In 2017, in a groundbreaking case, the Supreme Court decided that the Crown owes legal obligations to the whānau and hapū of the Nelson region for what is known as the Nelson Tenths Reserves and Occupation Lands.
Six years have passed since the Supreme Court win, yet despite hoping for a proactive response from the Crown and its representative, Attorney-General David Parker, the Māori customary owners have instead been drawn into further litigation in their efforts to enforce the Supreme Court’s decision.
Tomorrow, August 14, they’ll be in the High Court again, to press home their claim.
As Kerensa Johnston asks here: Will 2023 finally see a resolution to New Zealand’s oldest property claim?
What might have been for Te Tauihu
Here, at the top of a small island in the South Pacific, known as Te Tauihu o Te Waka a Māui, our whānau live among rich forests of rimu, kahikatea, miro, mataī and tōtara. On this land, we grow and gather nutrient rich and healthy food to sustain us.
Our houses are modern and designed to connect our whānau together, open to the sea and our ancestral mountains. Our papakāinga provides a place where we come together. We live as whānau and hapū, as we have always done, supporting one another in times of stress and need, and celebrating together when times are good.
We live in community with our environment, mindful of the changing patterns of our climate, in relationship with the water, sky and the animals with whom we share this whenua.
Our cities are built among the forest and accommodate the landscape. Buildings hug the trees, native plants define the contours of our roads, and urban hubs provide a common place to come together, to learn, trade, eat, drink and share.
Te reo rangatira, the language of our tūpuna, is spoken by all. It is the first language that our children learn, regardless of whether they’re tāngata whenua, the first people of this land, or tāngata Tiriti, those who came later and have chosen, subject to the sacred covenants contained in Te Tiriti, to make Aotearoa their home.
It is much later, when our children begin their formal education, which is underpinned by the depth and complexity of wānanga and humanist values of equality and collective good, that they begin to learn second, third and fourth languages that will carry them forward into the world.
Here in Te Tauihu, our modern politics and economy are underpinned by our ancient values of manaakitanga, whanaungatanga, kaitiakitanga and rangatiratanga, which combine with introduced concepts such as the rule of law, equality and democracy. We have intermarried with those who came later to our country, creating strong, resilient and healthy families who are truly indigenous to this place, our home, Te Tauihu o te Waka a Māui.
Of course, in 2023 in Te Tauihu and in Aotearoa, this is not our reality. The promise of colonisation has not delivered the benefits our tūpuna imagined and our reality, as the Indigenous people of Aotearoa, is vastly different.
But the state we imagined was very real to our tūpuna. It was the reason why, at Kaiteretere in Tasman Bay in the spring of 1841, our rangatira engaged with New Zealand Company officials, led by Arthur Wakefield, and agreed to the settlement of what would become Nelson.
Our tūpuna lived in Whakatū (Nelson), Motueka, Mohua (Golden Bay) and the area we now know as the Abel Tasman National Park. They lived according to the fundamental principles of Māori customary law or tikanga, such as tapu, utu, mana moana and mana whenua. They believed in technology, innovation and education, and in the promise made by the New Zealand Company of a future in which they would prosper and thrive.
They agreed to the settlement of Nelson subject to two very important conditions, which were subsequently enshrined in law through a Crown Grant of 1845.
Firstly, that all papakāinga, wāhi tapu, urupā, and cultivation lands would be protected in perpetuity for the benefit of the customary owners — those places that we revered, those places where we lived and the areas of land and water we depended on for prosperity and survival. These became known as the Occupation Lands.
Secondly, that one-tenth of all land used for the Nelson settlement would be reserved in perpetuity for the benefit of the families of the customary landowners and their descendants, the whānau and hapū of Western Te Tauihu. This land became known as the Nelson Tenths.
The Tenths and the Occupation Lands together comprise the lands that are the subject of Proprietors of Wakatū and Others v Attorney-General, underway in the High Court this year.
A story of unmet obligations
The Nelson Tenths Reserves agreement was not upheld.
By 1850, the Crown had reneged on the deal and, although a small portion of land was reserved in Nelson under the terms of the agreement, it fell well short of the one-tenth of land agreed. The Crown also failed to reserve and protect our papakāinga and other occupation lands, as promised and enshrined in the 1845 Crown Grant.
According to our collective memory, the agreements made to establish the Nelson settlement created a binding legal relationship between our families and the Crown. Although the Crown argued this point, the Supreme Court of New Zealand agreed with us that the Crown has binding legal obligations to our whānau and hapū.
By 1845, the Nelson settlement officially amounted to approximately 151,000 acres, but the full one-tenth of land (15,100 acres) had not been reserved for our whānau and hapū as promised. In fact, the area of reserved land amounted to less than 3,000 acres. Nor were our papakāinga lands and sacred places protected from settlement as agreed.
Between 1893 and 1977, our people presented a number of delegations and petitions to parliament and other officials in an attempt to find out what had happened to our lands. It was difficult to obtain information, but we learned that much of the land had been sold or leased to others.
In 1892, the Native Land Court embarked on the exercise of identifying the individual Māori landowners of the Nelson Tenths estate by reference to the Māori customary owners of the land. At the Native Land Court hearing, the whānau and hapū provided lists to the court of those tūpuna who owned the land at the time of the establishment of Nelson (in the 1840s) and who were considered to be the Māori customary owners of the land according to tikanga, international law and colonial law.
