“We spent years speaking to people in all sorts of places, from Rotary Clubs to historical societies and business conferences. Basically, we’d talk to anyone who wanted to know the story,” write Kerensa Johnston on the fight for the Nelson Tenths.
The long-running Nelson Tenths claim was finally resolved late last year.
Announcing the settlement, Attorney-General Judith Collins described the case as a simple matter of returning the land to its legal owners. Yet the Crown had spent decades fighting the claim at every turn through the courts.
Here, Kerensa Johnston reflects on what it took her whānau to get to a resolution.
It was a huge relief to finally sign the Resolution Agreement in December after so many years of work and litigation in the courts to get to that point.
It had taken over 17 years of intense, complex, and at times incredibly challenging proceedings. It was momentous for our whānau and community of Te Tauihu to finally settle the litigation.
We haven’t had much time yet for reflection and really thinking through what it all means, apart from feeling that huge sense of relief.
A lot of people in our wider community are also celebrating with our whānau. They recognised the injustice of this kaupapa and the need to resolve it in a positive way. That’s because, over the last 17 years, we’ve invested a lot of time here at home, talking about the history of the Nelson Tenths and the legal obligations that the Crown entered into in 1845, which weren’t honoured.
We spent years speaking to people in all sorts of places, from Rotary Clubs to historical societies and business conferences. Basically, we’d talk to anyone who wanted to know the story.
There’s also sadness that it has taken us so long to get here, and disappointment that it took so many years in the courts before the Crown was willing to sit down with us to resolve it.
The case started in 1986 as a Waitangi Tribunal claim. It was filed by our kaumātua Rore Stafford and Hohepa Solomon, on behalf of the customary owners of the Nelson rohe. It was known as the Nelson Tenths’ claim, or the WAI 56 claim, and it was one of the first Waitangi Tribunal claims to be filed in Te Tauihu as part of the wider Te Tauihu inquiry.
The claim progressed through the Waitangi Tribunal hearing and negotiation process alongside other hapū and iwi claims until 2008, when a change in government from Labour to National led to a change in government policy.
The new government refused to address our claim, which they categorised as a discrete whānau or hapū claim. They wanted to focus instead on what they referred to at the time as “large, natural claims” — large clusters of iwi claims — with the intention of settling them comprehensively.
We didn’t agree with that approach. So, we kept working away to resolve the kaupapa through the Waitangi Tribunal and the negotiation process — but ultimately that door was closed to us.
We then spent almost two years in wānanga, talking and consulting with different lawyers, legal academics, and others about what might be possible in the traditional legal courts, and the kind of legal action available to us in that forum.
We refused to accept that there was no legal avenue to resolve the injustice.
It took time to formulate the legal arguments and prepare, but eventually we filed proceedings for breach of trust and breach of fiduciary duty against the Crown, as trustee, in the High Court.
We relied on very old and traditional trust law arguments that said the law of trusts should apply to the Crown, in the same way it applies to any other trustee of land. Similarly, the law should protect our whānau, as beneficiaries of a trust, in the same way it protects all New Zealanders who go to court to seek recognition of their private property rights.
It was a relatively simple legal argument in some respects, although complex from a historical and evidential perspective. The arguments were new for the courts, and very challenging for the Crown, which didn’t accept that the law of trusts and fiduciary duties applied to us.
There is a huge amount of uncertainty, risk and cost involved in taking a case like ours to the courts, especially when the legal arguments were so novel, and the facts complex, spanning 180 years.
We were attempting to hold the Crown to account before the courts for its breaches of trust, and we were making arguments independently of Te Tiriti o Waitangi. All of this was new. Many people, including lawyers and legal scholars, didn’t believe we would succeed.
We believed we had a strong legal case, but the initial legal advice was that we would lose in the High Court and probably lose in the Court of Appeal, but we had a chance in the Supreme Court. And that’s ultimately what happened — in 2017, we finally won in the Supreme Court.
Our whānau had to fund these legal proceedings over many years, and that was very expensive. There’s a huge opportunity cost associated with that because, of course, there are so many other places that money could have gone, to support the wellbeing of the whānau.
