STAFFORD v ATTORNEY-GENERAL [2022] NZCA 165

STAFFORD v ATTORNEY-GENERAL [2022] NZCA 165 [5 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA162/2021[2022] NZCA 165BETWEEN RORE PAT STAFFORDAppellantAND ATTORNEY-GENERALFirst RespondentACCIDENT COMPENSATIONCORPORATIONSecond RespondentKĀINGA ORA – HOMES ANDCOMMUNITIESThird RespondentHOUSING NEW ZEALAND LIMITEDFourth RespondentNELSON MARBOROUGH DISTRICTHEALTH BOARDFifth RespondentNELSON MARLBOROUGH INSTITUTEOF TECHNOLOGY LIMITEDSixth RespondentHearing: 14 and 15 September 2021 (further material received 20 October2021)Court: Miller, Clifford and Gilbert JJCounsel: K S Feint QC, M S Smith and H K Irwin-Easthope for AppellantJ R Gough, S M Kinsler and S L Gwynn for First RespondentV E Casey QC, R E Brown and G F Dawson for Third and FourthRespondentsNo appearance for Second, Fourth and Fifth RespondentsJudgment: 5 May 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The Attorney-General's cross-appeal is dismissed.C The appellant must pay the Attorney-General's costs for a standard appealon a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Table of ContentsIntroduction [1]Background [9]The Wakatū decision [9]Overview [18]The substance of the Review Proceedings [18]Interim relief — the process to date [26]Mr Stafford's 2012 caveats [26]Mr Stafford seeks agreement with the Crown [31]Mr Stafford lodges further caveats [34]A request for greater protection [37]Mr Stafford requires the Crown to account [38]The Review Proceedings [40]The High Court decision [49]ACC settles [54]This appeal [56]Mr Stafford [56]The Attorney-General [61]Kāinga Ora [70]Further developments [73]Analysis [74]Overview [74]A power and a duty? [79]Result [97]Introduction[1] In 1839 the New Zealand Company (the Company) purported to purchase fromMāori customary owners some 20 million acres of land on both sides of theCook Strait, including lands in western Te Tau Ihu: that is the top of the South Islandcomprising what we now know as Nelson City and the wider areas of Tasman Bayand Golden Bay.[2] The appellant, Rore Pat Stafford, is one of the descendants of those customaryowners. Mr Stafford is himself a kaumātua of those descendants, and has beenrecognised as having standing as such in these proceedings.[3] In 2010, Mr Stafford commenced proceedings in the High Court againstthe Crown claiming that, when awarding land to the Company in terms ofthe Spain Award,1 the Crown's failure to give effect to the arrangements forthe Nelson Tenths2 and the Occupation Lands3 was a breach of trust which the Crownmust now remedy (the Trust Proceedings).[4] Mr Stafford, having been unsuccessful in the High Court4 and in this Court,5was granted in February 2017 a declaration in the Trust Proceedings by theSupreme Court that:6 the Crown owed fiduciary duties to reserve 15,100 acres for the benefit ofthe customary owners and, in addition, to exclude their pā, urupā andcultivations from the land obtained by the Crown following the 1845Spain Award.1 The Spain Award, and the terms of the Company's offer of land to subscribing settlors, providedfor the grant of urban, suburban, and rural lots. Those lots were to comprise one acre, 50 acresand 150 acres respectively. The urban and suburban lots were duly surveyed, balloted and allotted.The rural sections were never surveyed. Hence no rural sections were balloted and allottedto Māori.2 In 1845, the Crown granted to the Company some 151,000 acres of land for the purposes ofsettlement. The "Nelson Tenths" comprises some 15,100 acres (that is, one tenth of the total grant)which, in fulfilment of Company promises, the Crown agreed to reserve for the benefit of theMāori customary owners.3 The "Occupation Lands" comprises pā, urupā and cultivations which were meant to have beenexcluded from the Crown's 1845 grant.4 Proprietors of Wakatū v Attorney-General [2012] NZHC 1461 [Wakatū (HC)].5 Proprietors of Wakatū v Attorney-General [2014] NZCA 628, [2015] 2 NZLR 298 [Wakatū (CA)].6 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 [Wakatū (SC)]at [2].[5] Questions relating to breach of those duties, relief and the doctrine of laches(delay in bringing proceedings), were remitted to the High Court.7 The TrustProceedings continue in that Court.[6] Since the Supreme Court's decision, Mr Stafford has been seeking to ensurethat any Nelson Tenths and Occupation Lands remaining in Crown possession thatcould form part of relief in the Trust Proceedings is protected from disposal.In particular, prompted by ACC deciding to sell a property in Nelson, a part of whichcomprised original Nelson Tenths lands allocated to Maori (the ACC property),he sought a moratorium on the sale of land held by "core Crown", Crownentities and agents, and state-owned enterprises (SOEs). On 19 December 2019,the Attorney-General together with the Ministers of Finance and State Services(the Ministers) declined that request (the Reviewable Decision).[7] Mr Stafford sought judicial review of that decision under the Judicial ReviewProcedure Act 2016, the Declaratory Judgments Act 1908 and the common law(the Review Proceedings). In the High Court, by way of relief he sought declarationsthat, in summary:(a) the Crown has both a power and a duty not to dispose of, and to ensurethat relevant Crown entities do not dispose of, any land now owned byit or any of those entities within the area of land the subject ofthe Spain Award, pending the resolution of the Trust Proceedings;(b) the Crown had breached that duty by failing to establish in a timely wayan effective mechanism for exercising that power and dischargingthat duty; and(c) consistently with the Crown's ongoing obligations as a fiduciary inthe Trust Proceedings, that land within the Spain award area, includingthe ACC property, held by relevant Crown entities and Crown agentswas not to be transferred or otherwise disposed of by those entities oragents until the resolution of those proceedings (together with an7 At [7].injunction or an order of prohibition preventing any such transferor disposal).[8] Ellis J declined Mr Stafford's application.8 He now appeals. He says theHigh Court erred: that power and that duty exist because of equitable principles ofprivate law, of wider principles of New Zealand public law relating to the Crown'srole in the process whereby the Company's 1842 Nelson settlement in westernTe Tau Ihu was established and, more generally, is founded on and consonant withthe Crown's role as Treaty partner. Declarations should follow accordingly.BackgroundThe Wakatū decision[9] Central to the decision of the High Court and this Court was the viewthe Crown did not, given the governmental role it performed, owe a fiduciary duty,that is an obligation of absolute good faith, to the customary owners.9 The majorityof the Supreme Court disagreed. In a summary of result, given by it as part of itsjudgment, the Court described the decision of the majority — as relevant here — inthese terms:10[1] The majority decision in this Court is that the Crown owedfiduciary duties to reserve 15,100 acres for the benefit of the customaryowners and, in addition, to exclude their pā, urupā and cultivations fromthe land obtained by the Crown following the 1845 Spain award. The appealis allowed on this point and Mr Stafford has been granted a declaration tothat effect. Mr Stafford's claim may therefore proceed in the High Court fordetermination of matters of breach and remedy.[4] A majority, comprising Elias CJ, Glazebrook, Arnold and O'Regan JJ,has held that Mr Stafford's claims are not barred by the Limitation Act 1950to the extent that they are within the terms of s 21(1)(b) of the Act becausethey seek to recover from the Crown trust property either in the possession ofthe Crown or previously received by the Crown and converted to its use.Any other issues relating to limitation, including the availability ofa limitation defence to any claim for equitable compensation, are remitted for8 Stafford v Attorney-General [2021] NZHC 335 [Substantive judgment]; and Stafford v Attorney-General [2021] NZHC 1466 [Final orders judgment].9 Wakatū (HC), above n 4, at [230] and [260]; and Wakatū (CA), above n 5, at [123] perEllen France J, and at [206]–[209] per Harrison and French JJ.10 Wakatū (SC), above n 6.consideration by the High Court. It will also be necessary for the High Courtto determine, once the facts as to breach and possible prejudice have beenfound, whether the claims are barred in application of the equitable doctrineof laches.