Dr Madi Williams: witness on the location of Occupation Sites

Madi, Ngāti Kōata, Ngāti Kuia, Rangitāne o Wairau, Ngāti Apa ki te Rā Tō, is an historian whose doctoral thesis, undertaken at Te Whare Wānanga o Waitaha University of Canterbury, was focused on Ngāti Kuia history.

 

She is a lecturer in Aotahi – School of Māori and Indigenous Studies at the University of Canterbury.

 

Madi has recently given evidence on our behalf in Stafford v Attorney-General. Her evidence draws on historical, customary and archaeological sources to help determine the locations of the occupation sites in question in our case.

 

“The Spain Award definitions do not accurately reflect how Māori occupied and lived on the land”.

 

My view is not simply that the definitions of the Spain Award ‘do not accord with tikanga’; it is the difference in understanding Māori had of the agreement and what the impact of that would be.

 

As discussed in my evidence, pā, wāhi tapu, and cultivations were understood quite differently by Māori as per the Deeds of Release in te reo Māori.

 

The Eurocentric nature of the Spain Award definitions did not match up to how Māori understood these, and this misalignment of understandings was well-known by Europeans at the time who acknowledged how Māori cultivated and lived on the land.”

 

Madi said that it was an honour to be involved in something of this magnitude.

 

“This is a monumental historical case that we’re working on. We are a part of history rather than simply writing about it. If you’re a Māori academic scholar, I believe it’s important to use your skills for the benefit of your people, and I feel very privileged to assist and to carry on the legacy of those who have gone before us.”

 

Participation of Ngāti Apa ki te Rā Tō Trust in Stafford v Attorney-General

This week the Court has heard submissions from Ngāti Apa ki te Rā Tō Trust, on behalf of their specific tūpuna and descendants.

 

Ngāti Apa ki te Rā Tō Trust has submitted evidence in our case that specific tūpuna lived in Whakatū and the surrounding area at the time of the New Zealand Company’s arrival and the establishment of the Nelson Tenths Reserves Trust, between 1841 and 1845 in particular.

 

This is the time period that is relevant to our legal proceedings, which are focused on fiduciary duty and trust law.

 

Their evidence is drawn from submissions and evidence presented to the Waitangi Tribunal throughout its 22 year-long proceedings in Te Tauihu, which incorporated accounts from pūkōrero relevant to Whakatū and the 1841-1845 time period.

 

Following the hearings, the Waitangi Tribunal issued its findings in 2008, confirming that the Kurahaupō tūpuna had interests in the area that is the subject of the current legal proceedings.

 

Ngāti Apa ki te Rā Tō Trust is not seeking recognition of Kurahaupō generally, but seeks the inclusion of specific tūpuna, and their descendants, for the purpose of any relief granted by the High Court.

 

Based on the evidence and the Waitangi Tribunal findings, an agreement was reached with Ngāti Apa ki te Rā Tō Trust whereby their evidence was submitted by consent. This agreement was guided by the principles of whanaungatanga, recognising that the unresolved dispute relating to the Nelson Tenths Reserves Trust rests with the Crown. We have informed the Court and the Crown of this.

 

Ngāti Apa ki te Rā Tō Trust has also confirmed their support of kaumātua Rore Stafford’s standing as plaintiff in our case.

 

This is a positive tikanga-based outcome, which enables us to:

 

  • Avoid the Crown using the case as a lever to divide us, or to draw us into protracted litigation on matters of tikanga.

 

  • Focus on the Crown’s legal duties, and the breach of trust and remedies arguments, so we can successfully resolve these long-standing proceedings.

 

  • Move forward together positively following the High Court judgment.

 

The evidence remains before the High Court and will be considered by the Judge when she makes her final decision.

 

This decision, and the judgment as a whole, is expected in early-mid 2024.

 

If you have any questions about this agreement, please feel free to contact us at info@makingthetenthswhole.co.nz

Brandi Stafford on the repercussions of a broken promise

“I don’t think Dad realised, when he originally started this battle, what responsibility this actually meant for him, personally.”

 

The broken promise of the Nelson Tenths has had a profound impact on generations of Te Tauihu whānau. What may be the oldest property claim in Aotearoa, the 180-year battle to make the Nelson Tenths whole has taken a devastating toll – not just on the original customary Māori landowners, but on their tamariki, mokopuna and ngā mokopuna nui.

 

For many of the thousands of descendants of the original owners of the Nelson Tenths estate, their lives have been shaped by this fight for justice.

 

As the eldest child of Kaumātua Rore Stafford, Brandi Stafford has grown up with the dissonance. Not only is her father currently representing the customary landowners as the plaintiff versus the Attorney-General in the Wellington High Court, but at the age of 83 he has now been championing the struggle for half his life.

