Victoria hosts discussion on landmark legal case
A historic legal decision that could set a precedent for the recognition of Māori land rights was the subject of a recent public event and roundtable discussion at Victoria University’s Law School.
It arose from a judgment issued in February this year by the New Zealand Supreme Court, Proprietors of Wakatū & Ors v Attorney-General, which ruled that the Crown had obligations in relation to a land deal dating back more than 175 years.
The event’s organiser, Māori and constitutional law expert Dr Carwyn Jones, says the case relates to an 1839 purchase of land around the Nelson area by the New Zealand Company.
“Part of the terms of that purchase agreement were that one tenth of the land, as well as any land people were living on at the time, be set aside and excluded from the deal,” he says. “Then after the Treaty of Waitangi was signed in 1840, an ordinance was passed meaning the government had to validate any land purchases that had taken place before then—including this one around Nelson. But only a small part of the land that was supposed to be excluded from the agreement actually was.”
A court case was brought by Wakatū Incorporation —a Nelson-based corporation of descendants of the original Māori land owners of Te Tau Ihu (the Tasman region)—which since 1977 has been managing the land that was set aside in the deal.
After seven years of legal wrangling, the Supreme Court found in favour of the Wakatū descendants.
“The Court said the government had entered into a trust-type relationship when it made the deal, meaning it had fiduciary duties—the same kinds of obligations a trustee would have,” says Dr Jones. “Previously, courts haven’t been willing to say there’s been an enforceable legal duty between Māori and the Crown in this way. We have generally seen cases dealing with this kind of subject matter—land alienation and the Crown’s obligations to Māori—being dealt with through a Treaty of Waitangi framework and very much within a public law sphere, whereas the Wakatū case is sourced in private law—this means there are enforceable rights to which Treaty settlements don’t have recourse. So this is really significant, and could open up other cases where land purchases took place before 1840.”
Dr Jones says Kerensa Johnston, who is the Chief Executive of Wakatū Inc and a Victoria Law School alumna, Professor Alex Frame, formerly of Waikato University and previously a longstanding member of Victoria’s Law Faculty, and Rore Stafford, who was a key appellant in the case, all took part in the event.
“We thought it’d be useful to tease out the details and look at the implications of such a momentous ruling. There was a public session to raise awareness of the case, and we then held a roundtable discussion with the key players where we talked in more detail about some of the technical legal questions and implications arising from the Supreme Court’s decision.”
This event was hosted by the NZ Centre for Public Law in association with the Māori Law Review, with the support of the Faculty of Law and the Office of the Deputy Vice-Chancellor Māori.