Proprietors of Wakatu v Attorney-General [2017] NZSC 17 Edited extracts from  CIV-2010-442-181  BRIEF OF EVIDENCE OF PROFESSOR DAVID VERNON WILLIAMS  Dated 28th January 2011  ********************************************************* The New Zealand Company 1. On 2 May 1839, the NZ Company was formed in London for the purpose of promoting the colonisation of New Zealand. That same month, the NZ Company’s principal agent, Colonel William Wakefield (brother of Edward Gibbon Wakefield), set sail for New Zealand on the ship the “Tory” with the objectives of purchasing land from M?ori at desirable locations and preparing for the formation of settlements under the auspices of the NZ Company. Sections in the settlement would be on sold to European settlers for profit. 2. The leading proponent of the movement was Edward Gibbon Wakefield who published his views in an 1837 publication entitled The British Colonisation of New Zealand; Being an Account of the Principles, Objects and Plans of the NZ Association. The NZ Association’s philosophy espoused the humanitarian ideals of that era in providing for the welfare and “civilization” of the indigenous people. It was believed that colonisation could be undertaken in a way that would avoid the oppression and degradation that had been the fate of the indigenous people of the earlier colonies of America and Australia. In his treatise, Wakefield outlined a key aspect of his proposal for systematic colonisation: every M?ori chief who disposed of his land to the British Crown would have allotted to him, within the British settlement, a tract of land, proportional to the amount ceded, that would be kept in reserve for him and his family and thus “place him in as favourable a position” as the principal English settlers. In this way, the chiefs would be “civilized” by association with the English. 3. The NZ Company, as Wakefield later explained to the House of Commons’ Select Committee on New Zealand, was formed to “carry out the plan of colonisation without the assistance of the Government”. In these circumstances, “it was clear that the company would be a commercial one”, and thus the NZ Company was established as a joint-stock company. Nonetheless, as Wakefield explained to the Select Committee in 1840 many members of the NZ Company had a “strong repugnance” to the practice of purchasing land at all from “ignorant savages, who are quite ignorant of the value of what they are parting with”. Accordingly, the NZ Company promoted its settlement schemes on the basis of the humanitarian ideals that M?ori would be protected from exploitation, and would benefit by living alongside European settlers. As the Company’s instructions to its commissioner for native reserves explained: It is the aim of the New Zealand Company to civilize the native race, by means of a deliberate plan, which, though confessedly experimental, is believed to be the only systematic attempt ever made to improve a savage people through the medium of colonisation. … From the very commencement of its proceedings, the Company determined to reserve, out of every purchase of land from the natives, a proportion of the territory ceded, equal to one-tenth of the whole, and to hold the same in trust for the future benefit of the chief families of the 4. The NZ Company’s instructions to William Wakefield explained that by supplying goods as consideration for purchases, M?ori would receive immediate and obvious benefit from the transactions. However, the instructions also directed Wakefield to emphasise to M?ori that the principal consideration for the purchase was the proposed reservation of one-tenth of the land: “[t]he intended reserves of land are regarded as far more important to the natives than anything which you will have to pay in the shape of purchase money”. This was because, after English settlements were established, “a tenth of the land will be far more valuable than the whole was before”. The chief families of the tribe would therefore have “every motive for embracing a civilized mode of life”: Instead of a barren possession with which they have parted, they will have property in land intermixed with the property of civilized and industrious settlers, and made really valuable by that circumstance. And they will thus possess the means, and an essential means, of preserving in the midst of a civilized community, the same degree of relative consideration and superiority as they now enjoy in their own tribe. 5. Edward G Wakefield placed emphasis on this feature of the scheme in his 1840 evidence to the British parliamentary Select Committee on New Zealand. He explained that the rationale for reserving land on trust was that the reserves would become in the long run very valuable, and accordingly were conceived to be the “only true consideration for the land”. 