Te Ata and/or misrepresenting the true position with a view to deceiving Ngāti Te Ata when making decisions about Maioro (including in connection with the setting aside of the land for the purposes of the ISIA);

(e) setting apart Maioro and granting the Licence under the ISIA when the beneficial ownership in the land and ironsands was held on trust for Ngāti Te Ata;




30 In his closing submissions, Mr Kahukiwa confirmed that there are two instances in which the plaintiffs say a “fresh” fiduciary duty arose on the part of the Crown (i.e. not dependent on the relationship and events of the 19th century): namely a duty arising from s 15 of the Public Works Act 1928 [PWA 1928] (pursuant to which the Native Minister’s consent was required before taking “Native Land” for public works), and from certain commitments said to have been made by the Crown to Ngāti Te Ata in the 1990s. I discuss each of these alleged duties when addressing the fourth and fifth causes of action.

(f) knowingly alienating the Crown’s interests in NZ Steel to a third party at a time when Maioro was subject to a Treaty claim and thereby preventing the Crown from being able to provide cultural and commercial redress for Treaty claims;

(g) alienating the Crown’s interests in NZ Steel in an “improvident, unreasonable and dishonest way thereby rendering itself liable as constructive trustee for the value it received”;

(h) failing to ensure that Ngāti Te Ata’s interests in Maioro would be protected and not impaired (including, for example, by failing to ensure various protections for kōiwi, urupā or wāhi tapu or rehabilitation of the land under the terms of the Licence; and granting the Licence on terms unfavourable to Ngāti Te Ata);

(i) profiting from its position as fiduciary, by way of the sale of its shares in NZ Steel, collecting royalties from mining and benefiting from the export of ironsands;

(j) since 1987, failing to abide the “Treaty claim protective mechanisms”, being the combined effect of certain statutory provisions31 and the Lands case to protect Māori;

(k) failing to remove the wāhi tapu from the Licence; and

(l) facilitating further mining on Maioro.





31 Being the State-Owned Enterprises Act 1986 [SOE Act], the Conservation Act 1987 and the Crown Forest Assets Act 1989 and other statutes in which the principles of the Treaty of Waitangi are referenced.

Key issues for determination

(a) Is the Waiuku Deed voidable by reason of duress and/or undue influence, or otherwise is an unconscionable bargain?

(b) Was the Confiscation ultra vires the 1863 Act?32

(c) At the time of the Waiuku Deed and/or the Confiscation, did the Crown owe a private law fiduciary duty and/or duty of good faith to Ngāti Te Ata?

(d) If the answer to (c) is yes, what was the content of that duty?

(e) If the answer to (a) or (b) above is yes, did the Crown’s acquisition of Maioro breach any fiduciary duty and/or duty of good faith?

(f) Assuming a fiduciary duty and/or duty of good faith was owed by the Crown to Ngāti Te Ata, has the Crown further breached that duty and/or failed to account to the person(s) to whom the duty is owed, in any of the ways summarised at [59] above?







32 Or alternatively, was the Crown’s reliance on the Confiscation unconscionable or did it result in the Crown being unjustly enriched or otherwise wrongly profiting from its actions in the Waikato Wars?

Is the Waiuku Deed voidable for duress, undue influence or is otherwise an unconscionable bargain?

Introduction33

(a) waka (including Te Toki-a-Tāpiri) belonging to Ngāti Te Ata were taken and 21 waka were destroyed (in or around July 1863);

(b) plundering of kāinga (about July and August 1863);

(c) imprisonment of elderly men; and

(d) killings giving rise to the emergence of the hapū known as “Rangatira Kore”.

1863 – the backdrop of war

33 Both Mr Minhinnick and Mr Parker gave detailed evidence of events which took place in the lead up to the Waiuku Deed, the Confiscation and beyond. I mean no disrespect to either by referring to a small portion only of their evidence in this and later factual sections of my judgment. Given the already lengthy nature of this judgment, I have focussed only on those factual matters relevant to the plaintiffs’ pleaded causes of action.

34 Third amended statement of claim at [24.1].

...its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in its dealings with the Kiingitanga and Waikato in sending its forces across the Mangataawhiri in July 1863 and in unfairly labelling Waikato as rebels.

I now call on all well-disposed Natives to aid the Lieutenant-General, to establish and maintain those posts, and to preserve peace and order.

Those who remain peaceably at their own villages in Waikato or move in such districts as may be pointed out by the Government will be protected in their persons, property, and land.

Those who wage war against Her Majesty, or remain in arms, threatening the lives of Her peaceable subjects, must take the consequences of their acts, and

35 Dispatches from Hori Tauroa and Ahipene Kaihau to Major Speedy (Waiuku Resident Magistrate) on 4 and 5 July 1863 respectively. Photographs of Ahipene Kaihau, by all accounts an extremely impressive and well-respected leader of his time, are reproduced in Schedule Two to this judgment.

36 Section 6. As noted earlier, “Waikato” is defined in s 7 of the Act to include Ngāti Te Ata and claims in relation to the Waiuku Block are excluded from the settlement (s 8(2)(b)).

they must understand that they will forfeit the right to the possession of their lands guaranteed to them by the Treaty of Waitangi, which lands will be occupied by a population capable of protecting for the future the quiet and unoffending from the violence with which they are now so constantly threatened.

Canoes on the North Shore and up the Waiuku Creek, unless known to belong to hostile tribes [are] not to be interfered with.


  1. James Cowan The New Zealand Wars: A History of the Maori Campaigns and the Pioneering Period: Volume I (1845-64) (R.E Owen, Wellington, 1955) at 324.
namely slipping off the Harrier Man of War while trying to tie seized waka to it and suffering a “severe injury to my leg”. Mr Parker doubts that incident concerned Ngāti Te Ata waka, given Henry Parker’s report indicates the ANV were in the Mangere and Papakura areas at that time. Mr Parker also notes a statement by Henry Parker in 1892 in support of a further application by Seaman Barron for a medal, noting that Barron had been shot “while storming of a Māori stronghold in upper Thames district in the year 1863. He also received injuries while on service at Papakura Creek in the same year”.38

The report states the detachment was accompanied by a Mr Puckey (Edward Puckey of the Native Department) and that between 19 to 25 July it had visited Māngere, Puponga (near Cornwallis on the North Head of the Manukau Harbour where the expedition spent the night), Papakura Creek, Pukekohe, Ihumātao and Oruronga (Orurangi). In all they moved 17 canoes to Onehunga. The substance of this report is confirmed by a newspaper account published on 24 July [1863].

38 It nevertheless seems that some, albeit not necessarily Ngāti Te Ata, waka were destroyed in July 1863, as on 24 July 1863, the Minister of the Colonial Defence wrote to the Commander of the Colonial Defence Corps at Ōtāhuhu reprimanding him for allowing his men to destroy the waka, being inconsistent with the orders only to seize and secure them.

39 JC Firth Nation Making: A Story of New Zealand (Longmans, Green and Co, London, 1890) at 166–175.

with the exception of Te Toki-a-Tāpiri, waka were destroyed. The report also refers to men under the command of a Captain Lloyd (who I discuss further below) conducting an expedition to Āwhitu and taking 16 “old men” prisoner, most likely being members of Ngāti Te Ata.40 As to that event, the author of the report, a member of the ANV expedition, states:

In a couple of days, despatches arrived from head quarters. Imagine our disgust at being informed that we had attacked a friendly village! And that our prisoners were all peaceable and friendly Māoris!!

The Captain was instructed to release his prisoners forthwith, and restore all the captured property. Whether the thirty muskets were actually returned, we had no means of knowing.

.... The ground of their going was from a letter written by Peno (Te Wharepu) to Ruihana inviting him to go to him and Ruihana asked Ngatiteata to go with him – we both (Ahipene and Hori Tauroa) held them to no purpose, they would not listen to us.

Ngatiteata had no desire to go but they were allured by men and deceived - by which their desire to go burst forth. Another cause was their envy of us both

40 Other reports refer to nine men being taken prisoner.

  1. The arrest was described in contemporaneous reports as giving rise to “great bodily fear” on the part of members of Ngāti Te Ata.

for the lands which we possess and the monies which are given to us (by the Government) from that cause they went that you might have grounds against us to punish us – then would their hearts be satisfied.

Now O friend our tribe left in an evil way because we listened to your policy for which we have shut them outside for persisting to go, and for their continuing to trample on the law and on your words also.

O friend great is our darkness through their going away – now they are separated from us and the remainder of the Tribe have joined themselves to us

– altogether those who left are 18 men (not counting Ihaia and Ranaira) and the women who went with them would make the number thirty, those who remain with us are thirty men and forty one women numbering together seventy one – not counting the children ...

(a) On 16 August 1863 (the day after Ahipene Kaihau and Hori Tauroa informed Governor Grey that some Ngāti Te Ata had joined Waikato), Captain Lloyd’s expedition to the north bank of the Waikato River




  1. There was some debate at the hearing as to when he actually took up his command, but I have not found it necessary to resolve that particular matter.
resulted in two pigs belonging to Ahipene Kaihau being killed. Captain Lloyd’s own report of the expedition records:

Ahipene a chief of this place who has not joined the Rebels expresses his great dissatisfaction at my men having marched along the coast towards Waikato Heads.

I regret to say two wild pigs were killed by my party which has caused complaint to be made by that chief – and who has been to the Resident Magistrate concerning the same. On hearing of which I directed that they should be paid for.

(b) Around 20 August 1863, Captain Lloyd’s expedition to the south bank of the Waikato River resulted in waka being destroyed and property being confiscated. This led to the Resident Magistrate of the Lower Waikato making a written complaint to FD Fenton of the Colonial Defence Office about Captain Lloyd’s activities. On 27 August 1863, Thomas Russell, the Minister for Colonial Defence, annotated the letter of complaint as follows:

Referred to General Galloway, who is about to visit Waiuku.

If Capt Lloyd has been guilty of the acts of folly described in this letter, I don’t think him fit to hold the position he now has at Waiuku & Gen. Galloway will be supported by the Government in whatever course he may see fit to take upon the investigation of this case at Waiuku.

(c) Captain Lloyd strongly refuted the allegations. They were duly investigated by General Galloway, who generally found Captain Lloyd to have followed his instructions, though observed that he had “displayed a little too much energy”.43

(d) On 24 October 1863, Puckey wrote to the Native Department stating that Captain Lloyd had destroyed waka belonging to “friendly Māori”. On 27 October 1863, the Native Secretary replied and informed him that if it was found that the waka belonged to friendly Māori, they were to be paid for.


  1. It is not known whether Ahipene Kaihau, Hori Tauroa or any other members of Ngāti Te Ata were aware that Captain Lloyd’s actions were investigated at this time.

(e) Expeditions in early November 1863 (including that discussed at [78] above) involved entering a whare and property being taken. On 6 November 1863, Puckey forwarded to the Native Department a list of property belonging to “friendly Māori” which he said had been destroyed by volunteers under Captain Lloyd’s command. A newspaper report of the time described events as follows:

The ‘Lady Barkley’ then proceeded to Waiuku, where she arrived on Tuesday morning. The object of the visit being to remove any canoes lying in the creeks. The same day, the brigade, assisted by a part of the Waiuku force, under Captain Lloyd, secured a number of canoes belonging to the Waiuku natives. This step the natives do not object to; but they allege that their whares were entered by the men, and clothing and other property carried away. It is certain that other articles besides canoes came under the inspection of the men, and that Captain Lloyd ordered the men under his charge to leave the articles in their places. The civil and native authorities intended to institute a search on board the steamer today, in order to ascertain if the allegations, of property having been carried away, were true; but the very gusty afternoon has, I believe, delayed their intention. The natives have not made any unpleasant demonstration on the matter, but they are apprehensive that if the distinction between their property and rebel property becomes overlooked, the distinction between their persons and those of rebels will be overlooked.

(f) On 7 November 1863, Hori Tauroa wrote to Puckey asking for the return of one of the waka taken by the Lady Barkley and complaining about damages to property caused by the volunteers. On 17 November 1863, Captain Lloyd was instructed by his superiors that one of the seized waka was to be given up to Hori Tauroa (though no mention was made of the complaints regarding damage to property).

(g) On 9 November 1863, Puckey left Waiuku at the suggestion of the “native chiefs”, and accompanied by 20 armed Māori visited the deserted settlements at Ruhina “on the Waikato, near the heads”. During this expedition, they found a large number of waka and destroyed 17 of them belonging to “friendly Māori” and two belonging to “hostile Māori”. Mr Parker notes that in probable response to those actions, on 13 November 1863, the Resident Magistrate at Waiuku wrote to the Native Department noting that the “friendly natives wish

to know what measures the Government intends to take to prevent any more ill-treatment befalling them”.

(h) On 18 November 1863, the Minister of the Colonial Defence ordered Major General Galloway to write to Captain Lloyd informing him of the complaints and that the Government was determined to investigate them. Captain Lloyd was later ordered to go to Auckland to answer to the complaints.44

(i) Also on 18 November 1863, Puckey wrote to the Native Department stating that the friendly Māori remained afraid following the arrest of some of them. Further correspondence followed on 5 December 1863 concerning the property and arrest.

(j) On 19 December 1863, the Resident Magistrate, Waiuku, reported to the Native Department and enclosed a letter from Ahipene Kauhau stating his men would assist in taking waka to Mangatāwhiri.

(a) On 6 September 1863, Ahipene Kaihau received a warning that 300 to 400 hostile Māori were planning an attack on Mauku, Pukekohe and Tuakau. Ahipene Kaihau passed this news to Puckey, who in turn passed it to Captain Lloyd.

(b) On 18 September 1863, Puckey reported that Ngāti Te Ata wanted arms and ammunition and that he believed an attack on Waiuku was imminent.





  1. Again, it is unknown whether Ahipene Kaihau, Hori Tauroa or any other members of Ngāti Te Ata were aware of this at the time.

(c) On 19 September 1863, Captain Lloyd reported that Hori Tauroa had come to his aid with a party of armed men and had warned him there were 400 hostile Māori waiting for the opportunity to attack Waiuku.

The lead up to the Waiuku Deed

The formation of such a line of settlements will probably require the acquisition of some lands, the property of friendly Natives, which must be bought in the usual way.

(emphasis added)

published in the New Zealand Gazette on 15 July 1863, Governor Grey referred to measures to prevent any attack on Auckland and neighbouring settlements:45

...[t]he Ministers accordingly undertook to be responsible for the adoption of a plan of operations for the defence of the district about Auckland which I had proposed to them and for the occupation by military settlers of the land of hostile Natives in its neighbourhood...

(a) There were a number of applications for advances of monies “on account of land” over the period February 1864 to July 1864.

(b) On 3 August 1864, Paora Te Iwi (one of the vendors under the Waiuku Deed)47 wrote a letter summarised in the Native Department correspondence Register as “one thousand acres of land will not satisfy him”.

(c) Also on 3 August 1864, the Register of inwards correspondence to the Native Department (the Register) records a letter summarised as “the



45 (October 21 1863) D NZPD 735.

46 Mr Minhinnick accepted in cross-examination that negotiations leading to the November 1864 Waiuku Deed had been conducted over a long period of time.

47 Mr Minhinnick noted that Paora Te Iwi also belonged to Ngāti Tamaoho, but was a vendor under the Deed by reason of whakapapa (genealogical ties) to Ngāti Te Ata. Ahipene Kaihau also married Paora Te Iwi’s daughter, Te Rangi.

Waiuku natives want four thousand acres instead of three thousand. Asking for increase of Pension as he has 62 people to feed”.

(d) On 6 August 1863, the Register records correspondence from Hori Tauroa summarised as “wants more land”.

(e) On 23 August 1863, the Register records correspondence from Ahipene Kaihau summarised as “wishes 1000 acres of the land arranged for by Mr Turton to be returned to him”.48

(f) On 24 August 1864, the Register records a letter from Hori Tauroa, summarised as “Hori Tauroa applying for 1200 acres of land in addition to the proposed arrangement of Mr Turton”.

The arrangement made with Ahipene Kaihau and his party was this.

The whole block of land at Waiuku to be surveyed & the necessary & convenient roads laid off. The land then to [illegible] divided into convenient Lot[s] for sale and occupation. Ahipene & his party to be allowed to select out of their own land such Lot[s] as they require for their own use & to receive Crown grants. The Rebel land to belong to the Government & Ahipene & party to be paid for all the land belonging to them which they do not require for their own use & give up to the Government.

FW

  1. Henry Turton was Commissioner for the Investigation of Native Title, and was involved in negotiating the Waiuku Deed with the Ngāti Te Ata vendors.

...arrange with them for a final meeting of the whole tribe at Waiuku. They would like to have the question settled, with themselves alone, at Auckland, without regard to the rest of the Tribe: but to that proposal I would not agree, for a moment, and therefore obliged them to consent to meet me on the ground, with the rest of the people, as soon as possible....

As soon as Mr Rogan has returned from Whangarei (if in the meantime I shall have heard from W Marshall, of Waikato), I shall request of the Government that he may be allowed to accompany me to Waiuku, for the final settlement of the case, since he has been associated with the whole transaction from the commencement.

In the meantime, I will search out, & look over the various Maps, Papers etc to be found in the Public Offices, in reference to that Block, so as to enable me to recommend to the Government a reasonable and equitable sum to be paid over to the non-belligerents of the Ngatiteata Tribe...

...in reply to inform you that as the Natives appear to be so exorbitant and unreasonable, the Government will not at present go on with the purchase.



49 It is also not known whether the terms upon which the Waiuku Deed was entered into were the same or similar to those for which the vendors were pushing in October 1864, or whether they were inferior.

The Waiuku Deed


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smaller block not shown on the above map, referred to as “Dalziel’s Purchase”, had also already been purchased by the Crown.

2020_188201.jpg


members of Ngāti Te Ata.50 The memorandum attached to the Deed listed 15 reserves, or “places of abode”, totalling some 5,153 acres and stated “[these] are the lands which have been agreed upon as places of abode for the tribe, that is, for such of them as have not been engaged in rebellion”. The Deed also listed the “burying grounds” (wāhi tapu) totalling nearly 1,254 acres, which were excluded from the sale.
  1. If any person shall hereafter arise, asserting that a portion of this land belongs to him, and if his claim be proved to be correct, his demand shall be settled out of the Purchase money above named. But this will have no reference to the persons who continue in rebellion, nor to the Ngatitipa in regard of their claim on the Awaroa. It will be for the Government to arrange with them.
  1. The lands above recounted and which have been surveyed as perpetual residence for the people, and which are described on the plan annexed, shall be settled by a Crown Grant upon the Ngatiteata and their children in

50 This included Ahipene Kaihau, Hori Tauroa, Hemi Manu and Paora Te Iwi, the latter discussed at fn 47 above. Mr Minhinnick also notes that another of the vendors was Te Hira Kawau, who descended from Ngāti Whātua whakapapa. But his grandmother belonged to Ngāti Te Ata, being the daughter of the Ngāti Te Ata chief Te Horeta. Mr Minhinnick accordingly concludes that all thirty signatories were either chiefs or people of Ngāti Te Ata.

51 Mr Minhinnick calculated 2 shillings and 6 pence per acre, though this did not exclude Dalziel’s purchase or the habitation reserves and wāhi tapu. There was no suggestion, however, anything turned on the slight difference.

perpetuity. But the Crown Grants to Aihipene Kaihau, to Hori Tauroa, and to Parora te Iwi, for the five hundred acres (500 acres) granted to them, shall be conveyed to them personally (i.e. by Special Grant).

The Confiscation

The Colonial Secretary brought under consideration the disposal of lands of Natives believed to have been in rebellion.

Resolved. That within the boundaries proclaimed by the Governor in his Proclamation of 17th of December 1864, the lands of all Natives believed to have been implicated in the Rebellion shall by Proclamations from time to time issued by the Governor be brought under the provisions of the New Zealand Settlements Act.

...

The Attorney General submitted for approval an Order in Council bringing under operation of New Zealand Settlements Act 1863 Lands, as Sites, for Military Settlements and Colonization purposes agreeably to the provisions of the said Act.

