MEDIA RELEASE: Government plans Nelson Tenths appeal – before the decision is released

MEDIA RELEASE:

Government plans Nelson Tenths appeal – before the decision is released


The Government has allocated $3.6 million of taxpayer funds in the Budget to appeal the High Court’s forthcoming decision in the Nelson Tenths dispute, even though the Court’s decision has not yet been issued.

 

“It is incredibly disappointing that funding has been allocated to continue to fight the case, rather than enter into a dialogue about how it can be resolved,” says Kerensa Johnston, CEO of Wakatū Incorporation, which supports the customary Māori owners in this case.

 

“Planning an appeal before the decision is released risks undermining the process and is a deeply disheartening approach.”

 

The Budget allocation is designated for Te Arawhiti, the Office for Māori Crown Relations, and follows the $5 million allocated last year to contest the Māori customary owners’ claims in court.

 

This defence continues despite a 2017 Supreme Court ruling establishing the Crown’s legal duty regarding the Nelson Tenths land.

 

“It’s been a prolonged struggle for justice for us,” Ms Johnston said. “It is particularly disappointing that the Office for Māori-Crown Relations, which was set up to foster good faith engagement with Māori, is instead funding legal battles against us.”

 

Ms Johnston said that the Māori customary owners had expected the Government to honour the 2017 Supreme Court ruling. Over the years, including since the election of New Zealand’s coalition Government, they had sought to meet with the responsible ministers to resolve the case in a principled and pragmatic manner, only to be consistently refused.

 

“But, despite the challenges, despite everything that has happened, we still maintain our hope that the Crown will do the right thing,” Ms Johnston said.

 

“Attorney-General Judith Collins KC is the defendant in our case, on behalf of the Crown. We have requested a meeting with the Attorney-General to discuss a positive resolution of this case, which we believe will be of benefit to all in our region.”

 

END

OPINION: UN human rights review a red flag for Government – Kerensa Johnston

OPINION: UN human rights review a red flag for Government – Kerensa Johnston

Every five years, New Zealand’s human rights record is scrutinised by the UN as part of its Universal Periodic Review (UPR). New Zealand’s fourth review took place last month, in Geneva.

 

It consisted of a national report submitted to the UN and published on its website; a three-hour hearing at which Hon Paul Goldsmith, Minister for Justice, delivered a national statement on behalf of the Government; and then recommendations from other countries on how we can improve our human rights situation.

 

This last element is perhaps the most crucial, and certainly the most telling as a gauge of how our nation is doing according to our peers on the international stage.

 

No fewer than 40 countries made recommendations for New Zealand to improve its performance in relation to the human rights of indigenous peoples.

 

It is significant that there is so much international concern about the state of human rights in New Zealand, particularly as it relates to Māori. This should be a red flag for us here at home and particularly for the Government.

 

Countries like Norway, Greece, Switzerland, Germany, China, Australia and the USA – countries that we trade with and partner with – have called on the Government to improve its protection of indigenous rights.

 

Their response follows the Government’s backdown from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and other human rights issues that have emerged since the coalition took office.

 

Their criticisms, veiled as they were in diplomatic language, were criticisms, nonetheless, and highlight a serious erosion of human rights in Aotearoa. China, for example, noted with concern that racism or hate speech remains severe in New Zealand, while Germany recommended that Te Tiriti be incorporated into a written constitution and the New Zealand Bill of Rights Act amended to incorporate a broader range of rights, as set out in international covenants.

 

There are several recent examples of human rights violations to choose from. One close to home is the Government’s ongoing failure to meet its legal obligations, recognised by the Supreme Court in 2017, in relation to the Nelson Tenths Reserves, and the Government’s duty to reserve and protect that land for its Māori customary owners.

 

While the case is still before the courts, it engages critical human rights and international law obligations that will need to be resolved by the Government if it takes those rights and obligations seriously.

