Maori: Paki v. Attorney-General

Using legal concepts of relational good faith should be to the fore in dealing with historical Treaty grievances, suggests the Court of Appeal. This avoids the heavy legal baggage of arguing that the Crown has been in breach of a fiduciary duty to Maori.

Over the last two decades, iwi and individual hapu have made regular trips through the nation’s courts alleging historical failures by the Crown in honouring terms of the Treaty of Waitangi. Maori cultural views from the mid-nineteenth century when the Treaty was signed do not translate easily into the legal-speak of English common law inherited by the New Zealand legal system.

The core of many claims has been that the Crown breached a fiduciary duty owed to Maori. At its simplest, this argues the Crown was in a position of trust, and abused this position for its own benefit.

The Court of Appeal said arguments based on an alleged breach of fiduciary duty demean Maori. It suggests Maori were of inferior standing, not equal Treaty partners.

Better, said the Court, for Maori litigants to view the Treaty relationship like a modern-day employment contract: a relationship contract where implementation of the earlier contract is bound by obligations of good faith. A breach of the Treaty relationship becomes a breach of good faith, not a breach of fiduciary duty.

These views were aired in litigation by the Pouakanui hapu over ownership of the bed of the Waikato River near Mangakino. The hapu argued that they did not understand, and the Crown did not tell them, that sales of hapu land to the Crown also included sale of the riverbed adjoining the land. Loss of the riverbed resulted in a serious loss of mana, given the historical importance of the river to local Maori.

The Court ruled that this claim was defeated by 1903 legislation which nationalised the riverbeds of all navigable rivers. This was done to protect Crown use of waterways for hydroelectric power projects. Since the Waikato River near Mangakino was navigable at the time of the legislation ownership rights in the riverbed were lost for Pouakanui, as they were for all other riverside landowners.

Paki v. Attorney-General – Court of Appeal (11.12.09)

04.10.003