6. His evidence to the Select Committee is also illuminating for revealing his understanding of the nature of the trusts that were to be created. Wakefield was adamant that the chiefs would not be allowed to appropriate the reserved lands; indeed, he was of the opinion that the chiefs could not be entrusted with any decision-making capacity over the Tenths Reserves at all, and that this was the rationale for holding the land on trust: [Question by Hawes] Will you explain the nature of the right which the native will possess when the property has been allotted to him; will he be able to dispose of it as freely as property held by any settler under an ordinary title? [Answer from Wakefield] –If that were done in the first instance, the whole plan would fall to the ground, because he would sell the land to a grog-shop keeper, or a missionary, or settler, for nothing at all; and therefore, whenever the trust shall come to be defined, the object will be to place the native proprietor of land in the situation of a married woman in this country, who has property to her separate use. She can use it, she can receive the income of it every half year, but she cannot anticipate more than a half-year’s income, and she cannot dispose of it, but she has all the consequence and benefit of possessing it. It is only secured in such a manner by trust that it shall not be alienated, it shall belong to the descendants of the person who possesses the life interest. K?piti and Queen Charlotte Sound Deeds 7. In the crucial few months after the arrival of the “Tory” in 1839 until the issuing of the Crown proclamation of pre-emption in New Zealand by Governor Gipps at Sydney dated 14 January 1840, the NZ Company envoys were hard at work engaged in visiting prospective settlement sites and negotiating what they called “purchase transactions”. 8. The three “Deed of Purchase” documents signed at Port Nicholson, K?piti and East Bay (Queen Charlotte Sound), along with the distributions of gifts to the hap? of the signing rangatira, purported to be a purchase by the NZ Company of an immense area of land in the south of the North Island and the north of the South Island. The K?piti and Queen Charlotte Sound deeds both covered the same region and referred to land comprising some 20 million acres including all of the Nelson and Marlborough provinces in the South Island. 9. In accordance with the Company’s instructions, the K?piti Deed guaranteed: That a portion of the land ceded by them, suitable and sufficient for the residence and proper maintenance of the said chiefs, their tribes, and families, will be reserved by the said Governors and Directors and Shareholders of the New Zealand Land Company, of London, and held in trust for them for the future benefit of the said chiefs, their families, tribes, and successors, for ever. The Queen Charlotte Deed contained the same clause. 10. At the Spain Commission hearings in Wellington in 1842, William Wakefield gave evidence that he explained this clause as “a tenth portion of the Land purchased was to be reserved for the use and benefit of the Native Chiefs and their families”. Brook, the interpreter present for the nine days of negotiations at K?piti, also gave evidence. His evidence was that he displayed a chequers board and stated to M?ori that nine portions would be occupied by Europeans and one square in every ten “would be for themselves”. In his journal, William Wakefield recorded in his account of the K?piti negotiations that he had dwelt on the reservation of a suitable portion of the land for the maintenance of the chiefs, their families, and successors for ever, and that this aspect of the transaction met with the “highest approval”. 1840 Agreement and Pennington Award 11. In November 1840, the NZ Company and the Imperial Government entered into an agreement that established the terms for determining the NZ Company’s entitlement to a Crown grant in New Zealand (“1840 Agreement”). Lord Russell, the Secretary of State then advised Governor Gipps in a despatch dated 21 November 1840 that an English appointed commissioner, rather than a person appointed by Gipps under the New South Wales Act, would inquire into the NZ Company’s claims and titles in New Zealand. The person appointed was William Spain. 12. The terms of the 1840 Agreement stipulated that the NZ Company would be granted four acres of land for every pound spent on colonisation (clause 4) and the NZ Company would forego and disclaim all title, or pretence of title, other than the lands so to be granted to them by the agreement (clause 11). 