Crown appeal and our next steps

At the end of October, the High Court released its decision regarding Stafford v Attorney General. The decision was strongly in our favour with the Court finding:

 

  • That the Crown breached its fiduciary duties to the customary owners of the Nelson Tenths Reserves
  • That the customary owners suffered loss as a result of these breaches
  • That the plaintiff, kaumātua Rore Stafford, who represents the customary owners, is entitled to relief in the form of the return of land, and compensation

 

Read more here

 

Crown appeal

 

Since then, the Crown has lodged an appeal against the High Court’s decision. While this is deeply disappointing, it’s not a huge surprise given that the Crown has so far fought this case at every turn.

 

The Crown has appealed on almost every point, even arguments which we believe have no factual or legal defence.

 

For instance, in the High Court the Crown argued that its fiduciary duties to reserve the Tenths and exclude the Occupation Lands did not require it to actually achieve those outcomes, just to act with loyalty and good faith.

 

This is despite the Supreme Court in 2017 finding that the Crown had a duty to “reserve 15,100 acres for the benefit of the customary owners and, in addition, to exclude their pā, urupā and cultivations from the land obtained by the Crown following the 1845 Spain award.”

 

The High Court dismissed this argument, but the Crown has resurrected it on appeal.

 

There are many other examples like this in the Crown’s appeal.

 

Next steps | Our cross appeal

 

Our strong preference was not to appeal the decision, given we were largely successful in the High Court. Since the Crown has appealed, however, Uncle Rore as the plaintiff representing the customary owners, is entitled to respond by filing a cross-appeal.

 

Uncle Rore, supported by the Working Group, considered a range of legal, political and strategic factors when deciding whether to cross appeal and on which points, as well as the likelihood of success and cost. After reviewing the different options, the Working Group made a unanimous decision to cross-appeal only the High Court’s decision not to award compound interest.

 

We see this as a straightforward legal argument: that compound interest represents a normal economic return consistent with the endowment purpose of the Tenths.

 

Our cross-appeal was filed last week.

 

Uncle Rore and the Working Group also decided to submit an application to ‘leapfrog’ the Court of Appeal and have the appeals heard directly by the Supreme Court. We’ve done this with the aim of achieving a final resolution more quickly.

 

We will be able to advise on the appeal process and timing once we receive a decision from the Supreme Court on the leapfrog application. This will be in the new year.

 

Our strong preference – negotiation

 

Our strong preference remains ending the litigation and resolving this dispute out of court directly with the government.

 

We have contacted the Attorney-General to meet directly with her, and we hope to do this early in the new year.

 

 

 

 

Crown lodges appeal against High Court decision

Crown lodges appeal against High Court decision

 

The Crown has lodged an appeal against the High Court’s decision.

 

We are deeply disappointed.

 

With strong Supreme Court and High Court decisions in our favour, we had hoped the Crown would see the sense in meeting us at the table to negotiate a pragmatic resolution to this long-standing injustice.

 

Instead, the Crown will use taxpayer money to continue fighting us in court.

 

This is not what we wanted, and it is heartbreaking to see justice delayed further for our whānau and our region.

 

We will now carefully consider our options.

 

Here are some early items of media coverage regarding the Crown’s decision to appeal.

 

 

 

#tehereānuku

#makingthetenthswhole

Success in the High Court for customary owners

Success in the High Court for customary owners

 

The High Court has today released a strong decision in our favour regarding Stafford v Attorney General.

 

While there are still outstanding matters to decide, including the details of the award to be made, today’s judgment is ultimately a significant victory for Uncle Rore, the customary owners of the Nelson Tenths Reserves that he represents, and for all of us with a connection to the whenua at the heart of this issue.

 

It also upholds fundamental property rights that apply to every one of us in New Zealand.

 

In the words of the Judge, Edwards J:

 

“The Customary Owners are like any other private litigant and their right to relief should not be curtailed simply because the defendant is the Crown. The plaintiff’s claim is determined according to the law, unaffected by the political objectives of the other branches of government which sit outside the courtroom doors.”

 

The Te Here-ā-Nuku Working Group will take some time now to process the detail of the decision and decide next steps. We will keep you updated.

 

Thank you to all who have supported this kaupapa, and particularly those who supported the High Court proceedings in Wellington last year.

 

Read the full decision of the High Court and the summary decision below.

 

Complete High Court Judgement – Click here to view PDF

 

Summary of the High Court Judgement  – Click here to view PDF

 

Chapter in new book draws on Tenths mahi

Chapter in new book draws on Tenths mahi

 

“Despite all the collective challenges we face as a result of the settlement process, and into the post-settlement era, what continues to sustain us is hope. Through all of our work, we continually look for ways to sustain our hope for a better future for ourselves and our children.”

 

Hope. A constant theme in our 180-year long struggle to resolve the Nelson Tenths.

 

Also now the theme of ‘The Enduring Power of Hope: The Impact of the Treaty Settlement Process in Te Tauihu’, a chapter written by Te Here-ā-Nuku | Making the Tenths Whole project lead Kerensa Johnston in a new book out on 1 October 2024, Te Tiriti o Waitangi Relationships.

 

Kerensa draws on the work taking place to resolve our case, and other issues, in her personal reflection on the impact of the Treaty settlement process in our region.

 

She writes about positive movements towards change in Te Tauihu and how these bring us closer to the vision of our tūpuna at the time of the signing of Te Tiriti o Waitangi and the settlement of Nelson.

 

Te Tiriti o Waitangi Relationship: People, Politics and Law
Bridget Williams Books

 

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.

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.