Court rebuff 'not end of road'

Wakatu Incorporation has come to an agreement with the Crown that will allow it to pursue its Wai 56 case without stalling top of the south Treaty settlement negotiations.

The Nelson-based organisation's application to take an appeal of its failed High Court bid direct to the Supreme Court was declined yesterday.

A direct appeal is permitted only if the Supreme Court gives leave on the basis that there are "exceptional circumstances".

Wakatu Incorporation says the Crown failed to implement reserves of one-tenth of the land acquired for the New Zealand Company settlement in the 1840s, which were promised to Maori vendors in Nelson, Motueka and Golden Bay.

But the High Court found in June that the organisation had no legal standing to pursue a case for claimed breaches of fiduciary duty, trust and good faith in the Crown's dealings with Maori vendors.

Wakatu Incorporation said the "exceptional circumstances" that should have given it leave to appeal directly to the Supreme Court were that the court had given the applicants in another similar case, Paki v Attorney-General, leave to appeal.

The Supreme Court will hear that case in February.

It centres on whether the Crown owed the former Maori owners of land along the Waikato River a fiduciary duty and, if so, whether it was breached and what remedies should follow.

Wakatu Incorporation said the grounds on which the court was to hear further arguments in that case were "substantially the same" as those it wished to raise.

But in a ruling released yesterday the Supreme Court said the Paki case dealt with claims arising out of Crown acquisitions between 1887 and 1899, "in quite different circumstances".

"The claims made by Wakatu are more extensive and raise a number of issues which do not overlap with those in Paki.

"Although there is superficial similarity in respect of the claims based on equitable obligations said to be owed by the Crown to Maori owners of land, they arise in very different contexts.

"There is insufficient commonality between the claims to warrant depriving the court of the benefit of consideration of the applicants' claim by the Court of Appeal," it said.

The ruling said Wakatu Incorporation could seek intervener status if discrete matters of law common to both claims arose in the Paki appeal.

Wakatu Incorporation chairman Paul Morgan said while he was "obviously disappointed" the appeal would not go directly to the Supreme Court, it was not the end of the road.

"The Court of Appeal will consider this matter - it's just at a lower level. It's OK. It's a step-by-step process," he said.

Wakatu Incorporation was criticised by other iwi members when it brought its Wai 56 claim to the High Court, as they feared it would stall Treaty of Waitangi settlement negotiations.

Attorney-General and Treaty Negotiations Minister Chris Finlayson said in June that the case had caused "severe delay" to deserving iwi who had already been waiting too long to have their claims settled and redress transferred.

Wakatu Incorporation would not drop its case, because treaty settlement legislation normally extinguishes the right to pursue historical claims that might have existed pre-1990s.

But Mr Morgan said yesterday that Wakatu Incorporation and the Crown had come to an agreement, whereby treaty legislation for Te Tau Ihu would "accept out" the organisation's issues from any deeds of settlement.

A spokesman for Mr Finlayson said yesterday that the treaty settlement framework was the appropriate means by which the Crown and Maori could move past the wrongs of the past, but it didn't want Wakatu Incorporation's appeal to hold things up any longer.

"The iwi in the top of the South Island have been working towards settlements with the Crown for many years.

"The Government is not prepared to make them wait for their treaty settlements for as long as it may take the courts to make an ultimate decision on the Wakatu proceedings," he said.

"The minister has invited the four iwi of Tainui Taranaki - Te Atiawa, Ngati Koata, Ngati Rarua and Ngati Tama - to proceed with the deeds of settlement that were initialled back in October 2011.

"The iwi have been invited to proceed to settlement on the basis that the deeds of settlement and the settlement legislation will preserve the current litigation by Wakatu and the other appellants."

The spokesman said the Government's intention was to introduce legislation giving effect to the settlements of Rangitane, Ngati Apa and Ngati Kuia, represented by the Kurahaupo Ki Te Waipounamu Trust, the Taranaki whanau groups, and Ngati Toa at the same time.

"The legislation has already been drafted, and is awaiting the signing of deeds by the Tainui Taranaki iwi, and by Ngati Toa. We expect to sign with Ngati Toa before Christmas, and with the Tainui Taranaki groups shortly.

"All the legislation is ready to go. We will continue towards signing, and preserve the position of Wakatu in its legal action," he said.

The Nelson Mail