The High Court has backed up a previous judgment ruling the Crown breached its duties under an agreement with the whānau and hapū of the Nelson region. Exactly how much land and money the iwi is entitled to is yet to be decided.

For more on the Nelson Tenths case, read Nelson’s original sin by Joel MacManus

For more than 180 years, the Crown’s broken promises to Māori in Aotearoa have left scars across generations, none more painful than those surrounding the Nelson Tenths lands. In a landmark decision last week, the High Court found that the Crown violated its duty to the whānau and hapū of Te Tau Ihu o Te Waka-a-Māui. This case represents more than a legal battle over land, it’s the enduring struggle of Māori to hold the Crown accountable for the systemic erosion of whenua, culture and autonomy.

The Crown has a long history of failing to keep its promises to Māori. Past breaches, like the confiscation of land under the New Zealand Settlements Act, the seizure of the foreshore and seabed, and the suppression of the Māori language in schools, are stark reminders of this ongoing pattern. These actions undermined the autonomy and wellbeing of Māori, with generational impacts on health, social structures and cultural heritage. 

With the High Court ruling the Crown must honour its agreement and return the tenths in full, as well as compensate Māori for their losses, the question of how much compensation is owed and the fate of the remaining Tenths lands will be a defining chapter in Aotearoa’s journey toward justice and equity. The judgment doesn’t just revisit an old grievance, it acknowledges the generations who fought to uphold the promises made and carves a new path forward for Māori land justice.

What is the Nelson Tenths case, and why is it important?

In 1839, Māori landowners sold approximately 151,000 acres to the New Zealand Company under the condition that 10%, or 15,100 acres, would be reserved in perpetuity for the benefit of the Māori owners and their descendants. This reserved land became known as the “Nelson Tenths”.

However, the Crown failed to honour this agreement, reserving less than 3,000 acres instead of the promised 15,100 acres. This breach led to longstanding grievances among the affected Māori communities. In 2017, the New Zealand Supreme Court ruled that the Crown had a fiduciary duty to the Māori customary landowners and had breached this duty by not reserving the full extent of the Tenths. Instead, years of neglect, mismanagement and legislative betrayal saw these lands steadily taken or withheld. 

The case is significant for several reasons, setting important legal, financial and cultural precedents. It establishes that in this case, the Crown owed enforceable fiduciary duties to the Māori landowners, a legal principle that is separate to te Tiriti o Waitangi and the first finding of its kind in New Zealand law. Ongoing legal proceedings hope to assess the extent of the Crown’s breaches and the appropriate remedies, which may include the return of land and compensation, potentially exceeding $2 billion in value. 

The case also underscores the importance of honouring agreements with indigenous communities, drawing international attention to the matter. In April 2024, the UN special rapporteur on the rights of indigenous peoples, Francisco Calí Tzay, visited Motueka to understand the case further, underscoring the Crown’s accountability in upholding its obligations to Māori.

How did the agreement come about?

In 1839, the New Zealand Company sought to acquire and settle land in Aotearoa, starting with sites on either side of Te Moana-o-Raukawa. In securing dubious “purchases”, surveyors promised that one-tenth of the purchased land would be set aside for Māori, with occupied sites excluded from sale. This arrangement, intended to compensate Māori for land losses and ensure future benefits from settlement, was critical in securing Māori consent for the agreement. The settlement of Nelson was established in 1841, including what became known as the Nelson Tenths Reserves. 

Te Tiriti o Waitangi made all pre-1840 land sales null and void, but the Tenths Reserves were formally confirmed in the 1845 Crown Grant. In it, Māori were promised permanent reserves amounting to one-tenth of all lands in the settlement, including specific protections for wāhi tapu such as papakāinga, urupā, cultivations, and other sacred sites. This was supposed to total around 15,100 acres, including one-acre urban sections, 50-acre suburban sections, and 150-acre rural sections.

What actually happened?

The Crown ultimately failed to uphold the agreement. While the 1845 Crown Grant acknowledged these lands, pā sites, urupā and other wāhi tapu were largely left unprotected. By 1850, the Crown had reduced the Tenths lands from 15,100 acres to 3,953 acres, leaving tangata whenua with a fraction of what had been agreed upon. Successive transactions and administrative decisions eroded the Tenths land further, with Māori receiving little to no benefit from what remained.

What have the courts said?

The new High Court ruling addresses long-standing grievances about the Nelson Tenths Reserves. This landmark decision reaffirms that the Crown not only breached the promises it made but also failed to honour a trust relationship with Māori that has persisted for generations. In finding the Crown breached its fiduciary duty to the customary landowners, the court pointed to several critical failures, mainly:

• Failure to allocate promised land: the Crown did not fulfill its obligation to reserve 10,000 acres as per the 1845 agreement, a cornerstone of the Nelson Tenths arrangement.
• Improper surrender of lands: the Crown’s 1844 transactions reduced the reserves further through questionable surrenders and unreturned lands in Nelson.
• Obstructed use of Tenths lands: occupations and misuse of the Tenths lands prevented the intended economic and cultural benefits for Māori owners.

These findings underscore the Crown’s failure to act as a responsible trustee for the reserved lands.

What about compensation?

The High Court’s judgment signals the potential for significant compensation, recognising both financial and cultural losses to the customary owners. While the court has yet to finalise the exact compensation amount, early indications suggest that, while substantial, the figure will likely fall significantly below the $4.4bn and $6bn claimed. In assessing the losses, the court noted the enduring impact of the Crown’s breaches, which denied Māori communities the opportunity to build intergenerational wealth from rental income and land use. While this is a land rights issue, the Crown’s previous payments of $48m through Treaty settlements will be deducted from the final award to prevent double compensation.

What happens next?

The court has granted interim relief measures, including the return of certain Crown-held lands to their customary owners. Properties owned by Crown entities will not be included for now. Additionally, compensation for lost income is expected, with further hearings set to confirm the remaining acreages, interest and final figures.

This judgment represents a significant step toward justice for the descendants of Te Tau Ihu, affirming the Crown’s responsibility for past wrongs and its obligations under common law. Beyond the context of Treaty settlements, the case is a landmark for enforcing the Crown’s accountability in New Zealand law, setting a precedent that could influence future claims involving trust relationships with Māori communities. The case will return to court to address final specifics, potentially closing a long chapter in the pursuit of justice and reparation for the Nelson Tenths.

This is Public Interest Journalism funded by NZ On Air.