December 29, 2014
Court finds promises to Wakatu unenforcable
Wakatu Incorporation’s attempt to pursue the Crown’s broken promises through the courts has failed, with the Court of Appeal dismissing its appeal.
Judges said the claim unnecessarily strained settled legal principles when alternative remedies exist through the Treaty settlement process.
The incorporation, Rore Pat Stafford and Te Kahui Ngahuru Trust alleged that when the Crown granted land to the New Zealand Company for its settlement in the Nelson region, it inherited the company’s promise to set aside one tenth as reserves for Maori.
The essence of the claims is the Crown took on legally enforceable obligations that have since been breached.
Less than one tenths of the land was reserved, and those reserves were gradually reduced in size by Crown actions.
The Court of Appeal has held that it is possible for the Crown to owe fiduciary duties to Maori but that any fiduciary duty between the Crown and Maori must be established in particular factual circumstances using the conventional requirements for a fiduciary duty.
It held no fiduciary duty arose on the facts. The arrangements made by the Crown in the 1840s and 1850s were of a political nature. The Crown was mediating competing interests and it took on an undeveloped obligation to be realised in legislation later.
Justice Ellen France said there must be an explicit or implied undertaking to act with utmost loyalty in relation to specific Maori interests.
Justice Harrison and Justice French said the loyalty requirement poses obvious difficulties in the Crown-Maori context because the Crown is obliged to act in the wider interests of all its citizens.
They also said such fiduciary duty claims seek to unnecessarily strain settled legal principles when alternative remedies exist through the Waitangi Tribunal and the Treaty settlement process.
In this case, the relevant Te Tau Ihu iwi and the Crown have settled the claims in the Ngati Koata, Ngati Rarua, Ngati Tama ki Te Tau Ihu, and Te Atiawa o Te Waka-a-Maui Claims Settlement Act 2014.
The Court also dismissed the claim that the Nelson Tenths were held on trust by the Crown.
While it may be possible to support claims of breach in respect of the Crown’s failure to reserve one tenth and its approach to additional pa sites, burial grounds and cultivations, Justice Harrison and Justice French held the claim is barred by the excessive delay defence.
They have said it is not now possible for the Crown to return the land, and there has been a Treaty settlement reached in relation to it between the relevant iwi and the Crown.
The Te Tau Ihu Settlement Act included wording to allow for the court case to go ahead, so it will be unaffected by the decision.
As the representative of the former owners of much of the land under dispute, Wakatu was an early backer and funder of the treaty settlement process at the top of the South Island, but was sidelined by the Crown’s policy of only dealing with iwi.
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