Proprietors of Wakatū Incorporation & Others v Attorney General

Our breach of trust and fiduciary duty case - update: 

On 19th and 20th February 2013, our legal team was in the Supreme Court in support of the Pouakani hapū who are arguing a case against the Crown relating to the sale of the Waikato riverbed in the 19th century.  Legal submissions were presented over two days which focused on the Crown's fiduciary obligations to Māori to ensure that the common law relating to the sale and purchase of land adjoining rivers is fully explained to Māori, and that Māori property rights are not extinguished without full consent and knowledge.

Many of the legal issues debated in the Pouakani case overlap with the issues in Proprietors of Wakatū Inc and others v Attorney-General.  For that reason it was important to be present in the Supreme Court to support the Pouakani people and argue for the recognition of Māori property rights before the five Supreme Court judges.

We expect to be in the Court of Appeal in Wellington in November 2013. We have asked the Court of Appeal judges to consider a number of significant points of appeal that arise from the High Court's decision in June 2012.

The High Court's decision is summarised below for your information.  We will notify you as soon we receive notice of the Court of Appeal hearing dates.  We encourage all whānau to come along to the Court of Appeal to hear the legal arguments and history relevant to the case, which spans the period from 1839 to the present day.

The decision of the High Court (June 2012)

On 26 June 2012, the Wellington High Court released its decision on our case against the Crown.  Click here for the High Court’s decision. 

The High Court recognised the complexity of the legal issues involved in a breach of trust and fiduciary duty case, which dates back to the origins of the Nelson settlement that began with the New Zealand Company’s plans in London in the 1830s. 

The Court’s findings on the facts

There were positive findings on the facts.  The High Court acknowledged that although Māori welcomed the European settlement of Nelson, we did so provided our occupation sites, cultivations and other significant land including burial grounds were excluded from the Nelson settlement – and on the basis that one-tenth of the land acquired for settlement by the New Zealand Company would be reserved in trust for the Māori landowners and their descendants for all time. 

The Court said that the Crown owed duties to the specific whānau and hapū of the original landowners.  If a private law trust existed the beneficiaries would be the descendants of those Tainui-Taranaki whānau and hapū based in the Nelson area in the 1840s, not a general or larger ‘Māori’ group.  These are important conclusions that the court has not recognised before. 

The essence of our case

The Nelson settlement was comprised initially of 151,000 acres (and it may have grown as large as 460,000 acres), but only a very small portion of this land was ever reserved as Tenths Reserves land.  Far less than the 10% of reserved land, plus existing settlements and significant land that was guaranteed to the owners by way of the Crown Grant of 1845.  By 1977, when the descendants of the original Māori land owners decided to establish Wakatū Incorporation to take back Crown control of the Tenths Reserves, less than 2000 acres of the reserves remained, compared with the 1845 guarantee of 15,100 acres plus existing settlements and significant sites.

The Court’s findings on the law

The High Court did not accept our legal arguments relating to trusts and fiduciary duty.  While the Court recognised that some form of trust or other type of legal arrangement was intended to fulfill the Crown’s obligations to Māori, according to the Court what was intended in 1845 at the time the Crown Grant was issued was some form of ‘higher trust’ of a political or government nature. 

Although as the Court said, “…the Crown could not have been acting in a vacuum, in terms of some form of enforceable legal accountability to Māori”, the Judge was not prepared to hold the Crown to account as a private law trustee.  What all this means in legal terms is unclear, but it is something the higher courts will need to resolve. 

What happens next?

The decision is being appealed.  We expect to receive notice of a hearing date in the Court of Appeal soon.  We will keep you informed of progress. 

Please contact Kerensa Johnston, Incorporation Secretary at Wakatū Incorporation if you have any questions about the case or you would like further information.