Minhinnick v Attorney-General & Ors - [2025] NZCA 584

MĀORI LAND LAW – ACQUISITION OF ANCESTRAL LAND – ALIENATION – DURESS – UNDUE INFLUENCE – UNCONSCIONABLE BARGAIN – FIDUCIARY DUTY – PUBLIC WORKS ACT 1928 – IRON AND STEEL INDUSTRY ACT 1959 – TREATY OF WAITANGI NEGOTIATIONS – LEGITIMATE EXPECTATION

RESULT:  The application for leave to file an amended notice of appeal is granted.  The appeal is dismissed.  There is no order as to costs.

BACKGROUND

Ngāti Te Ata’s ancestral land relevant to the appeal lies on the Āwhitu Peninsula at Te‑Pūaha‑o‑Waikato, the mouth of the Waikato River.  Maioro lies at the southern end of the Āwhitu Peninsula and on the northern bank of the mouth of the Waikato River. 

This proceeding concerns long-standing grievances of Ngāti Te Ata against the Crown, arising from the acquisition and confiscation of land in the shadow of the Waikato War that broke out in July 1863, the Crown’s subsequent exercise of powers over that land and the ongoing ironsand mining.  There is a particular concern relating to four blocks of land known as Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga (the four wāhi tapu areas) located within Maioro.

In November 1864, the Crown purchased the North and South Blocks of the Āwhitu Peninsula, including Maioro, from Ngāti Te Ata.  The transaction was documented in a deed which we call the Waiuku Deed, executed on 2 November 1864.  The Waiuku Deed excluded a number of wāhi tapu, including the four which are in issue in these proceedings, and also provided that various lands (the habitation reserves) would be granted back to members of Ngāti Te Ata by way of Crown grants.  One month after the execution of the Waiuku Deed, and against the backdrop of the Waikato War, the Crown confiscated land in a purported exercise of the powers granted under the New Zealand Settlements Act.

Confiscation meant Ngāti Te Ata’s title was extinguished.  Crown grants for the habitation reserves were later issued to named members of Ngāti Te Ata who were considered “loyal”, as appears to have been contemplated by the Waiuku Deed itself.  Notably, the wāhi tapu were excluded from the Waiuku Deed, but among the lands confiscated under the New Zealand Settlements Act.  Crown grants were ultimately made in respect of the wāhi tapu, initially in October 1865, but subsequently those grants were cancelled, and new grants were issued on 18 February 1878.  The new grants were made to named members of Ngāti Te Ata subject to restrictions on alienation.  These restrictions were “from sale and mortgage, and from lease without the consent of the Governor”.

In the early to mid-20th century, the Crown began work on the Waikato North Head Sand Dune Project, which involved stabilising encroaching sand dunes and reforestation.  In 1939, Te Papawhero was taken under the Public Works Act 1928 and compensation was subsequently paid.  In 1957, Te Papawhero was declared to be Crown land subject to the Land Act 1948.  It was later set apart for state forest purposes.  Planting also commenced on the other three wāhi tapu in the 1940s, but without their acquisition.  This error was discovered, and in 1959 the three wāhi tapu were taken under the Public Works Act for state forest purposes.  After inquires from Dame Ngāneko Minhinnick in 1971, compensation was paid in 1972.

In 1966, all four wāhi tapu were set aside for ironsands mining purposes under the Iron and Steel Industry Act 1959.  A heads of agreement was signed between the Crown and New Zealand Steel (NZ Steel), under which the Crown granted NZ Steel a licence with an 100‑year term, permitting it to mine land including the four wāhi tapu.  The mining rights granted under the licence have since been exercised as the foundation of the ongoing steel manufacturing activities of NZ Steel at Glenbrook.

In 1983, Dame Ngāneko lodged a claim on behalf of the Huakina Development Trust with the Waitangi Tribunal concerning issues relating to the Manukau Harbour, but also taking issue with an earlier decision to grant water rights to NZ Steel in respect of the proposed Glenbrook extension.  In its report on the Manukau claim (Wai 8) issued in July 1985, the Waitangi Tribunal recommended that negotiations for a settlement of the claims in respect of the compulsory acquisition of the land be continued.  There was also a recommendation that mining operations be “renewed and renegotiated” to protect Māori land and sacred sites.  The Cabinet resolved to support these recommendations.

