Wakatū: Crown-Māori Fiduciary Obligations and the Ongoing Relevance of te Tiriti o Waitangi

Abstract

In 2017, the Supreme Court in Proprietors of Wakatū v Attorney-General recognised for the first time in New Zealand that the Crown has enforceable private law fiduciary duties to Māori in relation to 19th century land purchases. Those duties arose as a result of the Crown’s unilateral power to extinguish native title and enable the alienation of Māori land, coupled with an assumption of responsibility on the part of the Crown to act in the Māori proprietors’ best interests. This paper submits that this recognition provides the springboard from which future courts might recognise the fiduciary duty as arising from the Treaty of Waitangi, based on the doctrine of Crown pre-emption embodied in article II. The recognition of Crown-Māori fiduciary duties has two key implications: first, fiduciary law is expanded to hold the Crown as fiduciary, thus blurring the traditionally distinct categories of public and private law in a way favourable to Māori; secondly, the availability of fiduciary duties will confer legitimacy on the current Treaty settlement process in acting as a legal backstop for Māori in the negotiations process. The recognition of specifically Treaty-based Crown-Māori fiduciary duties goes further; it has the potential to create a new area of jurisprudence, as some Treaty breaches will become enforceable in a court of law, and in particular in the law of fiduciaries. As a result, Wakatū has the potential to reconfigure the nature of the Crown-Maori relationship and the place of the Treaty of Waitangi within New Zealand’s constitutional landscape.