 

 

“I don’t think Dad realised when he originally started this battle, putting in the Waitangi Tribunal [Wai 56] claim with Hohepa Solomon in 1986, what responsibility this actually meant for him, personally,” says Brandi, who describes the Nelson Tenths case as “an evolution”.

 

“We didn’t know in the High Court that we were going to get tossed out and that we’d have another chance through the Appeal Court; we didn’t know in the Appeal Court that Dad would get standing to take it through to the Supreme Court. Year after year we lost hope in the justice system, we saw the toll it took on the whānau, and we watched our uncles and aunties die not knowing what would happen to the case. Dad has lost most of his siblings now – all of these things have been significant to us.”

 

Brandi was just a child when the family discovered they had substantial land interests in the Nelson Marlborough region and, after her mother joined the Wakatū Incorporation Board in 1977, she began to learn more.

 

“We understood that a significant deal had taken place, that a very significant commercial opportunity had landed on our back doorstep with the return of the remnants of the Nelson Tenths to Māori ownership. I would have been 12 at the time and for me that was like we’d won Lotto.”

 

But the elation soon soured.

 

“As we started learning the history, it became obvious that there’d been a lot of breach and a lot of grievance, and we started to understand our tūpuna who had been alienated from their lands, lost their lands or been treated really badly.

 

“There was so much abuse. I recall our kuia who was put into a mental asylum because she wouldn’t give up her land. Other relatives tell us that in winter, Motueka was really wet, flooded and muddy and, in summer, there was drought. There were Nelson Tenths that should have been set aside for us yet we were living in the worst conditions possible.”

 

The emotional toll has been immense – but Brandi says that’s what keeps them fighting.

 

“We are trying to acknowledge the devastating circumstances our tūpuna lived in, making sure that we never have to suffer it again.”

 

It has felt mostly like an uphill battle, but Brandi couldn’t be prouder of the way her father Rore has led the charge – over decades. What keeps him going?

 

“Dad’s always had that commitment to the whenua. That’s just his natural modus operandi and he knows he has to do this for future generations to prosper from what our tūpuna lost. He’s not in the grievance mode that we used to be in. He’s all about righting the injustice and ensuring our mokopuna have the inheritance that they’re entitled to, the land interests and the money that is due to us all. He also knows that by doing this, by setting a precedent, he is helping potentially many other iwi.

 

“Dad sees this as his contribution as a rangatira – he genuinely understands the importance of us being rangatira on our own whenua.”

 

So what might the future look like for the Staffords and all those fighting for the return of the Nelson Tenths?

 

“Dad has always said that the Crown, the legal system, is about power and money, but for us it’s about whakapapa. We have a totally different world view to the Pākehā system.

 

“It’s really tough because the mechanisms of the government have torn us apart, we can see how colonisation has driven a wedge. My hope is that we find really strong ways to use rangatira and a peaceful approach to how we’re going to manage the asset, so that we will be really great examples of what is good for Māori will become good for all New Zealanders.

 

“Nelson Marlborough will benefit so much from us being landowners because we won’t sell out – that’s our whenua, our whakapapa, and our tūpuna. That’s our mokopuna and our tamariki.”

Faces of whānau: Kelli Te Maihāroa

Kelli Te Maihāroa, Associate Professor at Otago Polytechnic Te Pūkenga, on travelling up from Ōtepoti to tautoko Uncle Rore at the hearing.

 

View all videos

 

 

Taonga in the court room

These images show a few of the precious taonga that we have alongside us in Courtroom 6 as our High Court hearing progresses.

 

  • The garment is a piupiu belonging to Te Hunahuna, one of the tūpuna who was on the land when the New Zealand Company arrived in the 1840s.

 

  • The portraits depict our tūpuna. These include portraits of Tāmati Pirimona Marino and Huria Matenga, tūpuna on the land when the New Zealand Company arrived. These are replicas of the originals painted by Gottfried Lindauer and held in the national collection at the Auckland Art Gallery Toi o Tāmaki.

 

  • The pounamu tiki is a Te Hunahuna whānau taonga.

 

The taonga themselves are physical representations of our ancestors and the rituals to bring them into the court are steeped in tradition.

 

They resonate with the mana of our tūpuna and remind us that our ancestors are present in the taonga, and within ourselves.

 

During the court’s vacated weeks, we uplift the taonga ritually, and lay them again before the court when the hearing resumes.

A tikanga Māori approach to cartography: Meet Moka Apiti

This is Moka Apiti.

 

Moka has recently given evidence on our behalf regarding the mapping of kōrero tuku iho to identify our Occupation Lands on present-day maps.

 

Moka has a Masters of Social Science from the University of Waikato majoring in Indigenous Geographic Information Systems and is currently undertaking a PhD at Massey University. He is also the founder of @DigitalNavigators, which provides GIS, mapping services, and strategic digital technology consultancy to iwi and Indigenous communities.