13. Clause 13 of the 1840 Agreement provided for the implementation of the NZ Company’s M?ori reserves scheme: It being also understood that the Company have entered into engagements for the reservation of certain lands for the benefit of the Natives, it is agreed that, in respect of all the lands so to be granted to the Company as aforesaid, reservations of such lands shall be made for the benefit of the Natives by Her Majesty’s Government, in fulfilment of, and according to the tenor of, such stipulations; the Government reserving to themselves, in respect of all other lands, to make such arrangements as to them shall seem just and expedient for the benefit of the Natives. 14. The Crown, following the calculations of the appointed accountant, Pennington, determined pursuant to clause 4 of the 1840 Agreement that the NZ Company was entitled to receive over 700,000 acres of land. The outcome of this arrangement made in London was that the extent of land to be made available to Company settlers in New Zealand depended purely on how much money had been spent in bringing settlers from England to New Zealand. The Beginning of the Nelson Settlement 15. In October 1841, the Nelson preliminary expedition arrived in New Zealand on board the ship the “Arrow”, led by Captain Arthur Wakefield, a younger brother of Edward and William Wakefield. 16. At Kaiteretere in October 1841, the NZ Company met with nine local chiefs who represented the families occupying those parts of the region. According to Arthur Wakefield’s diary, “the principle of the Cos. Native reserves” was explained. All those who responded favourably to Wakefield were offered presents of goods as gifts. In total there were six presentations of sundry gifts to named chiefs “on account of the Nelson Settlement” at various parts of Blind and Massacre Bays in 1841 and 1842. A detailed statement of the presents made indicated that the total value of all goods gifted by Wakefield amounted to £980 - 15s - 0d. It is interesting to note that Captain Wakefield described the goods as “gifts” upon the NZ Company taking possession of the land, a characterisation that is highly likely to have stemmed from his awareness that by 1841 it was unlawful for anyone other than the Crown to purchase land from M?ori. 17. The terms of the 1840 Agreement between the Crown and the New Zealand Company treated the NZ Company’s claims in a distinctly different manner to that laid down in the New South Wales Act for dealing with old land claims 18. The NZ Company relied on its 1839 “purchases” of land from M?ori at K?piti and Queen Charlotte Sound to justify its Nelson settlement. The Company saw it as the Crown’s role to approve the validity of those pre-1840 transactions, and then to make orders to determine the precise extent and location of land to be granted to the NZ Company. Spain Commission 19. The Crown appointed a lawyer William Spain as a Commissioner to investigate the validity of the NZ Company’s K?piti and Queen Charlotte Deeds. By the time Commissioner Spain reached New Zealand and began his inquiries in 1842, the legislation under which he was required to act had been amended by the colonial legislature in order to implement the Crown’s November 1840 Agreement with the Company and Pennington’s awards. 20. Spain’s task when he came to Nelson required that he should “hear, examine and report on all Claims to Grants of Land” with respect to transactions completed prior to 14 January 1840 (section 3, 1841 Ordinance). In carrying out these functions he should be guided by the real justice and good conscience of the case without regard to legal forms and solemnities when ascertaining the price paid to chiefs or tribes, the time and manner of payment, and the circumstances under which such payment was made. 21. In reality, however, all of the key political and pragmatic decisions as to how the commission’s inquiries into the NZ Company transactions were to be reported on had been decided in earlier hearings elsewhere and in delicate negotiations between the Company and Crown officials. Spain had participated in a meeting with Fitzroy, Clarke and Wakefield in January 1844. At this meeting the Crown officials reminded the NZ Company of the Crown’s position that Maori could not be dislodged from their “native pahs, cultivations, and burying-grounds” without their own free consent, and pressured the NZ Company to agree that the extent of their purchases specifically excluded these areas. Wakefield was straightforward in rejecting the Crown policy at first: "I understood you to say, I wished to dispossess the natives of their pahs and cultivations; but how can that be, when it is evident I wished to purchase them." With considerable reluctance, Wakefield agreed to comply with the Crown policy.  