Following the enactment of the State-Owned Enterprises Act 1986, Dame Ngāneko lodged a claim (Wai 31) in the Waitangi Tribunal claiming the iwi would be prejudicially affected if the wāhi tapu areas were transferred to a state‑owned enterprise (subsequently amended to include the entire Waiuku State Forest).  In 1988, the claim was amended to cover the entire Waiuku State Forest.  This claim remains unresolved in the Waitangi Tribunal.  From then, negotiations and discussions took place between the Crown and representatives of Ngāti Te Ata down to June 1990.  On 24 September 1990, the Crown entered into a memorandum of understanding (MOU) with Ngāti Te Ata to the effect that the Crown would remove the four wāhi tapu areas from the ironsands mining licence, and that Ngāti Te Ata would propose conditions under which mining could proceed on the balance of the Maioro land.

On 17 October 1990, NZ Steel commenced an application for judicial review in the High Court against the Minister of Energy.  Interim relief was sought:  the Crown offered an undertaking that the Minister and the Government would not remove the four wāhi tapu areas from the Iron and Steel Industry Act and NZ Steel undertook not to mine within the wāhi tapu areas.  On 12 December 1990, Ngāti Te Ata filed a counterclaim seeking relief against the Minister of Energy and the Attorney‑General for the takings.  A further claim pleaded sought to enforce the MOU.  On 14 December 1990, Ngāti Te Ata counterclaimed against NZ Steel. 

The proceedings were adjourned on the basis of the undertakings exchanged by the parties, and there were various inconclusive settlement discussions in subsequent years, including discussions with a view to settlement of Ngāti Te Ata’s historical te Tiriti o Waitangi | the Treaty of Waitangi claims.  This lengthy process came to an end when, in April 2013, Ngāti Te Ata negotiators rejected a settlement offer made by the Minister for Treaty of Waitangi Negotiations and indicated an intention to commence proceedings against the Crown in the High Court. 

On 19 December 2013, Te Ara Rangatū o te Iwi o Ngāti Te Ata Waiohua Inc and Mr Minhinnick commenced the proceeding which is one of those giving rise to the present appeal.  The High Court trial eventually proceeded on 4 June 2019 and occupying four weeks.  This was over five years after the commencement of the 2013 proceeding and almost 30 years after the 1990 litigation was commenced.  The High Court rejected the various claims advanced on behalf of Ngāti Te Ata by Richard Minhinnick, who now appeals. 

PROCEDURAL ISSUES

Issue one:  Was the Judge correct to not admit the briefs of evidence provided by Dr O’Malley and Professor Boast?

Held:  Yes.  At trial, the plaintiffs did not call Dr O’Malley or Professor Boast, but instead suggested their briefs could be taken as read.  Fitzgerald J held that would have been inappropriate, given they were not available for cross-examination.  As a result, she did not read or take into account their evidence.  The Judge did not err in reaching this conclusion.  Their briefs of evidence had no evidential status.  Evidence in civil proceedings cannot be given in written briefs which are not then read or adopted in the courtroom.  It would also not generally be possible to identify and rely on uncontested parts of the briefs, although the exception to this is the portions of Professor Boast’s evidence cited by the Crown historian, Mr Parker.

Issue two:  What is the status of the 2014 proceedings?

Held:   Trial counsel for the appellant accepted that the live proceeding was the statement of claim in the 2013 proceeding.  This is dispositive of any complaint that the 2014 proceedings were not given adequate consideration. 

Issue three: What is the effect of the Crown’s statement of defence to Ngāti Te Ata’s 1990 claim?

Held:  The appellant cannot rely on the Crown’s claimed admission in respect of the present claim.

AFFIRMATIVE DEFENCES

In relation to the issue of standing, absent some process in which the Court could be satisfied that relief sought would be in accordance with the wishes of everyone potentially affected, it would be wrong in principle for this Court to determine standing when the High Court did not do so. 

