Government puts aside $3.6m of taxpayer funds to fight Nelson Tenths decision before it’s landed

Kaumatua Rore Stafford and customary wirness Trina Mitchell in the Wellington High Court. Photo / Mark Mitchell

The Government has set aside $3.6 million of taxpayer funds in preparation for appealing a High Court decision over one of New Zealand’s oldest property law claims - before a ruling has even been made on the case.

The Nelson Tenths case, led by Nelson-based Wakatū Incorporation on behalf of Māori customary landowners, stands as one of the largest pieces of litigation against the Crown this country has seen. It is unique as a private law case, as opposed to a Treaty of Waitangi claim, and only involves land held by the Crown.

Customary Māori landowners at the top of the South Island have been fighting for justice since the 1840s over promises made but never fulfilled when the New Zealand Company bought land for the Nelson settlement.

In 2017, the Supreme Court found the Crown had a duty to honour the original agreement to reserve 6000 hectares of land as the Nelson Tenths Reserves during settlement. The court, by a four-to-one majority, also found the original agreement to reserve and protect Māori papakāinga and other significant cultural lands had to be honoured.

It then handed the baton back to the High Court, which heard over 10 weeks last year matters around remedy and any Crown defences.

That decision is expected shortly.

However, money has already been set aside in the 2024 Budget for the Office for Māori Crown Relations, Te Arawhiti, to keep fighting the case. It says the funding is to support the ongoing Crown response to the Wakatū litigation and any related proceedings, focusing on the first appeal process in the Court of Appeal through to 2027-28.

Wakatū had hoped the High Court matter would be the final hurdle towards resolution.

Crown Law, as the defendant in the current case, told NZME the funding in the Budget was to support its ongoing response to the Wakatū litigation and any related proceedings to cover a range of outcomes, including any appeals by either party.

“It is premature to discuss any appeal as the judgment has not yet been delivered,” a Crown Law representative said.

Wakatū, which is funding the case as the plaintiff, represents the interests of about 4000 owners, who descend from the customary Māori landowners, the whānau and hapū of the Whakatū (Nelson), Motueka and Mōhua (Golden Bay) rohe.

Since 1977 it has grown from having an asset base worth about $11m, to a current value of more than $350m, mostly in land and water space.

In August 2023, during the Crown’s “mini opening” in the High Court, it apologised for its historic role in matters that gave rise to grievances among Māori at the top of the South Island but indicated it was unlikely to budge on the extent of remedies sought to resolve the breaches.

‘Incredibly disappointing’

Wakatū chief executive, Kerensa Johnston, Ngāti Tama, Ngāruahine and Ngāti Whāwhakia, said today it was “incredibly disappointing” that funding had been allocated in the budget to continue fighting the case, rather than enter into a dialogue about how it could be resolved.

“Planning an appeal before the decision is released risks undermining the process and is a deeply disheartening approach,” she said.

The Budget allocation followed $5m allocated last year to contest the customary owners’ claims in court.

Johnston described it as a “prolonged struggle for justice”

“It is particularly disappointing that the Office for Māori-Crown Relations, which was set up to foster good faith engagement with Māori, is instead funding legal battles against us.”

She saidover the years, including during the term of the last Labour Government and since the election of the coalition Government, they had sought to meet with the responsible ministers to resolve the case in a principled and pragmatic manner, only to be consistently refused.

“But, despite the challenges, despite everything that has happened, we still maintain our hope that the Crown will do the right thing,” Johnston said.

Attorney-General Judith Collins KC was now the defendant in the case, on behalf of the Crown.

Johnston said Wakatū had requested a meeting with the Attorney-General to discuss a resolution for the benefit of all at the Top of the South.

Crown Law told NZME that Ministers were currently considering the request to meet with the plaintiff and representatives and would respond in due course.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.