 

This is because the Crown’s ongoing failure to meet its duties in relation to the Nelson Tenths Reserves is a breach of fundamental human rights, including the right to culture and ancestral land.

 

Despite the Supreme Court’s landmark decision in 2017, not a single acre of land has been returned to its owners. Every day that goes by is a day that the customary owners are deprived of their rights to land and resources, to self-determination, to take part in cultural life, and to effective redress – rights that are guaranteed under the UNDRIP and deserve protection and recognition by our Government.

 

In a recent press release, indigenous rights scholar Professor Claire Charters describes our case, and others like it, as a miscarriage of justice.

 

“These modern-day experiences of iwi, hapū, and whānau highlight how readily Parliament can override human rights, and especially the rights of Indigenous peoples. It’s a serious flaw in the current system of government in Aotearoa.”

 

This year, alongside other organisations facing similar challenges, we submitted a report to the UPR process explaining our case and the history of the Nelson Tenths Reserves.

 

We also welcomed the UN Special Rapporteur on the Rights of Indigenous Peoples to Nelson to learn about our case and to gather information on the state of human rights breaches with respect to indigenous peoples in Aotearoa.

 

The lack of constitutional protections in Aotearoa, particularly for Māori, mean that international law mechanisms like the UPR are all the more important in order to hold state power to account.

 

The recommendations made by 40 UN member states this year provide an element of scrutiny and accountability that will be difficult for our Government to ignore. While they are not binding, they provide an important gauge on how the international community sees us and how we are meeting, or failing to meet – basic human rights standards.

 

The Government, will, presumably respond to the recommendations and criticisms. Hon Goldsmith said the input would be ‘considered’ as the Government shapes its work.

 

We can only hope that the Government will listen and take meaningful steps to undo the backward momentum.

 

Kerensa Johnston is a member of the Te Here-ā-Nuku Working Committee. 

 

This article was originally published in The Post and The Press.

Ngā Uri and the Native Land Court List, 1892

Ngā Uri – the beneficiaries of the Nelson Tenths claim – are the direct descendants of those tūpuna named on the Native Land Court List, 1892.

 

The 1892 Native Land Court list is the list that most accurately records those specific Tainui Taranaki tūpuna of Ngāti Rārua, Te Ātiawa, Ngāti Tama and Ngāti Kōata who held customary title to the land at the time of the New Zealand Company purchase in 1841.

 

It identifies those tūpuna who were on the land when the New Zealand Company arrived in Nelson and who met with New Zealand Company officials to agree to the establishment of Nelson.

 

It is our most comprehensive and conclusive record, constructed by our whānau at the time and subsequently confirmed by the Native Land Court’s determination.

 

The validity of the list to determine the customary owners was recognised by the Waitangi Tribunal.

 

View the names on the Native Land Court List, 1892: https://tehereanuku.nz/our-people/nga-uri-native-land-court-list-1892/

Voices of whānau | Sophie Irving, Ngāti Koata, Te Ātiawa

What does whakapapa mean to you?

 

Whakapapa to me is our indigenous way to understand how the world is. It is inherent to who we are as Māori. It is our line we trace back that connects us to everything in the natural world. For me, whakapapa ties me to my hapū-based identity as Te Ātiawa and Ngāti Koata. It is a reciprocal relationship with all that is around us – we belong to the land, the river and the seas and it is our responsibility to protect and nurture it for mokopuna to come.

 

For those starting out on their whakapapa journey, I say learn it by making the connections. Bathe in your awa, climb your maunga, be with your people. They will teach you more than reading your whakapapa on a screen or piece of paper ever will.

 

 

What is your connection to the Nelson Tenths whenua?

 

My tūpuna Inia Te Hunahuna nō Te Ātiawa and Mohoao, Hariata Mohoao and Raima Mohoao nō Ngāti Koata were of the many enterprising rangatira that entered into the formal agreement with the Crown to establish the town now known as Nelson.