Discussion ensued on how p? and cultivations should be defined, and it is noteworthy that the definition agreed to mirrors the definition found in Spain’s award. The Governor concluded the meeting by urging Mr Spain to continue his exertions as umpire in effecting the speedy settlement of the NZ Company’s claims, and to be as reasonable and considerate as strict and impartial justice would allow. For his part, Wakefield insisted still that "the natives are apt to be exorbitant, and you must not fail to impress upon their minds the comparatively valueless nature of their lands when the settlement was formed". 22. Following that meeting the formal instruction from the Colonial Secretary, Lord Stanley to Governor Fitzroy on 18 April 1844 on the Tenths Reserves is of considerable importance. Lord Stanley noted the despatches he had received on the adjustment of the NZ Company claims, and the specific question posed by the NZ Company as to whether the NZ Company award was inclusive or exclusive of the M?ori reserves. On the latter question, Lord Stanley concluded: There can be no question that they should be taken out of the Company’s lands; the Company had in former instructions to their agent, provided for reserving one-tenth of all land which they might acquire from the natives for their benefit. By the 13th clause of their agreement, of November, 1840, the Government was, in respect of all to be granted to them, to make reservations of such lands for the benefit of the natives, in pursuance of the Company’s engagements to that effect. It seems quite plain, therefore, that the Government is to reserve for that purpose one-tenth of the Company’s land. 23. Commissioner Spain held a Court in Nelson during the period 19th to 24th August 1844 to hear, examine and report on Claims 374 A and 374 B lodged by W Wakefield on behalf of the NZ Company Spain’s Findings 24. Commissioner Spain held that the NZ Company was entitled to a Crown grant of 151,000 acres of land situated in the several districts of the settlement of Nelson. 25. The outcome of the Spain commission hearings in 1845 did not reflect the commissioner’s own unequivocal findings that the Company’s 1839 arrangements were fundamentally flawed. In his 1845 report to the Governor he remarked: In reporting on this case upon the evidence taken at Nelson, I may perhaps be allowed to draw your Excellency’s attention to an extraordinary confirmation, as exhibited in the conduct of Captain Wakefield on his arrival at Nelson, of the view which I have long since taken of the purchase alleged to have been made by Colonel Wakefield at K?piti. I have shown in former communications on the subject, that the territory sought to be affected by that transaction was as enormous in extent as the claim which was advanced under it was preposterous in principle. I have shown that land was thus claimed to which those who pretended to convey it had not in equity or by Native custom the shadow of a right; upon which these people had never experienced and acts of ownership whatever since the time when, in conjunction with their then allies, its present occupants, it was conquered by the extermination or captivity of its original proprietors. 26. Notwithstanding those misgivings, Spain’s formal report read: I, William Spain, Her Majesty’s Commissioner for investigating and determining titles and claims to land in New Zealand, do hereby determine and award that the Directors of the New Zealand Company and their successors are entitled to a Crown Grant of 151,000 acres of land, situate, lying, and being in the several districts of the settlement of Nelson, in the southern division of New Zealand. Award of one-tenth 27. The Spain report saved and excepted from the Crown grant: All the pas, burying-places, and grounds actually in cultivation by the Natives, situate within any of the before-described lands hereby awarded to the New Zealand Company as aforesaid, the limits of the pas to be the ground fenced in around their Native houses, including the ground in cultivation or occupation around the adjoining houses without the fence; and cultivations, as those tracts of country which are now used by the Natives for vegetable productions, or which have been so used by the aboriginal Natives of New Zealand since the establishment of the Colony; and also excepting all the Native reserves upon the plans hereunto annexed, marked No 1A, No 1B, coloured green, the entire quantity of land so reserved for the Natives being one-tenth of the 151,000 acres hereby awarded to the said Company...” 