Nelson Tenths Reserves: Losses to Māori from broken promises over land purchases estimated at more than a billion dollars

Kaumatua Rore Stafford (centre), customary witness Trina Mitchell and Te Puoho Katene (partially obscured) who is descended from one of the Māori customary landowners in Nelson, in the Wellington High Court. Photo / Mark Mitchell

The losses for Nelson Māori over unresolved land deals might have amounted to more than a billion dollars but it pales in comparison to the pain and suffering from the cultural loss of customary land, the High Court has heard.

One of New Zealand’s oldest property law claims opened in the Wellington High Court today, aimed at resolving one of the largest pieces of litigation against the Crown this country has seen.

Customary Māori landowners in 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 ruled that the Crown had a legal duty to right the wrongs.

The Wellington High Court will over the next 10 weeks hear the remaining issues still in dispute over the long-running saga of the Nelson Tenths Reserves, including factual findings on the breaches.

A focus of the case is the endowments owed from the sale of land, that would have enabled Māori to benefit from the growth of Nelson on their own land.

The hearing before a packed courtroom opened with a karanga as part of the mihi whakatau - a traditional Māori welcome ceremony.

King's Counsel Karen Feint at today's opening in the Wellington High Court of a case aimed at resolving the long-running saga of the Nelson Tenths Reserves. Photo / Mark Mitchell

Kings Counsel Karen Feint said in her opening overview that while the legal argument around redress was relatively recent, it had fallen on the descendants of the Māori customary landowners to pick up the long-running battle.

It was being fronted by rangatira Rore Stafford who is representing the Māori customary landowners - the descendants of those tūpuna identified by the Native Land Court in 1892.

Feint said he had been to the forefront since 1986 when the Tenths claim was filed, but he had not stood alone; he had carried on his shoulders the wishes of the hapū and whānau of customary owners of the land when the New Zealand Company arrived in 1841.

“This is not long-forgotten history. There are people sitting here today whose great-great-grandparents were among those who were wronged.”

She said Stafford is saying it’s a simple case, centred on promises made and promises broken, while the Supreme Court had said it was not a simple case but it had done the “heavy lifting” by setting out the legal framework.

“We say the legal framework has been mapped out for this court to follow in its path,” Feint said.

Nelson-based Wakatū Incorporation is supporting the claim and hopes the current case, which began in 1986, would be the final hurdle toward resolution against the Crown.

The Wakatū Incorporation represents the interests of about 4000 owners, who descended from the customary Māori landowners, the whānau and hapū of the Whakatū (Nelson), Motueka, and Mōhua (Golden Bay) rohe.

The legal case does not involve private land, but land held by the Crown. Neither was it a Treaty claim but one that had traversed the courts over decades as a private breach of trust.

Crown Law is representing the Attorney-General as the respondent.

A key plank in the Crown’s defence is expected to rely on the Treaty settlement process, which the plaintiff said is irrelevant because they were politically negotiated agreements.

“There’s no relationship between the remedies sought here and the redress offered in Treaty settlements,” Feint said.

At the heart of the matter was the purchase deals by the New Zealand Company for the Nelson settlement scheme from the early 1840s.

One-tenth of the land bought by the company was to be set aside and held in trust for the customary Māori landowners. All land occupied by Māori (pā, urupā, and cultivations) was to be excluded from the sale.

This was officially recognised by Commissioner William Spain and became enshrined in the Crown Grant of 1845.

But the agreement was never honoured. Only 5100 acres (2000ha) of what should have been 15,100 acres (6110ha) of land set aside were ever identified and reserved.

By 1882 the 5100 acres (2000ha) had been whittled down to 3000 (809ha) with the arrival of more settlers.

Currently, the customary Māori landowners have less than 20 per cent of the land they’re legally entitled to.

Feint said while there had been economic loss to the customary owners, they had suffered cultural harm through the loss of the land.

The remnants of the Tenths were held in trust and managed by the Crown and its trustees from 1845 until 1977 when the Wakatū Incorporation was formed by Māori landowners to receive and manage these leftovers.

Wakatū Incorporation chief executive Kerensa Johnston said redress sought now was a combination of the proportion owed and land already tagged.

Feint said there was not enough Crown land to meet The Tenths entitlement. Remedies are likely to consider what land might be available to make up for any shortfall.

If the Crown could not return the land, then relief should be sought for the loss of use of the land by Māori, plus relief for cultural loss.

The hearing continues.

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.