Schedule. 1. Military Settlements

  1. Patumahoe
  1. Pukekohe
  1. Pokeno
  1. Tuakau

52 There is no suggestion this proclamation alone effected a confiscation.

53 The date of the Gazette was added when the minutes were confirmed on 5 January 1865.

  1. Waiuku North
  1. Waiuku South
  1. Tuimata

Which was approved of and ordered accordingly as printed in Gazette No.1 January 5th 1865.

(emphasis added)

Events following the Waiuku Deed and Confiscation

Schedule of Allotments available for sale in the Block of Land recently purchased from the Ngatiteata tribe, Waiuku West – Maioro Block.

2020_188202.jpg











54 The areas marked Lots 97, 98, 99 and 100 are the four wāhi tapu at issue in these proceedings.

Compensation Court

Crown grants

Waiuku No 3 Deed

Issue of new grants in 1878





55 Ahipene Kaihau, Hori Tauroa, Hemi Manu, Erueti Punui, Paora Katipa and Paora Katuhi, all of whom are said in the grants to belong to Ngāti Te Ata, and Paora Te Iwi, said in the grants to belong to Ngāti Tamaoho.

56 As noted, nine of the October 1865 grants were expressly stated to be “in trust”. In attachment A to the Waiuku No 3 Deed those grants which had not been issued expressly on trust had a particular name recorded next to them. The attachment also recorded the “special grants” to Ahipene Kaihau, Hori Tauraoa and Paora Te Iwi.

After the confiscation of the Waikato lands, Crown grants were given to the loyal Natives of the Ngatiteata Tribe for very extensive blocks of land, out of the territory so taken, at the West Waiuku, between the Waikato and Manukau Harbours. These grants were issued in pursuance of recommendations made by Mr. Commissioner Turton, and were confirmed by “The Friendly Natives’ Contracts Confirmation Act, 1866.”

The grants conveyed the land in some cases absolutely to several Natives, and in others in Trust to the Chiefs for the loyal Natives of the tribe. The interests in the lands were of a very varying character; occasionally the grantees were almost the sole owners, while in other cases, they possessed but a moderate interest in the land. Some of the lands were for cultivation, some were wāhi- tapu, and some were fishing-stations, or landing-places.

From not understanding, in some cases, the nature of the responsibility attaching to the Trusts, and in others from cupidity, the grantees mismanaged the administration of these lands. They are stated to have illegally sold some, and to have misappropriated the rents of other of the reserves.

Under these circumstances they applied to the Government to extricate them from their difficulties, which had reached to such a height that the grantees, whose acts were loudly complained of by the inferior owners, were themselves anxious to hand over the Estates to Government Agents, for partition, either of area or interest, among the parties entitled to share in the respective grants.

With this in view, 103 pieces of land are being handed over by the Natives interested, in Trust, to Mr. John White and myself. This refers to the lands for which there are absolute grants. Where the Grants are in trust to the Chiefs, the latter are giving their consent to such an allocation of the land as will admit the inferior men, whose interests were being ignored, and are asking the Commissioner of Reserves to act on their own behalf. This work, which Mr. John White appears to carrying out in satisfaction of the Natives of both interests, will be very tedious, and will further involve some expense in surveying.






  1. Though not all of the details in this report are accurate; for example, it does not take into account the Waiuku Deed, which pre-dated the Confiscation.

Later events



















58 See the map at [116], which shows an area of Maioro as being “leased”.

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Claims of vitiated consent – a preliminary observation

In any case where a transaction is sought to be impugned by the operation of vitiating factors such as duress, undue influence, or unconscionable conduct, it is necessary for a trial judge to conduct a “close consideration of the facts”.

(footnotes omitted)


59 Thorne v Kennedy [2017] HCA 49, (2017) 263 CLR 85 at [41]. See similar observations of the (New Zealand) Court of Appeal in Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [26]– [34].

60 Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113 at 118.

...calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [other party].

Duress – legal principles

(a) first, there must be exertion of illegitimate pressure on a victim; and




61 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [31].

62 Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 at 649–650, as referred to in Thorne v Kennedy [2017] HCA 49, (2017) 263 CLR 85 at [42].

63 Professor David Williams, a Professor Emeritus and Research Fellow at Auckland University (and legal history expert witness for the appellants in the High Court in Wakatū), states in his article “Fiduciary Duty Remedies Stripped of Historical Encumbrances” [2019] NZ L Rev 39 at 43 that “there was little serious dispute about the facts in Wakatū even though most occurred in the first decade of colonial rule more than 170 years ago”.

64 McIntyre v Nemesis DKB Ltd [2009] NZCA 329, [2010] 1 NZLR 463 at [20].

(b) second, the imposition of that pressure must have compelled the victim to enter the contract (that is, there was coercion in fact).

...in life... many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate.

Other relevant factors are whether the person said to have been coerced:68

(a) did or did not protest;

(b) was independently advised; or

(c) after entering the contract, took steps to avoid it.

Duress – discussion





65 Barton v Armstrong [1976] AC 104 (PC).

66 McIntyre v Nemesis DKB Ltd [2009] NZCA 329, [2010] 1 NZLR 463 at [30].

67 At [26]–[32].

68 At [68].

  1. In particular, the reference to the habitation reserves being “for such of them as have not been engaged in rebellion”.
  2. Third amended statement of claim at [176]. No submissions were made in relation to the potential application of tikanga to this assessment.

Obviously, in cases such as Ngāti Te Ata’s where part of the tribe had gone into rebellion, but the other part had remained loyal to the Crown, it would have been an extremely complex task to unravel the interests of the rebels from the loyal members. The answer was to seek to purchase the interests of the loyal members and to ensure they retained adequate land for their future needs.

This is what occurred in the case of Ngāti Te Ata. The Crown engaged in a long negotiation with the loyal members of the tribe to acquire their interests and to confiscate the interests of those members who had gone into rebellion. There is no evidence that the loyal members of Ngāti Te Ata, including their rangatira, objected to that arrangement. Those people had had a long history of selling land to the Crown (see the list of pre 1864 sales in Appendix 1) and knew what was happening.

Q. At 675, this is where you discuss the – or what you explain is the arrangement between the Crown and the loyal members of Ngāti Te Ata. Do I understand you correctly that you say as part of that arrangement the loyal members of Ngāti Te Ata understood that the land would be confiscated?

A. Yes I mean it’s pretty clear that, that – that idea was before Ngāti Te Ata from a pretty early date in 1864, and the arrangement, the FW arrangement indicates that that was what was going to happen. I don’t think, I think it’s pretty clear that, the leaders of Ngāti Te Ata, wanted to keep the members of the tribe who had gone into rebellion out.

This discussion [with Ahipene Kaihau and Hore Tauroa referred to at [94] above] took place before the land was formally confiscated, which indicates, the existence of some kind of deal or arrangement in contemplation of and prior to confiscation, with the threat of confiscation ever present.

(a) the overlap between the land sold pursuant to the Waiuku Deed and confiscated a few weeks later;


  1. And submitting that the distinction between “rebels” and “non-rebels” in cls 1 and 4 of the memorandum to the Deed only made sense in the context of the Confiscation.

(b) the very short time period between the Deed and the Confiscation; and

(c) that no later complaints or claims were made by the vendors under the Waiuku Deed, including claims before the Compensation Court in relation to the Confiscation.


72 Eight of those sales pre-dated 1840; the remaining 31 sales were conducted over the period July 1843 to January 1863. And as discussed at [100] above, significant blocks of land on the Āwhitu Peninsula had already been sold to the Crown before the Waiuku Deed was entered into. The Manukau Block was sold in October 1857; the Opoia and Ramaroa No. 1 Blocks also in October 1857; and the Opoia and Ramaroa No. 2 Blocks in April 1861.

73 Semiahmoo Indian Band v Canada (1998) 148 DLR (4th) 523 (FCA).

74 Semiahmoo Indian Band v Canada (1995) 128 DLR (4th) 542 (FC) at 544.

  1. Guerin v The Queen [1984] 2 SCR 335 at 376. I discuss Guerin in more detail below at [305] to [311].
was no evidence to support the claim the price paid for the surrendered land was below market value. But the trial Judge accepted the plaintiffs’ characterisation of the evidence that the Band would not have surrendered the land in the normal course of events. The trial Judge also found that the Band knew at all times the Crown had the right to expropriate the land for public purposes if the Band refused to surrender it. On this basis, the Judge concluded that the Crown had breached its fiduciary duty to the Band by taking more land than was required and not including a reversion clause in the terms of surrender. Despite these findings, however, the Band’s claims were dismissed on limitation grounds. The Band appealed and the Crown cross-appealed.

It follows that under the Indian Act, the Band had the right to decide whether to surrender the reserve, and its decision was to be respected. At the same time, if the Band’s decision was foolish or improvident – a decision that constituted exploitation – the Crown could refuse to consent. In short, the Crown’s obligation was limited to preventing exploitative bargains.

It is clear from the reasons of the Trial Judge that the Band’s discretion to give or to withhold their consent to the 1951 surrender was significantly influenced by their knowledge that, regardless of their decision on the issue of surrender, there was a risk that they would lose their land through expropriation in any event.





76 Blueberry River Indian Band v R [1995] 4 SCR 344.

77 At 371.

78 Semiahmoo Indian Band v Canada (1998) 148 DLR (4th) 523 (FCA) at 537.

fettered by their knowledge of the respondent’s power to expropriate. Isaac CJ stated:79

The respondent’s assertion that the Band gave full and informed consent to the absolute surrender rings hollow in the face of [the Trial Judge’s] findings. In my respectful view, in finding that the Band surrendered their land to the respondent despite the fact that they “would not have surrendered the land, in the normal course of events” the Trial Judge concluded, based on the evidence, that the Band felt powerless to decide any other way. The bargain, in other words, was exploitative. For this reason, the respondent should not have consented to the absolute surrender, at least not without first ensuring that it contained appropriate safeguards, such as a reversionary clause, to ensure the least possible impairment of the Band’s rights.

79 At 538.

80 By reference to those principles concerning post-surrender fiduciary duty, set out at 543–544.

81 Semiahmoo Indian Band v Canada (1995) 128 DLR (4th) 542 (FC) at 543.

Kaihau and other Ngāti Te Ata chiefs expressed their 102 kāinga, including Maioro, which they proclaimed would be held by them “for ever and ever” (“mō āke āke”). Mr Kahukiwa says this demonstrates Ngāti Te Ata would not have sold their land in the normal course of events. He further submits that the very fact almost all of Maioro had been sold or confiscated as a result of the 1864 transactions, with Ahipene Kaihau and his party retaining less than 14 per cent of the area, is “concerningly inconsistent” with the 1842 pukapuka and is further evidence of duress.
  1. To the extent a contrary approach suggests a (rebuttable) “presumption” of duress, I discuss that concept at [181] below when considering undue influence.
1878 Crown Grants. And subsequent to those steps having been completed, there was no complaint about the Waiuku Deed until many decades later. Had duress in the legal sense been made out, these facts may have provided a foundation for a finding that the transaction had been affirmed.

Undue influence - legal principles

(a) The overall burden of proof rests on the person seeking to establish undue influence.

(b) The burden of proof is the balance of probabilities...

(c) The person asserting undue influence must show that the alleged influence led to the making of the impugned transaction, and that the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.

(d) The question of whether a transaction was brought about by undue influence is a question of fact. A party can succeed in establishing this by proving “actual undue influence”, or by way of recourse to an evidential presumption which arises where it is established that:

(i) the person said to have been subject to undue influence placed trust and confidence in the other; and

(ii) the transaction calls for explanation.

(e) Whether there is a relationship of trust and confidence can either be established factually or by reference to a class of specific relationships such as lawyer/client; parent/child; doctor/patient. In the latter category, the law presumes irrebutably that one party had influence over the other. The presumption is only as to proof of influence. The person alleging undue influence will still need to establish a transaction calling for an explanation.

(f) Whether a transaction calls for an explanation depends on the circumstances of the case. The question is simply whether “failing proof to the contrary, [the transaction] was explicable only on the basis that undue influence had been exercised to procure it”.

  1. Green v Green [2015] NZHC 1218, (2015) 4 NZTR 25-017 at [100]. Upheld on appeal in Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [35].

(g) Once the person claiming undue influence has established both the relationship of trust and confidence and a transaction calling for explanation, the evidential burden shifts to the person seeking to uphold the transaction to show that the transaction was not the result of undue influence...

(h) The presence of independent advice is one of many factors that may be taken into account in determining whether undue influence is proved...

The principles on which courts intervene in cases of undue influence, unconscionability, and breach of fiduciary duty overlap. They are not closed categories. I have already referred to my impression that the circumstances of 19th century purchases, described for example by Richard Boast, have parallels with the cases dealing with transactions with expectant heirs. It is not inconceivable that circumstances from which a presumption of undue influence may be inferred (shifting the onus of proof) may arise in cases of land transactions between the sovereign power and indigenous peoples.

(footnotes omitted)

  1. Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 at [104] per Lord Hobhouse and [158] per Lord Scott.

85 At [9]–[10].

86 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.

87 At [151].

in question.88 His Honour was concerned at extending the principle of retrospective justification to transactions conducted in the social and economic conditions in the late 1800s, “for which [he] certainly [had] no real feel”.89 He also stated:90

... the imposition of a requirement of retrospective justification in the present circumstances would be distinctly unfair given that it cannot be met due to the effluxion of time. The practical result would be the setting aside of the transactions despite complete uncertainty whether the vendors were under any relevant misapprehension.





88 At [256].

89 At [286].

90 At [287].

  1. Mr Kahukiwa submitted that if duress is made out, undue influence must also follow, as it is a “lower standard”.

Undue influence - discussion

Exploitative/unconscionable bargain — introduction

Unconscionable bargain - legal principles

Gustav & Co Ltd v Macfield Ltd:94




92 Attorney-General for England and Wales v R [2003] UKPC 22, [2004] 2 NZLR 577 at [24]; see also J Stephen Kós “Undue Influence” in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 679 at [22.4.5(1)].

93 Being, in broad terms, the climate of war existing in 1863 to 1864, and making it known that Ngāti Te Ata’s land would be confiscated in any event if it did not sell its land to the Crown.

94 Gustav & Co Ltd v Macfield Ltd [2008] NZSC 47, [2008] 2 NZLR 735 at [6].

Equity will intervene, when one party in entering into a transaction, unconscientiously takes advantage of the other. That will be so when the stronger party knows or ought to be aware that the weaker party is unable adequately to look after his own interests and is acting to his detriment. Equity will not allow the stronger party to procure or accept a transaction in these circumstances. The remedy is conscience-based and, in qualifying cases, the Court intervenes and says that the stronger party may not take advantage of the rights acquired under the transaction because it would be contrary to good conscience to do so. The conscience of the stronger party must be so affected that equity will restrain that party from exercising its rights at law.

... for a bargain to be characterised as unconscionable, and thus able to be set aside, there will necessarily be: (1) serious disadvantage on the part of the weaker party known to the stronger party; and (2) the exploitation of that disadvantage by the stronger party in circumstances amounting to actual or equitable fraud. Associated with (1) and (2) will usually, but not necessarily be: (3) some procedural impropriety, established or presumed, and attributable to the stronger party; and (4) a substantial inadequacy of consideration.

... such a list would include “poverty or a need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, [and] lack of assistance or explanation”. Examples from other cases which may be added to this list include stress and anxiety coupled with ignorance of the value of the subject-matter of the contract. The key factor is that the disadvantaged party must be, for whatever reason, unable to make


95 Attorney-General for England and Wales v R [2002] NZLR 91 (CA) at [89].

  1. James Every-Palmer “Unconscionable Bargains” in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 717 at [23.2.1].

97 At [23.2.1].

proper judgments as to what is in his or her own best interests. (emphasis added, footnotes omitted)

Unconscionable bargain - discussion

Was the Confiscation ultra vires the 1863 Act?

The purpose and terms of the 1863 Act


The lead up to the passing of the Act

Introduce a large body of men from Australia and elsewhere and form settlements along a frontier line through the heart of the country, on lands to be taken from the tribes now in arms against us, and given on conditions of Military tenure to the immigrants in question.

The primary feature of [the Bill’s] policy is the supressing of the existing rebellion... I intimated on a previous occasion that the basis of the Government scheme was the introduction of so strong a population into the disturbed districts of the colony that, for the future, the Natives might be deterred from all hope of successful resistance to the establishment of law in the Northern Island. In order to establish the population which the Government intents to introduce, it is absolutely essential that it shall have the land on which to establish them. ... What is required is a large population, practically outnumbering that of the Natives in those districts where rebellion

98 Led in the House of Representatives by James FitzGerald, the member for Ellemere, and in the Legislative Council, by the former Attorney General William Swainson. Their opposition focused on the cause of rebellion; the sweeping nature of the proposed confiscation powers (both in terms of the amount of land that could be taken and that it would include land of loyal or friendly Māori); the process for compensation; that land surplus to military settlements could be sold; that sweeping confiscation was inconsistent with the Treaty of Waitangi; and the general damage it would do to Crown/Māori relations. As will be seen, these concerns were echoed by the Secretary of State for Colonial Affairs when the New Zealand Settlements Act 1863 [1863 Act], once passed, was sent to London for approval. See [201] below.

99 (November 5 1863) D NZPD 782–783.

exists, or may exist, to be permanently settled, with ownership of the land, so that they may not only have an interest, but the ability, to defend their homes from future aggression; and to effect this the Government looks to the lands of those tribes who have been in rebellion. There is no injustice in taking the lands of such tribes, not by way of punishment, or of reducing the tribes from the position they now hold, but simply as a substantial guarantee for the future peace and consolidation of the colony. This Bill provides for that object.

...

I am glad to say that, on examining a carefully-prepared approximate return of the acreage which is included in those districts where rebellion exists – and in which alone, at present, the Government has any intention of extended operations – there appear to be at least 4,000,000 acres of land available for the purposes.

...[H]owever successful we might be in marching armies through the country, however successful we might be when we met our foes, unless we took some further steps there would, on our retirement, be another outbreak such as had now taken place. ... [T]he Government, after anxious consideration, had come to the conclusion that to prevent affairs of the kind in the future, such a bill as this was necessary. They asked the Council to deal with the lands belonging to the Natives in such manner as would be necessary to place on them such a population as would be able to take care of itself and guard for the future against outbreaks. The Bill contained two principles: the first was involved in the 4th clause, by which the Government would exercise power to take land for public purposes – a power as to which there could be no question, and which it could not be disputed might justly and properly be exercised in cases of State necessity. ... Then, the second principle was this: that those parties who had been engaged in rebellion should not be entitled to compensation. ...


The Bill is passed






100 (November 16 1863) D NZPD 869.

101 Pursuant to s 58 of the New Zealand Constitution Act 1852 (UK) 15 &16 Vict c 72, whenever the Governor assented to a Bill in Her Majesty’s name, he was required to transmit a copy of the Bill to the relevant Secretary of State in England, and it was lawful for Her Majesty, by Order in Council within a period of two years of receipt of the Bill, to disallow it.

...I need not leave you in ignorance of the views which I entertain upon the policy embodied in this important law, or of the opinion of Her Majesty’s Government in respect to the measures which ought to be taken as soon as decisive success in arms shall enable you to take them for the pacification and settlement of the Northern Island.

[Having referred to an earlier scheme submitted to the Duke of Newcastle in August 1863, about which the Duke had also expressed concern]

The number of settlers, and consequently the immediate amount of confiscation, is quadrupled, the compulsory power of acquiring land within a proclaimed District is, by the terms of the Act, applied alike to the loyal and the disloyal; the right of compensation is jealously limited, and is denied even to the most loyal native if he refuses to surrender his accustomed right of carrying arms, and these powers are not to be exercised exceptionally and to meet the present emergency, or by regularly constituted courts of justice, but are to be permanently embodied in the law of New Zealand; and to form a standing qualification of the Treaty of Waitangi.

This being the nature of the law, I proceed to consider some very grave objections which may be urged against it. It renders permanently insecure the tenure of Native property throughout the Islands, and is thus calculated to alarm our friends. It makes no difference between the leaders and contrivers of rebellion and their unwilling agents or allies, and is thus calculated to drive to despair those about half our enemies. The proceedings by which unlimited confiscation of property is to take place may be secret, without argument and without appeal; and the provision for compensation is as rigidly confined as the provision for punishment is flexible and unlimited.

