Ten key statements from our closing submissions

1. On the hardline approach that the Attorney-General has taken in this trial, one is left to wonder why the Supreme Court would have bothered to remit the proceeding back to the High Court in the first place.

 

2. In light of the Crown’s legally enforceable fiduciary duties in relation to the Customary Owners’ land, and the uncontested fact that it did not reserve the full tenth, it is quite extraordinary that the Crown continues to maintain the position that not a single acre of land needs to be returned.

 

3. The Attorney’s scattergun and desperate defences … amount to an attempt to relitigate, revisit, obfuscate, or read down from the Supreme Court’s judgement in a myriad of ways.

 

4. The reality is that when the Supreme Court judgement was issued in 2017, everyone, including the Crown, understood what it stood for. The Crown cannot now be heard to question what the majority Judges meant some six years later.

 

5. The gaping hole in the Attorney-General’s defence – which he has not addressed – is what happened to the land that the Crown was charged with reserving? The Customary Owners were completely dependent on the Crown to fulfil the terms of the purchase.

 

6. The Attorney says the Customary Owners have acquiesced in the wrong done to them. That they failed to enforce their rights despite being clear they had suffered an injustice. This submission is simply wrong. Extensive efforts were made by the Customary Owners throughout the 20^th Century to vindicate their rights.

 

7. The plaintiff’s primary focus is on the restoration of the land that is held by the Crown on trust, reflecting the cultural importance of the whenua to the Customary Owners, and the need to secure its return to achieve a state of ea, or balance. Failing that, the plaintiff seeks equitable compensation for the value of that property.

 

8. Although the litigation has been gruelling and stressful, Mr Stafford has not wavered once in his unequivocal view that justice will not be achieved until the whenua tuku iho (ancestral land) of the Customary Owners is returned.

 

9. There have been delays over a period of some 178 years since the Tenths promise was made. That delay has continued since these proceedings were issued in 2010 and have been exacerbated by the Crown’s approach since the Supreme Court’s judgement in 2017.

 

10. The last word should belong to Matua Rore Stafford. He has led the struggle for over 40 years, alongside our whānau, and those kuia and kaumātua who have now gone. He hopes this week will be his last in a courtroom and instead his future will see justice achieved.

 

 

 

 

Here’s a few things to know about what comes next.

 

• At the conclusion of the hearing, the Judge will take some time to consider all the arguments and evidence before she makes her decision. Once she makes a decision, she will write the judgement. This will take some time. We expect a decision in early 2024.

 

• We hope for a strong decision, one that encourages the Crown to meet with us to finally settle this matter in a principled and pragmatic way.

 

• The decision could be appealed – by either party. There needs to be good legal or factual grounds for an appeal to proceed.

 

• Should remedies be awarded, a new entity to receive the trust property will be established. The beneficiaries of the trust (Ngā Uri) will decide on the appropriate model for this entity.

 

• While we await the Judge’s decision, we continue our focus and work on making the tenths whānau whole, with the aim of reconnecting whānau with their whenua and whakapapa.

 

We’ll provide more information on each of these over the coming weeks and months.

 

Dr Richard Meade has recently given evidence on our behalf in Stafford v Attorney-General.

 

Dr Meade is an economic consultant and researcher, and Principal Economist at economic consulting and research practice Cognitus Economic Insight.

 

He is also a Senior Research Fellow at AUT – Auckland University of Technology, President of the Law & Economics Association of New Zealand (LEANZ), and a member of many academic and professional associations, including the New Zealand Association of Economists.

 

He has a PhD in industrial organisation and regulation, and MPhil and MSc each in economic theory and econometrics, all from the Toulouse School of Economics – TSE, and a BSc (Hons) in statistics and operations research, BSc in statistics and operations research, and BCA in economics and finance, all from Te Herenga Waka—Victoria University of Wellington.

 

He has significant experience advising and acting for Māori organisations on Treaty, commercial and strategic matters.

 

This includes acting as commercial advisor and negotiator for Ngāi Tahu in its Treaty settlement negotiations, in which he assessed its long-term historical losses.

 

He has been involved in many settlement negotiations and resumption applications since then.

 

Dr Meade provided an independent assessment of the economic position that the customary owners would be in had the Crown fulfilled its fiduciary duties.

 

This is a hugely important element of our case. Ngā mihi Dr Meade.