Nelson Tenths case: Iwi were entitled to thousands of hectares of land and millions in compensation

Te Waipounamu summit iwi are entitled to thousands of hectares of land and millions of dollars in compensation for a land deal made in the 1830s that the government failed to respect.

In interim Supreme Court findings released this afternoon, Justice Rebecca Edwards largely sided with Rore Stafford, who sued the Crown on behalf of the customary owners of the Nelson Tenths.

The tithes were parcels in Nelson, amounting to 15,100 acres (6,110 hectares), which the Crown was to hold in trust 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 rangitira 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 reasons for not setting aside these national tithes are not entirely clear,” Judge Edwards said in her judgment.

“Although there were difficulties in identifying suitable land for the rural portions, it is undisputed that there was sufficient land available to allocate the rural tithes.

“It is possible that Governor Gray changed course and moved away from the Tithe Plan to a policy of making large reserves available for the Māori occupation. However, as I find in this judgment, that change in policy could not absolve the Crown of its obligation to provide these Tithes.” .”

The Supreme Court reigned in 2017 that the government must honor the deal made in 1839.

The case was first brought by kaumātua Rore Stafford, on behalf of affected whānau, against the Crown in 2010.

Last year it went back to the High Court to examine the extent of the Crown’s breaches 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 a press release from the Supreme Court.

The Supreme Court found that the customary owners suffered a loss of land and rents generated by that land as a result.

What the customary owners were entitled to was yet to be determined.

“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 between $4.4 and 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.”

Judge Edwards said this is a unique issue and is unlikely to have wider implications.

“It is far from clear that this decision will have the far-reaching and significant impact that the Crown fears,” the judge said.

“The duty established by the Supreme Court is not a fiduciary duty owed by the Crown to Māori generally. Nor does it arise from the Treaty of Waitangi. It is a bespoke duty arising from a particular land transaction that took place in the 1840s. and which is decided according to the principles of equity. The circumstances in which this duty arises are case-specific, which necessarily limits the scope of the application of this judgment.

Judge Edwards would now receive further proposals to settle the issue of the customary owners exemption.