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?

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.

 

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?

 

2. 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.

 

3. 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.

 

4. 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.

 

5. 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.

 

6. 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.

 

7. 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

 

Ten key statements from our closing submissions

1. On the hardline approach that the Attorney-General has taken in this trial, one is left to wonder why the Supreme Court would have bothered to remit the proceeding back to the High Court in the first place.

 

2. In light of the Crown’s legally enforceable fiduciary duties in relation to the Customary Owners’ land, and the uncontested fact that it did not reserve the full tenth, it is quite extraordinary that the Crown continues to maintain the position that not a single acre of land needs to be returned.

 

3. The Attorney’s scattergun and desperate defences … amount to an attempt to relitigate, revisit, obfuscate, or read down from the Supreme Court’s judgement in a myriad of ways.

 

4. The reality is that when the Supreme Court judgement was issued in 2017, everyone, including the Crown, understood what it stood for. The Crown cannot now be heard to question what the majority Judges meant some six years later.

 

5. The gaping hole in the Attorney-General’s defence – which he has not addressed – is what happened to the land that the Crown was charged with reserving? The Customary Owners were completely dependent on the Crown to fulfil the terms of the purchase.

 

6. The Attorney says the Customary Owners have acquiesced in the wrong done to them. That they failed to enforce their rights despite being clear they had suffered an injustice. This submission is simply wrong. Extensive efforts were made by the Customary Owners throughout the 20^th Century to vindicate their rights.

 

7. The plaintiff’s primary focus is on the restoration of the land that is held by the Crown on trust, reflecting the cultural importance of the whenua to the Customary Owners, and the need to secure its return to achieve a state of ea, or balance. Failing that, the plaintiff seeks equitable compensation for the value of that property.

 

8. Although the litigation has been gruelling and stressful, Mr Stafford has not wavered once in his unequivocal view that justice will not be achieved until the whenua tuku iho (ancestral land) of the Customary Owners is returned.

 

9. There have been delays over a period of some 178 years since the Tenths promise was made. That delay has continued since these proceedings were issued in 2010 and have been exacerbated by the Crown’s approach since the Supreme Court’s judgement in 2017.

 

10. The last word should belong to Matua Rore Stafford. He has led the struggle for over 40 years, alongside our whānau, and those kuia and kaumātua who have now gone. He hopes this week will be his last in a courtroom and instead his future will see justice achieved.

 

 

 

 

Here’s a few things to know about what comes next.

 

• At the conclusion of the hearing, the Judge will take some time to consider all the arguments and evidence before she makes her decision. Once she makes a decision, she will write the judgement. This will take some time. We expect a decision in early 2024.

 

• We hope for a strong decision, one that encourages the Crown to meet with us to finally settle this matter in a principled and pragmatic way.

 

• The decision could be appealed – by either party. There needs to be good legal or factual grounds for an appeal to proceed.

 

• Should remedies be awarded, a new entity to receive the trust property will be established. The beneficiaries of the trust (Ngā Uri) will decide on the appropriate model for this entity.

 

• While we await the Judge’s decision, we continue our focus and work on making the tenths whānau whole, with the aim of reconnecting whānau with their whenua and whakapapa.

 

We’ll provide more information on each of these over the coming weeks and months.

 

Dr Richard Meade has recently given evidence on our behalf in Stafford v Attorney-General.

 

Dr Meade is an economic consultant and researcher, and Principal Economist at economic consulting and research practice Cognitus Economic Insight.

 

He is also a Senior Research Fellow at AUT – Auckland University of Technology, President of the Law & Economics Association of New Zealand (LEANZ), and a member of many academic and professional associations, including the New Zealand Association of Economists.

 

He has a PhD in industrial organisation and regulation, and MPhil and MSc each in economic theory and econometrics, all from the Toulouse School of Economics – TSE, and a BSc (Hons) in statistics and operations research, BSc in statistics and operations research, and BCA in economics and finance, all from Te Herenga Waka—Victoria University of Wellington.

 

He has significant experience advising and acting for Māori organisations on Treaty, commercial and strategic matters.

 

This includes acting as commercial advisor and negotiator for Ngāi Tahu in its Treaty settlement negotiations, in which he assessed its long-term historical losses.

 

He has been involved in many settlement negotiations and resumption applications since then.

 

Dr Meade provided an independent assessment of the economic position that the customary owners would be in had the Crown fulfilled its fiduciary duties.

 

This is a hugely important element of our case. Ngā mihi Dr Meade.

 

 

 

Disconnection and reconnection: Jeremy Banks

 

This is Jeremy Banks.

 

Jeremy, Ngāti Rārua, Rangitāne, Ngāti Kuia, has a BSc (Hons) in Computer Science from the University of Otago and has had a successful career in software development. He is also involved in governance, initiated through the associate director governance succession program run by Wakatū Incorporation.

 

Jeremy has recently given evidence on our behalf in Stafford v Attorney-General.

He started by sharing his own story of reconnecting with the whenua.

 

“My story is a fairly typical one of disconnection and reconnection that my generation has to navigate as a result of our tūpuna losing their land and the resulting disconnection from our cultural identity.

 

It was not until I became an adult that I began the substantive journey of reconnection to my identity, to my language, to my whakapapa, to my whenua and most importantly to my whānau whānui.

 

Our stories of who we are, and our journeys of reconnection to overcome the historical injustices wrought by colonisation, also speak directly to why we are pursuing this Court case for our whānau and hapū.”

 

Jeremy’s evidence to the Court covered:

 

• The importance of continuing this case for the whānau and hapū.

 

• The engagement hui and wānanga that have taken place since 2017 with whānau, and the work that is planned following the trial to reconnect whānau to whakapapa and whenua.

 

• The fundamental principles and the core values that underpin this work, including kotahitanga, whanaungatanga and whakapapa to whenua.

Jeremy is also a member of the Te Here-ā-Nuku Working Commitee

 

Ngā mihi, Jeremy