Waikato Law Review TAUMAURI VOLUME 25, 2017 A Commentary on the Supreme Court Decision of Proprietors of Wakatū v Attorney-General 1 Karen Feint The Native Land Court at Cambridge, Māori Land Alienation and the Private Sector 26 RP Boast More than a Mere Shadow? The Colonial Agenda of Recent Treaty Settlements 41 Mick Strack and David Goodwin Section 339 of the Property Law Act 2007: A Tragedy of the Commonly Owned? 59 Thomas Gibbons Trimming the Fringe: Should New Zealand Limit the Cost of Borrowing in Consumer Credit Contracts? 79 Sascha Mueller Takiri ko te Ata Symposium Matiu Dickson: The Measure of the Man 100 Ani Mikaere Mā Wai Rā te Marae e Taurima? The Importance of Leadership in Tauranga Moana 107 Charlie Rahiri Book Review: International Indigenous Rights in Aotearoa New Zealand 111 Seanna Howard Book Review: He Reo Wāhine: Māori Women’s Voices from the Nineteenth Century 115 Linda Te Aho Editor in Chief Linda Te Aho Editorial Assistance Mary-Rose Russell, Carey Church Senior Student Editor Philip McHugh Student Editors Nicole Morrall, Aref Shams, Cassidy McLean-House EDITORIAL ADVISORY BOARD Chief Justice, The Honourable Dame Sian Elias (honorary member), Chief Justice of New Zealand. Professor John Borrows, JD (Toronto), PhD (Osgoode Hall), LL.D (Dalhousie), FRSC, Professor, Canada Research Chair in Indigenous Law, Nexen Chair in Indigenous Leadership, University of Victoria, (Canada). Associate Professor T Brettel Dawson, Department of Law, Carleton University, Academic Director, National Judicial Institute (Canada). Gerald Bailey, QSO, LLB (Cant), Hon D (Waikato), Consultant Evans Bailey, Lawyers, former Chancellor of University of Waikato and member of the Council of Legal Education. Sir David Baragwanath, Honorary Professor, University of Waikato, Judge of the Appeals Chamber of the Special Tribunal for Lebanon, The Hague. Professor John Farrar, LLB (Hons), LLM, LLD London, PhD Bristol, Emeritus Professor of Law, Bond University, Professor of Corporate Governance, University of Auckland. Deputy Chief Judge Caren Fox, Maori Land Court. Judge Stephanie Milroy, Maori Land Court. Dr Dame Joan Metge, Law and Society, with particular interests in law’s role in an ethnically diverse society. Professor Margaret Bedggood, QSO, LLB Otago, MA NZ and London, former Chief Human Rights Commissioner. The Honourable Justice Paul Heath, Judge of the High Court of New Zealand. The Honourable Sir Eddie Durie, KNZM, first Māori appointed as a Justice of the High Court of New Zealand, and leading legal expert on the Treaty of Waitangi. Professor Alex Frame, LLB Auck LLM, LLD Well, former Chair in Te Piringa – Faculty of Law, University of Waikato and Director of Te Matahauariki Research Institute. Professor Paul Hunt, Department of Law, University of Essex, member of the Human Rights Centre, University of Essex and Adjunct Professor, University of Waikato. The Honorable Justice Joseph Williams, Judge of the High Court of New Zealand. Judge Peter Spiller, Honorary Professor of Law, University of Waikato. Associate Professor Morne Olivier, School of Law, University of the Witwatersrand. Professor Michael Hahn, Chair of European Law, University of Lausanne, Honorary Professor of Law, Te Piringa – Faculty of Law, University of Waikato. The Waikato Law Review is published annually by Te Piringa – Faculty of Law at The University of Waikato. Subscription to the Review costs $40 (domestic) and $45 (international) per year; and advertising space is available at a cost of $200 for a full page or $100 for a half page. Back numbers are available. Communications should be addressed to: The Editor Waikato Law Review Te Piringa – Faculty of Law Waikato University Private Bag 3105 Hamilton 3240 New Zealand North American readers should obtain subscriptions direct from the North American agents: Wm W Gault & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (2017) 25 Wai L Rev. All rights reserved. No part of this publication may be produced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording or any retrieval system, without permission from the Editor in Chief. ISSN 1172-9597 INTRODUCTION The Māori title of this peer-reviewed journal, Taumauri, means to think with care and caution, to deliberate on matters constructively and analytically. The 2017 edition of the Waikato Law Review embodies the Review’s values and goals: biculturalism, law in context and professionalism. It is fitting that in 2017, the year in which Te Piringa Faculty of Law celebrated its 25-year anniversary, the first two articles are examples of scholarly work that reflect all three of the Review’s goals. The first provides an in-depth and insightful commentary on the landmark Supreme Court decision of Proprietors of Wakatū v Attorney-General.1 The decision is described by author and distinguished barrister, Karen Feint, as “unquestionably the Court’s most important decision yet on Māori legal issues” and as marking “a significant evolution in the understanding of the Crown-Māori relationship … that may give rise to enforceable legal duties owed by the Crown”. The case involves the question of whether the Crown may be held liable to Māori for breach of fiduciary duty. Posing an abstract question of law, Professor Alex Frame evaluated the possibilities of this previously untried legal remedy in the context of Aotearoa New Zealand in his article, “The Fiduciary Duties of the Crown to Māori: Will the Canadian Remedy Travel?”