From left, external legal advisor to the Special Rapporteur Elisa Marchi, law professor Claire Charters, Special Rapporteur Francisco Calí Tzay, Wakatū Incorporation chief executive Kerensa Johnston at Te Āwhina Marae in April. Photo: Supplied / Melissa Banks Photographer
The descendants of customary Māori landowners in Nelson are celebrating a hard won victory in the High Court, after an interim ruling found they are entitled to thousands of hectares of Crown land and millions of dollars in compensation.
Members of several South Island hapū have long been seeking redress for a land deal made with the New Zealand Company in the 1830s that the government failed to honour, though it's not yet clear if they will get what the court says they deserve.
It's been more than 180 years since the Crown promised Māori in Te Tauihu (the top of the South Island) that if they sold 151,100 acres of land to the New Zealand Company - they'd be able to keep one-tenth. Instead they got less than 3000 acres, known as the Nelson Tenths Reserves.
The Supreme Court ruled in 2017 that the government must honour the deal struck in 1839, but despite efforts to resolve the case outside court in the last seven years, there had been no resolution.
Making the Tenths Whole project lead Kerensa Johnston (Ngāti Tama, Ngāruahine and Ngāti Whāwhakia) said the High Court decision took them a step closer to what had been promised.
"The first reaction for us was just one of huge relief. Once again we've got a really strong determination from the court, we had the Supreme Court win in 2017 which determined the legal duty of the Crown and now we have a really comprehensive decision that deals with the Crown's breaches and the remedies that have to come back to the families now."
Kaumātua Rore Stafford first took the case against the Crown in 2010, but it goes back to the 1850s when the government reneged on the deal.
"The most recent litigation that's led to this decision has now been ongoing for over 16 years and Uncle Rore has been at the forefront of this for the past 50 years and before that our ancestors were advocating for the return of the trust land, so it has been a long time coming for our families."
The decision - almost 350 pages long - outlines the land claim's extensive history.
It sets out what's needed to determine the final amount of returned land and the compensation for what has been sold or disposed of. Johnston wants to see it settled without further litigation.
Justice Rebecca Edwards' decision found the Crown did breach its obligations to iwi and that customary owners suffered a loss as a result - but not to the extent claimed.
The customary landowners are seeking the return of Crown land and compensation of between $4.4 and $6 billion for the land that's been sold off, but Justice Edwards said the amount is likely to be substantially less than a billion, before interest.
Johnston said the remedies couldn't be settled until it was determined how much land would be returned and how the rate of interest might be calculated.
"We're hopeful now that the responsible ministers will sit down with us, grapple with the decision and work out together, the best way forward. We don't want to go into further litigation we think that is unnecessary and frankly irresponsible in the face of very clear determinations from the Supreme Court and now the High Court."
The Wakatū Incorporation was formed in 1977 after the government agreed to return the remnants of the Nelson Tenths Reserves following a Commission of Inquiry.
Wakatū now has around 4000 shareholders who are descendants of four iwi: Ngāti Koata, Ngāti Rārua, Ngāti Tama, and Te Ātiawa.
Former long-standing Wakatū board chair and landowner Paul Morgan (Ngāti Rārua, Te Māhurehure, Te Atiawa Taranaki) said the decision was a win for those in Te Tauihu.
"I want to acknowledge our Wakatū owners who've funded this for all these years and our elders that encouraged us to deal with this.
"The reality of it was that the settler governments wrote the law to affect removing land from Māori hapū landowners...we only own six per cent of the lands of this nation, now and this will go a small way to addressing our land loss."
Attorney-General Judith Collins said she would not comment on the case while it's still before the courts.
But in the May budget the Government allocated $3.6m to the Office for Māori Crown Relations to appeal the decision, before it was released.
University of Auckland Centre for Indigenous Peoples and the Law director Claire Charters (Ngāti Whakaue, Tūwharetoa, Ngā Puhi, Tainui) said the court's decision was consistent with the recent observations of the UN Special Rapporteur on the rights of indigenous peoples.
The United Nations Human Rights Office recently sent a please explain to the New Zealand government over the alleged breach of human rights of Māori indigenous communities in Whakatū/Nelson and Wairarapa Moana in Waikato.
"It strikes me that the Crown's persistent attempts to relitigate this issue, with funds being allocated to appeal this decision before the judgement came down, undermines the law and is in bad faith."
Justice Edwards will now receive further submissions to settle the issue of relief to the customary owners.
The parties also have twenty working days to lodge an appeal, should they choose to do so.
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