Fiduciary Duty Remedies Stripped of Historical Encumbrances

Abstract

Obiter dicta both for and against an enforceable fiduciary duty owed by the Crown to Māori, or something in public law akin to a fiduciary duty, have featured in a number of New Zealand judgments since 1990. Now the Wakatū decision of the Supreme Court in 2017 has found in favour of such a duty and held that a remedy can be enforced in the ordinary courts. The facts of the case relate to events in the north of the South Island between 1839 and 1850 involving the New Zealand Company, Māori and the Crown. This article considers what weight judges should give in 2017 to contemporary thinking in the 19th century on non-enforceable political trust notions. It also considers whether the fiduciary duty concept has been sufficiently stripped of its paternalistic background to be a worthwhile remedy for Indigenous litigants to invoke.