Considering that the defence of the Colony is at present affected by an Imperial force, I should perhaps have been justified in recommending the disallowance of an Act couched in such sweeping terms, capable therefore of great abuse, unless its practical operation were restrained by a strong and resolute hand, and calculated, if abused, to frustrate its own objects, and to prolong, instead of terminate war. But not having received from you any expression of your disapproval, and being most unwilling to take any course which would weaken your hands in the moment of your military success, her Majesty’s Government have decided that the Act will for the present remain in operation.



102 Replacing the Duke of Newcastle.

  1. Mr Parker estimated that Cardwell’s dispatch would have arrived with the Governor in around August 1864 at the latest.

They are led to this conclusion not merely by a desire to sustain the authority of the Local Government, but also in no small degree by observing that no confiscation can take effect without your personal concurrence, and by the reliance which they so justly place on your sagacity, firmness, and experience, and your long recognised regard as well for the interests of the colonists as for the fair rights and expectation of the Native race.

It should be clearly understood that your own concurrence in any forfeiture is not to be considered as a mere Ministerial act, but that it will be withheld unless you are personally satisfied that the confiscation is just and moderate.


The 1863 Act – relevant provisions

WHEREAS the Northern Island of the Colony of New Zealand has from time to time been subject to insurrections amongst the evil-disposed persons of the Native race to the great injury alarm and intimidation of Her Majesty’s peaceable subjects of both races and involving great losses of life and expenditure of money in their suppression. And Whereas many outrages upon lives and property have recently been committed and such outrages are still threatened and of almost daily occurrence And Whereas a large number of the Inhabitants of several districts of the Colony have entered into combinations and taken up arms with the object of attempting the extermination or expulsion of the European settlers and are now engaged in open rebellion against Her Majesty’s authority And Whereas it is necessary that some adequate provision should be made for the permanent protection and security of the well-disposed Inhabitants of both races for the prevention of future insurrection or rebellion and for the establishment and maintenance of Her Majesty’s authority and of Law and Order throughout the Colony And Whereas the best and most effectual means of attaining those ends would be by the introduction of a sufficient number of settlers able to protect themselves and to preserve the peace of the Country.

  1. Whenever the Governor in Council shall be satisfied that any Native Tribe or Section of a Tribe or any considerable number thereof has since the first day of January 1863 been engaged in rebellion against Her Majesty’s authority it shall be lawful for the Governor in Council to declare that the District within which any land being the property or in the possession of such Tribe or Section or considerable number thereof shall be situate shall be a District within the provisions of this Act and the boundaries of such District in like manner to define and vary as he shall think fit.
  1. It shall be lawful for the Governor in Council from time to time to set apart within any such District eligible sites for settlements for colonization and the boundaries of such settlement to define and vary.
  1. For the purposes of such settlements the Governor in Council may from time to time reserve or take any Land within such District and such Land shall be deemed to be Crown Land freed and discharged from all Title Interest or Claim of any person whomsoever as soon as the Governor in Council shall have declared that such Land is required for the purposes of this Act and is subject to the provisions thereof.

(1.) Who shall since the 1st January 1863 have been engaged in levying or making war or carrying arms against Her Majesty the Queen or Her Majesty’s Forces in New Zealand or—

(2.) Who shall have adhered to aided assisted or comforted any such persons as aforesaid—

(3.) Who shall have counselled advised induced enticed persuaded or conspired with any other person to make or levy war against Her Majesty or to carry arms against Her Majesty’s Forces in New Zealand or to join with or assist any such persons as are before mentioned in Sub-Sections (1) and (2) or—

(4.) Who in furtherance or in execution of the designs of any such persons as aforesaid shall have been either as principal or accessory concerned in any outrage against person or property or—

(5.) Who on being required by the Governor by proclamation to that effect in the Government Gazette to deliver up the arms in their possession shall refuse or neglect to comply with such demand after certain day to be specified in such proclamation.

provided that the proceeds from the sale and disposal of land under the Act were to be directed:

... in or towards the repayment of the expenses of supressing the present insurrection and the formation and colonization of the Settlements including the payment of any Compensation which shall be payable under this Act.

(a) make adequate provision for the permanent protection and security of “the well-disposed Inhabitants of both races”; and

(b) establish and maintain Her Majesty’s authority and law and order throughout New Zealand.

The “leap frog” argument/no reference to “taking”

WHEREAS by the “New Zealand Settlements Act, 1863” it was enacted amongst other things that whenever the Governor in Council should be satisfied that any Native Tribe or Section of a Tribe or any considerable number thereof have since the first day of January 1863, been engaged in rebellion against Her Majesty’s authority, it should be lawful for the Governor in Council to declare that the District within which any land being the property or in the possession of such Tribe or Section as considerable number thereof should be situate, should be a District within the provisions of the said Act and


104 1863 Act, ss 16–18.

the boundaries of such District in like manner to define and vary as he should think fit.

And whereas the Governor in Council, is satisfied that certain Native Tribes or sections of Tribes having respectively as their property or in their possession the lands hereunder described, have been engaged in rebellion against Her Majesty’s Authority.

Now, therefore, His Excellency the Governor, in exercise of the power vested in him by the said recited Act, doth hereby with the advice and consent of the Executive Council of the Colony, declare that from the date hereof, the land described in each of the eight schedules to this Proclamation shall be a District within the Provisions of the “New Zealand Settlements Act, 1863,” and shall be designated by the name mentioned in such schedule and doth declare that the said lands are required for the purposes of the said Act and are subject to the provisions thereof and doth order that the said Lands shall be and the same are hereby set apart and reserved as sites for Settlement and Colonization agreeably to the provisions of the said Act.


105 Mr Kahukiwa stated, however, that this was ultimately a matter of form rather than substance.

106 Also relevant is the discussion at [115] to [116] above of lots within the confiscated area being made available for sale to the market, and at [285] below of steps taken in relation to Maioro in particular.

... that no Land of any loyal inhabitant within the said District will be retained by the Government, and further, that all rebel inhabitants of the said District who come in within a reasonable time and make submission to the Queen will receive a sufficient quantity of land within the District for their maintenance.

(emphasis added)

The meaning and effect of this proclamation seems plain. None of the lands in the district continued to be native lands within the meaning of the Native Land Acts. All native titles by native custom were extinguished. But the Government was willing to grant out lands in the district to loyal natives and to others who should come in and submit within the time mentioned in the

107 Te Teira Te Paea v Te Roera Tareha [1902] AC 56 (PC). I note in passing that the issue of the Order in Council in that case not expressly setting aside individual or specific sites within Districts was also argued before the Court of Appeal in Te Paea as rendering the Order in Council invalid. The point was not expressly addressed by the members of the Court, though all proceeded on the basis the Order in Council was valid. The point does not appear to have been pursued on appeal to the Privy Council.

108 At 61–62.

proclamation. Their title, however, to the lands granted to them would depend entirely on the terms of their grants.

... no Land of any loyal inhabitant within the said district, whether held by native custom or under Crown grant will be taken, except so much as may be absolutely necessary for the security of the country, compensation being given for all land so taken; and, further, that all rebel inhabitants of the said District who come in within a reasonable time and make submission to the Queen will receive a sufficient quantity of land within the said District under grant from the Crown.

(emphasis added)

It is not material that the Order in Council in the present case did not declare that the whole land should be “taken”, since it declared that the lands should be “reserved as sites for settlements for colonization”. The declaration that no land of any loyal inhabitant would be “taken” does not prevent the whole of the land referred to in the Order being deemed to be Crown land freed from all other title as provided by s 4 of the Act. The effect is the same as if the word “retained” had been used as it was in the above cited decision.


109 Kapua v Haimona [1913] AC 761 (PC).

110 At 762.

111 At 764–765.

But in [Te Paea] the wording of the particular Order in Council differed materially from the wording in the present case. Here, although the land is “set apart and reserved as sites for settlement and colonization,” the declaration which immediately follows shews that this was a proceeding which was not to become operative so far as the land of loyal inhabitants was concerned. In the case relied on, the words of the Order were not “set apart and reserved”, but “reserved and taken”, and although there was a qualifying declaration as to loyal inhabitants, it was simply that their land would not be “retained by the Government”. Their Lordships are of the opinion that the Order in Council of September 2, 1865, did not extinguish the native or other title of any loyal inhabitant.

(emphasis added)

[220] above.

Was Ngāti Te Ata, or a section of it, or any considerable number thereof, in rebellion?

evidence demonstrates a considerable number of the iwi went into rebellion from August 1863.

The Natives were treated as rebels and war declared against them before they had engaged in rebellion of any kind, and in the circumstances they had no alternative but to fight in their own self-defence. In their eyes the fight was not against the Queen’s sovereignty, but a struggle for house and home.

  1. Sim Commission “Report of the Commission to Inquire Into and Report as to Grievances Alleged by Māori” [1928] I AJHR 1928 G–07 at 11.

113 At the north end of the Āwhitu Peninsula.

reported a population “of 1073 in the immediate vicinity and a whole population upward of 1700 strong”. Mr Minhinnick also referred to the missionary Hamlin’s report in 1839 of a regular congregation of around 200 and at times 250 people at Orua. Mr Minhinnick said in cross-examination that the records suggest that Maunsell and Hamlin’s district ran from the mouth of the Manukau Harbour to the mouth of the Waikato River, and thus most of the persons to whom they referred belonged to Ngāti Te Ata.

The district we consider as under our peculiar charge is bounded on the south by the mouth of the Waikato river, on the north by the entrance of the Manukau harbour.

It will be seen by the return that the number of worshippers in immediate connection with this station is 970, that the children in Sunday Schools, make a total of 103 – making altogether 1073 – the whole population is upward of 1700 of which about 300 are children.

114 Mr Minhinnick also referred to an earlier report he had prepared listing some 20 hapū of Ngāti Te Ata, though it did not list individuals belonging to each hapū and noted that not all 20 hapū were in existence at the same time.

115 Produced as exhibit D (original handwritten versions) with exhibit E being a typed “translation” of the relevant extracts of the two documents.

Thames side, and Papakura), and the later 1845 document did not expressly state what was Reverend Maunsell’s district. Mr Parker’s evidence was, however, that by 1845 Reverend Maunsell was not based at Orua, but had moved to Maraetai near Port Waikato, and that his district encompassed an area running up the Waikato River and including the Manukau, meaning the figures referred to in the second document included Māori located south of the river, north of the river and the whole of the Manukau.

Oh friend, great is our darkness through their going away - now they are separated from us and the remainder of the tribe have joined themselves to us - altogether, those who left are 18 men (not counting Ihaia and Raniera) and the women who went with them would make the number thirty, those who remain with us are thirty men and forty one women numbering together seventy one - not counting the children. What are we to do, people who have remained under your assurances. It rests with you to arrange for us the place at which we now reside is Huarau. Better for you to inform us what your wishes are, we should like to remain at Huarau.

(emphasis added)

There were about 100 Ngatitiatas, including women and children, existing now, who did not join in the war. There were about 40 who joined in the war...


116 Compensation Court hearing regarding Tuimata Block, 22 May 1865. Tuimata was one of the eight blocks confiscated under the Order in Council of 29 December 1864, that is together with the Waiuku North and South Blocks.

  1. Mr Minhinnick agreed the letter was a “good record” of the number of Ngāti Te Ata who left to join Waikato.
  2. There were various published and unpublished lists of these prisoners; some referred to 13 rather than 12, but the difference is not material for present purposes.
April 1864, the number had risen to 25 (though noted he had been unable to verify these reports with separate corroborating evidence). Mr Parker and Mr Minhinnick also referred to a contemporaneous document written by John White in 1866,119 which listed 45 members of Ngāti Te Ata under the heading “List of Rebels Belonging to Ngāti Te Ata, Male Adults”.

119 Mr White was a Crown official, being at various times a Resident Magistrate and a land purchase officer.

120 Mr Minhinnick also said that some Ngāti Te Ata were killed in the battle of Rangiriri, leading to the emergence of Ngāti Te Ata Rangatirakore hapū (Without a Chief subtribe), Te Kāinga Ahi Hapū (the Keepers of the Fire Burning subtribe) and Te Whānau Pani hapū (Bereaved Families subtribe).

portion of your business” with the guarantor.121 Webb J stated that “[a] fair and reasonable interpretation of ‘a considerable portion of your business’ is, I think, at least half.”122 Mr Kahukiwa said a similar proposition should apply to the concept of a “considerable number” of a tribe, and that a relatively strict approach was warranted given the nature of rights encroached through the provisions of the 1863 Act.

[22] It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.

(a) “worthy of consideration by reason of magnitude; somewhat large in amount, extent, duration etc; a good deal of...”;124

(b) “enough in amount or extent to need consideration”; and125

(c) “large enough to reckon with”.126

121 Lindsay v L Stevenson & Sons Ltd [1891] VicLawRp 25; (1891) 17 VLR 112 (VSC) at 113.

122 At 115.

  1. Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 (footnotes omitted).

124 Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford, 2007) vol I at 496.

  1. Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 232.

126 Collins English Dictionary (13th ed, Collins, Glasgow, 2018) at 432.

number thereof”. I proceed on the basis that the use of the word “thereof” is a reference to the overall “Tribe”, not to a “Section” only. It was agreed at the hearing that a “Section” was most likely a reference to a hapū. A hapū, as opposed to a tribe or iwi, would obviously vary in size and no doubt could be relatively small.
  1. See a similar approach taken by the Court of Appeal in its recent judgment in Accident Compensation Corporation v Ng [2020] NZCA 274 at [64].
Hori Tauroa’s concern at those events, as evident from the contents of their August 1863 letter to Governor Grey.

Was the Confiscation ultra vires on the basis no consideration was given to whether Ngāti Te Ata, or a considerable number of it, were engaged in rebellion?

I emphatically reject the contention that the question of whether the condition has been satisfied can be “conclusively decided by the man who wields the power”.

...the Court may, in my view, always inquire, in any case, whether the Governor-General (or the Minister as the case may be) could reasonably have formed any opinion, on law or fact, which is set up as a foundation of the regulations. Admittedly, where the question is one of fact, and the sources of

128 Reade v Smith [1959] NZLR 996 (SC) at 1002, with reference to Lord Radcliffe’s observations in

Nakkuda Ali v Jayaratne [1951] AC 66 (PC) at 77.

129 At 1001.

governmental information are not disclosed, the question must always be difficult, if not impossible, to resolve against the Crown.

... that [the legislative provision in this case] does not contain such words as “in the opinion of the Board are necessary or desirable”, nor any other words which might justify the Court in taking the view that the test is subjective with the result that whenever it is established that the board was so satisfied its decision to that effect cannot be attacked unless the board could not on any reasonable basis have reached that decision.

(emphasis added)

If an offence has been committed ... within any area of the Colony ... and the Commissioner has reason to believe that all or any of the inhabitants of the said area have; ... (c) failed to take reasonable steps to prevent the commission of the offence; or (d) failed to render all the assistance in their power to discover the offender or offenders ... it shall be lawful for the Commissioner,

130 Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA).

131 At 243.

132 At 243.

  1. Ross-Clunis v Papadopoullos [1958] 1 WLR 546 (PC), applied in Public Trustee v McKay [1969] NZLR 214 at 217.

with the approval of the Governor, ... (i) to order that a fine be levied collectively on the assessable inhabitants of the said area ...

There Lordships feel the force of this argument, but they think that if it could be shown that there were no grounds upon which the Commissioner could be so satisfied, a court might infer either that he did not honestly form that view or that in forming it he could not have applied his mind to the relevant facts. In the present case, however, there were ample grounds upon which the appellant could feel ‘satisfied’ of the matters mentioned in regulation 5(2).

(emphasis in original)



134 At 554.

135 At 560.

136 At 560.

It should be clearly understood that your own concurrence in any forfeiture is not to be considered as a mere Ministerial act, but that it will be withheld unless you are personally satisfied that the confiscation is just and moderate.

The District which the Ministers advised the Governor to Proclaim within the provisions of the New Zealand Settlements Act, consisted of several millions of acres, and contained a large number of Native tribes: the vast majority of the members of several of such tribes had never, as the Governor believed, taken any part in the rebellion, but on the contrary, had performed many acts of friendliness to us.

...[T]he Order in Council which Ministers advised the Governor to sign appeared to be repugnant to the New Zealand Settlements Act and still more important particular. The law required that the Governor in Council should be satisfied that a considerable number of a tribe, or section of a tribe, had been engaged in rebellion. This clearly pre-supposed some preliminary inquiry into the facts of the case. Such an inquiry was possible in the case of a tribe or of a section of a tribe: but such an inquiry was absolutely impossible in the case of such an extensive District of country, and of such a number of tribes, as Ministers embraced in the Order in Council they submitted to the Governor on the 17th of May. The number of inhabitants contained within this District was absolutely unknown, and could not without any reasonable time be ascertained; whilst the proportion of them which had been engaged in the rebellion it was quite impossible to ascertain. No such inquiry as was contemplated by the Act had therefore taken place, yet Ministers advised the Governor to sign an Order in Council declaring that which implied that such an inquiry had been instituted, and that the Governor was satisfied as to the nature of the result, and that he had thereupon had brought all the Native inhabitants within the District under the provisions of the law which might entail the forfeiture of their entire landed property within that District, upon all persons who had committed offences even of so trivial a character that it would have been probably difficult, in a race related to one another as the Natives are, for many persons within that District to escape falling under some one of the provisions named in the Act.

One of these districts embraced a very large extent of country, including much territory which had neither been taken possession of or occupied by our troops. The Governor was, however, satisfied of his own knowledge that a considerable number of the Natives within those districts had been engaged in rebellion against Her Majesty’s authority, or had carried arms against Her Majesty’s forces since the 1st day of January 1863; he, therefore, determined to show how great his anxiety was to meet the views of his Responsible Advisers, signed these Orders in Council.

(a) was aware of the rigor he was expected to bring to his task under the 1863 Act;

(b) was personally aware of matters such as which iwi, or parts thereof, had gone into rebellion; and

(c) had demonstrated that he would decline to sign proposed Orders in Council under the 1863 Act where he was not personally satisfied of those matters required by s 2 of the 1863 Act.

Confiscation for an unlawful purpose/Maioro was never settled?

137 Third amended statement of claim at [184.3].

138 Third amended statement of claim at [206].

and in particular, for the purpose of acquiring land for settlement (by military and non- military settlers) as a means of preventing further insurrection or rebellion.

139 Third amended statement of claim at [24.2].

140 See [136] above.

Profiting from illegal conduct?

Confiscation - conclusion

141 Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 (CA) at [13].

VI. All orders proclamations and regulations and all grants awards and other proceedings of the Governor or of any Court of Compensation or any Judge thereof heretofore made done or taken under authority of the said Acts or either of them are hereby declared to have been and to be absolutely valid and none of them shall be called in question by reason of any omission or defect of or in any of the forms or things provided in the said Acts or either of them.




142 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 613–614.

143 See Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437 for an example of validating legislation which left “no room for residual illegalities” (at [195]); see also [121]–[122].

144 At [205].

145 At [195].

146 Taylor v Minister of Customs HC Auckland A1461/85, 12 June 1986 at 9.

Does the Crown owe Ngāti Te Ata a fiduciary or other equitable duty?

Introduction

Summary of submissions

It shall not be lawful for any person other than Her Majesty, Her heirs or successors, to purchase, or in anywise acquire, or accept, from the aboriginal Natives, land of or belonging to, or used or occupied by them in common as Tribes or Communities, or to accept any release or extinguishment of the rights of such aboriginal Natives in any such land as aforesaid; and no conveyance or transfer, or agreement for the conveyance or transfer of any such land, either in perpetuity or for any term or period, either absolutely or conditionally, and either in property, or by way of lease or occupancy, and no such release or extinguishment, as aforesaid, shall be of any validity or effect, unless the same be made to, or entered into with, and accepted by, Her Majesty, Her heirs or successors: Provided always, that it shall be lawful for Her Majesty, Her heirs and successors, by instructions under the Signet and Royal Sign Manual, or signified through one of Her Majesty’s principal Secretaries of State, to delegate Her powers of accepting such conveyances or agreements, releases or relinquishments, to the Governor of New Zealand, or the Superintendent of any Province within the limits of such Province, and to

  1. In his oral closing submission, Mr Kahukiwa described the right of pre-emption as the “anchor point” for the fiduciary duty.

prescribe or regulate the terms on which such conveyances or agreements, releases, or extinguishments, shall be accepted.




