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Fight for justice in Nelson continues against the Crown - Wakatu Incorporation

Fuseworks Media
Fuseworks Media

The Māori land owners of the Nelson Tenths’ Estate, led by kaumātua Rore Stafford, have lost their case in the Court of Appeal, to prevent the Crown from selling land held by the Accident Compensation Corporation (ACC) in Nelson.

The land was part of the original Nelson Tenths’ Estate established in 1845, which the Crown held as trustee on behalf of its Māori owners. In 2017 the Māori land owners, who are beneficiaries of the Trust, won a long legal battle against the Crown in the Supreme Court.

The Supreme Court ruled that the Crown must honour its legal duties to the owners. These legal duties stem from the establishment of the Nelson settlement in the early 1840s. The duties included the requirement to reserve ten percent of all land in the Nelson settlement in trust for the benefit of the Māori land owners. The Supreme Court decision confirmed that the Crown failed to honour its legal duty as the trustee. The full one-tenth of land in Nelson and Tasman was never reserved, and land where Māori had their homes, gardens and burial sites were not protected. Since 2017, work has been underway on examining the extent of the losses to the Trust Estate and the extent of the Crown’s breaches as Trustee.

The Supreme Court case was ground-breaking, as it focused on the Crown’s private legal duties as the trustee of private property, as well as on the Crown’s obligations as Treaty partner.

Following the Supreme Court win, ACC tried to sell land in Nelson. This led to the Māori land owners taking further legal action against the Crown, by way of the caveat case, to prevent any further loss of land until it is clear how the Crown is going to honour its legal duties following the Supreme Court decision.

The caveat case was appealed to the Court of Appeal who decided in a split decision 2-1, that the appeal cannot succeed on the basis that ACC "is not an instrument of the Crown for purposes beyond those functions over which the Minister has control", which they considered does not include ACC’s investment function.

However, Justice Williams (who now sits on the Supreme Court), found in favour of the Māori land owners. Justice Williams was the only judge who considered the Crown had fiduciary duties to the Māori owners. Williams J said "…it must be assumed that both ACC and the Ministers will behave in accordance with the honour of the Crown and consistently with its fiduciary obligation. It is not to be assumed that the Crown (whether the Ministers or ACC) would behave in a manner which breached either statutory or fiduciary duties."

Despite the loss in the Court of Appeal, the sale of the ACC land has not gone ahead. However, the fight continues to resolve the issues with the Crown. The next steps are judicial review proceedings in the High Court in August. These proceedings challenge the Attorney-General’s failure to take steps to prevent the loss of any more land in Nelson held by the Crown, until the proceedings arising from the Supreme Court decision are resolved. The full proceedings to decide issues of loss, breach and remedy will be heard in the High Court.

Kerensa Johnston, WakatÅ« Incorporation CEO, who is part of the team supporting kaumātua Rore Stafford to resolve the case says "…it’s been a long fight for justice to get to this point, and we’ll keep going until the matter is resolved. For our families, restoring the Nelson Tenths’ Trust is critical to our development and well-being. It’s also critical for the Crown to restore its mana in the Nelson region, by honouring its legal duties to our whānau as trustee - essentially by doing the right thing and responding to the Supreme Court’s decision, which was clear. So far, the Ministers haven’t acted fast enough, and we’ve been forced into further court action to prevent Crown land sales, but we know we’ve got to keep going."

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