[10] The reasons of the majority differed, though not greatly.[11] Elias CJ saw the approach of the Supreme Court of Canada in Guerinv The Queen as being of particular significance.11 There an Indian band hadsurrendered to the Crown its pre-existing legal interest in customary lands on termswell known to the Crown. Those terms were subsequently not observed by the Crownwhen letting land for a golf course. The Chief Justice summarised the principlerecognised in Guerin:12In letting the land otherwise than on the terms of the surrender, the Crown hadbreached its fiduciary duties to the Band and was liable on the same basis asa trustee or other fiduciary.[12] Adopting that approach in connection with the comparable surrender entailedin the Spain Award, the Chief Justice considered that the Crown's hands were tied bythat Award's terms, summarising her conclusion in the following terms:13The alienation to the Crown of existing Māori property through theLand Claims Ordinance process was on terms which could only be fulfilledby the Crown. The Crown's acceptance of the alienation to it on the terms ofthe [Spain] award entailed assumption of responsibility to act in the interestsof Māori whose interests were surrendered. The Crown's assumptionof responsibility in respect of the tenths reserves also constituted it a fiduciaryof those whose property interests were surrendered and opened the wayto recognition of constructive trust on established equitable principles and byanalogy with them.[13] Fiduciary obligations arose because the Crown acted in relation to"independent legal interests" (that is, existing property interests, as in Guerin) and onbehalf of Māori.14 The Crown's obligations were, if anything, amplified by the natureand extent of Māori property and its recognition in New Zealand from the firstengagements of the Crown and the Treaty of Waitangi. The resulting obligation, as11 Guerin v The Queen [1984] 2 SCR 335 at 382.12 Wakatū (SC), above n 6, at [351], citing Guerin v The Queen, above n 11, at 388–389(footnote omitted).13 At [366].14 At [385].was recognised in Guerin, was "in the nature of a private law duty"; in this "sui generisrelationship" it was "not improper to regard the Crown as a fiduciary".15[14] Moreover, the nature of the fiduciary duties assumed by the Crown in relationto the terms of the Spain Award were, in the Chief Justice's assessment, obligations oftrust.16 Going further, the Chief Justice was satisfied the Crown had breached itsfiduciary, trust, duty when it failed to "get in" that part of the tenths reserves to beconstituted by the rural reserves.17 The Chief Justice remitted other issues of breach,and all consequential questions of relief, to the High Court, observing it would be for"that Court to consider whether it is appropriate to order an account to be made bythe Crown of its dealings in trust property".18[15] Arnold and O'Regan JJ similarly concluded fiduciary duties arose out ofthe Crown's assumption of responsibility for ensuring (i) that the Tenth Reserves weredealt with as had been agreed with the Company and (ii) that the Occupation Landswere excluded from sale. They did not, however, determine whether there was anexpress or other form of trust.19[16] Glazebrook J was also satisfied the Crown was trustee for the customaryowners of the land reserved from the Spain Award on the basis it representedthe Tenths Reserves.20 If wrong on that trust analysis, Glazebrook J was satisfied thatthe obligations arising in the circumstances on the Crown were so close to those ofa trustee that it was an "inevitable conclusion" the Crown owed fiduciary obligationsto the customary owners.21 Whilst expressing the view that not allocating the ruraltenths reserves was a breach of trust, the Judge accepted, because there had beenno detailed findings on breach in the courts below, definitive findings would be forthe High Court.2215 At [385], citing Guerin v R, above n 11, at 385 per Dickson J.16 At [393].17 At [436].18 At [500].19 At [726].20 At [571]–[587] and [718].21 At [588]. The Judge noted, however, that she did not rely on a Guerin analysis in reaching thatconclusion.22 At [587].[17] Hence the unanimous agreement of the majority is that the Crown owedfiduciary duties to the customary owners arising out of the particular circumstances ofthe grant to the Company. But, and as the Chief Justice put it:[391] None of this is to suggest that there is a general fiduciary duty at largeowed by the Crown to Māori. It is to say that where there are pre-existing andindependent property interests of Māori which can be surrendered only tothe Crown (as under the right of pre-emption) a relationship of power anddependency may exist in which fiduciary obligations properly arise.OverviewThe substance of the Review Proceedings[18] Although formulated as an application for judicial review and/or declarations,these proceedings in effect seek interim relief pending the substantive decision ofthe High Court in the Trust Proceedings. As Ms Feint QC wrote to Crown Law onbehalf of Mr Stafford on 21 April 2017, shortly after the release of theSupreme Court's decision:Mr Rore Stafford has been considering the Supreme Court's decision to remitthe 'tenths' case back to the High Court for determination of remainingquestions as to liability, loss and remedy.In seeking remedies, it is Mr Stafford's clear objective to obtain, to the extentpossible, the return of the whenua tuku iho of the hapū and whānau. As theremedy process is likely to take some time, the first priority is to ensure thatany 'tenths' land remaining in Crown possession is protected from disposal.We include in the definition of 'tenths' land not only the properties that wereformerly selected as 'tenths' sections, but also land that could comprisethe 'shortfall' of over 10,000 acres – that is, land in the possession ofthe Crown (either land whose registered owner is the Crown or public body,or land without title) within the boundaries of the 151,000 acres the subject ofthe Spain award.In addition, Mr Stafford wishes to protect the pā, urupā and cultivations withinthe boundaries of the Spain award. We appreciate that the Crown will requireinformation on exactly where the occupied lands are in order to protect them.We are working on compiling that information as a matter of urgency.In the meantime, we would like to know whether there are any proposalsto dispose of any Crown land within the boundaries of the Spain award,whether that be by sale, or by transfer to local authorities or other parties.We would appreciate it if you can make inquiries to ascertain whether thereare any proposals to dispose of any properties within the boundaries ofthe Spain award?[19] At private law, where well-founded allegations of breach of trust or fiduciaryduty are made, a range of interim relief is available to preserve the position so that theplaintiff will not, if successful, be disadvantaged by actions the defendant might take,for example to dispose of contested property, pending the substantive determination.Thus:(a) caveats may be lodged against title to land where a caveatable interestis claimed;23(b) the High Court Rules 2016 provide for pre-judgment charging ordersand payments on account;24(c) the remedy of a Mareva injunction, restraining the disposition ordissipation of assets, has been developed by the courts;25 and(d) Anton Piller orders, also a remedy developed by the courts, provide inextreme cases for access to premises, the seizure of material (so as toensure its preservation) and answers under oath to questions.26[20] The right the beneficiary of a trust or a person owed fiduciary duties has to callfor an account can also provide relief at both the interim, interlocutory, stage and inthe substantive proceedings.27 Once a breach of fiduciary duty has been established,proprietary remedies and equitable compensation are the principal forms of relief.