  1. Guerin v The Queen [1984] 2 SCR 335; and Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 per Elias CJ.
  2. Most importantly, s 18(1) of the Indian Act RSC 1952 c 149 (and its predecessors and successor). The full text of s 18(1) is set out at [307] below.

Earlier authorities on fiduciary duty

150 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA).

151 Guerin v The Queen [1984] 2 SCR 335.

  1. See, generally, Elias CJ in Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [341]–[342].

153 At [341].

explained “[t]he Crown’s exclusive right to accept surrender of land either for on-sale or for lease was continued in legislation, including in s 18(1) of the Indian Act 1952.”154

18 (1) Subject to the provisions of this Act, reserves shall be held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band.

In my view, the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.

The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in land does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.

An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognised in the surrender provisions of the Indian Act. The surrender

154 At [341].

155 Guerin v The Queen [1984] 2 SCR 335 at 376.

requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians.

(emphasis added)

Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown’s original purpose in declaring the Indians’ interest to be inalienable otherwise than to the Crown was to facilitate the Crown’s ability to represent the Indians in dealing with third parties. The nature of the Indians’ interest is therefore best characterised by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.

(emphasis added)

I do not suggest that the existence of a public law duty necessarily excludes the creation of a fiduciary relationship. The latter, however, depends on identification of a cognizable Indian interest, and the Crown’s undertaking of discretionary control in relation thereto in a way that invokes responsibility




156 At 382.

157 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [354].

158 Wewaykum Indian Band v Canada 2002 SCC 79, [2002] 4 SCR 245 at [85]. Wewaykum did not involve the surrender of reserve land, but the creation of reserve land for the benefit of Indian bands in which there was no pre-existing native property interest.

“in the nature of a private law duty”. (emphasis added)




159 See Dwight Newman “Wakatū and Transnational Dimensions of Indigenous Rights Discourse” [2019] NZ L Rev 61 at 65 and 68–79.

160 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 655 per Cooke P (referring to Hoani Te Heuheu Tukino v Aotea District Māori Land Board [1941] AC 308 (PC)); and 691–692 per Somers J.

What has already been said amounts to acceptance of the submission for the applicants that the relationship between the Treaty partners creates responsibilities analogous to fiduciary duties.

First that the principles of the Treaty of Waitangi override everything else in the State-Owned Enterprises Act. Second that those principles require the Pākehā and Māori Treaty partners to act towards each other reasonably and with the utmost good faith.

As Cooke P suggested in Te Runanga o Muriwhenua Inc v Attorney-General the idea that the Crown in New Zealand has lesser obligations to its indigenous people than are owed to the indigenous peoples of other jurisdictions, is unattractive. It is difficult to reconcile with the terms of the Treaty of Waitangi. Cooke P said of the Treaty that it created “an enduring relationship of a fiduciary nature” in which each party accepted a “positive duty to act in good faith, fairly, reasonably and honourably to the other”. Extinguishment of Māori property rights by “less than fair conduct or on less than fair terms” was, he thought:

... likely to be a breach of the fiduciary duty widely and increasingly recognised as falling on the colonising power.

There are obiter references in judgments of the Court of Appeal delivered by Cooke P subsequent to the [Lands case] to the possibility that the Crown may

161 At 664.

162 At 667.

163 Te Runanga o Muriwhenua Inc v Attorney-General [1990] NZCA 7; [1990] 2 NZLR 641 (CA); Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA); and Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1993] NZCA 218; [1994] 2 NZLR 20 (CA).

164 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [152] (footnotes omitted).

165 At [186] (footnotes omitted).

owe Māori a fiduciary duty under New Zealand law. These dicta indicate that while the Treaty of Waitangi provides “major support” for the existence of such obligations in New Zealand, recognition of a duty would not mean that the Treaty is being directly enforced in the domestic courts. Rather, a sui generis fiduciary duty would arise between the Crown and certain Māori, in the circumstances of particular situations, and against the background of the relationship constituted by the Treaty of Waitangi.

General in 2007 (the Te Arawa case).166


166 New Zealand Māori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318. In Paki (No 2) [2014] NZSC 118, [2015] 1 NZLR 67, the decision was described by Elias CJ (at [150]) as “controversial”, and by McGrath J as containing “sharply contrasting” views to the earlier Court of Appeal decisions (at [187], fn 347).

167 New Zealand Māori Council v Attorney-General HC Wellington CIV-2007-485-95, 4 May 2007 at [94].

168 New Zealand Māori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318 at [62].

169 Attorney-General v New Zealand Māori Council [1991] 2 NZLR 129 (CA).

observations in that case stopped short of saying the claim was an action founded directly on the Treaty.170 O’Regan J noted the other members of the majority decided the case by reference to settled administrative law principles and therefore concluded:171

... [A] majority of 4–1 considered that the case could be decided with reference to ordinary administrative law principles. We do not therefore agree with Gendall J that this case stands for the proposition that fiduciary duties, sourced from the Treaty itself, can form the basis of an action in New Zealand courts.

We are satisfied that the law is as stated in the Lands case. We do not see the Radio Frequencies case as overriding that statement of principle. That is not to say that the Treaty does not have direct impact in judicial review cases or in cases involving statutory interpretation.

In particular, we see difficulties in applying the duty of a fiduciary not to place itself in a position of conflict of interest to the Crown, which, in addition to its duty to Māori under the Treaty, has a duty to the population as a whole. The present case illustrates another aspect of this problem: the Crown may find itself in a position where its duty to one Māori claimant group conflicts with its duty to another. If Gendall J was saying that the Crown has a fiduciary duty in a private law sense that is enforceable against the Crown in equity, we respectfully disagree.

170 New Zealand Māori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318 at [68].

171 At [71]–[72].

172 At [81].

173 At [81]. Leave was granted to appeal to the Supreme Court, but the matter resolved before the hearing. In withdrawing the appeal, the parties requested the Supreme Court to note in the relevant minute that the Court of Appeal’s comments on fiduciary duty had been obiter. One might surmise that this (joint) request was a term of the settlement.

174 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.



175 Based on the riparian principle “usque ad medium filum aquae”.

176 To the extent the Waikato River had been “navigable” in 1903, the plaintiffs accepted that proposition.

177 The pleaded basis for a fiduciary duty in Paki is replicated in the Court of Appeal’s decision (Paki v Attorney-General [2009] NZCA 584, [2011] 1 NZLR 125 at [88]) and is in somewhat similar terms to the pleading in this case, at least insofar as the duty is said to arise from the Treaty, the Crown’s right of pre-emption and the vendors’ vulnerability at the time.

178 At [102].

categorised as a fiduciary one, other matters, such as remedies are “largely dictated” by that categorisation.179 Hammond J stated:180

There is an unfortunate and visceral downside to the employment of the fiduciary concept in the Crown-Māori context. A fiduciary standard would impose an obligation on the Crown to act with real selflessness vis-à-vis a disadvantaged party (here, the Māori). In a real sense, this implies superiority on the part of the Crown and inferiority on the part of Māori. This is quite at odds both with the historical fact of the Treaty of Waitangi, and what is said about it and the position of Māori today. This resort to a fiduciary principle carries an unfortunate and erroneous affirmation of a most public kind as to the inferior position of Māori. This is quite wrong.

Doubtless it was because of considerations such as the above that judges have used words like “analogous” and “akin” to fiduciary duties. But the question nevertheless remains: can a better vehicle be found for the largely inchoate duty of good faith, and would it be appropriate to resort to it? ...

The creation of such a duty of good faith would not rest solely on the Treaty, amounting to a (presently impermissible) direct enforcement of it. The Treaty would form simply one element of a well-established – and publicly accepted

– obligation on the part of the Crown to act reasonably and with good faith in respect to Māori. An obligation of good faith of this kind, which permits both parties to have regard to their own interests whilst at the same time having proper and due regard to the interests of the others, would simply reflect in this subject area what is done elsewhere in the law. ...

The much more difficult issue which would have to be confronted is whether the development of a relational duty of good faith is the wise course in the contemporary circumstances of New Zealand. Since the Lands case almost a quarter of a century ago, significant public sector developments have taken place in this country. The Waitangi Tribunal has continued its work and a number of settlements have been effected. Parliament has itself made reference to the principles of the Treaty of Waitangi in numerous pieces of legislation (approximately 30 statutes) and Treaty clauses have been included in many public sector contracts (for example, contracts relating to the provision of health services). The inclusion of Treaty clauses in legislation

179 At [102].

180 At [103]–[104].

181 At [106].

182 At [108].

183 At [112].

and contracts indicates formal acceptance by both Parliament and the Executive of the good faith concept underpinning the Treaty, and is a recognition that the concept can and should be given functional form.

(emphasis in original)

Although a usual characteristic of a fiduciary is loyalty, a fiduciary duty in the sense in which it has been recognised in respect of indigenous people in New Zealand and in Canada does not seem to depend on a relationship characterised by loyalty. It follows that, without further development in a case in which the point arises, it remains an open question whether the principles of equity relied on by the appellants are “a function of the duty of loyalty owed by fiduciaries” which cannot apply to the relationship between the Crown and the Pouakani vendors.


184 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [146].

185 At [155].

186 (20 April 2010) 662 NZPD 10229–10240.

187 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [159].

188 At [160].

189 At [162].

bring claims before the Waitangi Tribunal weighed against the finding of a fiduciary duty, given “claims of legal right in respect of property are properly brought to the courts”.190

This context is relevant in considering the significance of the [Lands] case and its references to fiduciary duties to the broader question of whether the Crown has enforceable fiduciary obligations to Māori.


190 At [165].

191 At [182].

192 At [183].

193 At [185].

194 At [186].

195 At [186].

196 At [188], citing Guerin v The Queen [1984] 2 SCR 335, particularly at 383–388; Blueberry River Indian Band v R [1995] 4 SCR 344; and Wewaykum Indian Band v Canada 2002 SCC 79, [2002] 4 SCR 245 at [73]–[74].

...overcomes limitation problems and evidential difficulties inherent in historic claims and apparent in the present appeal. The Tribunal is better placed than the courts to overcome these difficulties and to fashion appropriate remedies for the modern age.

Some of the Canadian cases were decided in the context of a statutory scheme relating to Indian land under which the Crown was to act on behalf of the owners and was interposed between them and prospective purchasers or lessees to avoid exploitation. In both Guerin v R and Blueberry River Indian Band v Canada, the Supreme Court of Canada held that the Crown owed fiduciary duties to Indian bands who had surrendered land under this regime. Although there may be scope for debate about the metes and bounds of these duties, the categorisation of the underlying relationship as fiduciary is very


197 At [189].

198 At [193].

199 At [270].

200 At [273].

orthodox given its trust-like characteristics. (footnotes omitted, emphasis added)

[281] The principles of equity which result in strict scrutiny of fiduciary/beneficiary transactions and, in particular, the requirement of retrospective justification, are a function of the duty of loyalty owed by fiduciaries. This duty may be the corollary of a relationship in which one party has power to act for another and thus may without undue awkwardness be seen as applicable to the situation which obtained when the Crown gained sovereignty over New Zealand and its radical title was burdened by customary ownership interests. Viewed in this light, the comments made by Cooke P in Te Ika Whenua are easily explicable. But by the time the Crown came to purchase the Pouakani blocks, customary title had been extinguished pursuant to statutory processes which the courts cannot ignore. In acquiring the Pouakani blocks, the Crown agents were not acting on behalf of the vendors. Nor were they dealing with assets which the Crown held on the vendors’ behalf. In finalising the acquisitions, those agents had duties to the taxpayer (as we would now say). The vendors must have been acutely aware that the Crown agents were not their agents. All in all, it is entirely unrealistic to see the Crown as owing to those vendors a duty of loyalty of the kind which generates the requirement of retrospective justification.

(footnotes omitted)


  1. At [277], referring to New Zealand Māori Council v Attorney-General [2001] NZCA 269, [2008] 1 NZLR 318 at [84].

202 Which would itself extinguish customary title.

203 At [281], fn 457.

204 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 203.

...if the Crown in right of Queensland has the power to alienate land the subject of the Meriam people’s traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam people’s power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown.

(emphasis added)





205 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [282].

206 At [284] – [288].

More broadly, it also seems to me that when the Crown was exercising the right of pre-emption “for itself”, as it were, and not in response to a pre 1840 land claim, the Crown again had to necessarily balance the interests of Māori from whom the land was to be acquired and of the population more generally, in whose interests the Crown was also acting when it acquired that land.

207 Proprietors of Wakatū Inc v Attorney-General [2012] NZHC 1461.

208 At [301].

209 At [301].

210 At [301].

211 At [301].

  1. Proprietors of Wakatu v Attorney-General [2014] NZCA 628, [2015] 2 NZLR 298 at [8], [93] and [203]–[204].

213 At [122].

214 At [128].

215 See [209].

of alternative remedies available through the Waitangi Tribunal and subsequent settlement process as weighing against a fiduciary duty.216

... the reasoning adopted in Canada and in Australia applies a fortiori to Māori interests in land. From the start, they were treated as pre-existing rights of property which were exclusive and inalienable and able to descend according to Māori custom. Most importantly, in New Zealand the Crown disclaimed any title to land not cleared of Māori customary title either by sale to it or by approval of pre-1840 sales by an award under the provisions of the Land Claims Ordinance.

As explained below, I consider the Guerin approach and that indicated by Brennan CJ in Wik219 is sufficient in the circumstances of the present case to constitute the Crown a fiduciary in the dealings with the tenths reserves and occupied lands. The alienation to the Crown of existing Māori property through the Land Claims Ordinance process was on terms which could only be fulfilled by the Crown. The Crown’s acceptance of the alienation to it on the terms of the award entailed assumption of responsibility to act in the interests of Māori whose interests were surrendered. The Crown’s assumption of responsibility in respect of the tenths reserves also constituted it a fiduciary of those whose property interests were surrendered and opened the way to recognition of constructive trust on established equitable principles and by analogy with them.

(emphasis added, footnotes omitted)

216 At [103] and [115] per Ellen France J; and at [216] per Harrison and French JJ.

217 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [340].

218 At [366].

219 Wik Peoples v Queensland (1996) 187 CLR 1, in which Brennan CJ observed (at 96) that where a discretionary power, statutory or otherwise, is conferred “for exercise on behalf of, or for the benefit of, another or others” a fiduciary duty may arise.

220 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [380].

Such assumption of responsibility towards Māori in New Zealand began with the Treaty of Waitangi (a covenant which guaranteed to Māori the “full, exclusive, and undisturbed possession” of their lands and which set up the Crown’s right of pre-emption) and the Charter of 1840 (which made it clear that the Māori interest in land was inalienable and that the interests passed to the descendants of the occupiers). These commitments were repeated in the Royal Instructions and official correspondence. They were behind the terms of the Land Claims Ordinance, which provided the process for checking that pre-Treaty purchases were “on equitable terms”.

(emphasis added)

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 Māori. The Crown’s obligations in the present case are, if anything, amplified by the nature and extent of Māori property and its recognition in New Zealand from the first engagements of the Crown in the Treaty of Waitangi.

(emphasis added)

[391] None of this is to suggest that there is a general fiduciary duty at large owed by the Crown to Māori. It is to say that where there are pre-existing and independent property interests of Māori which can be surrendered only to the Crown (as under the right of pre-emption) a relationship of power and dependency may exist in which fiduciary obligations properly arise.

(emphasis added)

221 At [384].

222 At [384].

223 At [385].

The Crown’s general engagements to Māori in relation to pre-existing property interests (inalienable except through the Crown) and its assumption of responsibility to act on behalf of the native proprietors (both under the Land Claims Ordinance procedure and in management of the reserves) constituted the Crown a fiduciary on the approach taken in Guerin.

(emphasis added)

The Tenths reserves were to be held for the benefit of the customary owners and the settlers had no claim on those reserves. They were to be administered for the benefit of the customary owners and were thus not available for any general governmental purposes. The only possible conflict of interest that could have arisen was in the selection of the reserves but this took place in terms of the agreed ballot process.

[589] In this case, the Company’s promise to hold the Tenths reserves on trust for the customary owners must be seen as an important reason the purchase was held to be just and equitable and thus an important reason the land in question became demesne lands of the Crown. The Crown had agreed to take on that trust obligation through the 1840 agreement with the Company, which is why the Tenths lands were excluded from Commissioner Spain’s recommended grant to the Company. Against that background, the Crown could not purport to take those lands free from the obligation to hold them for the benefit of the customary owners. It took the land subject to an obligation to continue to hold the identified Tenths town and suburban reserves on trust

224 At [386].

225 At [392].

226 At [582].

227 At [718], fn 957.

and to identify and hold on trust the rural Tenths reserves. As to any Occupation lands appropriated by the Crown, the obligation was to return title and possession to the customary owners.

[590] The above analysis does not depend on any special fiduciary duty of the Crown in its dealings with the property of indigenous people. If it were necessary to rely on such special duties, I consider the analysis of the Chief Justice on this point has much to recommend it, at least in the circumstances of this case. It is not, however, necessary for the purposes of this judgment to come to a definitive view on that wider analysis.

(footnotes omitted, emphasis added)

The Crown... assumed the Company’s obligation to allocate the Tenths reserves and to manage them in the best interests of the original customary owners. This was in addition to its own governmental responsibilities towards Māori.

We acknowledge that, on the basis of Guerin, it can be argued that the Crown has fiduciary duties to Māori arising from the Treaty of Waitangi and/or from the Crown’s right of pre-emption. We base the duty in this case on the particular dealings between the Company and Māori and the Crown and the Company and to express no view about a broader basis for such a duty.


228 At [779] (footnote omitted).

229 At [785].

230 At [784], fn 1012.

public law character and the Governor “was, in particular, required to balance the interests of the New Zealand Company with those of Māori”.231 A fiduciary duty, bearing the hallmark of loyalty to one party or group, could not therefore arise.

Discussion – does a fiduciary duty arise in this case?


231 At [920].

engagements of the Crown,232 she did not go so far as saying the obligations in that case arose from such matters.

232 See [362] above.

233 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [391].

234 See [363] above.

235 See [369] above.

236 In New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA), Richardson J observed that “the compact between the Crown and Māori through which the peaceful settlement of New Zealand was contemplated called for the protection by the Crown of both Māori interests and British interests...” (at 680) and “...the Treaty was presented and accepted as providing a path for the orderly colonisation of New Zealand under British Government protection for Māori and British interests alike” (at 681).

case. Mr Kahukiwa accepts there was something “more” in Wakatū. He points to the circumstances existing in 1863 and 1864 resulting in Ngāti Te Ata being in an especially vulnerable position. But particular vulnerability in a war-time setting does not, in my view, provide a proper foundation for or support the finding of a fiduciary duty. First, vulnerability alone is insufficient to support a fiduciary claim.237 Second, such war-time circumstances are perhaps the antithesis of those which might give rise to a fiduciary duty; the Crown is necessarily exercising a range of different political and social functions, and thus balancing a wide range of competing interests.238

Through the confirmation in the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties, Parliament has conferred on the Crown a discretion to decide for itself where the Indians’ best interests really lie. This is the effect of s 18(1) of the Act.

This discretion on the part of the Crown ... has the effect of transforming the Crown’s obligation into a fiduciary one.

(emphasis added)

237 Alberta v Elder Advocates of Alberta Society 2011 SCC 24, [2011] 2 SCR 261 at [28].

  1. See Binnie J in Wewaykum Indian Band v Canada 2002 SCC 79, [2002] 4 SCR 245 at [96]; and McLachlan CJ in Alberta v Elder Advocates of Alberta Society at [37].

