Government will appeal against Nelson Tenths’ latest ruling

The claim has been the subject of a visit by UN Special Rapporteur Elisa Marchi (center right).
Photo: Supplied / Melissa Banks Photographer

The government is appealing an interim Supreme Court ruling that entitles iwi from the top of the South Island to thousands of hectares of Crown land and millions of dollars in compensation for an 1830 land agreement that it did not respect.

In a sentence handed down last month, Judge Rebecca Edwards said largely Kaumātua Rore Stafford’s side who sued the Crown on behalf of the customary owners of the Nelson Tenths.

The Court of Appeal confirmed that the Attorney General had filed an appeal on Wednesday. RNZ has contacted Judith Collins for comment.

The government The May budget allocated $3.6 million at the Office for Māori Crown Relations to appeal the decision before it was released.

The tithes were parcels in Nelson, amounting to 15,100 acres (6,110 hectares) which the Crown was meant to be taken into confidence for the hapū of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata – the customary owners of the land.

The dispute dated back to the New Zealand Company’s purchase of 151,000 acres of land at Te Tauihu (the top of the South Island) in 1839.

It was part of a much larger purchase of 20 million acres in the lower North Island and upper South Island and was confirmed at a meeting between rangatira and the New Zealand Company in 1841 in Kaiteretere.

The principal payment for the land was the reservation of one-tenth of the allotted Nelson lands, which would be held in trust for the customary owners and administered as a grant for their future benefit.

After the signing of Te Tiriti o Waitangi in 1840, the purchase of the New Zealand Company no longer had any effect.

New Zealand Land Claims Commissioner William Spain recommended in 1845 that the company be given the 151,000 acres in Tasman Bay and Golden Bay, but on the condition that a tenth be set aside and pā, urupā and cultivations be excluded.

The Crown obtained the land, including the Nelson Tithes, but only a third of the tithes were reserved.

Further plots were taken, including the withdrawal of 47 city tithes as part of the Nelson Congregation rebuilding in 1847 and the granting of tithe sections to the Bishop of New Zealand in 1853.

The remaining 10,000 hectares have never been reserved.

The Supreme Court ruled in 2017 that the government must honor the 1839 agreement.

The case was first brought by Rore Stafford on behalf of the affected whānauagainst the Crown in 2010.

It went back to the Supreme Court last year to investigate the extent of the Crown’s violations and the remedies in the form of land and compensation.

Judge Edwards found that the Crown had breached its duty by failing to reserve the 10,000 acres as expected; by entering into two transactions with reserved land; by not excluding pā, urupā and cultivations from eight of the approximately 72 occupied areas claimed; and by allocating tithes to pā, urupā and cultivations instead of reserving them from Crown lands.

“As a result of these violations, the Crown acquired land that should have been held in trust for the customary owners, or which should have remained in customary ownership. This land was taken and used by the Crown as if it were Crown land.” said the Supreme Court.

The court found that the customary owners suffered a loss of land and rental income as a result.

“The form of remission cannot be settled until the final area of ​​land to be returned and other matters (such as application and calculation of simple interest) are determined,” the court said.

The customary owners demanded the return of land and compensation for the losses, with the total amount ranging from $4.4 to $6 billion.

However, Judge Edwards ruled that the monetary award would likely be “significantly less than $1 billion”, excluding interest.

“Nevertheless, it will be a significant sum of money. Such an award against the Crown is not unprecedented in New Zealand and is a consequence of the Crown’s breach of its private law fiduciary duties to the customary owners.”

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