 

Moka takes a tikanga Māori approach to cartography.

 

GIS is merely a tool that has the ability to most closely mimic the many aspects of what we as Māori have always been able to see through our waiata (songs), whakairo (carvings), moteatea (laments) and other tools we use to depict the land. It is only now that the technology has reached the point where Māori have always been: looking at the world in a spatial context.

 

The tikanga-consistent approach is to listen to the kōrero in the first instance and use that kōrero as the platform for the approach moving forward. The approach given to me by my old people was to apply the principle of whakaiti (humility), to be humble to show aroha (love) and manaakitanga (to care for). You must also show whakapono (belief, trust) in the kaupapa that you are going to meet with the iwi about, to show respect in their teachings, their ways and their customs and practices, and their understanding of the land through the principle given to me by my elders “He whakapapa ki te whenua” – the relationship to the land.

 

That is my guiding principle when working within a tikanga Māori approach to cartography. That approach places the kōrero and tikanga at the heart of the work (mahi).

 

GIS is only a tool by which one can capture and then visualise through maps the association and relationship one has with their environment.

 

Ngā mihi, Moka

 

“Make the whānau whole:” Rōpata Taylor

At its core, Stafford v Attorney-General is about reconnecting whānau and returning our people to the position we ought to have been in if the Crown had fulfilled its promise in 1845.

 

This powerful statement by Rōpata Taylor, Ngāti Rārua, Te Ātiawa, Ngāti Tama, Ngāti Koata, encapsulates these aspirations.

 

With few resources it seemed unlikely we could ever break the cycle of poverty. The departure of so many [of our people] had profound consequences for our whānau, as the connection to Te Tauihu, to one other, became tenuous.

 

However, although the fires dimmed, they were never fully extinguished.

 

Whakapapa runs deep – and what had happened to our families, to us, was a burden and responsibility we carried with us across time and space.

 

Now we want to rekindle the fires for all of our people that left and bring them back home to ‘make the whānau whole’.

 

More about Rōpata Taylor

RNZ: NZ’s oldest property claim goes back to the High Court

RNZ’s Kathryn Ryan interviewed Wakatū Incorporation CEO Kerensa Johnston in the lead-up to the High Court hearing. Here’s is RNZ’s introduction and link to the interview.

 

It’s described as the country’s oldest property claim, and one of the largest litigations against the Crown in New Zealand’s history; the case of the Nelson Tenths Reserves centres on 15,100 acres of land in the Nelson, Tasman and Golden Bay region.

 

In 1839, Māori customary landowners sold 151,000 acres of land to the New Zealand Company on the condition that ten percent of their land would be reserved for Māori in perpetuity.

 

That agreement was never upheld. Rather than setting aside 15,100 acres, the Crown reserved less than three thousand acres.

 

The landowners, now represented by Wakatū Incorporation, has been battling for more than 180 years to have that land returned to them.

 

After the former National Government refused to consider their claim at the Waitangi Tribunal, the claimants instead took a case to the High Court, as a private law breach of trust case.

 

The government fought the case all the way to the Supreme Court, which in 2017 found in favour of the owners of the Nelson Tenths.

 

Since then, attempts at commencing out of court negotiations with the Crown, have not been successful.

 

This month, the case will go back to the High Court to determine the extent of the Crown’s breaches, led by kaumatua Rore Stafford, on behalf of the customary landowners.

 

Kathryn speaks with Kerensa Johnston, chief executive of Wakatū Incorporation.

 

https://www.rnz.co.nz/audio/player?audio_id=2018900766

 

The differences between a Treaty claim and a private law claim

Unlike many historical land claims in Aotearoa, Proprietors of Wakatū and Others v Attorney – General is a private law case against the government and not a Treaty of Waitangi claim.

 

The case is unique in the sense that it is led by the whānau and hapū who descend from the original Māori owners of the Nelson Tenths Reserves in Te Tauihu, who are seeking legal remedies for breaches of trust law, via the courts.

 

Wakatū Incorporation, the modern-day trustee of the remnants of the Tenths Reserves, is funding the case, and has been leading the work to resolve this matter for many years.

 

For these reasons, the government has grappled with how to treat our case, which has been subject to ongoing litigation through various Courts and Tribunals in Aotearoa since 1986.

 

Here are some of the key differences between Treaty claims and private law claims in Aotearoa.

 

 

Treaty claims under Te Tiriti o Waitangi

 

 

Treaty claims and settlements under Te Tiriti o Waitangi have been a prominent feature of the political landscape of Aotearoa since the introduction of the Treaty of Waitangi Act 1975 and the Waitangi Tribunal.

