The justice that 85-year-old Rore Stafford hoped to see in his lifetime over breaches in land deals almost two centuries ago has been further delayed.
The descendants of customary landowners at the top of the South Island have been trying since colonial settlement in the 1840s to resolve an agreement to reserve 15,100 acres (6110ha) of land as the Nelson Tenths Reserves during settlement.
Time is ticking, but Stafford is preparing to go head-to-head with the Government again over its latest announcement.
The Crown announced last November it was appealing a large and significant compensation decision, celebrated by iwi at the Top of the South Island (Te Tauihu) as a major turning point in what now stands as one of the country’s oldest property law claims.
The losses for Nelson Māori over unresolved land deals might have amounted to more than $1 billion, but it paled in comparison to the pain and suffering from the cultural loss of customary land, the High Court heard last year.
It said in an interim ruling last October that iwi from this part of the South Island were entitled to thousands of hectares of Crown land and millions of dollars in compensation.
It followed a 2017 Supreme Court ruling that said the Crown had a duty to honour the 1840s agreement to reserve the portion of land.
A clue to the Government’s position lay in a Budget allocation last year when it set aside $3.6 million of taxpayer funds in preparation for appealing the High Court decision.
Now, Stafford has responded by asking for the matter to skip the Court of Appeal and go straight to the Supreme Court, to avoid the already years-long case being dragged out further.
Stafford has been the torch-bearer for the claim led by Nelson-based Wakatū Incorporation on behalf of descendants from the customary Māori land owners, the whānau and hapū of the Whakatū (Nelson), Motueka and Mohua (Golden Bay) rohe.
His request to “leapfrog” this court and go straight to the Supreme Court was an attempt to short-circuit what could be another long-running legal process, the head of Nelson-based Wakatū Incorporation, Kerensa Johnston, told NZME.
Such a request was granted in extraordinary circumstances, which Stafford and supporters believed applied here, Johnston said.
“It’s not something they do every day, but they certainly do it in cases where there’s merit or good reason.”
Johnston, who steps down this month as Wakatū‘s chief executive, said if the request was granted it would mean not having to go back to the Court of Appeal on issues they felt had already been resolved by the Supreme Court.
The qualified lawyer will remain as project lead for Te Here-a-Nuku working group established to support Stafford with the litigation.
Johnston said in an affidavit lodged with the Supreme Court that the Crown had dedicated significant resources to fighting their whānau, using valuable court time and public resources, and appeared not to have accepted the outcome of the Supreme Court decision.
It continued to argue that its failure to reserve 10,000 acres was not a breach of its fiduciary duties, because it said its fiduciary duties only required it to act loyally, not achieve an outcome.
She said while the Crown had a right to appeal, whānau did not believe it was appropriate to take a “scattergun” approach that challenged almost every aspect of Justice Rebecca Edwards’ High Court decision, plus decisions they believed had previously been decided by the Supreme Court in 2017.
“Due to the Crown’s strategy to keep delaying a resolution, and also Matua Rore’s age - he is 85, and has been fighting this case since first lodging it as a Waitangi claim in 1986, 38 years ago, he hopes to see justice in his lifetime,” Johnston said
She said it was now more than 180 years since the Crown assumed its duties as trustee of their lands.
Since then whānau had suffered through being unable to live on, access and benefit from their lands, according to the original rationale of the Tenths.
Johnston said it had also been “very costly” in financial terms, as well as spiritually and physically.
“For over 35 years we have had to direct funds away from important initiatives such as whānau housing and cultural and educational development, to meet the costs of litigation, which is now in the millions.”
Johnston said Wakatū had requested a meeting with the Attorney-General, Judith Collins KC, last year to discuss a resolution.
Crown Law told NZME at the time ministers were considering the request to meet.
Johnston said while no meeting had taken place yet, the Crown had acknowledged the request.
A statement from the Attorney-General’s office said she would not be commenting as the matter was before the court.
