David Williams, ‘The Role of Legal History in Developing New Zealand Common Law Following Paki (No 2)

Abstract:
This article considers the role of legal history in the future development of New Zealand common law in the light of the range of views expressed in obiter dicta by Supreme Court judges in Paki v Attorney-General (No 2) in 2014. It discusses the relevance of Canadian precedents on the fiduciary duty owed by the Crown to indigenous peoples. It considers a historiographical debate in the pages of the Saskatchewan Law Review in 2014 about the use of legal history and expert witnesses in the development of aboriginal title doctrines by Canadian judges. It is suggested that there needs to be careful attention to the role of legal history expertise in the evolution and development of New Zealand’s common law by the Supreme Court so that the pitfalls evident in the intemperate Saskatchewan Law Review debate may be avoided in New Zealand.

David Williams, ‘The Role of Legal History in Developing New Zealand Common Law Following Paki (No 2)’, New Zealand Law Review, volume 2016, number 4, January 2016, pp 755-787.

First posted 2017-03-04 07:18:07

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