From left to right: External Legal Advisor to Special Rapporteur Elisa Marchi, Professor of Law Claire Charters, Special Rapporteur Francisco Calí Tzay, CEO of Wakatū Incorporation Kerensa Johnston at Te Āwhina Marae in April.
Photo: Supplied / Melissa Banks Photographer
The descendants of traditional Māori landowners in Nelson are celebrating a hard-fought victory at the Supreme Court after an interim ruling found they are entitled to thousands of hectares of Crown land and millions of dollars in compensation.
Members of several South Island hapū have long sought compensation for a land deal struck with the New Zealand Company in the 1830s that the government has failed to honor, although it is not yet clear whether they will get it. what the court says they deserve.
It’s been more than 180 years since the Crown promised Māori at Te Tauihu (the top of the South Island) that if they sold 151,100 acres of land to the New Zealand Company they would be able to keep a tenth. Instead, they were given less than 3,000 hectares, known as the Nelson Tenths Reserves.
The Supreme Court reigned in 2017 that the government had to honor the deal made in 1839, but despite attempts to resolve the matter out of court over the past seven years, no resolution had been reached.
Making the Tenths Whole project leader Kerensa Johnston (Ngāti Tama, Ngāruahine and Ngāti Whāwhakia) said the High Court decision brought them one step closer to what was promised.
“The initial reaction for us was just one of enormous relief. Once again we have had a very strong determination in court, we won the Supreme Court in 2017, which determined the legal duty of the Crown, and now we have a very comprehensive decision that addresses the Crown’s breaches and the remedies that now have to come back to the families.”
Kaumātua Rore Stafford first brought the case against the Crown in 2010, but it dates back to the 1850s, when the government reneged on the agreement.
“The most recent court case that led to this decision has been going on for over sixteen years now and Uncle Rore has been at the forefront of this for the past fifty years and before that our ancestors advocated for the return of the trust land. It’s been a long time coming for our families.”
The decision – almost 350 pages long – outlines the extensive history of the land claim.
This sets out what is required to determine the final amount of land returned and compensation for what has been sold or disposed of. Johnston wants the case settled without further litigation.
Judge Rebecca Edwards’ decision found the Crown breached its obligations to iwi and the customary owners suffered a loss as a result – but not to the extent alleged.
The traditional landowners are seeking the return of Crown land and compensation of between $4.4 billion and $6 billion for the land sold, but Judge Edwards said the amount is likely to be substantially less than a billion, before interest.
Johnston said solutions could only be arranged after determining how much land would be returned and how interest would be calculated.
“We are now hopeful that the responsible ministers will sit down with us, wrestle with the decision and work out together the best way forward. We do not want to litigate further. We think this is unnecessary and downright irresponsible in the face of very clear decisions from the Supreme Court and now the Supreme Court.”
The Wakatū Incorporation was formed in 1977 after the government agreed to return the remains of the Nelson Tenths Reserves following a commission of inquiry.
Wakatū now has approximately 4,000 shareholders who are descendants of four iwi: Ngāti Koata, Ngāti Rārua, Ngāti Tama and Te Ātiawa.
Former Wakatū board chairman and landowner Paul Morgan (Ngāti Rārua, Te Māhurehure, Te Atiawa Taranaki) said the decision was a victory for those in Te Tauihu.
“I would like to thank our Wakatū owners who have funded this all these years, and our elders who have encouraged us to deal with this.
“The reality was that settler governments wrote the law to influence the removal of land from Māori hapū landowners… we now own only six percent of this nation’s land, and this will go one small way to address our land loss to take. .”
Attorney General Judith Collins said she would not comment on the case while it was before the courts.
But in the May budget the government allocated $3.6 million to the Office of Māori Crown Relations to appeal the decision before it was released.
University of Auckland Center for Indigenous Peoples and rights director Claire Charters (Ngāti Whakaue, Tūwharetoa, Ngā Puhi, Tainui) said the court’s decision was consistent with the recent observations of the UN Special Rapporteur on the Rights of Indigenous Peoples.
The United Nations Human Rights Office recently sent a message please explain the New Zealand Government over alleged violations of the human rights of indigenous Māori communities in Whakatū/Nelson and Wairarapa Moana in Waikato.
“It strikes me that the Crown’s continued attempts to re-litigate this issue, allocating funds to appeal this decision before the verdict was handed down, undermine the law and are in bad faith.”
Judge Edwards will now receive further proposals to settle the issue of the customary owners exemption.
Parties also have twenty working days to appeal.
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