28. The Crown Commissioner’s award reflected the obligation that the Crown had undertaken to provide a full tenth, rather than reserves of an eleventh, and on the similar terms to the Company’s original offers - which included (by 1844) promises to respect continued occupation of p?, cultivations and urup?. 29. As noted earlier, the land to be acquired for the Company by means of the Pennington awards in 1840 came at a cost of 4 acres per £1 sterling, that is 5 shillings per acre, based on the Company’s total colonisation costs at a time when old land claimants in the rest of New Zealand involved in 1839 transactions were able to obtain Crown grants only if they had paid 4 to 8 shillings per acre, all of which had been received by M?ori, as set out in the New South Wales Act and re-affirmed by the Land Claims Ordinance 1841. The outlays of other claimants, including travelling to New Zealand, were not reimbursed. A minimum rate of 4 shillings per acre was stipulated for 1839 purchases in the 1840 Act and the 1841 Ordinance. That rate was still in force in 1844 for other claimants even though it was not applicable to the Spain commission inquiries into Company claims. The disparity between 3 pence [or, at most, 1 shilling] per acre in Nelson and the legal minimum of 4 shillings per acre elsewhere in the Colony (beyond the Company claims area), highlights the significance of the Tenths reserves promises. Other old land claimants received a freehold grant based on payments to the value of 4 to 8 shillings per acre received by M?ori as the total consideration for the land alienation. The NZ Company’s 1839 payment and post-Treaty presents and promises comprised at most 1 shilling per acre in total PLUS the setting aside of Tenths reserves. Those reserves, then, must have been the most significant element in the consideration offered to Maori for the alienation of their lands to the NZ Company. 1845 Crown Grant 30. On 29 July 1845, six months after Spain issued his report, Governor Fitzroy issued a Crown grant of 151,000 acres of land in the several districts of the Settlement of Nelson to the NZ Company in line with the terms of the Spain Award (“1845 Crown grant”). Given the lack of completed surveys, however, the NZ Company was to select from within the areas “coloured red” on an attached map following the completion of the surveys. 31. The Crown grant was confirmed by the imperial government in a letter from the Colonial Secretary, W.E. Gladstone, to Grey on 21 March 1846, that enclosed a copy of the deed of grant “…in favour of the Company, …for 151,000 acres in Nelson (…) but subject to certain conditions and exceptions, which form the ground of representations from the Company 32. However, the NZ Company was not happy with the terms of the 1845 Crown grant. Its plans for the Nelson Settlement had anticipated a settlement of 221,100 acres rather than 151,000 acres. The Company was also concerned that the grant was imprecise about the areas of exclusive possession and ownership granted to the Company. In particular, it was concerned about the broad saving and exception of all the p?, burial-places and grounds actually in cultivation by M?ori from the land that was granted to it in the Crown grants issued by Governor Fitzroy to implement Spain’s award. It complained that it had offered native reserves in its settlement – fixed at one-eleventh, not one-tenth – in the “belief that the whole of the remainder was the Company’s property”. 33. Governor Grey was sympathetic to the NZ Company’s concerns, and informed the imperial government that the exceptions in Fitzroy’s 1845 grant were such to afford the NZ Company “reasonable ground of complaint”. Grey proposed to “relieve the Company from the difficulties arising from the loose exceptions which have been made in their grants of all Native pas and cultivations, &c”. 34. Governor Grey’s proposals for relieving the NZ Company’s difficulties effectively amounted to an entirely new approach. He indicated to the Colonial Office that he proposed to introduce a new system of narrowly defined and surveyed occupation reserves for M?ori, using as a yardstick whether M?ori had “sufficient lands for their wants, exclusive of those required by the Europeans”. Grey made it clear that he did not subscribe to the NZ Company’s philosophy for creating endowment reserves for M?ori. 35. The consequence of Grey’s new approach was that the Crown took no steps to fulfil the terms of the Spain award and 1845 Crown grant and to ensure that a total of 15,100 acres was reserved for M?ori, along with pa, cultivations and burial grounds. 1848 Crown Grant 36. In 1847 arrangements between the NZ Company and the Crown were renegotiated leading to the enactment of the Loans Act 1847 (10 & 11 Vict c 112). This Act provided for the NZ Company to act as agent of the Crown in promoting the colonisation of New Zealand and for the Crown to advance a loan to the NZ Company. All Crown lands in the province of New Munster (southern North Island and the South Island) would be vested in trust for the NZ Company for three years. At the end of the three year term, the NZ Company was permitted to relinquish its undertaking if it thought fit, in which event all NZ Co land would revert to and become vested as demesne land of the Crown (s19). 