The Nelson Tenths case, thought to be the country's longest-running property dispute, is heading back to court next April. Photo: 123RF
The descendants of customary landowners across the top of the South Island remain hopeful of resolving a long-standing legal battle over land across Nelson and Tasman, outside of court.
A date has been set in the Court of Appeal for a week-long hearing next April, after the Crown appealed a recent High Court ruling that found customary landowners - Ngā Uri - were entitled to thousands of hectares of Crown land and millions of dollars in compensation.
In the 1830s, the Crown promised Māori in Te Tauihu (the top of the South Island) that if they sold 151,100 acres of land to the New Zealand Company - they'd be able to keep one-tenth.
Instead, they got less than 3000 acres, now known as the Nelson Tenths Reserves.
Making the Tenths Whole (Te Here-ā-Nuku) project lead Kerensa Johnston said it was disappointing to be heading back to court, given the High Court had agreed with almost all of the evidence it put forward at the 10-week hearing in August 2023
Kerensa Johnston at Te Awhina Marae in Motueka. Photo: Supplied / Melissa Banks Photographer
"Our request to the Attorney-General still stands - to step outside the courtroom to resolve this with us kanohi ki te kanohi."
In the High Court, Justice Rebecca Edwards largely sided with kaumātua Rore Stafford, who sued the Crown in 2010 on behalf of ngā uri, the descendants of the tūpuna named in the 1893 Native Land Court list and the descendants of specific Kurahaupō tūpuna.
The decision reaffirmed what the Supreme Court ruled in 2017, that the government must honour the land deal between the New Zealand Company and Māori.
Johnston said following the recent appeal, an application was made to "leapfrog" the Court of Appeal and have the case heard in the Supreme Court but it was dismissed, on the grounds the issues were factually and legally complex, with its resolution meriting full consideration in the Court of Appeal.
"From our perspective, it was really an attempt to deal with this matter as efficiently and practically as we can, given that we've now been in litigation with the Crown for almost 16 years."
Four out of five Supreme Court judges in the 2017 ruling found the Crown owed fiduciary duties to the trust representing descendants of the customary landowners, which was to reserve the land for the benefit of the Māori customary owners. Photo: Getty Images / Hagen Hopkins
In the interim High Court decision released last year, Justice Rebecca Edwards sought further submissions to settle the issue of relief, which she said was likely to be less than a $1 billion, before interest.
Johnston said those submissions had been filed and the final High Court decision is expected to be released shortly.
She said the descendants remained hopeful of reaching a resolution outside court had made multiple requests to meet with the Crown and the Attorney-General over the last 16 years, to resolve the case.
"We've been really clear that our strong preference is not to engage in further protracted litigation that's very costly for both parties and for the taxpayer.
"That's always been our intention and our hope that we can sit down and practically work through the solution to this."
Attorney-General Judith Colllins. Photo: RNZ / Marika Khabazi
A Crown Law spokesperson said the Attorney-General had not received a recent request to meet with Stafford, but acknowledged the Attorney and Stafford had been communicating, most recently in December.
Johnston said given the case had succeeded in court a number of times, the group did not think there was any benefit to more litigation and it also believed there was an economic imperative to resolve the case, as the future use of land across Te Tauihu in limbo until it was resolved.
"There are significant areas of land that are subject to the proceedings and the proceedings need to be resolved before there can be further development on that land.
"Our whānau, hapu and iwi as a collective, and of course the beneficiaries of this trust in particular, are really well placed to drive that economic development, whether it's in housing or commercial development or whatever it might look like across our region, we've proven that through our different incorporations and other entities over the years."
Johnston said there were also government initiatives that could not be progressed in Te Tauihu until the case was resolved.
Kaumātua Rore Stafford during the pōwhiri in 2024 to welcome members of the Crown legal team at Motueka's Te Āwhina Marae. Photo: NZ Herald/Melissa Banks
Since the Supreme Court ruling, Stafford, on behalf of the descendants, had taken steps to ensure Tenths and occupation lands that remained in Crown ownership were not sold until the case was resolved.
Court action was taken in 2018 to prevent the sale of a commercial property - Morrison Square - owned by the Accident Compensation Corporation (ACC) in Nelson, as it was part of land the Crown failed to reserve under the Nelson Tenths agreement, but the appeal was unsuccessful.
More than 20 retailers and commercial tenants were forced to vacate the Morrison Square shopping complex last year after engineering assessments revealed issues with the building's cladding system, and it was then earmarked for demolition.
Originally named Fashion Island, the site at 244 Hardy Street was purchased by ACC for $22.7 million in 2008.
It has since been sold by ACC to Nelson-owned business, Scott Construction, who have plans to redevelop the site.
