Photo: RNZ / Rebekah Parsons-King

The Te Waipounamu summit iwi are entitled to thousands of hectares of land and millions of dollars in compensation for a land deal reached in the 1830s that the government failed to honor.

In interim High Court findings published this afternoon, Justice Rebecca Edwards sided with Rore Stafford, who sued the Crown on behalf of the usual owners of the Nelson Tenths.

The tenths were parcels of land in Nelson representing 15,100 acres (6,110 hectares), which the Crown was to hold in trust for the hapū of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata, the customary owners of the land.

The dispute dates back to the New Zealand Company’s purchase of 151,000 acres of land at 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 Rangitira and the New Zealand Company in 1841 at Kaiteretere.

The main payment for the land was the reservation of one-tenth of the land allotted to Nelson, which was to be held in trust for the customary owners and administered 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 that the company be granted 151,000 acres in Tasman Bay and Golden Bay in 1845, but on condition that one-tenth be reserved and pā, urupā and crops be excluded .

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

Further plots were taken, including the withdrawal of 47 tenths from the town as part of the redevelopment of Nelson township in 1847 and a grant of tenth sections to the Bishop of New Zealand in 1853.

The remaining 10,000 acres were never reserved.

“The reasons why these rural Tenths were not reserved are not entirely clear,” Judge Edwards said in her ruling.

“While there were difficulties in identifying suitable land for the rural sections, there is no doubt that there was sufficient land available to allocate the rural tenths.

“It is possible that Governor Gray changed course from the tenth scheme towards a policy of providing large reserves for Maori occupation. However, as I find in this judgment, that change in policy could not relieve the Crown of its obligation to provide these tenths.”

The Supreme Court ruled in 2017 that the government must respect the agreement reached in 1839.

Kaumātua Rore Stafford, left, first took action against the Crown in 2010.
Photo: Supplied / Melissa Banks Photographer

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

Last year he returned to the High Court to examine the extent of the Crown’s breaches and remedies in the form of land and compensation.

Justice Edwards concluded that the Crown breached its duty by not reserving the 10,000 acres as expected; carrying out two land transactions that had been reserved; by not excluding pā, urupā and crops from eight of the approximately 72 claimed occupation land sites; and allocating tenths on pā, urupā and crops rather than reserving them from Crown lands.

“As a result of these violations, the Crown obtained land that should have been in trust for the customary owners, or should have remained in customary ownership. This land was taken and used by the Crown as if it were Crown land.” said a press release from the Superior Court.

The High Court found that, as a result, the customary owners suffered a loss of land and rents generated by that land.

What the customary owners were entitled to was still to be determined.

“The form of compensation cannot be resolved until the final area 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 requested the return of the land and compensation for losses, with a total sum ranging between $4.4 billion and $6 billion.

However, Judge Edwards concluded that the monetary award would likely be “substantially less than $1 billion” before interest.

“However, it will be a significant sum of money. An award of this nature against the Crown is unprecedented in New Zealand and is a consequence of the Crown’s breach of its private law fiduciary duties to the customary owners.”

Judge Edwards said this was a single issue and was unlikely to have wider-reaching effects.

“It is far from clear that this decision will have the broad and significant impact that the Crown fears,” the judge said.

“The duty determined by the Supreme Court is not a fiduciary duty owed by the Crown to Māori generally. Nor does it arise from the Treaty of Waitangi. It is a tailor-made duty arising from a particular land transaction that took place in the decade of 1840. and that is decided according to principles of equity. The circumstances in which this duty arises are specific to each case, which necessarily limits the scope of the application of this ruling.

Mr Justice Edwards would now receive further submissions to resolve the issue of compensation to customary owners.