 

This is a history I learned during my time interning for Wakatū and also being a participant on the Taiohi Wānanga. I feel so privileged to have been able to wānanga, mahi and be sustained in our homelands. An experience that changed the trajectory of my life! Once you learn the atrocities our whānau endured, you can’t see life in the same way.

 

Learning our histories affirms to me that knowledge is power and ever since I was introduced to our rohe and pūrākau, I have maintained a burning feeling in my puku to fight for our whakapapa and our indigenous way of life.

 

Tell us about your tūpuna on the Native Land Court List, 1892

 

Inia Te Hunahuna come on the hekenga down from Waitara to Waikanae. He then went with the boatload of Kaitangata to live in Collingwood, in the Whakatū region.

 

Koro Inia is immortalised in the whare tūpuna Te Ao Mārama, at Onetahua marae in Mohua (Golden Bay).

 

 

Describe your own whakapapa journey

 

Being Māori is something I always knew I was. I think I am so privileged to have a family that valued going back to our homelands in Taranaki. It was in Taranaki that I was given an understanding of my whakapapa. That was because my aunties and uncles always told me who I was. They took me to my awa and my maunga. I had a strong foundation to be able to find out more for myself.

 

The generations and generations of strong foundations are what make us able to endure the effects of colonisation. Whakapapa is a reciprocal relationship, the gift of feeling a sense of belong and knowing who I am means that I need to always be in the pursuit of knowledge and kitiakitanga over our identity as Māori.

 

Reconnecting our whānau to each other and to their whenua is integral to Making the Tenths Whole. We are actively working to bring our whānau back together. If you believe that, like Sophie, you whakapapa to any of the tūpuna identified on the Native Land Court list, 1892, we warmly welcome you to complete this whakapapa form.

 

UN human rights expert to visit Nelson to learn about Nelson Tenths

UN human rights expert to visit Nelson to learn about Nelson Tenths

We look forward to welcoming UN human rights expert Francisco Calí Tzay to our rohe next month to learn about the Nelson Tenths and the Crown’s breach of its fiduciary duty to the customary Māori owners.

 

Mr Calí Tzay is the United Nations special rapporteur on the rights of indigenous peoples. His visit to New Zealand has been organised by Te Kāhui Tika Tangata Human Rights Commission to shine a light on New Zealand’s indigenous rights record.

 

His visit to Nelson forms part of our work to show that the Crown’s historic and ongoing actions with regards the Nelson Tenths Reserves constitute a breach of human rights.

 

These violations can be considered primarily under the UN Declaration on the Rights of Indigenous Peoples, and specifically as breaches of:

  • The right to land, territories and resources
  • The right to redress
  • The right to take part in cultural life
  • The right to self determination

Mr Calí Tzay will visit the sites of two long-running legal cases against the Crown, including Nelson to meet with representatives of the customary Māori owners of the Nelson Tenths Reserves, and Wairarapa Moana.

 

In both cases, iwi or hapū have won High Court or Supreme Court cases against the Crown, but instead of accepting the legal decision and working towards a resolution, the Crown is either baulking at the provision of redress or has created legislation to override the court ruling.

 

Mr Calí Tzay’s visit is an academic visit, coming at the request of Māori and local groups – ourselves, Wairarapa Moana Incorporation, the National Iwi Chairs Forum and Te Kāhui Tika Tangata Human Rights Commission.

 

The visit comes as New Zealand’s human rights record will be scrutinised before the United Nations Human Rights Council in Geneva for its 5-yearly review on 29 April.

 

 

Why is our case a private law claim and not a Waitangi Tribunal claim?

Why is our case a private law claim and not a Waitangi Tribunal claim?

 

The Nelson Tenths case was originally filed with the Waitangi Tribunal as Wai 56. But due to a change in Government policy in 2008, the Crown refused to continue dealing with us as a claimant.

