High Court [2020] NZHC 1882

31 July 2020

Ngāti Te Ata brought proceedings against the Crown seeking declaratory relief in relation to land on the Āwhitu Peninsula which was all confiscated by or sold to the Crown in 1864. The High Court rejected the claims and suggested that this dispute was quintessentially a matter to resolve through Treaty of Waitangi settlement processes. We have reported the decision here. Professor Emeritus David V Williams comments on the decision.

Comment

In a New York Times interview in 2016 Columbia University’s Professor Gayatri C. Spivak observed that ‘some of the gravest violations of rights have occurred within legal frameworks.’ The factual matrix for the High Court judgment in Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohua Incorporated v Attorney-General [2020] NZHC 1882 [Ngāti Te Ata] summarised in the adjacent case note bears testimony to the truth of that observation. This comment focuses on just three issues dealt with in the lengthy and detailed judgment:

1. the meaning of ‘rebellion’ in raupatu legislation as the basis for land confiscations in the 1860s;
2. the application of historically informed evidence retrospectively to develop current law; and
3. the as yet unrealised potential of a sui generis public law doctrine of relational duties of good faith to govern Māori-Crown relations.

Fitzgerald J held that the Crown’s confiscation/raupatu of Waiuku North and Waiuku South blocks in 1864 pursuant to proclamations under the New Zealand Settlements Act 1863 were valid exercises of powers granted by that Act. In doing so her Honour maintained at [19]:

… that it is not the purpose of this judgment to make findings or comment on the moral aspects of the Crown’s acquisition of Maioro, and in particular, the Confiscation of 1864. Few, including the Crown, would now view the Confiscation as fair or right and as already noted, the Crown accepts that certain confiscations of the late 1800s were wrongful. Rather, aspects of the plaintiffs’ claim require me to determine the lawfulness of actions taken by the Crown under the law as it stood at the time.

In deciding that the raupatu were lawful, the Court analysed the provisions of the 1863 Act and especially the requirement of section 2 that districts had to be defined and taken on the grounds that the Governor was satisfied that ‘any Native Tribe or Section of a Tribe or any considerable number thereof’ had been in a state of rebellion within the time frame specified by the Act.

The word ‘rebellion’ was not defined in the Act. The plaintiffs submitted that those members of Ngāti Te Ata, a minority within the iwi, who fought against the imperial armed forces were engaged in defensive actions resisting an unlawful invasion by the Crown. For Fitzgerald J however, at [236]:

But irrespective of how the Waikato Wars have come to be viewed in more contemporary times or, more particularly, what or who caused that state of affairs to come about, there is no doubt a war took place. Accordingly, the concept of a considerable number of an iwi being in “rebellion”, in the context in which the 1863 Act is to be interpreted, would naturally encompass those engaged in hostilities against, or in conflict with, Crown forces, irrespective of whether those steps were originally a defensive or offensive engagement. I approach the concept of “rebellion” for the purposes of s 2 of the 1863 Act on that basis.

Her Honour’s statement as to what might be ‘naturally’ encompassed in the word ‘rebellion’ is diametrically at odds with the influential ‘Opinion for the Waitangi Tribunal on Legal Aspects of the Raupatu (Particularly in Taranaki and the Bay of Plenty)’ prepared by Professor F M Brookfield. This opinion was prepared for the Taranaki inquiry of the Waitangi Tribunal (Wai 143, M19(a), 26 January 1996). It was extensively cited and relied upon in the Taranaki Report (Wai 143, 1996, 5.6) which findings were adopted also in the Ngati Awa Raupatu Report (Wai 46, 1999, 6.4-6.7). There was an in-depth discussion of the opinion and full scrutiny of English law on rebellion in nineteenth century in Te Raupatu o Tauranga Moana Report (Wai 215, 2004, 4.8). Then in the Turanga Tangata Turanga Whenua Report (Wai 814, 2004) – an inquiry chaired by Chief Judge Williams (now Sir Joseph Williams) – the Tribunal made a point of analysing English law on rebellion and the raupatu statutes prior to and separate from considering the relevance of the Treaty of Waitangi and its principles to military engagements in 1865. At  3.5.3 the Tribunal quoted Brookfield:

Counsel for Tuwharetoa, pointing to the absence of any formal definition of ‘rebellion’ in the New Zealand Settlements Act, in effect infers (quoting) from the two Acts that for their purposes ‘rebellion’ ought to be interpreted as ‘concerted action against the Crown, engaged in for the purpose of “subverting”, or overthrowing, by armed force or the threat of armed force, “the authority of Her Majesty or Her Majesty’s Government”’. I largely agree with that definition; though I would add the [underlined words] (perhaps implied anyway) and possibly omit the reference to ‘subverting’ as appropriate to a pre rebellion stage in the course of events. The definition, at least as so adjusted, may be taken as a general one applicable in the martial law context as well as in relation to the legislation.

