Government to appeal latest Nelson Tenths ruling

The government is appealing an interim High Court ruling that will entitle iwi from the top of the South Island to thousands of hectares of Crown land and millions of dollars in compensation for an 1830s land deal it did not honour.

In a judgement delivered last month, Justice Rebecca Edwards largely sided with kaumātua Rore Stafford who sued the Crown on behalf of the customary owners of the Nelson Tenths.

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

The government allocated $3.6m in May's budget to the Office for Māori Crown Relations to appeal the decision, before it was released.

Te Here-ā-Nuku | Making the Tenths Whole project leader Kerensa Johnston said the group was deeply disappointed that the Crown had chosen to appeal.

"With the weight of the Supreme Court and High Court decisions in our favour, we had hoped that the Crown would see the sense in meeting us at the table to negotiate a pragmatic resolution to this long-standing injustice. Instead, the Crown will use taxpayer money to continue fighting us in court," she said.

"We are now carefully considering our options. This is not the pathway we had hoped for and we are heartbroken to see justice for our region potentially delayed yet again."

The tenths were parcels of land in Nelson accounting for 15,100 acres (6110 hectares) that the Crown was meant to hold in trust for the hapū of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata - the land's customary owners.

The dispute dated to the New Zealand Company's purchase of 151,000 acres of land in 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 at Kaiteretere.

The main payment for the land was the reservation of one-tenth of the allotted Nelson land, which was to be held on trust for the customary owners and managed as an endowment for their future benefit.

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

New Zealand Land Claims Commissioner William Spain recommended the company be granted the 151,000 acres in Tasman Bay and Golden Bay in 1845, but on the condition one-tenth was reserved and pā, urupā and cultivations were excluded.

The Crown obtained the land, including the Nelson Tenths, but only a third of the tenths was reserved.

Further parcels were taken, including the withdrawal of 47 town tenths as part of the remodelling of Nelson township in 1847 and a grant of Tenths sections to the Bishop of New Zealand in 1853.

The remaining 10,000 acres were never reserved.

The Supreme Court ruled in 2017 that the government must honour the deal struck in 1839.

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

It went back to the High Court last year to examine the extent of the Crown's breaches and the remedies by way of land and compensation.

Justice Edwards found the Crown breached its duty by failing to reserve the 10,000 acres as expected; by engaging in two transactions of land which had been reserved; by failing to exclude pā, urupā and cultivations from eight of the approximately 72 claimed sites of occupation lands; and by allocating tenths over pā, urupā and cultivations instead of reserving them from Crown land.

"As a result of these breaches, the Crown obtained land which 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 was Crown land," the High Court said.

The court found customary owners suffered a loss of land and rentals generated by that land as a result.

"The form of relief cannot be settled until the final acreage of land to be returned and other issues (such as the application and calculation of simple interest) are determined," the court said.

The customary owners sought the return of land and compensation for the losses, with a total sum ranging between $4.4 to $6 billion.

However Justice Edwards found that the monetary award was likely to be "substantially less than $1 billion" before interest.

"Nevertheless, it will be a significant sum of money. An award of this nature against the Crown is not unprecedented in New Zealand and is a consequence of the Crown's breach of its private law fiduciary duties owed to the customary owners."

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