[21] In his engagements with the Crown that have followed Ms Feint's letter of21 April 2017, Mr Stafford has sought to protect land in the area of the Spain Awardstill owned by the Crown principally through the use of caveats, by agreement withthe Crown, by requiring the Crown to account and through the Review Proceedings.[22] Those efforts, and indeed the investigation and resolution of the substantiveclaims of breach and for relief, are affected in a procedurally and substantively23 Land Transfer Act 2017, s 138.24 High Court Rules 2016, rr 17.41 and 7.71.25 Taking their modern form as freezing orders: High Court Rules, pt 32.26 Now known as search orders: High Court Rules, pt 33.27 See generally Erceg v Erceg [2017] NZSC 28, [2017] 1 NZLR 320.complex way by the terms of Treaty settlements reached with hapū and iwi fromTe Tau Ihu28 known collectively as the Tainui-Taranaki iwi.29 The members of thoseiwi are the descendants of the 1845 customary owners "represented" by Mr Staffordand stand to benefit if his essentially private law claims of breach of duty and forrelief succeed.[23] By the time Mr Stafford's claim was heard by the High Court,the Tainui-Taranaki and Kurahaupō30 groupings of Te Tau Ihu iwi had initialledsettlement deeds with the Crown. Formal execution of those deeds and the passage ofsettlement legislation was put on hold pending the outcome of the High Courtproceedings. As the High Court observed:31[13] By commencing these proceedings, the plaintiffs [that is, as nowrelevant, Mr Stafford] can be understood as saying they are not satisfied witheither or both of the process for, and substantive outcome of, the negotiationswhich have led to the initialling of those deeds by those Tainui-Taranaki iwi,and the settlements they foreshadow.[24] Following the High Court judgment, the process of Treaty settlementsresumed. Those deeds were executed, and settlement legislation was enacted inApril 2014 to give effect to them. Pursuant to the terms of that legislation, initialsettlement transactions occurred on 1 August 2014 and the right to continuethe Trust Proceedings was reserved.32[25] The steps Mr Stafford has taken to secure interim relief are to be understoodin that context.28 The settlement legislation for Te Tai Ihu comprises three Acts: (i) Ngāti Apa ki te Rā Tō,Ngāti Kuia, and Rangitāne o Wairau Claims Settlement Act 2014; (ii) Ngāti Kōata, Ngāti Rārua,Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui Claims Settlement Act 2014; and (iii)Ngāti Toa Rangatira Claims Settlement Act 2014.29 Including Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui.30 Including Ngāti Kuia, Rangitāne and Ngāti Apa.31 Wakatū (HC), above n 4.32 Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui ClaimsSettlement Act, s 25(6).Interim relief — the process to dateMr Stafford's 2012 caveats[26] In late 2012 Mr Stafford lodged caveats against titles to land occupied by threeNelson primary schools (the School Land). The School Land had either been selectedas part of the original Nelson Tenths or, being then occupied as pā, should have beenseparately reserved for ongoing use by iwi. A caveatable interest was claimed onthe basis of the alleged breaches of trust/fiduciary duty and on the right to the returnof that land because of those breaches.[27] Under the settlement processes established by the relevant settlementlegislation the School Land could be purchased by iwi.33 Shortly before thosesettlements were to come into effect the Crown applied for the lapse of those caveats.The High Court rejected that application.34[28] It did so principally on the basis Mr Stafford's claims were reasonably arguableand the balance of convenience favoured the reservation of the School Land fromthe settlement transactions, given it comprised only a very small part of the propertyinvolved in those transactions.35[29] As we understand it, those caveats remain in place. That Mr Stafford hascaveated land that otherwise would have formed part of redress for Treaty breachesreflects the complex overlap between Wakatū's private law claims and local iwiTreaty claims.[30] That is where matters stood until the Supreme Court's February 2017 decision,and Ms Feint's 21 April 2017 letter.33 The School Land comprised a mix of what is termed "deferred selection" and "commercialredress" property.34 Proprietors of Wakatū v Attorney-General [2014] NZHC 1785 at [68].35 At [39], [50]–[63] and [66]–[67].Mr Stafford seeks agreement with the Crown[31] Mr Stafford followed up that letter with a proposal the Crown give one month'snotice to him if Crown land in the area of the Spain Award was to be disposed of.He defined Crown land as including "land in Crown title (the Sovereign in right ofNew Zealand), including any government department, any local authority land, andany untitled land". Mr Stafford's request for one month's notice was sought so as toenable him to caveat that land to avoid a bona-fide purchaser for value, without notice,obtaining an indefeasible title. Mr Stafford also proposed the Registrar-Generalof Land be notified in the same way.[32] It would appear officials began work identifying affected land around that time,but progress was slow. In late August 2017 Ms Feint advised Crown counsel that ifan undertaking not to dispose of affected lands, without a system of safeguards beingestablished, was not forthcoming Mr Stafford would file an urgent application to theHigh Court for declarations and directions analogous to those made in New ZealandMāori Council v Attorney-General (the Lands case).36 That is:(a) a declaration the Crown had a legal obligation to establish such asystem and a duty not to dispose of land in the meantime; and(b) a direction giving the Crown a relatively short timeframe to establishsuch a system for the Court's approval or, failing that, for the Court todo so.[33] By October 2017 a measure of agreement had been reached, establishing whatbecame known as the Land Protection Mechanism (the LPM). Under the LPMthe Crown could continue to dispose of Crown land, as defined, triggering settlementrights of first refusal. At the same time the Crown (through Land InformationNew Zealand (LINZ)) would advise Mr Stafford in advance of possible sales, enablinghim to take protective action.36 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands case] at 666per Cooke P.Mr Stafford lodges further caveats[34] Around that time Mr Stafford became aware of a proposal by the AccidentCompensation Corporation (ACC) to sell a property in Nelson it had acquired inthe 1990s, part of which had originally formed part of the Nelson Tenths.The Registrar-General of Land initially refused to register caveats Mr Stafford hadattempted to lodge against the titles involved. However, to settle Mr Stafford's judicialreview challenge, the Registrar-General retrospectively accepted and registeredthose caveats. ACC immediately filed an application for removal based on theabsence of caveatable interests. That application was heard by the High Court on12 February 2018.[35] In its 22 February 2018 decision, the Court considered two questions: (i) wasit reasonably arguable ACC's property might be applied towards settling Crownliabilities arising from the Trust Proceedings; and (ii) did Mr Stafford havea beneficial, and so caveatable, interest in that property. Collins J decided it wasreasonably arguable Ministers of the Crown could lawfully direct ACC not to sell theproperty under ss 103 or 107 of the Crown Entities Act 2004.37 But, the Judgeconcluded, Mr Stafford did not have a caveatable interest unless such a directionwas given.38 The Judge exercised his discretion to maintain the caveat for one monthto provide an opportunity for the Ministers to do so.39[36] They did not. Mr Stafford appealed, and ACC cross-appealed, that decision.The Crown intervened, supporting ACC. It was to be some time before that appealwas resolved. In the meantime, Collins J subsequently granted a stay of his Februaryjudgment so that the caveat could remain in place pending appeal.40 The purchaserhas since cancelled the sale and purchase agreement with ACC.37 Accident Compensation Corporation v Stafford [2018] NZHC 218, [2018] 2 NZLR 861 at [82].38 At [94].39 At [97].40 Accident Compensation Corporation v Stafford [2018] NZHC 429 [Result]; and AccidentCompensation Corporation v Stafford [2018] NZHC 488 [Reasons].A request for greater protection[37] On 9 March 2018, whilst the High Court caveat decision was stayed,Mr Stafford formally requested the Crown to go further than the then existing LPMarrangements. He asked the Crown to agree to a moratorium on the sale of land withinthe Spain Award area held not only by the Crown, as defined for the purposes ofthe LPM, but also by Crown agents and by state-owned enterprises (SOEs), pendingthe resolution of the Trust Proceedings. In summary, and anticipating the position hewould adopt in the Review Proceedings, Mr Stafford argued:(a) The Crown, as fiduciary in terms of the Supreme Court's decision, hadan ongoing duty to prevent the disposal of that land prior tothe resolution of the Trust Proceedings: it held that land on trust, tothe extent of the shortfall in the Nelson Tenths and Occupation Lands.