239 Guerin v The Queen [1984] 2 SCR 335 at 383–384.

confirmed in the Land Claims Ordinance of 1841. By 1852, it was reflected in s 73 of the Constitution Act. From 1862, the Governor was permitted to waive pre-emption in a district by proclamation,240 and by 1873, it had been repealed.241 As Mr Kinsler submits, the scheme did not require the Crown to hold or sell land on behalf of the members of the iwi that sold it to the Crown, or to otherwise deal with or dispose of the land in the best interests of the selling parties. And the discretion afforded to the Crown and its delegates under s 73 was as to the terms on which land would be purchased; it was not shaped by obligations such as those in s 18(1) of the Indian Act.
  1. Native Lands Act 1862, preamble and s 36. There is no suggestion there had been such a waiver in the area of the land in question in this case.

241 Native Land Act 1873.

242 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [151].

243 In this context, I note the views of those contributors to the special edition of the New Zealand Law Review on the Wakatū decision ([2019] NZ L Rev 1), a number of whom caution against further development of the law of fiduciary duties in the field of Crown/Māori relations. Nicola Roughan (Associate Professor, Faculty of Law, University of Auckland) in Public/Private Distortions and State–Indigenous Fiduciary Relationships, doubts the utility and desirability of fiduciary modelling of state–Indigenous relations. She sees development of the concept of an express trust in this area as a more appropriate vehicle for upholding or protecting the private rights available to Indigenous claimants (at least in circumstances similar to those in Wakatū). Professor David Williams (Professor Emeritus and Research Fellow, Faculty of Law, University of Auckland) in Fiduciary Duty Remedies Stripped of Historical Encumbrances states (at 53) “...in my view, it would be preferable to draw upon sources of law that are less tainted with historical baggage than that which attaches to the Crown/Indigenous fiduciary duty jurisprudence”. Professor Williams favours development of the doctrine flagged by the Court of Appeal in Paki (No. 2), namely a relational duty of good faith (at 59). And as noted earlier, Professor Dwight Newman QC (Professor of Law and Canada Research Chair in Indigenous

  1. said would need to be taken into account when considering whether, and if so in what circumstances, a fiduciary duty might be owed by the Crown to Māori. Clearly the majority in Wakatū did not consider the statutory scheme a barrier to or inconsistent with finding a fiduciary duty in the circumstances of that case. The statutory scheme cannot prevent the pursuit of private law rights. But as McGrath J noted in Paki (No. 2), and Ellen France J in Wakatū,244 it may be relevant to the circumstances in which it will be appropriate to develop the common law (such as the circumstances in which a fiduciary duty is found to be owed by the Crown to Māori) and/or the scope of any such fiduciary duty. That is arguably more so when the alleged duty stems directly from the Treaty itself and/or the right of pre-emption recognised by it (rather than a specific relationship arising out of particular circumstances, as in Wakatū).

Rights in Constitutional Law and International Law, University of Saskatchewan) in Wakatū and Transnational Dimensions of Indigenous Rights Discourse describes (at 65, and detailed in Part III of his article) a “long path of Canadian shifts away from Guerin, or at least attempts to confine it to very limited contexts while preferring a focus on public law doctrines like the honour of the Crown.” He states that challenges arising from the approach taken in Guerin “call for careful analysis and perhaps caution” (at 75).

244 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [192]; and Proprietors of Wakatū v Attorney-General [2014] NZCA 628, [2015] 2 NZLR 298 at [115] per Ellen France J. See similar observations of Harrison and French JJ in Wakatū, at [216]–[217].

245 Wewaykum Indian Band v Canada 2002 SCC 79, [2002] 4 SCR 245 at [97]. See also Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [947]–[949] per William Young J.

246 Reliant on a relatively clear documentary record, such as in Wakatū.

in Paki (No 2), the Tribunal will often be better placed to overcome such evidential difficulties and to fashion appropriate remedies for the modern age.247

Relational duty of good faith

Conclusions on first, second and third causes of action


247 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 at [194].

248 Chippewas of Sarnia Band v Canada (Attorney-General) (2000) 195 DLR (4th) 135 (ONCA).

title in Maioro (including in the case of the Confiscation, in the four wāhi tapu areas). Nor did the Crown owe a private law fiduciary or other equitable duty to Ngāti Te Ata. No constructive trust over Maioro or the wāhi tapu therefore arose. Subject to complying with any relevant statutory or other legal obligations, the Crown was accordingly free at law to deal with Maioro. That included granting the Licence to NZ Steel pursuant to the ISIA. For the purposes of the third cause of action, I therefore decline to make a declaration that the Licence is invalid.

FOURTH AND FIFTH CAUSES OF ACTION – 1939 AND 1959 TAKINGS OF THE WĀHI TAPU

Overview of pleaded claims

ironsands in the wāhi tapu rested with the named individuals (or their successors) in the 1878 Crown Grants.

(a) dealing with the land in a manner inconsistent with Ngāti Te Ata’s customary title;

(b) in 1959, misrepresenting to Ngāti Te Ata the purpose of the takings;

(c) failing to consult with Ngāti Te Ata as to the intended use of the wāhi tapu for mining;

(d) failing to ensure Ngāti Te Ata’s customary interests in the wāhi tapu would be protected;

(e) allowing mining activities to take place on the wāhi tapu;

(f) failing to pay compensation or royalties to Ngāti Te Ata;

(g) alienating the Crown’s shares in NZ Steel at a time when it was known the wāhi tapu were subject to Treaty claims;

(h) failing to honour commitments, including in the MOU, to remove the wāhi tapu from the Licence and re-vest them in Ngāti Te Ata;

(i) facilitating mining on the wāhi tapu; and

(j) profiting from its position as fiduciary.

(a) the takings under the PWA 1928 were void and the land was accordingly held on constructive trust for Ngāti Te Ata;

(b) at the time of the takings, ironsands mining was not a permitted use of State forest land; and

(c) the minerals in the wāhi tapu were owned by Ngāti Te Ata.

Ngāti Te Ata. The plaintiffs say that the takings were accordingly unlawful under the PWA 1928 and/or unconscionable.

(a) Ngāti Te Ata placed trust and confidence in the Crown; and

(b) the Crown owed fiduciary duties to Ngāti Te Ata to act in Ngāti Te Ata’s best interests, with absolute loyalty and to implement its commitment to return the wāhi tapu to Ngāti Te Ata.

Key issues for determination







249 This is because whether the 1939 and 1959 takings under the PWA 1928 were a lawful exercise of the relevant statutory powers may be relevant to whether the takings were a breach of any equitable duties found to have been owed by the Crown to Ngāti Te Ata.

(a) Was any one or more of the 1939 and 1959 takings of the wāhi tapu under the 1928 Act unlawful on the basis it was taken for purposes not permitted under that Act?

(b) In the alternative, were the takings in bad faith, being for the ulterior purpose of bringing the wāhi tapu within the purview of the ISIA, and if so, were the takings unlawful and/or unconscionable as a result?

(c) If the takings were lawful under the PWA 1928, did the Crown wrongly fail to offer the wāhi tapu back to Ngāti Te Ata pursuant to s 35 of the Act?

(d) Did the Crown fail to consult with Ngāti Te Ata about the takings under the PWA 1928, or if it did consult, did it do so in a misleading way?

(e) Did s 15 of the PWA 1928 give rise to a fiduciary duty owed by the Crown to Ngāti Te Ata?

(f) Has mining already occurred on Tangitanginga, such that pursuant to s 9 of the ISIA, royalties ought to have been paid to Ngāti Te Ata?

(g) If the wāhi tapu were lawfully taken by the Crown under the PWA 1928, what was the effect of setting them apart for the purposes of the ISIA?

(h) Did the Crown give a binding and enforceable commitment (through the 1990 MOU) to remove the wāhi tapu from the Licence area?

(i) Did the Crown owe Ngāti Te Ata fiduciary duties as a result of the 1990 Commitments?

(j) By not returning the wāhi tapu to Ngāti Te Ata, did the Crown breach any equitable obligation flowing from s 15 of the PWA 1928, the 1990 Commitments and/or any duty of good administration?

Factual background to takings

Introduction

Lead up to 1939 taking

Service and the PWD estimated that reclamation would cost at least £20,000 and that afforestation would probably not be successful. A copy of the plan showing the extent of the advance of the sand on to settlers’ land is replicated earlier in this judgment at
[116] above.250

As you are aware, most owners handed over their sand lands to the Crown for nothing. The question of returning land when covered with rough feed has been mentioned by some, but it is considered that such return would be courting disaster. Stock would undoubtedly tend to destroy the vegetation and so start the area on its return to sand waste.


  1. Mr Parker noted that over time, most of the settler sections were subject to sand dune reclamation and were taken under the PWA 1928 and later added to the Waiuku State Forest.

The PWA 1928 taking of Te Papawhero

Adjoining (on the north side) the Crown area on which operations were commenced is a Native block of 509 acres, Allot 97, Waiuku West Parish. To render our operations effective in arresting sand drift, they had to extend over all areas of moving sand. A recent survey revealed that much of the Native land had been planted, under the misapprehension that it was Crown land.

(a) Minutes of the Huakina Liaison Committee251 meeting of 13 February 1986 record that an elder of Ngāti Te Ata, Mr Tom Brown, stated:

...that in the thirties the Government approached Ngāti Te Ata people about the plan to afforest the area. At that time there was little work around and, although the older people no doubt did not wish the whole area to be disturbed, they agreed. This was the start of it all, and once the trees grew, the older people agreed the Public Works Department plant all the land....






  1. The Liaison Committee was a committee established in 1980 as a “liaison vehicle” between Ngāti Te Ata and NZ Steel. See [552] below.

(b) In January 1987, an article appeared in a newspaper that included a report on a statement by Alec Kaihau of Ngāti Te Ata indicating he was aware there had been some consultation with local Māori at the time:

With regard to the Waiuku State Forest, Mr Kaihau says there was a breach of promise in the 1920s concerning forestry. The old people were approached to allow planting of marram and Kikuyu grass and pine trees, to arrest encroachment.252

(c) To a similar effect, in April 1988, a report of Professor Erica-Irene A Daes, Chairman-Rapporteur of the United Nations Working Group on Indigenous Populations, recounted a discussion between the author and Mr Kaihau who is recorded as stating:

With regard to the Waiuku State Forest Mr Kaihau says, inter alia, there was a breach of promise in the 1920’s concerning forestry. The old people were approached to allow the planting of marram and kikuyu grass and pine trees, to arrest encroachment.



252 The report went on to note Mr Kaihau’s comments that “to these people the felling of trees would have been completely alien, and they would never have agreed to the industry had they been asked”.

with well-founded objections should write to the Minister of Public Works within 40 days of publication of the notice.

Compensation for the taking of Te Papawhero and subsequent treatment of the land

Plantings on Waiaraponia

Removal of kōiwi from Te Papawhero

memorandum dated 19 February 1941 that the last known burial at Te Papawhero had taken place in about 1860.

The reason for the application, given by Princess Te Puea Hērangi is, that these burial grounds have not been in use for a number of years and are in a neglected state. The burial ground at Te Tehe is now leased to a pākehā for farming purposes, and at the Te Papawhero burial grounds the sand is constantly shifting resulting in the bones being exposed.

Plantings on Te Kuo

Plantings on Tangitanginga

Lead up to the takings of Te Kuo, Waiaraponia and Tangitanginga

The primary consideration is sand reclamation not afforestation, the latter being a secondary step in the process. If the areas are to be ultimately

reclaimed for agriculture this should follow afforestation as apart from humus derived from trees, the sale of timber from reclaimed afforested areas would pay the capital cost of reclamation.

(emphasis in original)

Although the ultimate aim of these [sand dune reclamation] schemes will be to establish pasture on the sand country, it is expected that initial work on the three current schemes253 and on any others which may be resumed or commenced will be undertaken by the N.Z. Forest Service as this work will be by way of sand dune fixation and protective tree planting.

Compact areas which are readily definable and which, on a joint inspection, are agreed to have no immediate agricultural or pastoral potential are to be proclaimed State Forests.


253 Including those at Waikato Heads (Maioro/Karioitahi).

It is not considered desirable at this stage to draw attention to the fact that Māori-owned land in the Waiuku project has been planted without being acquired. The areas concerned are Section 98, 99 and 100, in Block VII, Maioro [survey district]. They have no legal access.

Mr Boardman is of opinion that, although these sections have no access and have already been planted, the question of their acquisition should be discussed with the District Officer, Māori Affairs Department.


Waiaraponia (Lot 98) 30 acres
Grantee:
Hori Tauroa
Present owner:
Wiremu Tauroa
Te Kuo (Lot 99) 123 acres
Grantees:
Mere Ngataru

Kapehana Pomare

Pumipi Te Putu

Ritihia Ngataru
Present owners:
“The same. No succession orders yet made”

Tangitanginga (Lot 100) 63 acres
Grantees:
Aihepene Kaihau

Hori Tauroa (dec’d)

Ngakoroko Moeatoa
Present owners:
Aihepene Kaihau

Wiremu Tauroa

Ngakoroko Moeatoa

The above-mentioned Blocks are owned by the Māoris set out in the attached searches of Title. They were granted to the original Māoris under the “Waiuku Native Grants Act 1876”. At that time they were probably open land, but are now covered with sand. They have no access, being enclosed by Crown land comprising the bulk of the area on the North side of the mouth of the Waikato River. Rough sketch plan is enclosed.

When the [PWD] started sand dune reclamation at North Waikato Heads these sections were planted along with other areas. The NZ Forest Service has now taken over and desire to obtain Title. ...

Would you please make discreet inquiries among the Waiuku people as to whether or not there would be any objection to taking of the land under the Public Works Act. You should limit your enquiries to the Tauroa and Kaihau families; Rangi Brown (who is a Kaihau) could probably give some information.

I have been able to contact some of the prospective successors to the owners of Lots 98254 and 100255 but not of Lot 99.256 I am advised that Tui Tepene of Maioro is probably a successor to owners of Lot 99.

Rangi Brown, Peti Tauroa, Stewart & Sonny Kaihau have no objections to Lot 98 being taken for the purpose outlined in your memo under the Public Works Act except that either Lot 98 or Lot 99 encloses an Urupā which they desire protected.

They have no objection to the major part of Lot 100 being so taken but desire to retain 1 chain wide of the whole of the river frontage of the section. This was apparently a favourable fishing ground & they wish to retain the right of landing there whenever they desire.

They recognise that this is in a prohibited area & that they will not be able to light fires there.

I will contact Tui Tepene as soon as possible & ascertain his views.





254 Waiaraponia (Lot 98).

255 Tangitanginga (Lot 100).

256 Te Kuo (Lot 99).

Proposals have now been submitted to the Commissioner of Crown Lands that an area of 2,830 acres, which is all the Crown land in the above-mentioned project, should be proclaimed State Forest.

Negotiations have already been entered into with the Department of Māori Affairs for the acquisition of Sections 98, 99 and 100. Generally the Department and most of the Māori owners have no objection to this proposal.

There are three sections within the Waiuku area which are Māori Land and I am taking action to have these purchased so that they can be included in the scheme. They are at present planted in trees.

When the whole area has been vested in the Forest Service they are to investigate certain private lands adjoining which could be better utilised in conjunction with the forest.

The urupā on Allot 99 was located on the ground with the help of Mr Wikiriwhi, Dept of Māori Affairs, Pukekohe, who arranged for the interested Māoris to be present to point out the position. They, together with the officers in charge of the State Forest, agreed with the location of the reserve.

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As the acquisition of these sections may involve compensation to the owners I would be grateful if you could handle the acquisition from the Māori Land Court with the view to taking the sections for forestry purposes under the P.W. Act 1928 pursuant to Section 15 of the Forests Act 1949.

At a rough estimate I would say that about 190 acres has been planted, mainly with P.radiata in various years between 1938 & 1953.

The sections are an essential part of Waiuku Forest & should be acquired but the cost is likely to be considerable, probably over £10,000 unless the owners can be satisfied with something less than present value.

Our experience, so far, with Māori owned sand dune areas inadvertently planted by the MOW is that the owners are not likely to be satisfied with anything less than the full present value of the forest.

Takings of Te Kuo, Waiaraponia and Tangitanginga

As the land is Māori owned and there is difficulty in obtaining properly attested consents, it is necessary to take the land under the compulsory provisions of the Public Works Act 1928.

The Department of Māori Affairs has confirmed that it is unlikely that there will be any objections to the proposal.

person having an interest in the land”. The notice of intention was also published in the Waiuku News on 8 May and 12 May 1959.

Compensation for takings


257 In September 2013, Mrs Minhinnick was appointed a Dame Companion of the New Zealand Order of Merit for her services to Māori and conservation. In this section of my judgment, addressing an earlier time period, I will refer to Dame Ngāneko as Mrs Minhinnick, as that is how she is referred to in the underlying evidence.

evidence of any having been paid to this point. In her letter, Mrs Minhinnick queried the amount of compensation and sought assistance.

Consideration of iron and steel industry in New Zealand – early surveys/consideration

Harbour, Lake Taharoa, Raglan Harbour, Aotea Harbour, Waikato Heads (i.e. Maioro), Manukau Heads, Piha and Muriwai.

The huge sand deposits in the Kawhia, Aotea, and Raglan Harbour areas, as well as that at Waikato Heads, were disappointingly low in ironsand content and it is doubtful if they will ever warrant development.

  1. The renewed interest in such an industry came about because of international developments in ironmaking technology, and the growth of the domestic market for iron and steel products.
  2. A study by the New Zealand Development Corporation at around the same time came to similar conclusions.
contained around 170 million tons of ore but shipping facilities would have to be constructed; the Kawhia deposit contained around 185 million tons of iron ore but it would also require shipping facilities; Waikato Heads (Maioro) contained 90 million tons and that:

Tonnage adequate, average grade probably low but may be adequate, accessibility appears very good (about 10 miles from railhead connection direct to Auckland).

An interdepartmental committee is at present considering the best way of centralising and co-ordinating the research and investigation work necessary to establish whether an iron and steel industry can be set up....

In the light of existing evidence it appears that the deposits in the North Island are the most suitable but this opinion is based on preliminary information only. Much more detailed testing and proving, together with an investigation of transport and other economic problems, will be required in respect of likely ironsands areas ...

The remaining deposits to be investigated were therefore those at Taharoa, Kawhia, Raglan, Waikato Heads and possibly the southern end of the Muriwai if ore mineral below sea level can be mined by dredging.

These deposits will first be ‘scout drilled’ and the deposit later selected in the light of these investigations and of other considerations such as access, as the

most probable source of ore for the industry will then be grid-bored to prove beyond reasonable doubt that the indicated quantities do in fact exist.

You will be aware that renewed interest in proposals for utilizing the iron sands of New Zealand has led to the Government setting up a committee to investigate and advise on all aspects of the matter.

The investigation calls for some details of the ownership of the main iron sand deposits at [Raglan, Waikato Heads, Kawhia Harbour, Muriwai Beach].

...I shall be much obliged if you could let me have whatever details are available from your records regarding the land tenures.

As this is a preliminary enquiry, I have excluded small subdivisions as far as possible.

The land at Muriwai Beach which is shown on your lithograph is virtually all Crown land which is very shortly to be declared permanent State Forest, certified plans and descriptions at present being with the Head Office of the New Zealand Forest Service for gazettal. The land at Waikato Heads is similarly Crown land to be declared permanent State Forest but it may be a few months before this action is finalised. Survey of the area is now virtually completed but Ministerial consent has yet to be obtained to the transaction although action to this end is proceeding.

I understand that the ironsand areas at Muriwai Beach and at the Waikato Heads, which are Crown land, are shortly to be permanently declared State Forest.

If this is correct, then you may consider deferring this action until these areas are cleared as possible sources of ironsand on which an iron and steel industry might be founded.

Muriwai Beach and the Waikato Heads are included among the areas which should be investigated to determine the quantity and quality of the ironsands there.

I do not know when this is likely to be done, though it is expected a policy announcement in regard to the establishment of an iron and steel industry will be made soon.

This Service is undertaking work in the areas referred to by you, viz, Muriwai Beach and Waikato Heads, and holds the view that this should have the full protection to be obtained from the provision of the Forests Act 1949.

If at any time it should be government policy that Mining privileges be granted over the whole of or part of these areas there would be no difficulty in obtaining the consent required by Section 22 of the Mining Act 1926.