37. The proposals for a new Crown grant were entirely satisfactory to Wakefield and the NZ Company. On 1 August 1848, Governor Grey issued a fresh Crown grant to the NZ Company of an immense stretch of territory. By 1848, as compared with 1845, there was a new government in power in the United Kingdom, a new Governor in place in New Zealand and a new effort to provide ample lands to meet the land and settlement needs of the NZ company and other settlers. There is no evidence that Grey or any other Crown officer considered whether to set aside Tenths reserves for the whole Nelson Settlement which now included the large additional area included in the 1848 grant. 38. The 1848 Crown grant nevertheless still included some land that was to be set aside for the benefit of the M?ori owners as an endowment (that is, the “Tenths Reserves”). This was land over which customary title was considered to have been extinguished (relying on the Spain Commission findings) when the NZ Company received the Crown grant for the 151,000 acres of the Nelson settlement. The lands were subsequently described by James Mackay [Jr], Assistant Native Secretary, as “Lands reserved by the New Zealand Company, and by the Government, for raising funds for various Native purposes.” 39. The 1848 Crown grant excepted and reserved “all the pahs, burial, places, and Native reserves situated within the said block of land hereby granted to the New Zealand Company”. The grant identified the extent and location of the reserves on annexed plans, which included the extant Tenths Reserves and Occupation Reserves in the Nelson Settlement. Demise of New Zealand Company 40. By 1850, despite the support the NZ Company had received from the Crown throughout the 1840s by way of loans and other concessions, the NZ Company was bankrupt. On 5 July 1850, the NZ Company advised the Crown that it had discontinued its operations. Throughout the 1840s, the NZ Company had effectively acted in furthering the Crown’s objectives, in terms of facilitating and managing the settlement of the colony. With the failure of the NZ Company, and in accordance with earlier agreements, the Crown took control of the Company’s assets as repayment for its outstanding debt and assumed its responsibilities for the NZ Company’s obligations. Evidence adduced by the Crown did not dissent in any important respects from my evidence for the plaintiffs, but Crown Law’s legal submissions stressed the political and moral nature of decisions made and any obligations undertaken by the Crown in the 1840s – in contrast to my emphasis on the frequent use of “trust” in the historical record. The Crown did not seriously dispute the facts, but argued that governmental decisions of a political nature in the nineteenth century were not then amenable to judicial scrutiny, and ought not now to be inquired into retrospectively by ordinary courts. A court precedent on similar tenths reserves issues in the Wellington region was cited and relied upon by the Crown: Regina v Fitzherbert (1872) 2 NZCAR 143. The appellants relied in particular on Alexander Mackay “Memorandum by Mr A Mackay on Origin of New Zealand Company’s “Tenths” Native Reserves” [1873] III AJHR G2b issued in spirited response to the Fitzherbert decision by the Crown agent most directly involved in the nelson Tenths trusts. The lower courts in Wakatu found for the Crown. Despite a plethora of references to trust obligations in the historical records of the 1840s, the proposed and unfulfilled trust obligations were in the nature of an unenforceable “political compact.” The High Court held that the plaintiffs’ fiduciary duty claims failed, that they did not have standing to sue and that in any case the claims were time-barred by the Limitation Acts and laches. The Court of Appeal allowed an individual plaintiff, Mr Rore Stafford, standing but otherwise dismissed the appeals. These judgments relied in particular on the 1977 decision of Megarry V-C in Tito v Waddell (No 2). He refused to grant an equitable remedy based on an alleged trust owed to the inhabitants of a South Pacific island plundered by a company owned by the British, Australian and New Zealand governments for farm fertiliser resources without regard to the wellbeing of the indigenous population. The Supreme Court reversed the lower courts in a 4-1 majority decision. The majority held that the Crown did owe a fiduciary duty to reserve one tenth of 151,000 acres for the benefit of the former customary titleholders following the 1845 award. The appeal was allowed, and Mr Stafford was granted the declaration sought. The case was remitted back to the High Court for consideration of breach and remedy. William Young J, the sole