Nelson Tenths case: Iwi entitled to thousands of hectares of land and millions in compensation

Iwi from the top of Te Waipounamu are entitled to thousands of hectares of land and millions of dollars in compensation for a land deal struck in the 1830s which the government did not honour.

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

The tenths were parcels of land in Nelson accounting for 15,100 acres (6110 hectares), which the Crown was meant to hold in trust for the hapū of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata - the land's customary owners.

The dispute dated to the New Zealand Company's purchase of 151,000 acres of land in 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 allotted Nelson land, which was to held on trust for the customary owners and managed 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 the company be granted the 151,000 acres in Tasman Bay and Golden Bay in 1845, but on the condition one-tenth was reserved and pā, urupā and cultivations were excluded.

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

Further parcels were taken, including the withdrawal of 47 town tenths as part of the remodelling of Nelson township in 1847 and a grant of Tenths sections to the Bishop of New Zealand in 1853.

The remaining 10,000 acres were never reserved.

"The reasons for failing to reserve these rural Tenths are not entirely clear," Justice Edwards said in her judgement.

"While there had been difficulties in identifying suitable land for the rural sections, there is no dispute that there was sufficient land available to allocate the rural Tenths.

"It is possible that Governor Grey changed course away from the Tenths scheme towards a policy of providing large reserves for Māori 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 honour the deal struck in 1839.

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

It went back to the High Court last year to examine the extent of the Crown's breaches and the remedies by way of land, and compensation.

Justice Edwards found the Crown breached its duty by failing to reserve the 10,000 acres as expected; by engaging in two transactions of land which had been reserved; by failing to exclude pā, urupā and cultivations from eight of the approximately 72 claimed sites of occupation lands; and by allocating tenths over pā, urupā and cultivations instead of reserving them from Crown land.

"As a result of these breaches, the Crown obtained land which should have been held in trust for the customary owners, or which should have remained in customary ownership. This land was taken and used by the Crown as if it was Crown land," a media release from the High Court said.

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

What customary owners were entitled to was yet to be determined.

"The form of relief cannot be settled until the final acreage 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 sought the return of land and compensation for the losses, with a total sum ranging between $4.4 to 6 billion.

However, Justice Edwards found that the monetary award was likely to be "substantially less than $1 billion" before interest.

"Nevertheless, it will be a significant sum of money. An award of this nature against the Crown is not unprecedented in New Zealand and is a consequence of the Crown's breach of its private law fiduciary duties owed to the customary owners."

Justice Edwards said this was a unique issue and unlikely to have wider ranging effects.

"It is far from clear that this decision will have the wide-ranging and significant impact feared by the Crown," the judge said.

"The duty found by the Supreme Court is not a fiduciary duty owed by the Crown to Māori generally. Nor does it arise out of the Treaty of Waitangi. It is a bespoke duty arising out of a particular land transaction which took place in the 1840s and which is decided according to principles of equity. The circumstances in which this duty arises is case specific which necessarily limits the extent of this judgment's application."

Justice Edwards would now receive further submissions to settle the issue of relief to the customary owners.