(b) The Crown had the legal power to do so pursuant to directions thatcould be made under the Crown Entities Act. Those directions shouldextend to the ACC property. The Crown also had, under its powers ofa natural person arising from what Mr Stafford characterised as its"third source" residual freedom to act, the power to intervene to directCrown entities.(c) The Crown's duty to intervene could be sourced directly in its Article IIguarantee to Māori in the Treaty of Waitangi, and the duty of activeprotection consequent upon that guarantee. That duty informed theCrown's fiduciary duties in this case, as well as being a stand-aloneobligation in its own right. The Ririnui v Landcorp Farming Ltd(Ririnui) case presented an example of such powers being exercised.41Mr Stafford requires the Crown to account[38] As anticipated by the Chief Justice, on 6 April 2018, whilst his request for amoratorium was pending, Mr Stafford applied to the High Court in the41 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.Trust Proceedings for an order requiring the Crown to account "to the Māoricustomary owners of the land the subject of the 1845 Spain Award for what hashappened to the land that either was, or should have been, reserved and held on trustfor the benefit of the Māori customary owners".[39] Mr Stafford specified the factual matters requiring investigation. As matterstranspired the Crown did not respond formally by way of notice of opposition to thatapplication. Rather Mr Stafford and the Crown filed separate memoranda on22 June 2018, ahead of a judicial conference scheduled for 25 June 2018, recordingthe terms upon which they had agreed to a process whereby relevant informationwould be provided voluntarily by the Crown and a timetable for doing so. On thatbasis, the application for an account would be adjourned to a date to be fixed onfurther application.The Review Proceedings[40] The Attorney-General advised Mr Stafford by letter on 27 April 2018 he wasnot in a position at that point to respond to the request for a moratorium.On 10 May 2018, Mr Stafford commenced the Review Proceedings against the Crownand ACC, focusing at that time on that letter as the reviewable decision. That decisionrepresented an error of law, for the reasons he had set out in his letter of 9 March 2018.[41] Mr Stafford sought declarations to that effect against the Crown and ACC and,against ACC separately, a moratorium on land sales by way of injunction or an orderof prohibition.[42] The Crown did not respond substantively for some time. The agreeddiscovery/accounting process continued.[43] By the time the hearing of the Review Proceedings commenced — some twoand a quarter years later on 10 August 2020 — the following position hadbeen reached:(a) Mr Stafford had joined a further six respondents (the third to ninthrespondents respectively): Fire and Emergency New Zealand(FENZ); Housing New Zealand Corporation/Kāinga Ora(Kāinga Ora); Housing New Zealand (HNZL);42 Radio New ZealandLtd (RNZ); Nelson Marlborough Institute of Technology (NMIT);Nelson Marlborough District Health Board (NMDHB); andTranspower New Zealand Ltd (TNZ).(b) As for the LPM:(i) the Attorney-General, ACC, Kāinga Ora, HNZL, NMDHBand NMIT had given LPM covenants to give 30 working days'notice of relevant land sales up to the commencement ofthe hearing; and(ii) FENZ, RNA and TNZ had done likewise, but theircommitments were to remain in place until the resolution,including by way of appeal, of the Trust Proceedings.(c) As noted,43 the Crown had formally advised (the ReviewableDecision) it would not, because it neither could not or in any eventshould not, direct Crown entities as requested by Mr Stafford.The Ministers explained:(i) Whilst the Crown acknowledged the land the subject of MrStafford's claims was a taonga tuku iho, they (i) consideredthey lacked statutory powers to direct the relevant SOEs, and(ii) doubted whether directions for a moratorium could bemade under ss 103 and 107 of the Crown Entities Act. Therewas a good argument such a direction would offend s 113 ofthat Act, which safeguards the independence of all Crownentities.42 HNZL is an asset holding company only (being the registered owner of most of the properties thatKāinga Ora uses to provide public housing) whose Board members are the same individuals asthose on the Board of Kāinga Ora. It employs no staff and its Board has delegated all delegabledecisions to Kāinga Ora.43 See [6] above.(ii) Moreover, a 'blanket' moratorium would have a number ofadverse implications for the operations and effectiveness forthe entities concerned, the economic development of the areasthe subject of Mr Stafford's claim, and the state sector andpublic finance generally. In particular, ACC and Kāinga Orawould be most disadvantaged by any moratorium becauseACC manages a significant portfolio of investments, andKāinga Ora buys and sells property in its capacity as publichousing landlord. The Crown also had obligations to upholdunder the relevant Treaty settlements.(iii) The arrangements reached under the LPM, and the Crown'ssubsequent request to the relevant entities to inform theirresponsible Minister of any proposal to dispose of relevantland so the Crown could consider its position, would morespecifically and efficiently protect Mr Stafford's interestswithout risking those adverse implications.(d) Mr Stafford had amended the relief he sought by seeking againstthe Crown,44 as he had previously sought against the otherrespondents, a moratorium based on a further declaration prohibitingthe sale of any fee simple land in the Spain Award area.(e) Only the Crown and, ACC and Kāinga Ora were opposing the reliefMr Stafford sought:(i) Mr Stafford had discontinued his claim against FENZ, RNZand TNZ on the basis of their extended undertakings; and(ii) NMDHB and NMIT were abiding, but had given notices ofappearance to reserve their rights.44 As by then extensively defined in the Review Proceedings as being "the 'core' Crown [as definedin the quotation at [45] below], Crown agents (as defined in s 7 and Schedule 1 of the CrownEntities Act), Crown entities (as defined in s 7 of the Crown Entities Act) or State enterprises (asdefined in s 2 and Schedule 1 of the [State-Owned Enterprises] Act".(f) On 15 May 2020 this Court had handed down its decision on theappeal and cross appeal against the High Court's caveat judgment(the Caveat Appeal).45 A majority (Gilbert and Courtney JJ) upheldCollins J's decision to remove Mr Stafford's caveat from the title onACC's property on the basis, holding that any interest Mr Staffordmight have in that land did not derive from ACC as the registeredproprietor, as required by s 137 of the Land Transfer Act 2017.46That decision was not appealed.[44] On the last day of the High Court hearing (13 August 2020) Mr Stafford furtherrevised the relief he sought against the Crown by adding, in the alternative, an orderrequiring the Crown to undertake, in effect by way of a revised LPM, as opposed toa moratorium:(a) to provide 30 working days' notice if it decided to commence a processfor the transfer or disposal, including by lease for a term greater than20 years, of any proposed sale of "core Crown land" within theSpain Award area pending the resolution of the Trust Proceedings;(b) not to commence such a process without Mr Stafford's agreement, orby order of the High Court obtained on the Attorney-General'sapplication; and(c) to waive any undertaking for damages required, and to payMr Stafford's costs on an indemnity basis.