Are historical perpetual leases on Maori owned land (Native reserves) a basis for currently enforceable fiduciary obligations?

Abstract

Colonial perpetual leases over what were once native reserves continue to trouble the New Zealand government. The colonial Public Trust Office was tasked with managing and administering Māori property affairs, with a focus on the administration of the native reserves. However, if the perpetual leases continue to be viewed through the contractual lens, relief for the Māori landowners will not be forthcoming. Therefore, examining the rationale for imposing fiduciary duties upon the colonial Public Trust Office is essential. Where traditional legal fiduciary literature explores the onerous proscriptive duties that bind persons occupying a fiduciary position, this article establishes that the extensive statutory role assigned to colonial Public Trust officers in managing the native reserves for their Māori beneficiaries created a fiduciary relationship. Moreover, this article shows that, when the colonial Public Trust Office exercised its powers, this often led to conflicts of interest with their Māori beneficiaries.