Iron and Steel Industry Act 1959

3. Right to prospect or mine for ironsands in ironsands area vested in Crown — (1) Except as otherwise provided by this Act and notwithstanding the provisions of any Act or of any Crown grant, certificate of title, lease, or other instrument of title, the right to prospect and mine for ironsands in any ironsands area is hereby vested in Her Majesty, subject to the provisions of this Act, and no person, other than the Minister, or a person authorised under this Act by the Minister, shall, after the commencement of this Act, prospect or mine for ironsands in any ironsands area.

(2) The Minister, without further authority than this Act, may carry on prospecting or mining operations in respect of ironsands in any ironsands area.

(3) The Minister may by writing under his hand authorise any person to exercise any of the rights or powers conferred on him by subsection two of this section subject to such terms and conditions as he thinks fit and for that purpose the Minister may from time to time, on behalf of Her Majesty, enter into agreements with any person in order to give full effect to the provisions of this subsection.

(4) On the first day of January, nineteen hundred and sixty-eight, any land which has not been taken under this Act or purchased or otherwise acquired by the Minister for the purposes of this Act shall cease to be subject to the provisions of this Act and the rights of any person existing at the commencement of this Act and affected by this Act in respect of any land ceasing to be subject to this Act as aforesaid shall be deemed to be revested in that person in all respects as if this Act had not been passed.

(5) The provisions of subsection four of this section shall apply in respect of any land which the Minister, by notice in the Gazette published at any time before the first day of January, nineteen hundred and sixty-eight, declares to be no longer subject to the provisions of this Act.

(6) Except as otherwise provided by this Act no compensation shall be payable to any person in respect of any rights conferred on the Minister or any other person by this Act or in respect of the suspension, taking, or postponement of any rights by this Act.

(7) Where prospecting or mining for ironsands in an ironsands area is likely to interfere with any public work or harbour works, the Minister of Works, in the case of a public work, and the Harbour Board having control of the harbour works, in the case of harbour works, may impose such terms and conditions with respect to the prospecting or mining as may be considered necessary in order to protect the public work or the harbour works, and all persons concerned shall be bound by any such terms and conditions.

(8) The powers conferred on the Minister of Works by subsection seven of this section in respect of the interference with public works may be exercised by any Minister charged with the administration of any land in an ironsands area in respect of the interference with any works or property subject to the control of that Minister, and the provisions of the said subsection seven shall, with the necessary modifications, apply accordingly.

  1. Taking of land — (1) Where the Minister is of the opinion that any land in an ironsands area is required for the mining of ironsands or that any land in any part of New Zealand is required for the establishment or operation of an iron and steel industry, the land may be taken under this Act.

(2) The power conferred by this section to take land shall be deemed to include a power to take any estate or interest in land or any right, easement, or profit á prendre in respect of any land, and any reference in this Act to the taking of land shall be deemed to include a reference to the taking of any such estate, interest, right, easement, or profit á prendre as aforesaid.

(3) Subject to the provisions of this Act, where any land is to be taken under this Act it shall be taken or set apart in accordance with the provisions of the Public Works Act 1928 in all respects as if the land were required for a public work under that Act and as if this Act were a special Act within the meaning of section eighteen of the Public Works Act 1928 and all land set apart as aforesaid shall, for the purposes of this Act, be deemed to be taken under this Act.

(4) Nothing in this section shall be deemed to affect the power of the Crown to acquire, for the purposes of this Act, land or any interest in land by way of purchase or by way of gift or otherwise under the Land Act 1948 or any other Act.

  1. Compensation — (1) Every person having any estate or interest in any land taken under this Act shall be entitled to compensation therefor.

(2) Compensation under this section shall be ascertained and paid in all respects as if the land had been taken for a public work under the Public Works Act 1928:

Provided that in assessing compensation under this section the value of any ironsands which are or may be on or in the land taken shall be excluded.

  1. Royalties — (l) Every person having an estate or interest in any land taken under this Act shall be entitled in accordance with this section to receive royalties in respect of any ironsands mined from the land.

(2) There shall be payable in respect of any ironsands mined from any land in an ironsands area taken under this Act a royalty of such amount, not exceeding ninepence for every ton of ironsands mined from the land, as may be agreed upon by the Minister and the person entitled to receive the royalty, or in default of agreement, as may be fixed by arbitration in accordance with the provisions of the Arbitration Act 1908:

Provided that where the land is set apart under this Act, the rate of royalty shall be fixed by the Minister.

(3) This section, for the purposes of any such arbitration, shall be deemed to be a submission within the meaning of the Arbitration Act 1908, and the reference shall be deemed to be to two arbitrators, one to be appointed by the person entitled to receive the royalty, and the other by the Minister.

(4) It shall be a term of every award made pursuant to any such arbitration that the rate of royalty fixed by the award shall be reviewed every seven years and the rate of royalty (which shall not exceed the maximum rate specified in subsection two of this section) in respect of each seven year period shall be fixed either by agreement or by arbitration as aforesaid.

(5) Notwithstanding the provisions of subsection two or subsection four of this section, the parties may agree, either before or after the claim is submitted to arbitration, that full settlement of any claim for royalties under this section may be effected by payment of an agreed sum or by payment of royalty at an agreed rate (not exceeding the maximum rate specified in subsection two of this section), and, if the agreement is made after the date of any award of arbitration under this section relating to the claim, the award shall be deemed to be cancelled.

(6) The Minister shall in granting any rights to any persons under section ten of this Act provide for the payment by that person to the Minister of any royalty payable under this section in respect of the rights granted.

(7) All royalties and other money received pursuant to the provisions of this Act shall be paid into the Public Account:

Provided that the Minister of Finance shall, subject to any lawful charges connected with the cost of collection, pay, without further appropriation than this section, any royalty received to the person entitled thereto under this section.

The 1949 investigation indicates that Waikato Heads may be marginal as regards ore-content, so the present programme should establish whether this is so...

Establishment of the Investigating Company

(a) undertaking all research and investigations to establish whether an iron and steel industry based on New Zealand ironsands, imported ore, or a combination of both, could be economically established; and

(b) to report its findings on feasibility and to recommend the most efficient way of accomplishing such an industry in New Zealand.

Further additions to Waiuku State Forest

Establishment of NZ Steel

The discussions held were exploratory only and it was agreed that they were not to be considered binding on either party. The consultants [accompanying the Company’s Chairman at the meeting] wanted to know in general terms what the Forest Service would require of the operating company if the scheme does go ahead at Waiuku. They were advised that we would endeavour to evolve a clear-felling programme which would tie in with the industry’s needs for cleared land but that we would certainly be expecting to keep the land permanently in forest and to replant areas which had been worked over.

...

The decision as to whether or not the industry will go ahead will not be taken till towards the end of the year and it will take three years to construct the smelting plant. ...

shareholding, the share issue in the company was undersubscribed and the Crown held
45.76 per cent.

Iron and Steel Industry Amendment Act 1965

Heads of Agreement and Licence

NOW THIS DEED WITNESSETH that, in consideration of the royalties hereinafter reserved and of the covenants and conditions hereinafter contained, and on the part of the Company to be paid, observed and performed,

the Minister with the concurrence of the Minister of Forests and subject to such terms and conditions as he may require which said terms and conditions are incorporated herein, as is testified by the Minister of Forests being a party hereunto and executing these presents, doth hereby grant unto the Company exclusive licence liberty power and authority to mine and extract all ironsands as defined in section 2 of the Iron and Steel Industry Act 1959 lying on or within the said land, and convert the same to its own use and benefit by extracting or recovering therefrom such metals or minerals including titanium and vandium as it thinks fit and generally using the same for such purposes as it thinks fit, in connection with the establishment and operation of an iron and steel industry.

...

YIELDING and paying unto the Minister a royalty of 6d per ton of ironsand concentrate recovered pursuant to this licence. Such royalty shall become due and payable on the first days of January and July in each and every year free from all costs charges and deductions whatsoever and shall be in respect of iron concentrate recovered during the then preceding sixth months:

...

  1. AND ALSO shall from time to time give to the Minister of Forests a minimum of two (2) years notice of such mining operations as will necessitate areas of the said land being cleared of all trees timber forest products and slash to the intent that it shall be clean and ready for stump removal. Slash shall be removed and or disposed of by whichever party the parties hereto from time to time agree should perform such work. All costs in connection with the removal of all normal logging residuals i.e. stumps and slash and in connection with clearing otherwise than for commercial purposes relating to forestry or timber shall be borne by the Company but otherwise all clearing envisaged by this sub-clause shall be without cost to the Company.
  1. AND ALSO shall from time to time give the Minister of Forests a minimum of five years notice (or such shorter notice as the Minister approves) of its mining operations particularly as they may affect the removal, replacement, planning or substitution of, or the provision of alternative, permanent improvements of any kind whatsoever except forest produce.

...

  1. AND ALSO shall systematically work the ironsands by advancing across such areas and in such directions as shall be predetermined by agreement with the Minister of Forests so that afforestation or reafforestation or worked over areas may be properly planned.
  1. AND ALSO shall bury at a depth of not less than five (5) feet all rock, clay or other solid spoil, stumps, heads, logs and root systems, uncovered in the course of the Company’s operations on the said land under a level or easily contoured and evenly surfaced spread of sand at least once in every twelve

(12) month period to the satisfaction of the Minister of Forests.

  1. AND ALSO shall be entitled to bury on any part of the said land slag and other wastes from the Company’s smelting operations, at such depths and in such a manner and quantities as may be prescribed from time to time by the

Minister of Forests and whenever so requested by the Minister of Forests will obtain chemical analysis of such wastes for the Minister of Forests at the Company’s expense.

  1. AND ALSO shall reimburse the Minister of Forests, reasonable expenses in establishing marram grass and lupin, erecting breakwinds and generally doing all things deemed necessary to prevent any appreciable movement of sand, on from or to all worked-over areas and where mining operations have been conducted within two (2) chains of mean highwater mark, in constructing or reconstructing suitable and uniform foredunes and shall facilitate the work of the Minister of Forests in those respects.

...

19) AND ALSO that subject to any direction in writing as to the area or areas where for the time stated in such direction this clause 19 shall not apply, the Company shall be entitled to dispose of ironsands tailings on any part of the said land including swamp areas but excluding all areas of standing timber (including all plantings) or felling operations, land prepared or ready for planting or otherwise used or occupied for or in respect of current afforestation operations.

...

25) AND ALSO will at the expiration or sooner determination of the said term deliver up unto the said Minister, or any person appointed in that behalf, the said land in as good state and condition as the nature of the case will admit having regard to the Company’s rights and obligations hereunder PROVIDED

HOWEVER that the Company will in like manner deliver up from time to time those portions of the said land in respect of which it shall have completed its mining operations, to the intent that such portions be released from the provisions of this licence and revert to their original status as land set aside for forestry purposes exclusively at the earliest possible time.

...

29)(a) That the Minister of Forests shall permit the company to carry out its mining and associated operations without let or hindrance and will not derogate from nor depreciate the rights liberties advantages and benefits granted to or...

(b) That the Minister of Forests shall permit the Company its servants agents invitees and licensees full and free liberty of ingress egress and regress for the purposes of the Company including the provision construction reticulation maintenance and repair of roads power-supply and water-supply whether new or existing...

State forest land at Maioro set apart for ironsands mining

all of the wāhi tapu areas, except for the urupā in Te Kuo and the fishing reserve adjacent to Tangitanginga.

The Glenbrook expansion and claims in relation to Maioro

(a) provide a vegetative buffer between the fishing reserve adjacent to Tangitanginga and mined land;

(b) provide sufficient protection to Māori land and safeguard access to it; and

(c) identify and protect any other wāhi tapu that may lie outside the urupā.

wanting any mining on the wāhi tapu areas, and NZ Steel representatives, while recognising the need to respect the needs of Ngāti Te Ata, seeking a compromise which allowed the mining to continue in accordance with the terms of its Licence.

(a) The Tribunal noted that the four wāhi tapu areas at issue in these proceedings were areas of early Māori occupation until the 1870s, but




260 A by-product of the mining process. Mr Charge, who was until September 2017, President-Mining for NZ Steel, distinguished ironsands tailings from tailings from gold and iron ore mining, stating that ironsands tailings are free flowing sand deposits which have the iron particles removed, and washed with fresh water. He stated that no chemicals are involved in the ironsands tailings.

261 Waitangi Tribunal Manukau Report (Wai 8, 1985).

as sand swept across the headland, the Māori occupants shifted north to other settlements, and habitation and burial sites became obscured.262

(b) It commented on the allegation that the three wāhi tapu had been taken for an ulterior purpose in 1959:263

There were strong suggestions at our hearing that the lands taken for forestry in 1959 were in fact intended for ironsands mining.

...

The charge that the land was taken for forestry when it was really intended for mining is not proven on the evidence. There is evidence that the Forest Service sought to acquire the land as early as 1952 when it first took over management of the Forest and that in 1952 it consulted with the Department of Māori Affairs.

On the other hand it is clear that if, at 1959, the officers of Forests and Works involved in the taking were unaware of the ironsands interest, other officers of the Crown in other branches were very much aware of it. If we regard the Crown as vicariously responsible through its several agencies, the Crown must be taken to have been aware of the intention to mine ironsands when the Māori land was taken.

(c) The Tribunal traced the taking of the wāhi tapu areas under the PWA 1928 and observed that the “hapū has good cause to brood over the manner in which they were dispossessed of their last lands and over the use to which those lands are now being put”.264 It noted that although the sites in question were now in Crown ownership, they were not freely alienated (having been acquired under the PWA 1928) and that:265

It is inconsistent with the principles of the Treaty of Waitangi that those sacred sites, and the lands still owned by the people [i.e. the urupā and fishing reserve], should be adversely affected by the mining operations.

(d) It was “impressed by the initiative of the Forest Service to seek some settlement as soon as these concerns were raised”,266 and noted the

262 At [5.4].

263 At 21.

264 At 23.

265 At 92.

266 At 23.

“archaeological section of the Forest Service is providing an excellent service to the Māori people in the identification of sites of significance before works proceed.”267 It also noted the support of the Auckland Regional Authority and the Commission for the Environment in relation to the protection of the wāhi tapu areas. Despite this support, however, it was concerned as to whether recommendations from such bodies would be followed or adopted, and noted that the ISIA gave very broad powers to facilitate mining. It stated:268

While New Zealand Steel Limited has co-operated with the identification of sites and has agreed to conditions proposed to protect the riverside area, we do not consider the Māori people should have to rely on unenforceable assurances.

(e) The Tribunal also commented on seven areas within Waiuku State Forest/Maioro that had been identified outside the four wāhi tapu areas, and considered whether the “historic wāhi tapu” (that is the four wāhi tapu in question in these proceedings) were in fact sacred sites rather than early habitation areas. It stated that NZFS should not accept the four areas as wāhi tapu simply because that is how they had been once described in the past, but should “strive to identify those sites that are strictly wāhi tapu through burials or through having a particular sacred significance for the tribe”.

(f) The Tribunal also noted the claimants had sought a recommendation that all mining should halt until identification of wāhi tapu (outside the four in question) had been completed. The Tribunal declined that request, noting that identification of the wāhi tapu was continuing and “the identification of sites can proceed ahead of the mining.”269 The Tribunal considered, in the context of various findings as to changes that ought to be made to mining terms and conditions, that NZ Steel should undertake to comply with future directions of NZFS as to the protection of identified sites, and concluded that “mining operations


267 At 60.

268 At 61.

269 At 92.

may continue provided mining terms and conditions are renegotiated” to protect sacred sites.270

(a) Recommendation 9 – that negotiations continued for settlement of claims relating to the compulsory acquisition of the Waiuku State Forest lands;

(b) Recommendation 12(a) – that NZ Steel’s Licence be reviewed and renegotiated to protect sacred sites “but not so as to presume that all former Māori freehold lands are sacred sites”,271 with provision for re- interment of human remains and provision for re-interment into larger wāhi tapu of human remains from dispersed burials found outside the four wāhi tapu, with the agreement of Ngāti Te Ata; and

(c) Recommendation 12(b) – that sacred sites be surveyed and, if agreed to by Ngāti Te Ata, their establishment as Māori Reservations with trustees appointed for their control.

Negotiations following release of the Tribunal’s report

270 At 93.

271 At 98, meaning the four wāhi tapu areas.

in terms of the Crown being the sole source or cause of the delay. But it is equally fair to say that difficulties and delays have arisen as a result of changes in government policy to the approach to Treaty settlement negotiations, as well as legislative changes (including the enactment of the Resource Management Act in 1991), which had the unfortunate effect of derailing what appeared to be a tantalising close overall settlement in 1991. A cross-claim to ownership of Maioro by Ngāti Karewa and Ngāti Tahinga in 1989 (not resolved until 1994), the presence of the Licence, the legal rights it conveys to NZ Steel and thus the presence of NZ Steel as an interested third party in the outcome of any Treaty settlement, have also added to the complexity.

272 Mrs Minhinnick’s brother.

  1. Mr Minhinnick explained in his evidence that the condition that the land remained subject to the Licence was unacceptable to Ngāti Te Ata.
to cease, instead of being reviewed or renegotiated”. The Committee noted that negotiations were ongoing but no resolution had been reached. On Tribunal recommendation 12(b) (that assistance be provided to survey wāhi tapu and to establish them as Māori reservations), it was noted that officials had voiced their general approval for the recommendation. It was proposed that NZFS prepare a report on the implications of actions to be taken to resolve recommendations 9 and 12(a), for Lands and Survey and NZFS to prepare a joint report concerning the identification and protection of sacred sites belonging to Ngāti Te Ata, and for Māori Affairs to report on the creation of the Māori reservations.

...even the Waitangi Tribunal did not realise the extent of the problem. It was not possible to deal with the Maioro situation without opening up the whole confiscation problem. Ngāti Te Ata were not prepared to sign an agreement between Forest Service (Govt) and themselves and disregard the past Māori

difficulties which remain in the memory for a long time. It is not possible to separate the Maioro issue from the total Āwhitu Peninsula.

State-Owned Enterprises Act


  1. On 3 August 1988, the claim was extended to include all of the Waiuku State Forest lands at Maioro. Wai 31 also remains unsettled.









  1. Though Mr Charge noted that DoC has had little day-to-day involvement in the management of the forest.

Sale of the Crown’s shares in NZ Steel

605.7 million ordinary shares (a 90 per cent interest) and 20 million preference shares in NZ Steel as at 31 March 1987.276 In 1987, the Auditor-General estimated that the fair value of the shares was $363 million. This was in the context, however, of the Crown taking over the company’s debts that in total cost the Crown $2.228 billion to refinance (including interest payments) and writing off the $281 million of Crown loans to NZSD. The Report of the Controller and Auditor General on the Public Accounts for the year ended 31 March 1987 stated that “a conservative estimate of the total loss to the taxpayer” of the two financial reconstructions was $2.146 billion. In the later High Court proceedings concerning NZ Steel and Equiticorp, Smellie J described the Government’s involvement in NZ Steel as “a disaster”.277 The (unchallenged) evidence in these proceedings was that the investment generated an overall return of negative 85 per cent.



  1. A valuation report of January 1987 concluded that “the Crown’s shareholding in New Zealand Steel does not, at this point in time, have a positive commercial value.”

277 Equiticorp Industries Group Ltd (in statutory management) v R [1996] 3 NZLR 595 (HC) at 597.

The Government agencies that prepared the mining licence in 1966 were not aware of any conflict over land ownership issues and it was not until the 1980s that these came to prominence when New Zealand Steel was well into its $2.7 million expansion programme.

The use of ironsands is the pivot of the operation in which the Government has reluctantly had to invest $2,120 million of scarce financial resources in 1986 alone, taking its shareholding to 90 percent. The best prospect of a return on this investment is the sale of the operation and international consultants have been appointed to advise the Crown on the possibility and negotiations with potential purchasers are now well advanced. Any suggestion that the supply of base feedstock ironsand could be threatened would certainly have an adverse effect on these negotiations.

Despite the injection of over $2 billion in capital by the Government in 1986 the company has shortly to raise further loan money on the open market and any action which reflected on the viability of the enterprise will make this more difficult and again leave the Government as the sole source of finance. There is, therefore, a clear preference for a negotiated settlement to the issue rather than the implementation of additional restraints.