The counsel for Tūwharetoa referred to above was Dr Rodney Harrison QC. His view would have imposed a somewhat higher threshold than Brookfield for ascertaining when and if Māori were in rebellion. The Tribunal continued in 3.5.3:

There is, therefore, a significant rider on the extent of the Crown’s right to suppress rebellion, and this rider relates to the countervailing right of the citizen to resist unnecessary or excessive force by the Crown. Thus, Professor Brookfield provided:

It will follow, subject to the fuller discussion below, that if and where Maori in fact were not in rebellion, neither the Suppression of Rebellion Act nor martial law outside that Act could lawfully be used against them . . . Faced by unlawful armed invasion by the forces of the Crown if and where that occurred, Maori were themselves entitled to meet force with force, by applicable standards of reasonableness (in self defence) or necessity (in defence of their dwellings).

The High Court’s failure in Ngāti Te Ata to engage with available expert opinions on English law about rebellion and martial law as understood in New Zealand in 1864 must leave the judgment wide open to reconsideration on these points if it is the subject of an appeal.

My second commentary point concerns the acceptance by Fitzgerald J of the refusal by William Young J in Paki v Attorney-General (No 2) [2014] NZSC 118 to countenance a principle of retrospective justification to transactions conducted in the social and economic conditions of the late 1800s. In rejecting any presumption of undue influence by the Crown in Waiuku purchase transactions in the 1860s, her Honour observed at [184]:

I share the concern expressed by William Young J in Paki (No 2) that such an approach may result in historical transactions being set aside in first, a context quite divorced from that which existed at the time, and second, where a requirement of “retrospective justification” may not be able to be met given the effluxion of time.

It is odd, with respect, for a High Court judge to prefer obiter dicta by just one of the four Supreme Court judges in Paki (No 2) – given that he was also the sole dissenter in cognate litigation on fiduciary duty obligations arising from historic events in Proprietors of Wakatū v Attorney-General [2017] NZSC 17 – rather than the obiter dicta of other judges in Paki (No 2) and the approaches of the majority of judges in Wakatū. In particular, though she made no substantive remarks on the fiduciary duty issues in Paki (No 2), Glazebrook J at [318] made a number of observations suggesting that judges should feel free to express opinions and draw conclusions on matters of legal history. Indeed, her Honour highlighted two important instances she found within the judgment of William Young J itself. She indicated her agreement with William Young J on both those factual issues. At the same time, she also agreed with some distinctly different conclusions reached by Elias CJ.

It is submitted that Fitzgerald J was wrong to share William Young J’s concerns that circumstances in the nineteenth century are incommensurably different from current conditions. She might have emboldened herself and been prepared, if sufficient compelling historical evidence had in fact been presented to the Court, to reach conclusions on the liability of the Crown for undue influence in purchase transactions. She might have been open to holding that the purchases were not in reality interactions between parties at arm’s length.

Finally, I would like to draw attention to an aspect of the Ngāti Te Ata pleadings that may merit further attention in future cases. Fitzgerald J at [390] noted the possibility that a private law relational duty of good faith might be developed in this jurisdiction in respect of Māori/Crown relations by following the observations of the Court of Appeal in Paki (No 2) [2009] NZCA 584. The relational duty cause of action, though pleaded, was not pursued with any vigour in this case. In my submission, however, the judgment of Hammond J for the Court in that case proposed a sui generis public law obligation, not a private law duty, that might be an alternative to the fiduciary duty line of reasoning. Fiduciary duty reasoning succeeded in Wakatū but with particular legal history facts that may be difficult to replicate in future cases.

There remains much to be said for this comment by Hammond J at [103]:

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.

The favourable possibilities of adopting the relational duty of good faith approach have been discussed by Ling Yan Pang, ‘A Relational Duty of Good Faith: Reconceptualising the Crown-Māori Relationship’ (2011) 17 Auckland University Law Review 249. In future cases with facts in any way similar to the situation faced by the Ngāti Te Ata plaintiffs in their efforts to obtain remedies for past and present injustices, relational duty submissions might well be advanced much more strongly than in the instant case.

Author: David V Williams

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