[45] Significantly, for those purposes, Mr Stafford specified the land to which thatrevised LPM was to apply, namely "core Crown land", in reduced terms comparedto his pleadings for a moratorium by way of declaration. That is "core Crown land"meant: land registered in the name of the 'core' Crown (comprising Her Majestythe Queen; the departments of public service that are listed in Schedule 1 of45 Stafford v Accident Compensation Corporation [2020] NZCA 164, [2020] 3 NZLR 731[Caveat appeal].46 At [34] per Gilbert J, and [150] per Courtney J.the State Sector Act 1988; and the New Zealand Police, which section 7(1) ofthe Policing Act 2008 confirms is an instrument of the Crown).47[46] He also sought the opportunity for a bespoke arrangement withKāinga Ora/HNZL to be agreed, or otherwise imposed by the Court, modelled onthe orders made in the Lands case.[47] Shortly after the completion of the High Court hearing, but beforethe judgment was released, the Attorney-General provided fresh undertakings whichonly departed from those sought by Mr Stafford by way of his 13 August 2020alternative relief in two regards, namely:(a) it would be for Mr Stafford to apply to the High Court to restrain, ratherthan for the Crown to apply to the High Court to permit, a notifieddisposition; and(b) if Mr Stafford was unsuccessful, costs would be reserved until theconclusion of the Trust Proceedings.[48] Those two matters were, accordingly, all that was at issue between Mr Staffordand the Crown as regards relief by way of the LPM, as opposed to a moratorium, priorto Ellis J releasing her decision.The High Court decision[49] Ellis J first released her substantive judgment on 2 March 2021.48Having summarised the implications of the Supreme Court's decision and this Court'scaveat decision49 she recorded her conclusions in the following terms:[185] Beginning with those aspects of Mr Stafford's application that relateto Spain award area land owned by the Crown entity respondents,I consider that:(a) the Crown entity respondents are separate legal entities fromthe Crown for the purposes of the Wakatū proceeding and so47 That is, unlike the moratorium Mr Stafford sought, the revised LPM would not apply to land heldby Crown agents, Crown entities or SOEs.48 Substantive judgment, above n 8.49 At [132]–[133].land owned by them is not directly available as relief in thoseproceedings; and(b) the power of Ministerial direction contained in s 107 ofthe [Crown Entities Act] is inapt, and cannot be used to ordera moratorium on the sale by Crown entities of land withinthe Spain award area; and(c) even if the power conferred by s 107 was, on its face,available, Ministers were not wrong to refuse to exercise it;but(d) Ministers were able to, and should have, advised Crownentities that they were expected to notify Mr Stafford in atimely way of any proposed disposals within the Spain awardarea; but in any event(e) the Crown entities themselves, having been advised of thenature and history of Mr Stafford's claim, are obliged—inKāinga Ora's case by dint of its own statute, but otherwise asa matter of general good faith arising in the particular andunusual circumstances of this case—to notify Mr Stafford ina timely way of any proposed land disposals within the Spainaward area.[186] And as for those aspects of Mr Stafford's application for review thatrelate to Spain award area land owned by the "core" Crown, I think the Crownaccepts that the LPM previously agreed needs to be strengthened. As I havenoted, the parties have, during the hearing, reached some agreement as to howthis might be achieved, and my strong preference is to make orders on thelines of that (almost) agreement. But again, I have not heard from counsel onthe disputed matters outlined above, and as a matter of fairness I should do so.(Emphasis original.)[50] Mr Stafford's claim for review had not succeeded. But nor had it wholly failed.Mr Stafford had achieved the High Court's endorsement of a strengthened LPM, albeitapplying to "core Crown land" only. He also had the benefit of the Judge's"observations" at [185(d)] and [185(e)].50 The Judge sought further submissions as towhether those observations should be reflected in a grant of declaratory relief, onaspects of the revised LPM and on costs.51[51] The Judge released what she termed her "final orders" judgment on21 June 2021.52 She concluded declaratory relief was not appropriate. The languageof "rights" was inapt to describe the present-day relationship between the Crown and50 At [187]; see Final orders judgment, above n 8, at [17].51 At [189].52 Final orders judgment, above n 8.Mr Stafford. The observations she had recorded at [185(d)] and [185(e)] of hersubstantive judgment sufficiently reflected, as expressions of principle, what wasrequired of the Crown and Crown agents to protect Mr Stafford's interests.53[52] As regards the revised LPM, the Judge acknowledged she had not referred tothe Crown's fresh undertakings, filed shortly after the hearing, in her substantivejudgment. But as those undertakings were in the same form as the draft ordersdiscussed in that judgment, there was no need for formal findings or approval fromthe Court.54[53] Costs were to lie where they fell as between all parties.55ACC settles[54] Shortly before this appeal was heard, ACC agreed not to dispose of anyproperty in the Spain Award area pending the resolution of the Trust Proceedings.Mr Stafford discontinued his proceedings against ACC, and costs were to lie wherethey fell.[55] The active parties to the appeal were, therefore, Mr Stafford, theAttorney-General and Kāinga Ora/HNZL.This appealMr Stafford[56] As argued before us Mr Stafford's view continues to be that the Crownassumed fiduciary duties as a consequence of its constitutional role in protecting therights of Māori — a role that was recognised in Te Tiriti and the related constitutionalarrangements of 1840–1841. Accordingly, the Crown is obliged not to alienate anyland the subject of his claim: that followed from a fiduciary's obligation in equity toprotect the interests of its beneficiaries, but also on the basis of the principles set out53 At [16]–[17].54 At [22]–[23].55 At [26].in the Lands case. Thus, Crown land in the Spain Award area is held by the Crown onan institutional constructive trust for those Mr Stafford represents.[57] The LPM proposed by the Crown in terms of the undertakings it has offereddoes not go far enough, notwithstanding its conformity in all but two respects with therevised LPM he himself had sought in the High Court as alternative relief to that ofthe moratorium. Most significantly, its limitation — as regards obligations the Crownaccepts — to land owned by what Mr Stafford categorises as "the core Crown" failsto respond to the character in which the Crown acted when it assumed thosefiduciary obligations.56 The creation over time of various categories of Crown entity,as separate legal persons responsible for performing in the modern New Zealand statethe duties and functions of the Crown and holding public property assets to do so,could not be relied on to reduce the remedies available to Mr Stafford should a breachof those duties and obligations be established.[58] Six factors, which broaden the argument advanced in the High Court,supported that proposition:(a) Te Tiriti was a personal and enduring link between the monarch andMāori. Thus, and as put in Mr Stafford's written submissions:To allow the Crown unilaterally to contract out of the scopeof its Article 2 obligations, through the re-organisation ofthe Crown from 1845 to the present day, is inconsistent withthat feature of Te Tiriti, as well as with what this Court hasreferred to [in the Lands case] as its wairua, or spirit.(Footnotes omitted.)(b) Māori view the Crown holistically. That perspective is relevant in thiscontext to the proper characterisation of the Crown as land holder inthe area of the Spain Award.