.2 Professor Frame’s erudite analysis complements Karen Feint’s commentary, and both will assist in understanding the complex issues raised in the Supreme Court judgments. This journal cherishes the Faculty’s goal of biculturalism, which carries a commitment to advancing and encouraging the Maōri dimension in the legal system. There are a number of contributions in this Review that have a Māori or indigenous theme. Professor Richard Boast’s article surveys the operations of the Native Land Court at Cambridge and considers the connections between the private sector and Māori land alienation.3 The article by Otago University academics, Dr Mick Strack and Dr David Goodwin, entitled “More than a Mere Shadow? The Colonial Agenda of Recent Treaty Settlements” provides a critique of the Treaty settlement process, and follows a long line of articles that have been published in the Waikato Law Review through the years which address this important issue. It is a pleasure to publish two proceedings from the Takiri ko te Ata symposium, held in Tauranga in 2017. The symposium acknowledged the lifework and legacy of the late Matiu Dickson, a rangatira from Tauranga Moana and senior law academic at Te Piringa Faculty of Law, University of Waikato, to whom the 2016 edition of this Review was dedicated. In her tribute, Ani Mikaere writes about the legitimacy of tikanga (Māori law) and makes the clear and important distinction between law and “lore”. To follow, Charlie Rahiri draws from the wisdom of Tauranga Moana leaders to share personal insights into the challenges of leadership in Māori society. Two recently published books with Māori and indigenous themes are reviewed. Seanna Howard, Clinician, and Professor of Practice at the James E Rogers College of Law, University of Arizona provides the first review. Te Piringa Faculty of Law enjoys a relationship agreement with the University of Arizona law faculty. We are delighted that Seanna accepted our invitation to review International Indigenous Rights in Aotearoa New Zealand. This collection of scholarly 1 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423. 2 Alex Frame “The Fiduciary Duties of the Crown to Māori: Will the Canadian Remedy Travel?” [2005] 13 Waikato Law Review 70. 3 The article names various tribal groups present in Cambridge in the 1800s. It is important to note that Ngāti Koroki-Kahukura and Ngāti Hauā are the mana whenua groups of this area. works edited by Auckland University academic, Dr Andrew Erueti, focuses on the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). Despite New Zealand endorsing the Declaration in 2010, little is known about how it came to be adopted by the United Nations General Assembly and what its role and status will be in New Zealand law. The timely collection critically analyses the Declaration and provides valuable insights into its drafting. I provide a review of He Reo Wāhine: Māori Women’s Voices from the Nineteenth Century, a book that offers a glimpse into the valuable resources that lie in some of New Zealand’s manuscripts and archival collections. Over the years, the Waikato Law Review has published a number of contributions authored by legal practitioners, honouring the commitment to our Faculty goal of professionalism. In the 10 years since the introduction of the Property Law Act 2007, there have been more than 80 judgments on s 339 of that Act. Legal practitioner and Director of McCaw Lewis Lawyers, Thomas Gibbons, provides important practical insights on the s 339 remedy in his article, “Section 339 of the Property Law Act 2007: A Tragedy of the Commonly Owned”. Gibbons pays special attention to contested issues, and critiques the approach taken by the Court of Appeal in the recent case of Thomas v Mackintosh.4 Recognising that “New Zealand is a nation of debt”, Sascha Mueller’s article asks the question: “Trimming the Fringe: Should New Zealand Limit the Cost of Borrowing in Consumer Credit Contracts?” The article explores the merits of limiting the cost of borrowing fringe loans (also known as “payday loans”). The article proposes changes to the credit contract consumer protection provisions and discusses alternative means to aid borrowers in vital need of credit. It is no easy task to produce a high quality, peer-reviewed journal every year, and I take this opportunity to thank the authors, the peer reviewers in New Zealand and abroad to whom articles were sent, our student editors led by Philip McHugh, and Mary-Rose Russell, copy editor and proof-reader extraordinaire.