 

The Treaty settlement process was introduced by the government in an attempt to address historical grievances and injustices with Māori arising from the signing of Te Tiriti in 1840. Disputes and grievances include land confiscations, breaches of Treaty principles and issues surrounding Māori land rights, among others.

 

In order to receive settlement redress a body known as a post settlement governance entity (PSGE) is required by the Government to represent all members of the claimant group and to receive the settlement. A PSGE is arguably representative of an iwi.

 

The Treaty settlement process typically follows the below steps:

  1. A representative Māori group (usually an iwi) raises a historical claim with the Government, outlining the specific breaches of Te Tiriti and the impacts of these breaches on people and resources;
  2. Once a claim is accepted, the next stage is negotiations between iwi and government. These negotiations usually take several years and can involve issues such as the return of culturally significant sites and lands, financial compensation and the establishment of resources or co-governance arrangements;
  3. When iwi and government have reached agreement, these terms of settlement are recorded in a Deed of Settlement, a legally binding document. This document sets out the redress package and the steps the government will take to attempt to address historical grievances;
  4. The Deed of Settlement is then presented to iwi members for consideration and ratification. The Deed is put to vote and a majority vote is required to accept the settlement;
  5. Once the Deed of Settlement is ratified, the settlement is implemented and the government must fulfil its obligations outlined in the Deed including any financial payments, land transfers and cultural or social initiatives.

 

A private claim against the government

 

A private claim against the government is significantly different to a Treaty claim. It arises when a person or entity believes that they have suffered a legal harm or loss due to the actions or omissions of the government or its agencies.

 

A private claim is not made under the Treaty of Waitangi Act 1975 and therefore doesn’t follow the Treaty settlement process. It is a claim filed in the court as a legal proceeding, with legally enforceable consequences in the event the legal claim is satisfied.

 

The general steps involved in pursuing a private claim in the courts in Aotearoa are:

 

  1. Identifying the claim and gathering evidence to support it. You are required to demonstrate the harm and/or loss suffered
  2. Filing the claim in the appropriate Court; and
  3. Once the Court process has been actioned, it follows usual civil litigation procedures. This involves the exchange of information and evidence (discovery) and, failing successful settlement discussions, will result in Court hearings

 

Following the court hearing, the Court will issue a decision in favour of the claimant or the government. If the claimant succeeds, the Court will determine the appropriate remedy such as damages or other forms of relief. This is enforceable. This can include compensatory damages such as restoring the injured party to the position they would have been in (as practically as possible), had the wrongful action not occurred.

 

Proprietors of Wakatū and Others v Attorney-General – a private law claim

 

Our case is known as Proprietors of Wakatū and Others v Attorney-General and is a private law claim against the government. In 2017, the Supreme Court, by a majority of 4-1, determined that the Crown owes a legal duty, as fiduciary to the owners of Nelson Tenths Reserves.The Supreme Court directed the parties back to the High Court to determine issues of breach, remedies and Crown defences.

 

The nature of the duty owed is as follows:

 

  • A duty to reserve one-tenth of the Nelson settlement area, amounting to 15,100 acres of land in Nelson, Tasman and Golden Bay; and
  • A duty to protect and reserve the land where our whānau and hapū lived, cultivated food, and established sacred places, such as urupā

 

Our case asserts that the government is in breach of its fiduciary duties in relation these two important duties.

 

 

This article has been written by civil litigation lawyer Sade Sadd. Sade received a Wakatū Incorporation tertiary education scholarship in 2017 and is part of Te Hunga Panuku scholarship alumni group. Sade’s original owner tūpuna is Hakopa Hotu and she connects to Wakatū through her Ngāti Rārua whakapapa.

Wellington High Court hearing: Details for whānau and supporters

Our High Court hearing will be held in Wellington from 14 August 2023 and is scheduled to run for approximately ten weeks.

Here are a few key details:

 

Date: 14 August 2023 – October 2023

 

Address: Wellington High Court, 2 Molesworth Street, Wellington

 

Parking: Parking is not available at the High Court, however there is a number of paid parking options in the area. Parking options close to the High Court.

 

Seating: The Wellington High Court has limited seating capacity. To help us understand numbers, we kindly ask whānau and supporters to let us know if you plan to be at the hearing in person, and the days you plan to attend, by emailing korero@wakatu.org.

 

Karakia: We will have karakia throughout the hearing, and the arrangements for this will be advised by our kaumātua closer to the hearing.

 

Livestream: For those who are unable to join us in person, we are in the process of arranging livestream links to watch online.

 

Staying updated: We will be providing regular pānui updates and posts on social media to ensure whānau and supporters are kept up-to-date throughout the duration of the hearing.

 

Questions about the hearing: Please get in touch with the team by email at korero@wakatu.org or phone 03 539 3413.