On August 14, the longest-standing case against the Crown in New Zealand’s history will start in the High Court at Wellington.
This is a case that has been going on in some form for more than 180 years – since the New Zealand Company bought land, about 151,000 acres, in Nelson and surrounding areas and agreed to retain 10% of it for the benefit of the customary Māori landowners. That land became known as the Nelson Tenths Reserves.
This legally binding agreement was confirmed by a Crown grant in 1845. But, like many of the land deals that were made in the mid-19th century, the promise was not upheld.
But this is not a Treaty of Waitangi claim, and that makes this case both unique and incredibly important.
The Proprietors of Wakatū and Others vs Attorney-General is being fought through the courts as a private law breach of trust case. It is a legal issue with legally binding consequences, completely outside the realm of political treaty settlements.
In 2017, in a landmark decision, the Supreme Court – New Zealand’s highest court – ruled, by a majority of 4-1, that the Crown owes a fiduciary legal duty to the Māori customary owners of the Nelson Tenths Reserves.
Barrister Karen Feint has called this the court’s most important decision yet on Māori legal issues. “It seems to me that the true legacy of the Wakatū decision is that it represents a breakthrough in the courts’ willingness to intervene (in the absence of legislation) and hold the Crown to account into what has hitherto largely been cast as a political relationship.”
The Supreme Court sent the case back to the High Court to decide on the extent of the Crown’s breaches, remedies and any defences the Crown may argue. This is the case that will be heard from August.
The decision will mark a seminal moment in the country’s legal history, and the implications extend beyond New Zealand’s borders. Indigenous communities and legal academics worldwide will be watching, finding hope in our people’s pursuit of justice.
The case has become a catalyst for discussions on indigenous rights and land restitution globally.
Professor Claire Charters, an international expert on indigenous rights, noted, “The Proprietors of Wakatū case has demonstrated the power of the law to correct historical injustices and create a more equitable society. It offers a roadmap for indigenous peoples worldwide to assert their rights and reclaim their cultural heritage.”
At home in Te Tauihu – the top of the South Island – less than 3000 acres of the promised 15,100 acres of the Nelson Tenths Reserves was reserved, leaving a significant shortfall owed by the Crown. In addition, papakāinga, wāhi tapu and cultivation lands that should have been protected were not.
Disconnected from our whenua tuku iho, many of our whānau and hapū left Te Tauihu, changing our political, social and cultural landscape forever. And, today, more than 180 years on, the Nelson Tenths Reserves remain incomplete.
Many New Zealanders have never heard of the case. And many won’t be aware that history will be made in Wellington in a few short weeks. As a nation, it is time to bring this case out into the open. We must all watch closely come August 14 to understand what’s at stake and to ensure the Crown, represented by Attorney-General David Parker, restores its mana by finally pursuing a resolution. The world is watching.
Lawyer Kerensa Johnston (Ngāti Tama, Ngāruahine, Ngāti Whāwhakia) is chief executive of Wakatū Incorporation. She also chairs Ngā Pae o te Māramatanga – the Māori Centre of Research Excellence – and Ngāti Tama ki Te Tauihu Charitable Trust.