 

This decision led to our pursuit of a private law claim to fight for justice for the customary Māori owners of the Nelson Tenths Reserves.

 

These legal proceedings have now been underway for more than 14 years.

 

Here are the key events surrounding our decision to purse a private legal case:

 

  • In June 1988, Rore Stafford and Hohepa Solomon filed a claim with the Waitangi Tribunal seeking redress for the Crown’s failure to protect and reserve the Nelson Tenths Reserves. It was registered as Wai 56.

 

  • In 2005, Tainui Taranaki iwi and Wakatū Incorporation, kaitiaki of the Tenths, agreed to negotiate claims against the Crown together.

 

  • Although Wai 56 was heard by the Tribunal as part of its wider Te Tauihu settlement enquiries, Wai 56 was a separate claim, seeking a distinct settlement.

 

  • In 2008, a National Government was elected. Chris Finlayson replaced Michael Cullen as Attorney-General. Soon after, the Crown’s policy toward claimant groups changed. The Crown’s new policy was to negotiate settlements of historical claims with ‘large natural groups of tribal interests’, as opposed to individual hapū or whānau groups.

 

  • Wakatū Incorporation – a whānau and hapū-based organisation – was no longer considered by the Crown as part of the mandated body to negotiate Treaty settlements in Te Tauihu.

 

  • In 2008, the Waitangi Tribunal issued the Te Tauihu claims Report. The report found breaches of the principles of the Treaty, including in relation to the Tenths reserves.

 

  • Despite a clear history of our attempts to keep Wai 56 distinct from the other Te Tauihu settlement claims, the Crown’s position was that the Wai 56 claim was included in the wider settlement with iwi.

 

  • In 2009, Wakatū was concerned that the Crown would sign a deed of settlement with the four Tainui Taranaki iwi, but not with Wakatū Incorporation, potentially seeing the Nelson Tenths neglected in any settlement.

 

  • In December 2009, Wakatū returned to the Tribunal for an urgent hearing to try to resolve this disagreement and to fight for Wai 56 to proceed. The Waitangi Tribunal declined to intervene.

 

  • With the Waitangi Tribunal no longer available as an avenue for redress, Wakatū Incorporation had little option but to formulate a legal claim, eventually opting for to proceed with a private law, breach of trust claim that was not barred by the statute of limitations.

 

  • In May 2010, Wakatū filed these proceedings in the High Court and, despite significant obstacles along the way, have continued with litigation to this day.

 

  • In 2017 the Supreme Court ruled in our favour, determining that the Crown had fiduciary duties to the customary Māori owners of the Nelson Tenths Reserves.

 

  • On the matter of our pursuing a private law case, the Supreme Court decision stated:

“The Wai 56 claimants and Wakatū had throughout sought a distinct settlement of the grievances about the tenths reserves and had issued proceedings only when it became clear that expectation would not be met by the Crown.”

 

  • The Supreme Court also ruled that kaumātua Rore Stafford had standing to represent the customary Māori owners. Kaumātua Rore Stafford remains the representative of the customary Māori owners of the Nelson Tenths Reserves in our ongoing battle for justice.

 

 

Making the Tenths Whole: what’s in store in 2024?

Making the Tenths Whole: what’s in store in 2024?

Following the completion last year of our High Court hearing Stafford v Attorney-General, 2024 will be another crucial year in our commitment to hold the Crown to account to make good on its agreement around the Nelson Tenths Reserves.

  • In the next few months, we expect to receive the judgement from the High Court. This will be an extensive document that outlines and explains the Court’s decision regarding the outstanding matters in our case – that is, the extent of the Crown’s breach and any remedies to be awarded. While either party could appeal the decision, there must be good legal or factual grounds to do so. We hope for a strong decision that encourages the responsible ministers – in particular Attorney-General Judith Collins – to meet with us to negotiate a resolution in the best interest of all parties, rather than continuing with costly and drawn-out litigation.
  • With that in mind, we have written to Prime Minister Christoper Luxon, Attorney-General Judith Collins and Māori Development Minister Hon Tama Potaka requesting a meeting and highlighting our case as a significant matter that needs to be addressed during this term of government.