dissenter, preferred to assess events which occurred in the 1840s in the light of contemporary thinking at that time which were incommensurably different from current perceptions. He rejected the retrospective application of notions of fiduciary duty to political governmental decisions from the past. The leading judgments of the Chief Justice, Dame Sian Elias, and Justice Susan Glazebrook were at pains to set out the precise details of the Nelson settlement’s legal history. They convincingly distinguished Tito v Waddell (No 2) and followed precedents from the Canadian Supreme Court, especially the Guerin case (1984). Guerin was held to be on all fours with the material facts of the present case and in no way dependent for its outcome on the constitutional entrenchment of indigenous rights in section 35 of the Constitution Act 1982. The leading judgments also relied on Canadian precedents in concluding that the Crown’s laches and limitation defences failed. In particular, they accepted the point made by the Supreme Court of Canada in Manitoba Métis (2013) that indigenous claimants can hardly be said to have sat on their rights over the decades before courts were prepared to recognise those rights even existed. They also made reference to the United Nations Declaration on the Rights of Indigenous Peoples (even though that declaration is not a binding international law instrument). Noting the Declaration’s emphasis on restitution, they decided that the Crown should be regarded as being in continuous breach of its duty. Hence Limitation Act time bars did not apply to the facts in Wakatu. It is now New Zealand law, therefore, that there can be an enforceable fiduciary duty owed by the Crown to the collective descendants of the original customary title-holders to land. On the other hand, the majority judges do note that where the Crown wears many hats and represents many interests it may not owe specific fiduciary duties to individuals or groups, but only governmental obligations owed to all. The court’s decision cannot be taken to suggest that there is a general fiduciary duty at large owed by the Crown to Maori. A specific example of judicial disagreement relating to the weight to be attached to contemporary legal thinking in the past in arriving at a decision in 2017. Elias CJ on R v Fitzherbert (1872): This is New Zealand Court of Appeal authority for denying any trust in the tenths reserves at Port Nicholson. It was relied on by the Crown in the Court of Appeal in support of the view that the local officials in New Zealand lacked the authority to commit the Queen to a trust. The case also seems to be the source of a number of the arguments addressed to us. And the decision in the case may in part be an explanation for the delay in claiming trust in relation to the tenths lands.  [317] The view expressed by the Court of Appeal in Fitzherbert that the Governor had no power to reserve land for the benefit of the Maori proprietors is one it is not possible to reconcile with the terms of the 1840 Charter and Royal Instructions and the November 1840 agreement with the Company (not only the indication of intention to hold the reserves for the benefit of Maori but the reservation of the right to make further provision for Maori). Nor can it be squared with the correspondence of successive Colonial Secretaries (including Lord Stanley’s indication that use of tenths reserves to compensate for occupied land not excluded would be “breach of trust”) or the terms of the Land Claims Ordinance (declaring that the Crown’s interests in land were “subject … to the rightful and necessary occupation and use thereof by the aboriginal inhabitants” and affirming the Crown’s right of pre-emption). Against that background, to characterise as “gratuitous” and beyond the authority of the Governor the setting aside of reserves on the basis of the conditions of surrender imposed by Spain, through the process that cleared the land of native title and constituted it as Crown land able to be granted if surplus to the Crown’s needs, is breathtaking.  William Young J in dissent: The Court [in Fitzherbert] thought it too obvious to require explanation that the 1845 Port Nicholson grant, corresponding closely to the 1845 Nelson grant, was of no legal effect because it had not been accepted by the New Zealand Company.  [This] shows that the legal thinking of the 1870s was that extinguishing of Maori customary title did not solely depend upon a Crown grant made in conformity with a valid commissioner’s recommendation.  [879] I can see no legitimate basis for concluding that the 1845 grant had the effect of crystallising trust obligations (whether on the part of the Company or the Crown). Significantly, the Fitzherbert judgment is completely consistent with this view.  2