(c) All Crown entities have a constitutional obligation to act in conformitywith the Crown's Treaty obligations. Thus, the Crown entity56 That is a problematic claim on appeal, given it was Mr Stafford who pleaded his claim for an LPMin the High Court.respondents agreed to interim relief arrangements preserving theland-holding status quo. Those arrangements, and their common terms,show that the parties Mr Stafford alleges to be Crown instrumentalitiescan and do act consistently with being subject to those obligations.The majority in the Caveat Appeal had not found otherwise: onlyCourtney J had expressly reserved this position.57 The reasoning ofWilliams J was to be preferred.58(d) That conclusion is also supported by the Supreme Court's decision inRirinui where, Mr Stafford asserts, the Court held that the power ofLandcorp, a SOE, to permanently alienate land of importance toMāori was materially constrained by Crown obligations to Māori andLandcorp's own commitment to honour Te Tiriti principles.59That the Crown has greater controls over Crown agents compared toSOEs suggests it would be surprising if the Ririnui approach tothe constitution of the Crown did not apply as regards Crown agents.(e) In practice, Ministers exert considerable controls over Crown entities.There is a machinery of government established through legislativeinstruments and administrative practices which bind Crown entities tosupporting the discharge of Crown Te Tiriti obligations.(f) The United Nations Declaration on the Rights of Indigenous Peopleplaces special emphasis on restitutionary remedies in remedyingwrongs against indigenous peoples. That principle had been recognisedby the Attorney-General in his explanation of the reasons for theMinisters' decision declining to direct a moratorium.[59] In refusing declaratory relief as regards a moratorium which properlyresponded to a positive obligation of protection, Ellis J failed to take account ofthose factors.57 Caveat appeal, above n 45, at [132].58 At [345]–[347], and [356].59 Ririnui v Landcorp Farming Ltd, above n 41.[60] During the hearing of this appeal Ms Feint handed up further revised orderssought by Mr Stafford. Notwithstanding the terms of the revised LPM he had soughtin the High Court were limited to "core Crown land", Mr Stafford in that version ofhis alternative relief extended the reach of the LPM to the broader category of"Crown land" which featured in the rest of his pleadings. That is, not just "core Crownland", but also land held by Crown entities and SOEs.The Attorney-General[61] The Attorney-General supported Ellis J's decision, and her reasoning, save inone regard: namely the Judge's "finding" as to the communication of an "expectation"to the respondents they would notify Mr Stafford of Spain Award area sales.60[62] In doing so, and by way of context, the Attorney-General emphasised the limitsof the Supreme Court's decision. It went no further than the finding of fiduciary dutiesowed by the Crown to customary owners as regards the Nelson Tenths andthe Occupation Lands. The Court did not identify a trust. Only Elias CJ andGlazebrook J did so:61 Arnold and O'Regan JJ did not consider it necessary to decidethat question.62 William Young J decided there was no trust.63 It made no findingsabout the extent to which any proprietary remedy may be available with respect to anyparticular land or the extent to which historical failures to perform a fiduciaryobligation may give rise to ongoing obligations of a fiduciary character today.Importantly, the Supreme Court made no broader ruling about the role of Te Titiri.The Attorney-General specifically noted the Chief Justice's observation onthat matter.64[63] To the extent Mr Stafford seeks proprietary remedies in the Trust Proceedings,determining the implications of the specific fiduciary duty found to have existed willinvolve further factual and legal contest with respect to particular parcels of land as60 Substantive judgment, above n 8, at [185(d)].61 Wakatū (SC), above n 6, at [393] and [401] per Elias CJ; and at [572], [577] and [579] perGlazebrook J.62 At [726].63 At [915]–[916].64 See above at [17].recognised by the Supreme Court and by Ellis J. As regards the Crown itself,the undertakings given are sufficient to protect Mr Stafford's interests.[64] More specifically the Attorney-General noted Mr Stafford's challenge to thelawfulness of the Reviewable Decision was based on two propositions: namely thoseof the existence of the claimed power and of the asserted duty to exercise that power.[65] The proposition the power existed was inconsistent with the separate existenceat law of the Crown and of Crown entities as legal persons, as reflected in theprovisions of the Crown Entities Act, the Companies Act 1993 and the State-OwnedEnterprises Act 1986. That legislation provides a governance framework for suchentities distinct from that of the Crown itself.[66] In Wakatū the Supreme Court held the Crown owed certain fiduciaryobligations as a matter of private law. That did not involve attribution of thoseobligations to separate Crown entities.[67] The Reviewable Decision was, in orthodox judicial review terms, one properlymade in a procedural sense and one which was manifestly reasonable in a substantivesense. The Supreme Court had recognised the Crown's fiduciary role. But questionsof liability and relief were remitted to the High Court. There was a complexinterrelationship between Mr Stafford's claims as regards the Nelson Tenths andthe Occupation Lands, and the terms of ongoing Crown obligations under theTe Tau Ihu Treaty settlements. The Reviewable Decision recognised those interestsand the Crown's correlative obligations, and sought to balance them inthe undertakings given in response to Mr Stafford's request. That decision could notsuccessfully be challenged on judicial review.[68] Whilst the majority judgments in the Supreme Court had recognisedthe constitutional context of the events of the 19th century, that did not provide a basisfor the existence of the positive duty requiring the establishment of the moratoriumthat Mr Stafford argued for.[69] Mr Stafford's reliance on the Lands case and subsequent litigation wasalso misplaced. There, s 9 of the State-Owned Enterprises Act provided an expressdirection that the Act would not permit the Crown to act in a manner inconsistent withthe principles of the Treaty. If Mr Stafford's propositions as to power and duty werecorrect, there would have been no need for that reliance on s 9 in the Lands case.Kāinga Ora[70] Kāinga Ora supported Ellis J's conclusion that Ministers had not erred inrefusing to direct Crown entities as Mr Stafford sought. A proper interpretation of thescope of ministerial powers under the Crown Entities Act, and an examination of theconsequences of a blanket moratorium, supported that view. More broadly,Kāinga Ora said these proceedings were not about the nature and extent of itsobligations in relation to Māori rights and interests, nor was it about whether Crownentities are "part of the Crown". As a separate legal person, Kāinga Ora's land couldnot be available as relief in the Trust Proceedings.[71] Even if Ministers did have the power to make the directions Mr Staffordsought, Kāinga Ora said it would be inappropriate to do so in these circumstances.A moratorium was not necessary to protect Mr Stafford's position, yet it wouldundermine Kāinga Ora's ability to fulfil its existing obligations to those iwi who haveentered into the relevant Treaty settlements. Further, and as Ms Casey QC emphasisedbefore us, a complete restriction on the ability of Kāinga Ora to sell properties wouldcut across its statutory objectives and functions as a public housing landlord and urbandevelopment agency. Accordingly, a moratorium would unduly prejudice the widercommunity in the Nelson area.[72] Kāinga Ora was willing, however, to continue to provide Mr Staffordwith notice of proposed dispositions in the interim, and to reach agreement with himgoing forward. During the hearing, Kāinga Ora provided a proposal for a landprotection mechanism of its own as regards "sites of special significance" toMr Stafford involving 90 days' notice of sale of such sites and, more generally, a capon the net area of sales of land in the area of the Spain Award.Further developments[73] After the hearing:(a) The Attorney-General provided undertakings the Crown would givenotice to Mr Stafford of proposed land sales by NMDHB and NMITbefore the relevant Minister or Secretary grants the necessary approvalsfor those sales.65 Those arrangements would endure until theTrust Proceedings are finally resolved.