 

  • In anticipation of the Judge’s decision, we will be undertaking an important piece of work to determine and establish an entity to receive the trust property. The beneficiaries of the trust, Ngā Uri, will decide on the appropriate model for this entity. While the final model won’t be determined until the size and scale of the trust property is clear, we will be starting to seek input and feedback over the coming months.
  • We will be continuing our work to find and reconnect whānau who whakapapa to the Nelson Tenths and to empower them to learn more about their whakapapa and history.

We know many of our whānau have been alienated from their whenua and whakapapa due to the Crown’s breaches of their legal duties. Reconnecting whānau with their whakapapa is, therefore, a crucial element of Making the Tenths Whole.

 

  • We are pursuing avenues to show that the Crown’s historic and ongoing actions with regards the Nelson Tenths Reserves constitute a breach of human rights. These violations can be considered under the UN Declaration on the Rights of Indigenous Peoples; the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the New Zealand Bill of Rights Act 1990 (NZBORA). We will share more on this mahi in due course.

Please continue to follow us on Facebook, LinkedIn and Instagram and share our pages to help us raise awareness of this crucial kaupapa.

 

Johny O’Donnell on Making the Tenths Whole

 

 

Johny O’Donnell has been a vocal supporter of Making the Tenths Whole – lending his voice and his platform to speak out on our behalf to media and hold politicians to account.   

 

 

 

Why was it important to be present at the hearing?

 

Turning up to court was important to show support for the whānau, especially those who have spent weeks in this courtroom having their identity and history cross-examined, to undermine them and their mana. I am absolutely in awe of those who have taken the stand and represented their community and their whakapapa so bravely. This is a deeply personal kaupapa and those on the frontline need to feel the aroha and tautoko that surrounds them and their quest for justice.

 

To me, this is not just a fight for the whānau, this is a blight on our whole region that needs resolving. Every single one of us has a responsibility to lend our voices to the injustice that has occurred and stand firmly behind calls for a resolution. I think we all want reconciliation and healing to occur.

 

What do you hope the outcome will be?

 

I do not doubt that the whānau will continue to succeed legally as the evidence is so clearly in their favour. It’s remarkably simple when you boil it down, an agreement was never honoured, and the entity that never honoured it has the means to resolve that. So they have no choice in my view, they’re just kicking the can down the road and disappointingly spending millions throwing good money after bad in an intergenerational battle that can be resolved.

 

I genuinely hope the Crown have a change of heart and realise their strategy of avoidance is deeply flawed. By not engaging in good faith and resolving this, they are continuing to diminish their mana. I want them to know that we are all watching.

 

What words would you have for Uncle Rore?

 

E mihi ana ki a koe e te rangatira. I commend your courage, resilience and determination. One of the things that will stick with me most strongly from witnessing the court is how you carry yourself with absolute dignity and never take your eyes off the proceedings. You are an absolute force, not only for your whānau but for the whole of te iwi Māori and indigenous peoples the world over.

 

What can you share about your personal connection to the whānau and whenua?

 

Our childhood home sat on Wakatū owned whenua and we lived through the changes to Māori leasehold law. It was a deeply divisive and difficult time that stirred my interest in this kaupapa from an early age. I always felt privileged to grow up under the mana and the manaaki of mana whenua in Motueka. It’s a very special part of the world and I consider myself lucky to have been fed and nourished by the waters, the whenua and the people of this place.

 

In recent years, I’ve had the honour of working alongside the whānau, which has taken many different forms but has always been driven from the same place – a desire to create better outcomes for Te Tauihu, the community and Te Taiao. To me, that is unwavering and that is what is so exciting about the potential for a settlement here – I just know the potential it will unlock for the whole region.

