The Nelson Tenths Case: Government Appeals High Court Ruling on Land and Compensation

The government has appealed an interim High Court ruling that will entitle iwi from the top of the South Island to thousands of hectares of Crown land and millions of dollars in compensation for a 19th-century land deal it did not honour. The claim, which dates back to the 1830s, has been the subject of a visit by UN Special Rapporteur Elisa Marchi.

The Background of the Dispute

The dispute began with the New Zealand Company’s purchase of 151,000 acres of land in Te Tauihu (the top of the South Island) in 1839. As part of this deal, the Crown was meant to reserve one-tenth of the land as an endowment for the customary owners and manage it as such. However, the company only reserved a third of the tenths, and further parcels were taken over time.

The High Court Ruling

In 2017, the Supreme Court ruled that the government must honour the deal struck in 1839. The case was first brought by Rore Stafford, on behalf of the affected whānau, against the Crown in 2010. Last year, the case went back to the High Court to examine the extent of the Crown’s breaches and the remedies by way of land and compensation.

Justice Edwards found that 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.

“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. “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.”

The Current Situation

The High Court found that the customary owners suffered a loss of land and rentals generated by that land as a result. The court awarded a total sum ranging between $4.4 to $6 billion, with Justice Edwards estimating the monetary award to be “substantially less than $1 billion” before interest.

However, despite this ruling, the government has appealed the decision, arguing that it will have significant implications for public policy and land use in New Zealand. The appeal is currently pending before the High Court.

Conclusion

The Nelson Tenths case is a landmark dispute that highlights the importance of honouring historical agreements between the Crown and iwi. The government’s decision to appeal the ruling sends a strong message that it will not comply with the High Court’s orders. However, if the appeal fails, the court’s ruling could pave the way for significant reforms in land ownership and management in New Zealand.

As the case continues to unfold, it is clear that the stakes are high, both financially and in terms of principle. The outcome will have far-reaching implications for the rights of iwi and whānau across the country, and for the way that public policy is made in New Zealand.