In relation to the affirmative defences, the approach taken on appeal is to consider the substantive claims first, before considering the affirmative defences to the extent it is necessary to do so.  As the appeal is dismissed, it is not necessary for this Court to consider these issues. 

SUBSTANTIVE ISSUES – THE WAIUKU DEED AND CONFISCATION

Issue one:  Was the sale under the Waiuku Deed voidable as an unconscionable bargain, or for duress or undue influence?

Is the Waiuku Deed voidable as an unconscionable bargain?

Held:  No.  The assessment of whether the Waiuku Deed was an unconscionable bargain turns on whether Ngāti Te Ata was at a serious disadvantage, such that the bargain was unconscionable.  The evidence available is not consistent with the idea that Ngāti Te Ata were pressured by the context of negotiations and the threat of possible confiscation, nor is there direct evidence establishing the application of illegitimate pressure.  Additionally, no submission was advanced that the Government acquired the land at below a proper value.  There is also nothing on the face of the terms of the Waiuku Deed to suggest it was not freely entered into.  There is no evidence showing that Ngāti Te Ata was in a position of special disadvantage, nor is there evidence that the Crown took advantage of Ngāti Te Ata.  The vendors signed the Waiuku Did because they saw an advantage for themselves and their iwi, they were familiar with the process of selling land, and they bargained over the price. 

Is the Waiuku Deed voidable for undue influence and duress?

Held:  No.  For the reasons already discussed in respect of the claim of unconscionable bargain, there was no actual undue influence in this case.  There is no direct evidence that Ngāti Te Ata were coerced into the transaction as a result of the “troubled times” in which the Waiuku Deed was executed.  The same can be said about the claim based on duress.  This Court is not in a position to say the Judge erred in finding there was no illegitimate pressure in this case, as it is likely that the members of Ngāti Te Ata who signed the Waiuku Deed did so voluntarily.

Issue two:  Was the confiscation of Ngāti Te Ata’s land under the New Zealand Settlements Act 1863 lawful?

Held:  Yes.  

What is the correct interpretation of the word “rebellion” under the Act?

The text of the New Zealand Settlements Act shows that the group of people barred from compensation under the Act was broadly cast.  No distinction is made between offensive and defensive acts, and the Act was directed at the resistance to Crown authority.  The purpose of the Act supports a wide definition of “rebellion”.  The context of the Act included the Suppression of Rebellion Act 1863.  The conception of rebellion in that Act was the same as in the New Zealand Settlements Act, focussing on the subversion of Crown authority.  Overall, the statutory scheme makes it clear that any engagement in the Waikato War by Māori against the Crown was intended by Parliament to constitute “rebellion”.  The Waikato Raupatu Claims Settlement Act 1995 does not assist in the determination of whether there was a rebellion at the time the New Zealand Settlements Act was enacted.  The lawfulness of what occurred in reliance on the New Zealand Settlements Act and Suppression of Rebellion Act must be determined on the basis of what those Acts said at the time.

Was Ngāti Te Ata, or a “[s]ection” or it, or any “considerable number thereof,”, in rebellion?

It appears in May 1865 the numbers of Ngāti Te Ata were about 140 (including children) and that around 30 to 40 members of Ngāti Te Ata had been engaged in conflict with the Crown since 15 August 1863.  A “considerable number thereof” refers to a considerable number of the relevant social group, whether that be an iwi or hapū.  “A considerable number” must be interpreted as a significant proportion of the members of the relevant iwi or hapū.  The evidence about the numbers of of Ngāti Te Ata who joined the rebellion was such as could reasonably justify a conclusion by the Governor in Council that a considerable number of the iwi had done so.

Is the Crown entitled to justify confiscation on the basis that a “considerable number” of Ngāti Te Ata were in rebellion when the Confiscation wrongly stated that Ngāti Te Ata was an iwi in rebellion?

The evidence shows that Governor Grey was aware of the rigor he was expected to bring to his task under the New Zealand Settlements Act, and demonstrated he would not sign proposed Orders in Council under the Act unless he was satisfied the requirements under s 2 of the New Zealand Settlements Act were met.  The argument thus turns on a drafting omission in the terms of the Order in Council.  It is not appropriate to infer that Governor Grey proceeded on the basis that Ngāti Te Ata as a whole were in rebellion.  To the extent that the omission to refer to “a considerable number thereof” is of any moment, such an omission would have been validated by s 6 of the New Zealand Settlements Acts Amendment Act 1866. 