It’s these tūpuna and their descendants who, from 1893 onwards, have fought to have our land returned to our management and care. Finally, in the 1970s, this state of affairs led to a Commission of Inquiry. As a result, in 1977, Wakatū Incorporation was established by its Māori owners to manage the remnants of the Tenths Reserves and Occupation Reserves on behalf of the owners.
Our kaumātua, Rore Stafford, who led the case against the Crown in the courts, was instrumental, along with others, in establishing the incorporation. Uncle Rore, as we know him, remains the lead plaintiff against the Attorney-General as our case continues in the High Court.
An abandoned Treaty claim and a journey of litigation
When the land was transferred back to the control of the owners, very little of the original estate remained. The majority of our customary land and the Nelson Tenths land was never reserved by the Crown as guaranteed, and what had been reserved had been slowly whittled away in the intervening years by the Māori Trustee, who, on balance, had essentially failed in its duty to preserve and protect the trust land on behalf of its owners.
By 1985, because of an amendment to the Treaty of Waitangi Act 1975, the Waitangi Tribunal claims process was underway in Te Tauihu. Rore Stafford, who by that time was a member of the committee of management (the Board) of Wakatū, filed the first Treaty of Waitangi claim for the top of the South Island on behalf of the families of the descendants of the Tenths Reserves. This claim was known as WAI 56.
We began the Treaty of Waitangi reconciliation process with the Crown in good faith, with a willing Labour government that was open to settling whānau and hapū claims. Unfortunately, that government was replaced in 2008 by a National government focused on a policy of settling with large groups — preferably iwi or groups of iwi — rather than dealing with hapū about discrete issues and specific areas of land.
The failure of the Treaty settlement process and the policy adopted by the National government at that time led us to the courts and to our current legal argument based on first legal principles. We decided to argue a breach of trust in the courts rather than a breach of the Treaty of Waitangi.
Our argument was very simple: a trust had been created, the Crown trustee had failed to meet its obligations as trustee, and, as a result, we sought the return of the land, the trust property, to its owners.
Our legal strategy was grounded in the belief that we as Māori and as property owners were entitled to the full protection of the law (in our case, trust law) in the same way as any other beneficiary in New Zealand. Unbelievably, the Crown argued strongly against this point, pointing to, among other things, the role of the Waitangi Tribunal and the negotiation process to settle claims against the Crown, rather than the legal process.
Despite how hard the Crown argued that it had no legal responsibilities in relation to our whānau and the trust land, we strongly believed that Māori landowners have the option to choose whether to look to the Waitangi Tribunal or the law courts for a remedy in New Zealand. This is one of the guarantees of article three of the Treaty of Waitangi as well as an inherent constitutional right of every New Zealand citizen.
A long-standing matter that must be resolved
The legal path we ultimately find ourselves on has taken many years, as the case has made its way through the High Court and Court of Appeal, and finally to the Supreme Court, New Zealand’s highest court. In a significant win for the Māori customary owners, in February 2017 the Supreme Court ruled in our favour by a majority of 4–1, deciding that the Crown has a fiduciary duty to our people.
Following the decision, David Parker asked our kaumātua Rore Stafford to submit a settlement proposal on behalf of the customary owners, which we did. However, six years on, despite our best efforts to meet the Crown at the table to discuss a principled and pragmatic solution, we are still waiting to progress this with the Attorney-General.
We have asked that the government act honourably and join us at the table to discuss and present a timely and proactive solution. In the wake of a Supreme Court decision in our favour, we see no reason why this matter should not be resolved, in a positive and pragmatic way. This is a defining opportunity for the government to restore its mana, with respect to the families of Te Tauihu.
Return of whenua a defining opportunity
Our journey of justice and restitution has now been going on for more than 180 years. It is underpinned by our hope for a different reality, and the courage to ask some important questions.
What would the lives of our families look like had the Crown adhered to its side of the bargain in 1845 and fulfilled its obligations as our trustee?
How different would our political, social and cultural landscape look today? Would we lead the world in terms of our approach to the environment, our economy, the development and education of our people and our cities, in the ways our tūpuna might have imagined?
What would our part of the world, a small island in the South Pacific, look and feel like, had we adopted the best of our customary practices and values and married them with the best the settlers had to offer? This, we will never know.
However, what our families do know, as a result of Proprietors of Wakatū, is that together we must reimagine and create our future based on the aspirations of our tūpuna for a brighter political, social, cultural and economic landscape. This journey depends on our land being restored to our families.
We are now back in the High Court, in the midst of an election year, with all the complexities that brings. Rather than continue with court proceedings, which are time-consuming, expensive and can take a long time to resolve, we want to work directly with the government, so that they can properly recognise their duty as trustee of the Nelson Tenths land.
A resolution will deliver prosperity, certainty and mana for our whānau and region, in keeping with the original terms of the Nelson Tenths Reserves and the vision of our tūpuna of Te Tauihu o Te Waka a Māui.
Kerensa Johnston is a lawyer who has worked as a solicitor in the private sector, as a barrister, and as a legal academic at the Faculty of Law, University of Auckland, where she specialised in Māori legal development, public law, land law and international law. Kerensa is the chair of Ngā Pae o te Māramatanga, the Māori Centre of Research Excellence, and the chair of Ngāti Tama ki te Tau Ihu Charitable Trust. She is a member of the International Association of Corporate Counsel, Corporate Lawyers’ New Zealand and Te Hunga Roia. Her iwi are Ngāti Tama, Ngāruahine and Ngāti Whāwhakia.
See also Professor Sandy Morrison’s personal perspective on the Nelson Tenths Reserves.
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