Court finds the Crown had a duty to protect the interests of Māori in historical land transfers

In a recent Supreme Court decision the Crown’s duty to Māori in historical land transfers between the New Zealand Company and the Crown was discussed.

Before the signing of the Treaty of Waitangi, the New Zealand Company bought land in Nelson from Māori. A condition of the purchase was that one-tenth of the land would be reserved for Māori.

When the Treaty of Waitangi was signed the New Zealand Company land was vested in the Crown.

The Crown then granted the land in Nelson back to the New Zealand Company with the condition that one-tenth of the land, approximately 15,000 acres, as well as land occupied by Māori such as pā, urupā, and cultivations be reserved for Māori.

However, only approximately 5,000 acres of land was actually reserved for Māori, and Māori-occupied land was not properly identified or reserved.

The present day hapu and whānau of those who owned land in Nelson in the 1800s brought the appeal case.

They argued that the Crown inherited the promise to set aside the 15,000 acres of land and the Māori-occupied land for Māori when the Crown became owner of the land.

The Court noted that at the time Māori could only sell their land to the Crown, and no one else. The Court held that this created a power imbalance which gave rise to fiduciary duties similar to the duty a trustee has to beneficiaries. This effectively meant the Crown had a duty to protect the interests of Māori as regards the land reserves, and were obliged to reserve the full 15,000 acres of land and the Māori-occupied land for the benefit of Māori.

There are still decisions to be made regarding liability, loss, and defences. The Court will consider factors such as whether the Crown breached its obligations; the significant amount of time that has passed since; and the effect of a previous settlement between the Crown and Nelson Māori; so the case has been returned to the High Court. We will provide you with updates as the case progresses.