(b) NMIT similarly undertook directly to Mr Stafford.AnalysisOverview[74] Mr Stafford's claim as formulated in the Trust Proceedings is squarely basedon principles of private law, in particular those of equity, fiduciary obligations andtrust principles. As a matter of private law, Mr Stafford's claim was only able to bebrought so long after the events of which he complains because of the exception fromthe operation of generally applicable limitation rules which apply in the case of claimsfor breach of trust.66 It was in terms of private law principles that the Supreme Courtruled, in Mr Stafford's favour, that the Crown had acted as a fiduciary as regardsthe Nelson Tenths and the Occupation Lands. That three of the Judges did so byapplying in the New Zealand context the approach taken by the Supreme Court ofCanada in a not dissimilar legal and factual context, does not change that.67Rather, and as the Attorney-General submitted, the significance of the Guerin analysiswas to provide a basis for applying private law principles to actions of the Crown, thatis the Government. In that way the "political trust" doctrine, which had been seen by65 Under the provisions of the New Zealand Public Health and Disability Act 2000 and the EducationTraining Act 2020, NMDHB and NMIT require permission of either the Minister of Health orthe Secretary for Education respectively before those entities can dispose or otherwise encumbertheir real property.66 Limitation Act 1950, s 21(1)(b); see Wakatū (SC), above n 6, at [453] per Elias CJ, at [687] perGlazebrook J, and [813] per Arnold and O'Regan JJ.67 As reflected in the observation of the Chief Justice referred to at [17] above.the courts below as standing in the way of Mr Stafford's private law claims againstthe Crown, was rendered inapplicable.[75] In the Review Proceedings, however, Mr Stafford takes a different approach.He asserts, based on public law principles and, in particular, the developments inNew Zealand law over the last 40 years in the proper approach to recognition ofthe principles of the Treaty, the existence of an obligation to ensure no public land inthe area of the Spain Award is sold. That obligation is, in turn, based on an assertedgeneral duty, founded on the Treaty principle of active protection. In effect,Mr Stafford seeks to obtain through the Review Proceedings the relief he was deniedin the caveat proceedings.[76] The developments in New Zealand law Mr Stafford relies on have occurrednot only in the settlement of historic claims but also in the legislative andadministrative mechanisms which exist today to promote public policy outcomesconsistent with those principles. Thus, Mr Stafford relies on the Lands and Ririnuidecisions, on a duty to exercise powers under the Crown Entities Act and onthe various mechanisms established by the Government more generally to ensurethe Crown as a whole acts consistently with Treaty principles.[77] In our view, there is a real tension between those two approaches. That tensionis reflected in three high level considerations which have influenced our approach tothis appeal:(a) First, there is the fundamental problem Ellis J identified in herjudgment.68 That is, the Supreme Court thus far has limited its findingto the confirmation the Crown acted as a fiduciary with correspondingduties to Māori with respect to the Nelson Tenths andthe Occupation Lands. That finding itself does not provide a basis forthe positive obligation Mr Stafford asserts to place a moratorium onland sales within the area of the Spain Award. Whether and to whatextent the duties associated with that fiduciary obligation now createremedies, including a right to land, can only be determined in68 Substantive judgment, above n 8, at [78]–[79].the Trust Proceedings in the High Court. Therefore, in terms of hisproposition such a duty currently exists Mr Stafford is, in our respectfulview, putting the cart before the horse.(b) Secondly, to the extent Mr Stafford relies on the decision of this Courtin the Lands case he is, in our view, mistaken. The declarations thisCourt made in the Lands case, and the protective mechanisms itrequired pursuant to those declarations, relied for their legal foundationon s 9 of the State-Owned Enterprises Act. In support of the submissionthat an express statutory direction such as s 9 is no longer required,Mr Stafford refers to the well-known cases of Huakina DevelopmentTrust v Waikato River Authority and Barton-Prescott v Director-General of Social Welfare.69 The Treaty's significance enabled thecourts in those cases to use the Treaty as an extrinsic aid to statutoryinterpretation in the absence of an express so-called "Treaty clause".70That position gives effect to the presumption that Parliament intends tolegislate in terms consistent with the Treaty, albeit with the limitationthat an interpreting court cannot do violence to parliamentary purposeor the words Parliament adopted.71 In our view, however, the casesMr Stafford relies on do not go as far as to provide that a statutoryobligation is no longer required to create enforceable, specific, Treatyduties and obligations. A court may interpret Parliament's wordsconsistently with the Treaty in the absence of statutory direction, but itcannot enforce an obligation on a Minister to exercise discretionarypowers consistently with, or to give effect to, the Treaty where there isno statutory obligation on the Minister to do so.(c) Thirdly, the Trust Proceedings survived the settlement of historicclaims effected by the Tainui-Taranaki settlement Acts because of an69 Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC); and Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC).70 A proposition which "can be stated with confidence": Ngaronoa v Attorney-General [2017] NZCA351, [2017] 3 NZLR 643 at [46].71 Urlich v Attorney-General [2022] NZCA 38 at [55] and [62].express statutory provision.72 Nevertheless, there is an inevitablycomplex relationship between the settlement processes effected andinitiated by those Acts and the resolution of the Trust Proceedings.Yet the positive duty and obligation, resulting in the moratoriumMr Stafford seeks, would impact directly the Treaty settlement process,without those most directly affected, the iwi and iwi organisationsconcerned, having been involved in that decision.[78] Those considerations, we accept, may do little more than emphasise the specialcharacter of the Trust Proceedings and of Mr Stafford's success thus far, as representedby the Supreme Court decision. But they are, we think, important elements ofthe context for this appeal.A power and a duty?[79] The specific questions posed in the Review Proceedings were essentially as theAttorney-General identified. First, does the power Mr Stafford asserts — by referenceto the Crown Entities Act or more generally — for the Crown to direct separatelyexisting land-owning entities to be part of the moratorium and the LPM actually exist?Secondly, if that power does exist, was the Crown required to exercise it inthe circumstances so that the Reviewable Decision was unlawful.[80] The Ministers themselves doubted, but could not discount, the existence ofthe power Mr Stafford asserted. For our part, we have not found it necessary forthe purposes of this appeal, given the view we have reached on the second of thequestions referred to above, to answer the first question. That is, even if the Crowndoes have the power to so direct, we do not consider it was under any duty to exercisethat power.[81] The High Court's inquiry as to breach will involve an assessment ofthe Crown's actions over time as regards the Nelson Tenths and Occupation Lands,a determination of the particulars of the duties of the Crown as fiduciary and of72 Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui ClaimsSettlement Act, s 25(6).the extent to which breaches of those duties, and hence entitlement to relief,are established.