Closing arguments: What the Crown said, what we said

This is a summary of some of the Crown’s closing arguments in Stafford v Attorney-General, and what we put to the Crown in our reply.

 

  1. The Crown says there have been no breaches, and it doesn’t need to return a single acre or pay a single dollar.

We say that’s a heavy-handed way to avoid the ultimate question: what happened to our lands that the Crown kept hold of?

 

  1. The Crown says kōrero tuku iho is ‘hearsay’ that should be given limited weight as evidence.

 

We say this dismisses and undermines the value of our cultural knowledge, history and kōrero, which is recognised by the courts, and was presented by our expert witnesses over the course of the 10-week hearing.

 

  1. The Crown’s site-by-site analysis of the occupation lands barely takes customary evidence into account.

 

We say by ignoring customary evidence, they’re only looking at half the picture. Kōrero tuku iho speaks of the whānau who lived and continue to live on our whenua. It illuminates evidence in ways that documentary and third party evidence and records cannot.

 

  1. The Crown says they can’t have confidence in the boundaries of the occupation sites.

We say the onus was on the Crown to cross examine our evidence on boundaries – but it failed to do so. Our evidence was supported by tikanga and by world-renowned experts in this area.

 

  1. The Crown says it can’t pin down cultural lands and papakāinga in any one place because the historical record is unclear.

 

We say that by standing back to look at the overall picture and then weaving the different historical and customary strands of evidence together, you understand the pattern of settlement across Western Te Tauihu and how our whānau lived on the land. The historical and contemporary record is clear.

 

  1. The Crown says the Customary Owners are “the same people” as the iwi with whom the Crown settled across all of Te Tauihu.

 

We say this is misleading and nuanced in a way the Crown failed to comprehend.  This case is brought by the customary owners of specific areas of land only in Western Te Tauihu.  It is about those whānau who whakapapa to those particular areas of land. It is a private law case about property rights, not a Treaty or iwi-wide claim. This has been clear from the outset, and formed the basis of the Supreme Court’s decision in 2017.

 

  1. The Crown says our case is a circumstantial one based largely on ‘hearsay’.

 

We say this is wrong in principal and illogical in practice. As Ngā Uri, we know who we are and where our tūpuna lived – and this formed the basis of our evidence before the High Court. Our case was supported by a significant evidential base of customary evidence as well as documented history, expert reports and accounts.

 

 

#tehereanuku
#makingthetenthswhole

 

Recollections of tūpuna:
Ramari Herewini

The sad story of Ramari Harepeka Poria Herewini is one of many to come out of the broken promise of the Nelson Tenths.

 

Ramari was the daughter of Hare Poria. She was the mother of Mere Rore [Mere Edwina Meades]. She married Hare Rore – for whom kaumātua Rore Stafford is named.

 

Most of the land owned by Ramari was in Motueka, and was taken by the Crown.  It is said that when the Crown sent representatives to survey her lands, she would pull out the survey pegs and throw them at the surveyors.

 

For this reason, Ramari was declared insane and was incarcerated in the Ngāwhatu Mental Asylum in Nelson.

 

She was visited at Ngāwhatu by Alfred Domett, an important provincial politician in Nelson. He determined there was nothing wrong with her. Despite this, when he returned two years later she was still incarcerated.

 

Ramari lost her home, her livelihood and her land and was ultimately held in the asylum for three years before being released.

 

In the 1892 hearings, Ramari was one of the most prominent evidence providers for Ngāti Rārua, naming the people who were original owners.

 

In 1893, the Native Land Court named her as one of the original owners of the Tenths Reserves.

 

Sadly, we are not sure where Ramari is buried.

 

This extract of her words comes from the Mackay Compendium, a two-volume compendium compiled by Alexander Mackay when he was the Native Commissioner in the South Island, and now held in the National Library.