In our case, the litigation was funded by Wakatū Incorporation, which is made up of many, but not all, of the descendants of the customary owners of the Nelson Tenths, and more recently, by our iwi entities here in Te Tauihu, who contributed to the final stages of the litigation. Without their collective support, it would have been impossible to continue.
There is also the human cost, and that has been so significant.
Many people have given years of their lives for this kaupapa, often working quietly behind the scenes. As well as this, to succeed, you need leadership that believes in the kaupapa and can keep everyone focused, especially during very challenging times when it seemed unlikely that we would prevail.
At times like that, you need leaders who are courageous, determined and focused on the outcome. For us, that was our kaumātua Rore Stafford, alongside others who provided critical leadership throughout the process.
In some ways, our case was simply a matter of applying property law in the same way as you would apply those principles to any other trustee of land and the beneficiaries. At its heart was the argument that the Crown needed to be held to account in the courts, as any other trustee of land would be.
In that respect, once we had a resolution, the Attorney-General was right to describe our case as a simple, private matter of legal ownership. The courts had applied those legal principles, and the government, particularly the Attorney-General and other key ministers, recognised and respected the legal issues at stake. If the Crown had failed to resolve our case in line with the courts’ very clear decisions, it would have undermined the fabric of our private property rights system in Aotearoa.
In other ways, our case was unique. To succeed in the courts, you need detailed and clear evidence to support trust law arguments. We were fortunate that we had a very significant archive of evidence, which Crown officials and later Wakatū Incorporation had preserved from 1845 through to the court proceedings.
Nonetheless, it took us a long time to reach the Resolution Agreement in December last year — it was hard-fought.
But once we got the High Court’s final decision in mid-2025, the negotiation process moved quickly, which led to the Resolution Agreement. By then, it was clear there was no merit in continuing the legal arguments and that the best outcome for both parties was to resolve this kaupapa.
Meanwhile, the Waitangi Tribunal and its resolution processes continue to play an incredibly important role in Aotearoa, particularly for historical claims that have yet to be settled, as well as contemporary claims against the government for its Treaty breaches.
Our argument was always strongly supportive of the Tribunal’s role and the pathway it offers — but we also argued that we had the right to take our case to the courts and have the law applied to our property and trust law claims, in the same way as all other New Zealanders.
In other words, we were entitled to choose how and where to seek justice for the Crown’s breaches of its duty to our whānau in relation to the Nelson Tenths. This principle of equality was very important to us and one we consistently argued throughout the litigation.
The vision of the Nelson Tenths from the outset was about the shared wellbeing and prosperity of our region, going hand in hand with the wellbeing and development of our whānau and hapū. Until now, we haven’t been in a position, as the customary owners of the Nelson rohe, and as a region, to fulfil this vision.
The next phase of our work focuses on setting up the endowment trust, Te Here-ā-Nuku, which will hold the land and compensation that have been restored to the customary owners. We’ll then work with our whānau and region on strategies to ensure wellbeing across the generations.
There is a lot of technical and detailed work to do over the next 12 months to set up the trust and its systems and processes, including the land management systems.
More importantly, there will be ongoing engagement and work with our whānau, who are the beneficiaries of the trust. They’ve supported this kaupapa for so many years, and at times, I’m sure they doubted whether we would ever see it resolved in our lifetimes.
So, it’s a huge relief that we can now focus on understanding their priorities and aspirations for the future, and focus firmly on the wellbeing of our whānau.
Kerensa Johnston (Ngāti Tama, Te Ātiawa, Ngāruahine) is a trustee of Te Here-ā-Nuku Trust, a former chief executive of Wakatū Incorporation, and a legal academic at the Faculty of Law, University of Auckland, where she specialised in Māori legal development, land law, and international law. Kerensa is the chair of Ng**ā Pae o te Māramatanga, the Māori Centre of Research Excellence, and the chair of Ngāti Tama ki te Tau Ihu Charitable Trust. She lives and works in Nelson.
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