[82] The declaratory relief Mr Stafford seeks in reliance on public law andTreaty principles would call for a theoretical determination of at least aspects of thosequestions absent that factual context. In our view the duties the Crown has, in termsof public property "owned" for the time being by a particular Crown entity, are bestdetermined on a case-by-case basis rather than by reference to general assertions.[83] The Supreme Court's recognition of Mr Stafford's entitlement to requirethe Crown to account, acquiesced thus far by the Crown in terms of the agreeddiscovery process, underscores that point. The High Court has not yet orderedthe Crown to account in the Trust Proceedings. But therein lies Mr Stafford's mostobvious private law right to move his claim in the Trust Proceedings along.Given (i) the resources of the Crown, (ii) the research expertise built up particularly inthe Treaty settlement process, and (iii) the historic clarity at least of the lots allotted toMāori in the original plans attached to the Spain Award, and (iv) the original agreementbetween the Crown and Mr Stafford as to what that process involved, if Mr Staffordis dissatisfied with the progress in that accounting he could apply to the High Courtfor appropriate supervisory orders.[84] More generally, and as Elias CJ observed, the recognition by the majority ofthe Supreme Court of a fiduciary duty, and by her and Glazebrook J of the existenceof a trust, did not suggest there was any general fiduciary duty at large owed bythe Crown to Māori.73[85] We are therefore not persuaded the Crown had a specific and enforceable dutyowed to Mr Stafford to establish the moratorium he sought. Thus, that the Ministersdeclined to do so does not, of itself, render the Reviewable Decision unlawful.Rather that question is to be discussed in terms of orthodox judicial review principles.[86] In the Reviewable Decision, the Ministers acknowledged:73 Wakatū (SC), above n 6, at [391].(a) the duties owed by the Crown to Mr Stafford;(b) the interest Mr Stafford has in lands within the area of the Spain Awardowned not only by the Crown but also by Crown entities, reflectingthe way the Crown as a whole responds to historic Treaty claims andconstructs Treaty settlements;(c) the preservation of Mr Stafford's private law claims from thesettlements effected by the legislation; but also(d) the overlap of the relief Mr Stafford seeks as a matter of private lawand the relief provided by those settlements.[87] Against those considerations, we agree with the Attorney-General thatthe Reviewable Decision is, in an administrative law sense, one that shows no materialprocedural irregularity and on its face is a reasonable decision, one which was open tothe Ministers to make.[88] The obvious check on that reasonableness, in this context, is whetherthe Reviewable Decision, and the mechanisms established pursuant to it to protectthe interests of Mr Stafford as recognised by the Ministers, provide appropriate andreasonable protection.[89] The Reviewable Decision relates to a specific area (the area of theSpain Award) and, from Mr Stafford's viewpoint, all land within that area owned bythe Crown and related entities. The Spain Award area is the area from which theNew Zealand company was to select the 151,000 acres that it had purchased from theMāori customary owners. The image below overlays the boundaries of theSpain Award on a satellite image of western Te Tau Ihu:[90] Ms Johnston, the Chief Executive of Wakatū Inc, included in an affidavit sheswore in the Review Proceedings a summary of the research thus far undertaken byWakatū as to current land holdings by relevant Crown entities in that area.That research identified separately land held by the Crown and relevant agencies andentities within the categories of "town" land, "suburban" land and "rural" land, asthose terms apply to land within the Company's Nelson settlement. Taken overall:(a) The core Crown currently holds 14,905.29 acres within that area ofwhich the vast majority, namely 13,637.29 acres constitutes"conservation or reserve" land.(b) Relevant Crown agents and entities hold 180.8 acres of land within theSpain Award area. The Crown agents and entities identified by Wakatūare those which are or have been respondents in theReview Proceedings. All but Kāinga Ora have provided undertakingsaccepted by Mr Stafford.[91] As can be seen, therefore, the undertakings Mr Stafford has either accepted orhas been offered provide for him to receive prior notice of sales of all land withinthe Spain Award area held by the Crown, as he would define it extensively in terms ofthe orders and directions he seeks in the Review Proceedings, Kāinga Ora aside.In our view, and to that extent, Mr Stafford's position and his interests are adequatelyprotected in terms of interim relief.[92] Accordingly, we dismiss Mr Stafford's appeal.[93] We also dismiss the Attorney-General's cross-appeal. Ellis J herself acceptedthat her "observations" in [185(d)] and [185(e)] of her judgment, and in particular thatMinisters were expected to tell the Crown entity respondents they were to notifyMr Stafford of proposed sales of land within the Spain Award area, were not "hardlaw" findings but expressions of principle which she declined to record indeclaratory form.74 As such there were no substantive orders made contrary to theAttorney-General's interests that he can challenge. And so his cross-appeal must fail.In reality, those Crown entity respondents have, through their undertakings, agreed tonotify Mr Stafford in a timely way of any proposed land disposals. Moreover, theAttorney-General has undertaken to facilitate that process on behalf of NMDHBand NMIT. In those circumstances, we dismiss the Attorney-General's cross-appeal.[94] That, in terms of the issues before us, leaves the relationship betweenMr Stafford and Kāinga Ora unresolved. Kāinga Ora's existing undertaking, on itsterms, applied up to the commencement of the High Court hearing. During the hearingof this appeal, however, Kāinga Ora handed up fresh arrangements it was prepared tocommit to as noted at [72]. In doing so, Kāinga Ora emphasised that any arrangementit reached with Mr Stafford could not inhibit its ability to perform its statutory74 Final orders judgment, above n 8, at [17].functions, which requires it to effect routine dispositions of its land in the managementof its portfolio of public housing assets.[95] We accept the appropriateness of that consideration. Moreover, and forthe reasons earlier set out, we do not think that orders along the lines of the Landsarrangements that Mr Stafford sought should in today's environment be imposed onKāinga Ora. Accordingly, we decline to do so. It will be for Mr Stafford to engagewith Kāinga Ora in terms of the arrangements proposed during the hearing ofthis appeal. In our view, as with the arrangements voluntarily entered into by the otherrespondents, these provide a basis for satisfactory interim protection.[96] It is also to be noted that where proprietary relief is not available, equitablecompensation is the most obvious, alternative, remedy. The Crown is, effectively,judgment proof. Mr Stafford's cause of action having survived the local Treatysettlements, private equitable compensation would avoid the complexity of competingTreaty settlement claims to land, and possible Treaty relativity issues, while providingMr Stafford and those he represents a fund to acquire, over time, the whenua tuku ihothey seek, including where it has passed into private ownership.Result[97] The appeal is dismissed.[98] The Attorney-General's cross-appeal is dismissed.[99] Although neither Mr Stafford's appeal nor the Attorney-General's cross-appealhave succeeded, we consider the Attorney-General has substantially succeeded in thematters before us. Accordingly, the appellant must pay the Attorney-General's costsfor a standard appeal on a band A basis together with usual disbursements.Solicitors:Pitt & Moore, Nelson for AppellantCrown Law Office, Wellington and Meredith Connell, Wellington for First RespondentBell Gully, Wellington for Third and Fourth Respondents