Even if there was jurisdiction under the New Zealand Settlements Act, did the Governor exceed his statutory power by declaring all the land in the district confiscated?

This question would necessarily be a factual inquiry, and this Court is not in a position to embark on such an inquiry obscured by the passage of time and in the absence of any relevant witnesses.  It is therefore not possible to advance this issue on appeal. 

Issue three: Did the New Zealand Settlements Acts Amendment Act 1866 validate any illegality in the confiscation?

Held:  Yes. 

To the extent necessary, s 6 of the New Zealand Settlement Acts Amendment Act would validate the Order in Council and save it from any consequences of the omission of a reference to “a considerable number thereof”.

Issue four: Did either or both the Waiuku Deed and Confiscation breach a fiduciary duty to consider and protect the interests of Ngāti Te Ata, or any other equitable duty?

Held:  No. 

The evidence does not establish that the terms of the Waiuku Deed were unfair, nor that the Ngāti Te Ata vendors who signed it did so other than voluntarily and as authoritative representatives of the iwi.  The case lacks any of the elements that contributed to the findings of the existence of fiduciary duties in Proprietors of Wakatū v Attorney-General [2017] NZDC 17, [2017] 1 NZLR 423 or Guerin v R [1984] 2 SCR 335.  The Crown never assumed a responsibility towards the vendors, nor was the Crown under any obligation to protect their interests in a way not satisfied by the provision of fair value for the land.  The transaction represented by the Waiuku Deed cannot be characterised as the extinguishment of Māori property rights by less than fair conduct or on less than fair terms.  Therefore, this is also not a case of the kind contemplated by Elias CJ in Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 where there could be a presumption of undue influence.  The Waiuku Deed was thus not procured by the Crown in breach of a fiduciary or other equitable duty owed to Ngāti Te Ata. 

Considering the Waiuku Deed and confiscation together, it is not possible to characterise the Crown’s actions taken for the perceived benefit of the public generally and the majority of Ngati Te Ata as a breach of fiduciary duty on the basis of the relevant authorities which are discussed in the judgment.  The appropriate forum for advancing grievances about the events of the 19th century is the Waitangi Tribunal, which has specific jurisdiction to inquire into claims that Māori have been prejudicially affected by Acts of Parliament passed, orders and proclamations made and policies adopted by the Crown at any time after 6 February 1840.

SUBSTANTIVE ISSUES – THE 1939 AND 1959 TAKINGS AND ISSUE OF THE LICENCE

Issue one:  Were the takings of the wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the mining licence issued under the Iron and Steel Industry Act 1959 unlawful on the basis that the Crown failed to consider the special status of the land?

Held:  No.  The taking of the land was authorised by s 11 of the Public Works Act as land required for a public work (sand dune reclamation and state forest purposes, respectively).  There were procedural requirements set out in s 22 of the Public Works Act, but it is clear from the statutory regime that there was no duty or requirement on the Minister to consult or negotiate with affected landowners in advance of the taking, only a requirement to seek “well-grounded objections” and pay compensation.  These aspects of the statutory scheme tell against Ngāti Te Ata’s claimed mandatory consideration. 

An obligation to consider the special status of the wāhi tapu cannot be read into the Public Works Act in circumstances where the proposed acquisition and works were (as is conceded) for purposes authorised by the statute, the expediency test was able to be satisfied, and no objections were lodged, whether in 1939 in relation to Te Papawhero or in 1959 in relation to the other three wāhi tapu.  While the Minister could have considered such things, the Minister was not obliged to do so.  Likewise, there is no way to read into the Iron and Steel Industry Act a mandatory obligation to take into account the special status of the land.

Issue two:  Were the takings of the wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the mining licence issued under the Iron and Steel Industry Act 1959 a breach of a fiduciary duty owed by the Crown to Ngāti Te Ata to consider and protect their interests in the special circumstances prevailing?

