2010 Maori L. Rev. 1 (2010)

handle is hein.journals/maori2010 and id is 1 raw text is: Dec 2009/Jan 2010
I0

CONTENTS
EDITORIAL
Fiduciary duty-does it have a future? ..................... 1
M,\(ORI LAND CouTi & APm,i.  iIV      CouI'T
Maori Land Court In Re Naera
Commercial disclosure requirements for a review
o f  tru st ..................................................... 2
Maori Appellate Court-Samuels v Matauri X
A ppeal re  costs  aw ard  ................................... 3
Maori Appellate Court-In Re Cumming
Principles applying to an application for easement
over Maori freehold land ................................ 4
Maori Land Court In Re Rupapera
Removal of trustees, very large investment
without oversight, although subsequently repaid......5
Maori Land Court-In Re Livingstone
Injunction to prevent 1080 poison drop ............... 7
OTHER COURTS AND TRIBUNALS
High Court Mair v Waitangi Tribunal
When can an urgent hearing can
b e  declin ed? ..............................................   8
Environment Court-Te Rarawa v Northland RC
Advice notes in resource consents ...................... 8
Environment Court        Kaiawha v BOPRC
Mana whenua & relationships recognised
by  th e  R A   ............................................... 9
Human Rights Review Tribunal Rerekura
Costs award for weak claims ........................... 10
Disclaimer: The information contained in this publication is a
summary only. You should seek professional advice before taking any
action in relation to matters dealt with in this publication. No
responsibility is accepted for any loss arising from reliance on informa-
tion in this publication.

Editors:
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 Copyright Tom Bennion 2009
This issue may be cited as:
M~ori LR Dec 2009 / Jan 2010
ISSN 1172-8434

EDITORIAL
Fiduciary duty - does it have a future in historic
claims?
Where a fiduciar duty has been breached, in some
circumstances action may be taken in the courts long after
the initial wrong occurred. Hence its attraction in the field
of Maori land claims. However, in 2 recent decisions the
Court of Appeal appears to have poured cold water on the
idea. In New Zealand Maori Countil v Altorney-General [2008]
1 NZLR 318 the Court of Appeal rejected a suggestion
from the High Court that the Crown has a fiduciar duty
towards Maori in a private law sense that is enforceable
against the Crown in equity. That was in relation to
litigation over the Central North Island forests settlement.
Then in Paki & Ors v Attorng-General (CA519/2008 11
December 2009) the Court was asked to rule that the
Crown ought to have advised Maori landowners that when
they sold lands adjoining rivers, they were also selling to
the middle line under the common law rule of ad medium
fl/um. It was argued that this failure to obtain informed
consent meant that the Crown now held the river bed as a
constructive trustee.
The Court of Appeal did not have to rule on that issue
because it determined the case on other grounds (that the
riverbed was vested in the Crown by the 1903 Coal Mines
Amendment Act-a matter which          is under appeal).
However, it made extensive comments on the advisability
of NZ courts developing a fiduciaw duty doctrine. The
court doubted that a strict fiduciar duty would apply
except under very limited circumstances. It also doubted
whether the broad duty of good faith which was well and
truly accepted by the Crown should be developed into a
strict legal duty under the fiduciar doctrine. In any event,
the indications from the Court of Appeal are that fiduciar
duty will be a limited concept, applying in quite precise
situations if at all. At the same time, the court commented
that other doctrines might be developed to deal with these
issues, and referred to the law of relational duties of good
faith. A larger issue was whether such a development was
even desirable given progress with Treaty settlements and
government sector changes to recognise and give effect to
Treaty principles. The court concluded:
[115] Meanwhile, the courts exist in a difficult no man's
land, endeavouring as best they can to advance remedies
for manifest injustices. It is useful to recall in this context
the sad but insightful question Durie J posed in his 1996
FW Guest Memorial Lecture (Vill the Settlers Settle?
Cultural Conciliation and Law (1996) 8 Otago LR 449
at 462): [When] will we hone our jurisprudence to one
that represents the circumstances of the country and
shows that our law comes from two streams?

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