As indicated by New Zealand Steel, there are obvious limitations on the length of time any voluntary restraint such as that being observed on the boundary of Tangitanginga Point 100, can continue to be observed without this impacting on the company’s still very precarious financial state. Similarly, any extension of the restraints over the entire Maioro Peninsula would cause the firm to close within 6–8 weeks, when stockpiles would be exhausted. However, as noted by the Waitangi Tribunal, there is no reason why a compromise cannot be reached on the issue of mining in the area. The agreement eventually made with the Ngāti Mahuta at Taharoa would provide some precedent.

At the same time, Cabinet authorised the sale of the Crown’s preference shares in a manner that maximised the return to the Crown.

A settlement reached?


278 Equiticorp Industries Group Ltd (in statutory management) v R [1998] 2 NZLR 481 (HC).

279 At 527 and 601.

280 At 641.

281 As expressly noted in Equiticorp Industries Group v R [1996] 3 NZLR 586 (HC) at 597.

should not be mined and kōiwi re-interment procedures), a letter should be sent to Ngāti Te Ata informing it that:

The Government is prepared in principle to make the four identified wāhi tapu within Waiuku State Forest no longer subject to the Iron and Steel Industry Act 1959 and to revest these sites in the original owners (after a determination of ownership, if necessary by the Māori Land Court) and any other sites that might be identified in agreement with the Crown and New Zealand Steel, subject to a satisfactory agreement being reached between all parties on the net outcome of the identification and the procedures for dealing with the discovery and interment of human remains.

The objectives of the Government are to resolve a long-standing grievance on the part of the Ngāti Te Ata through providing reasonable protection for wāhi tapu, but also to provide secure access by NZ Steel to a sufficient iron sand resource within Waiuku State Forest. The Government is strongly of the view that any agreement, to be lasting, must be acceptable to all the parties involved as a reasonable compromise.

Our mining licence for ironsand covers the part of the Waikato North Head deposit that is located within the Waiuku State Forest with two small exclusions. We have recently received a letter dated 23 March from the Minister of State-Owned Enterprises (copy enclosed) informing us of Government’s decision in principle to transfer ownership of at least one quarter and possibly more of the area held under licence back to the owners.

We have stated in our reply that although we are sympathetic to the claim by the Māori people and have been and still are prepared to assist Government and the owners to reach an agreement, we will vigorously defend our legal right to mine the ironsand as granted by our 1966 Mining Licence.

Memorandum of Understanding

(a) The Crown was prepared in principle to make the four wāhi tapu areas no longer subject to the ISIA.

(b) The Crown was prepared to revest the four wāhi tapu in descendants of the original owners.

(c) $20,000 would be made available to Ngāti Te Ata to cover the costs of further dialogue with the Crown.

(d) The Crown had agreed to continue the dialogue with Ngāti Te Ata “with a view to redressing their social and economic concerns”.

(e) The Crown was willing to implement these decisions but expected reasonable cooperation from Ngāti Te Ata and it would not negotiate while under duress.

(f) The Crown’s decisions were subject to agreement being reached between the Crown, Ngāti Te Ata and NZ Steel on the conditions on which mining could continue on the balance of Maioro (i.e. other than on the wāhi tapu areas).

(g) Further progress would require NZ Steel “to be integrally involved in all discussions”.

the Government is prepared in principle to make the four identified wāhi tapu

... no longer subject to the Iron and Steel Industry Act 1959 and to revest these sites in the original owners ... subject to a satisfactory agreement being reached between all parties on ... the procedures for dealing with the discovery and interment of human remains.

allege the MOU amounted to a binding commitment to return the wāhi tapu to Ngāti Te Ata, it is appropriate to set out its text in full:282

MEMORANDUM OF UNDERSTANDING

BETWEEN NGĀTI TE ATA AND THE CROWN

“Ko Koe Ki Tena. Ko Ahau Ki Tenei Kiwai o te Kete”

“You at that, and I at this handle of the basket”

In keeping with the programme set out in the Report of the Joint

Implementation Group on Ngāti Te Ata Claims Concerning Maioro of 1 June 1990, and embarked on in subsequent negotiations between the two sides, the following actions are required to take place simultaneously and, it is anticipated, before 30 September 1990.

(1) The Crown will remove the four wāhi tapu from the ironsands mining licence, preparatory to the making of an application to the Māori Land Court for final re-vesting of the lands concerned.

(2) Ngāti Te Ata will propose the conditions under which mining can proceed on the balance of the Maioro land lying outside the four wāhi tapu. These conditions will include a procedure for re-interment. Such proposed conditions should either

(a) be acceptable to New Zealand Steel Ltd

  1. or (b) be such that, in the view of the Minister of Justice, New Zealand Steel Ltd, ought reasonably to accept them.

(3) As a sign of good faith, and without prejudice to its view as to longer term responsibilities, the Crown will continue, for the present, to meet the cost (at the existing level) of the continued operation of the “Interim On-Site Observation Arrangement” agreed between the parties.

(4) The underlying concept of this understanding is that captured in the above

whakataukī – that the task can only be accomplished if both sides carry out their parts simultaneously and with mutual respect.

(5) This understanding is without prejudice to the further discussions and negotiations which must continue in respect of the other elements identified in the Report of the Joint Implementation Group.





282 Emphasis in the following text is in the original.

Proposed 1991 settlement

(a) the mining licence over the four wāhi tapu areas would be surrendered by NZ Steel;

(b) the four wāhi tapu areas would remain subject to the ISIA (which provisions would be “grandfathered” in view of the then impending passage of the Resource Management Act 1991);

(c) the Crown would revest the four wāhi tapu areas in Ngāti Te Ata subject to confirmation by the Māori Land Court (i.e. resolution of the cross- claim referred to earlier);

(d) five acre plots in each wāhi tapu area would be surveyed out as urupā and would never be mined;


283 Ngāti Te Ata were joined as a party to the judicial review proceedings on 5 November 1990.

(e) NZ Steel would be able to obtain a licence from the Crown to mine the residue of the wāhi tapu areas, and the Crown would hear the views of Ngāti Te Ata before granting any such licence;

(f) if a mining licence was granted to NZ Steel in relation to the wāhi tapu areas, it would pay a royalty to Ngāti Te Ata (the royalty to be agreed between the parties, or fixed by arbitration);

(g) the maximum royalty rate in the ISIA would be repealed in relation to the wāhi tapu;

(h) NZ Steel and Ngāti Te Ata undertook to agree on a proper reinterment procedure of human remains found within the Licence area outside the wāhi tapu;

(i) The Crown and Ngāti Te Ata would appoint a mediator to deal with Ngāti Te Ata’s claims to the Waitangi Tribunal concerning ownership of the Maioro lands outside the wāhi tapu, compensation for deprivation of the wāhi tapu and for despoliation by mining of the wāhi tapu and loss of “the Āwhitu Peninsula lands”;

(j) in acknowledgment that:

(i) the royalty that NZ Steel would pay if it mined the wāhi tapu areas would probably be more than under the Licence;

(ii) NZ Steel had incurred costs due to protest activity by Ngāti Te Ata; and

(iii) NZ Steel had incurred legal costs relating to litigation over Maioro,

the Crown would pay NZ Steel “a sum agreed upon in full settlement”;284

(k) the High Court judicial review proceedings would be discontinued; and

(l) the Crown would pay the reasonable legal costs of Ngāti Te Ata.

The proposed 1991 settlement is derailed

The reinterment process is the substantial concession made by our client in the proposed settlement. Until settlement is concluded it is unreasonable for Ngāti

  1. Referenced in an addendum to the proposed settlement as being $4.75 million paid over a five- year period, with interest at 9.5 per cent.

Te Ata to be the only party required to perform its part of the proposed settlement.

As it appears as though settlement can be concluded between the parties soon, we would also like to receive from you a response to the suggestions made earlier as to a suitable mediator. Once the settlement is concluded, you will recall that mediation is to proceed as a matter of urgency.

A barrister acting for the Crown writes to counsel acting for New Zealand Steel and Ngāti Te Ata asking them to confirm they agree to the settlement proposal and proposed legislation, and if they agreed the Crown would then action the draft legislation and prepare a deed of settlement.

Ngāti Te Ata wish to amend the proposed 1991 settlement

285 Re Maioro Lands (1994) 18 Waikato-Maniapoto ACMB 220 at 16.

respect of granting the mining licences. The background to the requested changes was set out in minutes of a meeting between representatives of the Crown Treaty of Waitangi Policy Unit (TOWPU) and Mrs Minhinnick held on 22 November 1994. The minutes record that “Mrs Minhinnick stated that Ngāti Te Ata had not been asked to agree to the terms of the Annex”. A proposed amended annex, reflecting the changes requested by Ngāti Te Ata, was enclosed with the TOWPU letter sending the minutes to Mrs Minhinnick. The materials stated:

The next step would be for TOWPU and the Crown Law Office to draft a Deed of Settlement consistent with the Annex for Ngāti Te Ata iwi and Cabinet to consider and mandate their respective representatives to sign.

By this date Ngāti Te Ata had requested further amendments to the terms of the proposed 1991 settlement including ownership of the trees on the wāhi tapu areas, proper procedures regarding human remains, direct negotiations rather than mediation and additional legal costs.

The biggest difficulty lies in finding a way of implementing point 2 above [“ability for NZ Steel to seek a new licence on terms equivalent to those in the Iron and Steel Industry Act (now repealed)”] and, in all likelihood, in agreeing on procedures for reinterment.

Crown withdraws its 1991 settlement offer

The Crown considers the issue of protecting wāhi tapu from mining should now be addressed as a contemporary matter, under the relevant provisions in the Resource Management Act and the Historic Places Act. These provisions would allow appropriate authorities to consider whether sites should be protected from mining. The applicable provisions afford a level of protection commensurate with the general regime for the protection of wāhi tapu on private land. In any event, the Crown is hopeful that NZ Steel will not need to mine any sites of concern to Ngāti Te Ata.










286 There is debate about the extent to which this plan was agreed to by Ngāti Te Ata as a whole.

Was any one or more of the 1939 and 1959 takings of the wāhi tapu under the PWA 1928 unlawful?

The key statutory provisions

10.(1) The provisions of sections twenty-two and twenty-three hereof do not, except as hereinafter specially provided, apply to the taking of lands for railway or defence purposes, or for roads in connection with such purposes, or for water-power or irrigation works or purposes, or to the taking of Native land for any public work.

(2) All the other provisions of this Part of this Act apply to the taking of any lands and to all lands taken for any public work whatever, except as hereinafter specially provided.

  1. Land required for any public work may be taken under the provisions of this Act —

(a) If for a Government work, by the Minister; or

(b) If for a local work, by the local authority.

“Public work” and “work” mean and include—

(a) Every work which His Majesty, or the Governor-General, or the Government, or any Minister of the Crown, or any local authority is authorized to undertake under this or any other Act or Provincial Ordinance, or for the construction or undertaking of which money is appropriated by Parliament; and in particular—

(b) Any survey, railway, tramway, road, street, gravel-pit, quarry, bridge, drain, harbour, dock, canal, river-work, water-work, and mining work (including therein the deposit of tailings, or the construction of sludge-channels or tailings-channels in connection with mining operations);

287 Section 2.

15.(1) The Governor-General or a local authority is hereby empowered to take under the provisions of this Act any area of land, whether private, Native, or otherwise, required for forest-plantation purposes, recreation-grounds, or for the purposes of agricultural show-grounds, and any land so taken shall be deemed to have been taken as and for a public work duly authorized by this Act:

Provided that no Native land shall be taken in pursuance of this subsection without the consent of the Native Minister.

(2) Land may be taken under this Act by the Governor-General or any local authority for the purpose of paddocking driven cattle as if such purpose were a public work.

  1. Except for the purpose of a railway or for defence purposes, or for the purposes of any other work to be made under the authority of a special Act, nothing in this Act shall authorize—

(a) The taking of any stone or other material from any quarry, brickfield, or like place commonly used for the taking of material therefrom for sale without the consent in writing of the owner first obtained; or

(b) The taking of any land occupied by any building, yard, garden, orchard, or vineyard, or in bona fide occupation as an ornamental park or pleasure-ground without the previous consent of the Governor- General in Council or the consent in writing of the owner first obtained.

19.(1) Where any land is or has been taken at any time by the Governor- General or by any local authority under the authority of any Act or Provincial Ordinance for the construction of any public works, the Governor-General or such local authority shall not thereby be deemed to have acquired or to acquire any right to any mines of coal or other minerals whatsoever under any land so


288 Public Works Amendment Act 1948, s 14.

taken, except only such parts thereof as are necessary for the proper and effectual construction, support, and maintenance of such works.

(2) All such mines and minerals (excepting as aforesaid) shall be deemed to be and to have been excepted out of the Proclamation or other instrument under the authority whereof the land is or has been or may be taken, except so far as a contrary intention is expressed in that Proclamation or instrument.

Was the Native Minister’s consent necessary?

289 There is no suggestion in this case that the statutory notice provisions were not complied with.

extinguished, the only basis upon which the wāhi tapu were held by the grantees of the 1878 Crown Grants was pursuant to title derived from the Crown.290 The distinction between native customary title and title held by Māori that derived from the Crown was expressly recognised in s 102 of the PWA 1928. The Native Minister’s consent was accordingly not required before the wāhi tapu could be taken.

Was the 1939 taking for a lawful purpose?

28. (1) For the purpose of providing works in relief of unemployment, the Minister of Public Works, on the recommendation of the Unemployment Board, may, subject to the concurrence of the Minister of Finance, undertake and carry out any drainage, irrigation, reclamation, or other works of a reproductive character on or for the benefit of privately owned property or any other property.

(2) All works undertaken or proposed to be undertaken pursuant to this section shall be deemed to be public works within the meaning of the Public Works Act, 1928, and the provisions of that Act shall apply with respect


290 As Elias CJ explained in Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [96], “[t]he Crown recognised no title to land in New Zealand other than that held by Māori according to their customs and usages and that established by the Crown’s own grants (following extinguishment of native title).”

thereto accordingly, save that it shall not be necessary to give any notices or receive any consents before proceeding to carry out any such works.

(3) The powers conferred on the Minister of Public Works by this section may, with the concurrence of the Unemployment Board, be delegated by the Minister to any local authority, and such local authority may carry out any such works in accordance with the terms of the delegation.

341. Any public work authorized under the authority of any Act or Ordinance now in force, or any of the enactments mentioned in the Tenth Schedule hereto, or any Act or Ordinance repealed by any such enactment or by any former Act, and any land required to be taken or acquired for such work, or anything commenced under any such authority as aforesaid, may be continued, taken, or acquired, executed, carried out, enforced, and completed under this Act:

Provided that in any case where it is found that the provisions of this Act are not applicable to such work, land, or thing, then for the purposes of carrying out and completing such public work, land, or thing the said

291 Section 29(2).

enactments, Acts, and Ordinances shall be deemed to be in full force and operation.

Were the 1959 takings for a lawful purpose?

15. (3) In addition to the authority conferred on the Minister by the foregoing provisions of this section, the Governor-General may take, under the Public Works Act, 1928, as for a public work within the meaning of that Act, any land which in his opinion is required for any purpose for which the Minister may acquire land under this section.

292 The Act permitting the commencement of the works being Part II the Finance (No 4) Act 1931, repealed by the Employment Promotion Act 1936 (being the “former Act” for the purposes of s 341 of the PWA 1928. (Acts are to apply to circumstances as they arise; Acts Interpretation Act 1924, s 5(d); and Interpretation Act 1999, s 6.)

293 The reports record that by early 1948, the Crown had expended more than £157,000 on sand dune reclamation at Maioro and the smaller Karioitahi reclamation.

294 See, for example, Forests Act 1949, s 15(1)(b).

the PWA 1928.295 Section 18 of the PWA 1928 did not apply to works to be made under the authority of a Special Act. Accordingly, the requirements of s 18(b) did not apply.

Was title to the ironsands mineral in the wāhi tapu taken by the Crown as a consequence of the 1939 and 1959 takings?

Were the 1939 and/or 1959 takings in bad faith or for an ulterior purpose?

295 See PWA 1928, s 2: “Special Act” means any Act with which this Act or any part of this Act is incorporated authorizing the construction of a public work.” Mr Kahukiwa accepted the Forests Act was a “special Act” for the purposes of the PWA 1928.

... I sincerely hope that it will be the birth of an iron and steel industry in New Zealand. No matter where the industry is established, whether at Dunedin, New Plymouth, or elsewhere, I feel that this Bill is the forerunner of greater things yet to come.

(emphasis added)





296 (1 October 1959) 321 NZPD 2187.

... it is clear that if, at 1959, the officers of Forests and Works involved in the taking were unaware of the ironsands interest, other officers of the Crown in other branches were very much aware of it. If we regard the Crown as vicariously responsible through its several agencies, the Crown must be taken to have been aware of the intention to mine ironsands when the Māori land was taken.


297 Waitangi Tribunal Manukau Report (Wai 8, 1985) at 21.

industry then being unknown, reserving a very large area of the North Island (and some smaller areas in the South Island). It was not until investigative drilling was completed in June 1961 that it was found that Maioro in fact contained the necessary amount of ironsands within the boundary of the forest and that the grade of iron was much higher than had been previously estimated.
I have dismissed the plaintiffs’ claims of private law equitable obligations owed by the Crown to Ngāti Te Ata at that time (failure to consult said to be a breach of such obligations). Any lack of consultation might be relevant to Ngāti Te Ata’s Treaty claims, but those claims are not the domain of this Court.

Was there a failure to offer the wāhi tapu back to Ngāti Te Ata?

What was the effect of setting aside the wāhi tapu for the purposes of ISIA?


298 Third amended statement of claim at [253.4].

nature of the ISIA, s 3(2) provided that the Minister may, “without further authority than this Act”, carry on prospecting or mining in an ironsands area.

(a) the words “or set apart” were inserted after the words “shall be taken” in cl 7(3) of the ISIA;

(b) sub-clause 3 was amended to provide that “all land set apart as aforesaid shall, for the purposes of this Act, be deemed to be taken under this Act”; and

(c) clause 9 was amended to provide that where land “was set apart under this Act, the rate of royalty shall be fixed by the Minister.”

...to cover the situation in regard to Crown lands within an ironsands area. Strictly, it is not usual that Crown lands should be taken by the Crown for the purposes of the Act; these lands are set apart ... The amendment makes it clear that lands set apart shall be deemed to be taken.


299 PWA 1928, ss 13(a) and 25.

300 Iron and Steel Industry Bill 1959 (88–2).

301 Iron and Steel Industry Bill 1959 (88–2) (select committee report) at 1.

302 Iron and Steel Industry Amendment Act 1965, s 4.

paid as if the land had been taken under the PWA 1928.303 By s 8(2), this compensation was to exclude the value of any ironsands which may be in the land. Rather, persons with an estate or interest in any land taken under the ISIA were to be paid royalties at a statutory rate in respect of any ironsands mined from the land.304

The object of the clause is to provide for the dual utilisation of State forest land by allowing timber felling, etc., and ironsands mining to be carried out at the same time under a planned arrangement between the interested parties.

(1) The Minister of Mines, acting with the concurrence of the Minister of Forests, and subject to such terms and conditions as the Minister of Forests may require, may from time to time by notice in the Gazette set apart for the purposes of this Act any State forest land within the meaning of the Forests Act 1949 which is in an ironsands area and which, in the opinion of the Minister of Mines, contains ironsands and is required for the mining of ironsands. Any such notice may at any time in a like manner be revoked in whole or in part or amended.

(2) Except as otherwise provided by this section, no notice under this section shall have the effect of revoking or altering the setting apart of any land as State forest land under the Forests Act 1949, or in any way affect the powers of the Minister of Forests in respect of any land administered under section 64 of that Act.


  1. Though noting that pursuant to s 42(2)(b) of the PWA 1928, compensation was not payable for Crown lands set apart or taken for public works.

304 ISIA 1959, s 9.

  1. (26 October 1965) 345 NZPD 3854; and Iron and Steel Industry Amendment Bill 1965 (116–1) (explanatory note).

306 At i.

PWA 1928. Land set apart for the purposes of the ISIA pursuant to s 7A was not set apart through the provisions of the PWA 1928. For the reasons which follow, however, I am satisfied that upon the introduction of s 7A to the ISIA, the text “as aforesaid” in s 7(3) is to be construed as including a reference to the s 7A mechanism of land being set apart for the purposes of the ISIA, and thus setting apart of land under s 7A was also deemed to be a taking under the Act.