Held:  No.  The principal difficulty with the claim of breach of fiduciary duty is that it seeks to challenge the exercise of statutory powers which it is now conceded were exercised for purposes contemplated by both the Public Works Act and the Iron and Steel Industry Act.  So too, clearly, was the grant of the Licence to mine ironsands within an ironsands area that had been specifically identified for the purpose in the Iron and Steel Industry Act.  Unless it can be said that the statutory powers were subject to a gloss that they would not be exercised in respect of land of special significance to Māori, we can see no basis for the claimed fiduciary duty.

The concept of a fiduciary duty whether of a kind recognised in equity or as a sui generis obligation owed by the Crown to indigenous people as a colonising power, must be based on an assumption of responsibility to act or refrain from acting in a way that reflects the duty.  There was nothing here equivalent to the assumption of responsibility by the Crown which characterised the facts of Proprietors of Wakatū.  The relevant powers under both statutes were to be exercised as government obligations owed to all, the idea that the exercise of such powers could be in breach of a fiduciary duty owed to a small section of the public is problematic.  It does seem extraordinary that the wāhi tapu were included in the Licence, given the history.  Further, successive governments apparently recognised that the wāhi tapu should not have been included in the Licence.  However, the fact that the wāhi tapu were included in the Licence does not mean that there was conduct amounting to an actionable breach of fiduciary duty.

SUBSTANTIVE ISSUES – 1990 COMMITMENTS AND TREATY OF WAITANGI NEGOTIATIONS

Issue one:  Did the Crown’s agreement under the 1990 commitments to return the wāhi tapu to Ngāti Te Ata and remove them from the Licence give rise to binding and enforceable obligations on the Crown?

Held:  No.  The MOU entered into in 1990 did not bind the Crown to return the wāhi tapu to Ngāti Te Ata and remove them from the mining licence.  We see the MOU as representing a summary of the position that had been reached in discussions between Ngāti Te Ata and the Crown at the time it was signed, and their intent as to how issues should be progressed should agreement be reached with all parties (including NZ Steel) on the outstanding matters.  The Crown began to proceed in accordance with the MOU, but that led within a short space of time to the commencement of NZ Steel’s application for review.  The fact that Ngāti Te Ata agreed to the adjournment of NZ Steel’s proceeding, and the fact it took no action to advance its own claim, is inconsistent with any suggestion Ngāti Te Ata thought it had a binding agreement with the Crown. 

Furthermore, that important matters (such as the terms on which mining could proceed outside the wāhi tapu areas) remained unresolved militates against the idea that a binding agreement had been reached.  So also does the fact that when signed by a representative of Ngāti Te Ata, the agreement was returned to the Crown with a letter stating that it had been signed on the understanding that “negotiations continue as soon as possible” and negotiations indeed continued, resulting in a settlement proposal that was different from the terms in the MOU.  There was a sufficient agreement in terms of the exchanges of correspondence in 1991 to show that the parties had moved on from the arrangements set out in the MOU.

Issue two:  Did the Crown breach a legitimate expectation of Ngāti Te Ata that its claims of breach of the Crown’s Treaty of Waitangi obligations would have been fairly addressed by now and not rendered nugatory by Crown action or omission?

Held:  No.  We see no reason in principle why a legitimate expectation could not be established in the context of Treaty of Waitangi settlement negotiations, given a clear promise by the Crown to act in a certain way which has been relied on by the claimant and when there is no good reason for the Crown not to proceed in accordance with its promise.  For the reasons already addressed, we do not think the MOU amounted to such a clear commitment.

The second basis for legitimate expectation rests on the discussions and negotiations that had taken place in the period from 1990 until the Crown withdrew from the negotiations in response to the commencement of this litigation.  We think it is clear that Ngāti Te Ata could properly have a legitimate expectation that it would receive redress for its historical Treaty grievances and that part of the settlement would involve the return of the wāhi tapu to Ngāti Te Ata.  However, we do not think the temporal element (the expectation that the claims would have been “fairly redressed by now”) has been met, given the Crown has been responding to litigation commenced against it and the fact the delays that have occurred in the settlement process are not properly attributable to the actions of the Crown alone. 

COSTS

The respondents do not seek costs and there is no order accordingly.