  1. Interpretation Act 1999, s 6; see also Acts Interpretation Act 1924, s 5(d), being the equivalent provision in force at the time s 7A was introduced to the ISIA.

308 Iron and Steel Industry Amendment Act 1965, s 5.

NZ Steel further submitted that to the extent any further rights were required, these could be acquired by the Crown under ss 7 or 7A, and in the case of the Licence area, were acquired by the Crown when the land was set apart under s 7A. NZ Steel submitted that:

In either case, to the extent section 3 or section 7A affects any pre-existing rights, that interference is specifically authorised by the 1959 Act, and the successors in title to the owners of the land are entitled to compensation in accordance with sections 8 and 9 only.

309 By the terms of s 6.

  1. See for example, Cleary J in Miller v Minister of Mines and Attorney-General [1961] NZLR 820 (CA) at 839.
Crown grant, certificate of title, lease, or other instrument of title ...”, and the broader scheme of the ISIA, indicates that s 3 vested in the Crown the right to mine ironsands regardless of any pre-existing legal or equitable ownership of the land or the minerals.311 This is also consistent with s 3(6) of the Act, which speaks of pre-existing rights being “suspended”, “taken” or “postponed”. That the statutory rights were to prevail is also illustrated by the fact that once land had been set apart and thus taken under the ISIA, the Crown could grant to any person rights to or interests in that land for the purposes of the ISIA (pursuant to s 10). But consistent with the long- established rule that, unless clearly stated otherwise, no property is to be taken without compensation,312 the consequences of the exercise of the rights generated by ss 3, 7 and 7A was the corresponding right to compensation in accordance with ss 8 and 9.

It may be that the Courts would more readily accord priority to rights conferred by a statute which is intended to aid some public purpose, and which applies of its own force to all land that comes within its operation, than they would in the case of rights under a statute which does not possess these features.


311 A similar proposition was accepted by the Court of Appeal in Miller v Minister of Mines and Attorney-General, in which the Court found that the tile of the registered proprietor of land was subject to a statutory mining licence granted under the Mines Act 1926, despite that Act not including an express statement that the licence applied “notwithstanding” any other grant or certificate of title.

312 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 (HL) at 542.

313 Miller v Minister of Mines and Attorney-General [1961] NZLR 820 (CA) at 839.

be payable in relation to any ironsands mined from the land. Accordingly, if and when the wāhi tapu areas are mined, the successors in title to the original grantees of the 1878 Crown Grants will be entitled to statutory royalties. The Crown accepted this in its closing submissions. NZ Steel also acknowledges this, noting that who the royalties are paid to is a matter as between the Crown and the successors in title to the original grantees.

Has mining already occurred on Tangitanginga?

314 Waitangi Tribunal Manukau Report (Wai 8, 1985) at 21.

  1. Auckland Regional Authority “NZ Steel Mining Site: Environmental and Cultural Matters” (21 January 1987, report to the Regional Planning Committee).
is in general terms only, no doubt referring to the effects of this erosion and (possibly) the placement of tailings on Tangitanginga.

The plaintiffs’ claims arising from the “1990 Commitments” – did a fiduciary duty arise?

(a) the Crown declaring on 25 July 1990 the wāhi tapu were to be held for conservation purposes pursuant to s 7(1) of the Conservation Act 1987;

(b) the MOU;

(c) correspondence with NZ Steel following the MOU regarding the Crown’s commitment to implement the commitments in the MOU;

(d) the Crown’s active opposition to NZ Steel’s judicial review application; and

(e) following the stay of the judicial review proceedings, the Crown’s efforts to reach a settlement whereby the wāhi tapu would be returned to Ngāti Te Ata and removed from the Licence area, and the offer of compensation to NZ Steel.

duties to Ngāti Te Ata, including “to implement its commitment to re-vest the wāhi tapu in Ngāti Te Ata”. Mr Kahukiwa focused this aspect of his argument on the principles stated in Chirnside v Fay,316 submitting that the factual matrix of the 1990 Commitments provides an even stronger foundation for the finding of fiduciary duties than in that case. In his oral closing submissions, Mr Kahukiwa also argued (as pleaded in the 1990 counterclaim) that the MOU amounted to a binding contractual arrangement between the Crown and Ngāti Te Ata.

(a) First, the very nature of the document, being a “memorandum of understanding” rather than a more formal settlement agreement, weighs against a finding of intention to create legal relations.318

(b) Second, the commitments in the MOU were framed in broad and, in some instances uncertain terms, envisaging a series of actions “anticipated” to take place prior to 30 September 1990. For example, cl 2 of the MOU envisaged Ngāti Te Ata proposing a procedure for re- interment. No detail around this was provided. Similarly, cl 3 of the MOU recorded that, as a sign of good faith and without prejudice to its


316 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433.

317 Jeremy Finn, Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in New Zealand (5th ed, LexisNexis, Wellington, 2018) at [5.2].

318 Compare, for example, the document entered into by the Minister of Health and Rothmans of Pall Mall (NZ) Ltd and headed “agreement”, a factor taken into account by the Court in finding the document gave rise to a binding legal commitment: Rothmans of Pall Mall (NZ) Ltd v Attorney- General [1990] NZHC 632; [1991] 2 NZLR 323 (HC) at 325–326.

view as to longer term responsibilities, the Crown would continue “for the present”, to meet the costs of the interim on-site observation arrangement agreed between the parties. No details, or agreement, had been reached as to the future costs of such an arrangement. Further, if the various actions referred to in the MOU were not carried out by 30 September 1990, would either party be in breach? If not, when would they fall into breach? This level of uncertainty points away from an intention to create legal relations.

(c) Third, the MOU was signed by a representative of Ngāti Te Ata and returned to the Crown for signature under cover of a letter stating “the [MOU] is signed on the understanding that negotiations continue as soon as possible” (emphasis added).

(d) Fourth, the MOU was said to be between “Ngāti Te Ata” and the Crown. It is doubtful this “precisely defines the parties”.319 For example, who would be sued if “Ngāti Te Ata” was alleged to have breached the MOU? Conversely, who would sue if the Crown was alleged to be in breach? As already explained, Venning J held in an earlier judgment delivered in these proceedings that Ngāti Te Ata as an iwi does not have the legal personality to sue or be sued in court proceedings.320

(e) Fifth, and most importantly in my view, the MOU was relatively quickly superseded by further negotiations and arrangements, including the 1991 offer which followed NZ Steel’s judicial review proceedings. Subsequent conduct is relevant to the inquiry of whether a contract was in fact formed.321 Neither the Crown nor any representative of Ngāti Te Ata suggested at any time after the MOU that further negotiations could not continue because a binding agreement had already been



319 At 325.

320 Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2886, [2019] NZAR 12 at [31]–[60]. See also Ngāti Te Ata v Minister for Treaty of Waitangi Negotiations [2017] NZHC 2058 at [5].

321 Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2001] NZCA 289; [2002] 2 NZLR 433 (CA) at [56]; and Verissimo v Walker [2005] NZCA 491; [2006] 1 NZLR 760 (CA) at [40]–[41].

reached. This points strongly against the MOU having been intended to have contractual force.

There is a strong case for saying that most joint venture relationships can properly be regarded as being inherently fiduciary because of the analogy with partnership. The relationship between partners is one which has traditionally been regarded as a classic example of a fiduciary relationship in that the parties owe to each other duties of loyalty and good faith; and they must, in all matters relevant to the activities of the partnership, put the interests of the partnership ahead of their own personal interests.



322 Relying on Petrocorp Exploration Ltd v Minister of Energy [1991] UKPC 10; [1991] 1 NZLR 641 (PC) at 652.

323 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433.

324 At [71].

325 At [80].

326 At [82].

327 At [74].




328 Potaka-Dewes v Attorney-General [2008] NZHC 1941; [2009] NZAR 248 (HC) at [52].

Government policy in 1990, when that response amounted to neither a concluded settlement or contractually binding commitment between the parties.

SIXTH CAUSE OF ACTION – LEGITIMATE EXPECTATION

Overview of pleaded claims

(a) the Wai 8 and Wai 31 claims and the proprietary elements to them (including in relation to the ironsands of Maioro);

(b) the various promises and assurances made by the Crown in the Treaty settlement negotiations;

(c) the spirit and intent of the Deputy Prime Minister’s communication to Mrs Minhinnick on 24 February 1987 in which protection was assured;

(d) the findings in the Lands case; and

(e) the fact there was no good reason for Ngāti Te Ata to be denied fair redress in settlement of the claims,


Ngāti Te Ata had a legitimate expectation that:

(f) its claims would have been fairly redressed by now; and

(g) the claims would not be rendered nugatory by Crown action or omission.

(a) is in breach of Ngāti Te Ata’s right at common law to have its Treaty claims either fairly redressed or not defeated;

(b) has failed to address Ngāti Te Ata’s Treaty claims in accordance with the honour of the Crown; and

(c) is liable to restitute Ngāti Te Ata in equity.

case being made against it, and the Court determining the matters in issue – which must be those arising on the pleadings.

Key issues for determination



329 The former said to be a procedural legitimate expectation that the Crown would confer with “them” on any decision to be made about Maioro, in order to “hear their view and to take it into account”, and not to defeat their claims or impair its ability to offer redress in the case of “unsubstitutable land”; and the latter being a substantive legitimate expectation of the restoration of Maioro.

(a) whether as a matter of principle, a claim of legitimate expectation arising from Treaty settlement negotiations is justiciable;

(b) assuming the answer to (a) above is yes, the applicable legal principles of a claim of legitimate expectation; and

(c) application of the applicable legal principles to this case.

Legitimate expectation in the context of Treaty settlement negotiations – overview

Commentators John Dawson and Abby Suszko concluded in 2012 that judicial non-intervention in Treaty settlements is the orthodoxy. There are different and overlapping shades to the reasoning in the cases reflecting the distinctive facts that gave rise to them, including: the political nature of the negotiations; uncertainty about standards to which the executive might be held; the lack of statutory basis for Treaty negotiations, which undermines the courts’ jurisdiction to judicially review the executive; and the proximity of contested executive decision-making and advice to legislative action. The latter reasoning is part of a wider doctrine of comity and New Zealand’s constitutional structure where Parliament and legislation is unreviewable.




330 Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples” [2019] NZ L Rev 85 at 90–91 (footnotes omitted).

engage on the merits of the claims arising out of the Treaty settlement negotiations, stating that:331

This is a Court of law. The recommendations of the Waitangi Tribunal do not bind the Crown. The readiness of the Crown to enter into Treaty settlements is an act of executive government. The merits of Treaty settlements are not capable of being judged by the High Court. As lawyers would say, they are not “justiciable”. For example, the fact that the Crown has suspended Treaty negotiations in response to the commencement of the fresh set of proceedings against the Crown in 2013 is a policy decision of the executive government. Subject to sophisticated arguments as to legitimate expectation to the contrary, or the like, that is not a justiciable act. The decision to suspend has not been challenged in these proceedings.

(emphasis added)

While it is true that many decisions made in connection with Treaty settlements will not be justiciable as they will involve policy, political, fiscal and similar considerations that are the particular province of the executive, that does not apply to all decisions having a Treaty dimension. In the present case, Ministers decided to intervene on behalf of Ngāti Mākino because they thought their particular circumstances justified intervention. When Ngāti Whakahemo sought intervention, however, the Ministers’ refusal was based on the Crown’s erroneous view of Ngāti Whakahemo’s position, which overwhelmed or sidelined any other consideration. In these circumstances, we consider that the Ministers’ decision is, in principle, amenable to judicial review.





331 New Zealand Steel Mining Ltd v Butcher [2014] NZHC 1552 at [38].

332 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89].

333 At [98(e)].

... sound a note of caution at the extent to which the principle of non- interference in parliamentary proceedings has been held to apply to decisions somewhat distant from, for example, the decision of a minister to introduce a Bill to the House or from debate in the House.

334 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [48].

335 At [46]. See also Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181 at [53]–[64].

336 Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples” [2019] NZ L Rev 85 at 93.

337 For earlier discussion of the topic in Treaty-related circumstances, see Heron J’s observations as to legitimate expectation in the context of an application for interim relief in New Zealand Maori Council v Attorney-General HC Wellington CP 785/90, 21 September 1990 at 8 (though on appeal the matter was dealt with on the basis of a failure to take into account relevant considerations: Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA) at 135, 139, 142 and 144); Lord Woolf’s comments on legitimate expectation in New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC) [the Broadcasting case] at 525 (albeit in the context of a specific assurance given by the Crown to the appellant and the courts as to how the Crown proposed to protect the Māori language if broadcasting assets were transferred to a new state-owned enterprise); Thomas J’s (dissenting) judgment in New Zealand Māori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 183–185. See also Sid Dymond “Treaty-Based Judicial Review: The Treaty Settlement Negotiation Process and Legitimate Expectation” [2018] 6 Te Tai Haruru: Journal of Māori and Indigenous Issues 2 for a helpful discussion of legitimate expectation in the Treaty settlement negotiation context.

principled reason why it ought not to be held to it. At least in the context of procedural legitimate expectation, and like the decision-making in Ririnui v Landcorp Farming Ltd, entertaining such a claim is not transgressing into high policy or political content. Rather, a claim of procedural legitimate expectation is focused on notions of procedural propriety and natural justice.






  1. An example of this would be to enforce the legitimate expectation advanced in the plaintiffs’ further written submissions on this cause of action, namely to order the restoration of Maioro.

Legitimate expectation – legal principles

... when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. ... The principle [is] that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty.

(emphasis added)

... reflects two key policy considerations which often lie at the heart of legitimate expectation cases. On the one hand there is a public interest in

339 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC).

  1. The following analysis draws on my earlier review of the legal principles of legitimate expectation in Hugh Green Ltd v Auckland Council [2018] NZHC 2916.

341 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 (PC).

342 At 638.

343 New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.

  1. New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [140].

holding a public authority to promises made in the interests of proper public administration and allowing people to plan with some assurance. On the other, there is also a public interest in allowing governments and other public authorities to change policy from time to time when it is perceived to be appropriate to do so. Indeed, the adoption of new policy to meet changing circumstances may be viewed as the duty of any government in furthering the public interest.

To amount to a legitimate expectation, it must, in the circumstances (including the nature of the decision-making power and of the affected interest) be reasonable for the affected person to rely on the expectation...

The intensity of the Court's scrutiny of the decision may also vary. Where very specific promises are made to an individual or a small class with serious

  1. At [143], citing Haoucher v Minister v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 682 and White v New Zealand Stock Exchange [2000] NZAR 297 (HC) at 314.
  2. At [143] citing R v Secretary of State for Education and Employment ex parte Begbie [1999] EWCA Civ 2100; [2000] 1 WLR 1115 (CA).

347 At [145].

348 At [145].

349 At [144]–[146].

350 R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA) at 41.

  1. New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [158].

consequences for them if the promises are not kept, the Court's approach is likely to be one of particularly close examination of the decision to ensure that the legitimate expectations of individuals are not unfairly or unreasonably thwarted. The Court will be astute to ensure the decision maker has conscientiously considered the position of those affected, has sound and logical reasons for reneging on the promises made, and has otherwise acted lawfully, fairly, and reasonably in the administrative law sense. In other cases, such as where the policy choices are very much in the macro-political field and there are strong countervailing grounds to support the course adopted, the Court may give greater recognition to the wider public interest in enabling governments to adjust policy including, when change is required and how, in their judgment, it is to be achieved. Even so, the Court will not in those situations, forego its proper constitutional role on judicial review of ensuring that the decision maker has acted in accordance with law, fairly and reasonably.

In no case, however, could I envisage a Court directing that a substantive benefit (such as a licence or permit) be granted. That would be to usurp the function of the executive.

(a) First, “to establish the nature of the commitment made by the public authority, whether by a promise or settled practice or policy.”356 This


352 At [159].

353 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [21]–[22].

354 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137. The Supreme Court heard, and dismissed, an appeal against the judgment but on different grounds to the legitimate expectation issue: Terminals (NZ) Ltd v Comptroller of Customs [2013] NZSC 139, [2014] 1 NZLR 121.

355 Randerson J was by then a member of the Court of Appeal and in fact delivered the Court of Appeal’s judgment in Comptroller of Customs.

356 At [125].

was said to be “a question of fact to be determined by reference to all the surrounding circumstances.”357

(b) Second, “to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate.”358 This “involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.”359

(c) Third, and said to often be the most difficult part of the inquiry, “is to decide what remedy, if any, should be provided if a legitimate expectation was established.”360

We accept that success at the first step – establishing the existence and content of the expectation pleaded – might not come in the form of an explicit promise. A promise can be implied from past practice or policy. But where the expectation is in the form of a practice or policy, as alleged here, its existence and content must equally be established to the level of a commitment or undertaking. The existence and content of such a practice or policy must be both unambiguous, and settled in the sense that it is regular and well established.

(footnotes omitted)

357 At [125].

358 At [126].

359 At [126].

360 At [127].

361 At [155].

362 Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623.

363 At [14].

The plaintiffs’ legitimate expectation claim in this case

transferred to a state-owned enterprise would remain subject to that claim. But NZ Steel was never a state-owned enterprise under the SOE Act and was not therefore subject to the Treaty clause in that Act which was the focus of the decision in the Lands case. As the Crown notes, the Crown retains ownership of the land the subject of Ngāti Te Ata’s claims in any event. The Crown further says that its sale of its shares in NZ Steel did not and has not impaired the Crown’s ability to provide redress for historical breaches of the Treaty. While I accept that the sale of the shares has not prevented the Crown from providing redress, it has made the process more difficult – evidenced by, for example, NZ Steel’s immediate response to the proposals set out in the 1990 MOU, which had otherwise brought the Crown and Ngāti Te Ata so close to a concluded settlement. I return to the issue of the Crown’s sale of its shares in NZ Steel further below, in the context of the allegation that the Crown has breached any legitimate expectation found to have arisen by reason of that sale.

364 Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744 (CA) at [27].

the absence of such a yardstick tends to demonstrate that an unambiguous promise, policy or practice has not been established. And as the extensive negotiation history set out earlier in this judgment demonstrates, there have been a whole host of reasons why the claims have not been resolved to date, including changes in negotiating position by both sides; actions by NZ Steel as a third party; the interruption caused by the cross-claim to Maioro which was referred to the Māori Appellate Court; and the introduction of legislation (principally the Resource Management Act). The issues raised by this aspect of the legitimate expectation case fall squarely in my view within Arnold J’s explanation in Ririnui v Landcorp Farming Ltd of why the courts will not ordinarily traverse into the realm of Treaty settlement negotiations.

...[B]ut let what opened the way to enabling the Court to reach this decision not be overlooked. Two crucial steps were taken by Parliament in enacting the Treaty of Waitangi Act and in insisting on the principles of the Treaty in the State-Owned Enterprises Act. If the judiciary has been able to play a role to some extent creative, that is because the legislature has given the opportunity.


365 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 693.

366 At 668.

was no satisfactory or good reason for departing from any legitimate expectation established. But as noted earlier, this Court’s decision in Equiticorp did not concern the sale of the Crown’s shares in NZ Steel to Equiticorp; rather it was limited to the separate buy-back transaction. The Equiticorp decision itself cannot therefore provide the basis for the Court to conclude there was no good or satisfactory reason for the Crown to depart from the pleaded legitimate expectation. Rather, the Crown’s decision-making around the sale of its NZ Steel shares, in the context of the significant losses to the taxpayer discussed earlier, and any consequential impact on the Crown’s response to the Waitangi Tribunal’s recommendations in the Wai 8 claim, again fall squarely in the realm of policy, political and fiscal considerations that are properly the domain of the executive rather than the courts.

AFFIRMATIVE DEFENCES

RESULT AND COSTS

Result

Costs










Fitzgerald J

SCHEDULE ONE













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Waiuku Forest/Maiming Licence boundary

Te Papawhero (97)
362

Tangitanginga
100
Te Kuo —•-9• $$
Fishing Reserve
Te Ruo Unipa

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2020_188210.jpg

SCHEDULE TWO









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