title: Where the earthly meets the ethereal

authors: Chevalier-Watts, Juliet

subjects: Mudharabas

abstract: 2020 has been a year of challenges and surprises in so many regards, and in keeping with this, Fa’agutu v Derhamy [2019] NZHC 406 represented a surprise for the New Zealand High Court, at least in terms of its subject-matter, as it was the first time a Mudharaba agreement has come before the courts. While this type of agreement is well known in Islamic law, or Sharia law, it is likely not so well known in New Zealand and certainly has not made its presence known in court before.  

A Mudharaba agreement is a type of partnership that aims to make a profit.  The lender, or investor (the rab al maal), provides money or capital to the borrower, or investment manager, or entrepreneur (mudareb or al-mudharib). The mudareb provides the knowledge and labour in the investment and management of the funds.  One of the key aspects of a Mudharaba contract is that any losses that may arise from the agreement will not be shared.  If there are losses, the lender will lose that money and the only losses suffered by the mudareb will be their time and future profits, as well potentially their reputation.  However, the profits of the agreement may be shared between the parties, as agreed prior to signing the contract (Fa’agatu at [5] and [6]; “Mudarabah” Institute of Islamic Banking and Insurance <www.islamic-banking.com/explore/islamic-finance/shariah-rulings/question-answers-shariah-rulings/mudarabah>; and “Mudaraba” ThomsonReuters Practical Law <uk.practicallaw.thomsonreuters.com/>).

In this comment, and mostly following the approach of the Court, I will be reflecting on the issue of religion and its place in the New Zealand legal landscape in this specific context, and then I will turn to the matters of undue influence, and of breach of fiduciary obligation.

text: Where the earthly meets the ethereal 2020 has been a year of challenges and surprises in so many regards, and in keeping with this, Fa’agutu v Derhamy [2019] NZHC 406 represented a surprise for the New Zealand High Court, at least in terms of its subject-matter, as it was the first time a Mudharaba agreement has come before the courts. While this type of agreement is well known in Islamic law, or Sharia law, it is likely not so well known in New Zealand and certainly has not made its presence known in court before.  

A Mudharaba agreement is a type of partnership that aims to make a profit.  The lender, or investor (the rab al maal), provides money or capital to the borrower, or investment manager, or entrepreneur (mudareb or al-mudharib). The mudareb provides the knowledge and labour in the investment and management of the funds.  One of the key aspects of a Mudharaba contract is that any losses that may arise from the agreement will not be shared.  If there are losses, the lender will lose that money and the only losses suffered by the mudareb will be their time and future profits, as well potentially their reputation.  However, the profits of the agreement may be shared between the parties, as agreed prior to signing the contract (Fa’agatu at [5] and [6]; “Mudarabah” Institute of Islamic Banking and Insurance <www.islamic-banking.com/explore/islamic-finance/shariah-rulings/question-answers-shariah-rulings/mudarabah>; and “Mudaraba” ThomsonReuters Practical Law <uk.practicallaw.thomsonreuters.com/>).

In this comment, and mostly following the approach of the Court, I will be reflecting on the issue of religion and its place in the New Zealand legal landscape in this specific context, and then I will turn to the matters of undue influence, and of breach of fiduciary obligation.

year: 2020

title: Reservoir Life Expectancy in Relation to Climate and Land-Use Changes: Case Study of the Mangla Reservoir in Pakistan

authors: Sarwar, Saleem

abstract: The dams and reservoirs are one of the largest sources to store surface water. The escalating water crisis in the new millennium has made it very important to preserve available water and in turn to preserve the storage capacity of dams and reservoirs. Dams and reservoirs lose their capacity due to sedimentation. Climate change and land-use changes have the potential to generate more sediment load hence accelerating this depleting process. An example is the Mangla Dam in Pakistan - the second largest dam in the country. Agriculture in the Punjab province, with almost 65% of the country’s population, is dependent on this dam. Due to sedimentation, the Mangla Reservoir has already lost 20% of its original storage capacity and an accelerated capacity loss is expected due to climate and land-use changes in the future.

The dams and reservoirs are one of the largest sources to store surface water. The escalating water crisis in the new millennium has made it very important to preserve available water and in turn to preserve the storage capacity of dams and reservoirs. Dams and reservoirs lose their capacity due to sedimentation. Climate change and land-use changes have the potential to generate more sediment load hence accelerating this depleting process. An example is the Mangla Dam in Pakistan - the second largest dam in the country. Agriculture in the Punjab province, with almost 65% of the country’s population, is dependent on this dam. Due to sedimentation, the Mangla Reservoir has already lost 20% of its original storage capacity and an accelerated capacity loss is expected due to climate and land-use changes in the future time will have compound effects on reservoir life. In addition to mean climate factors, climate change will have a more profound impact on climate variability, which will likely lead to a more intensified and frequent extreme rainfall events than is currently experienced. Rainfall is the main driving factor of river sediment load, especially extreme rainfall events, which can cause exceptionally high sediment load compared to normal rainfall events. Therefore impacts of climate change was investigated by transient climate change scenarios from 1980 to 2098 constructed through bias correction of General Circulation Models (GCM) daily simulation outputs for the observed weather stations in the catchment. Land-use change scenarios were generated for two broad conditions based on socio-economic data and physical factors influencing the land-use: (i) pro-agriculture scenario and (ii) pro-industrialization scenario.

The impact of climate and land-use changes on the reservoir life was then investigated by using various combinations of climate change scenarios and land-use change scenarios. The results show that both climate and land-use changes can have significant impacts on the Mangla basin sediment transported by the river to the dam reservoir; climate change has a large impact on the annual sediment load, monthly variation in the sediment load, and in turn the reservoir life. The superimposed effects of land-use on climate change can exacerbate or reduce such impacts. Land-use change has the potential to effectively reduce climate change impacts. Therefore various land-use management measures were further evaluated based on economic analysis as adaptation options to mitigate the climate change impacts.

text: Reservoir Life Expectancy in Relation to Climate and Land-Use Changes: Case Study of the Mangla Reservoir in Pakistan The dams and reservoirs are one of the largest sources to store surface water. The escalating water crisis in the new millennium has made it very important to preserve available water and in turn to preserve the storage capacity of dams and reservoirs. Dams and reservoirs lose their capacity due to sedimentation. Climate change and land-use changes have the potential to generate more sediment load hence accelerating this depleting process. An example is the Mangla Dam in Pakistan - the second largest dam in the country. Agriculture in the Punjab province, with almost 65% of the country’s population, is dependent on this dam. Due to sedimentation, the Mangla Reservoir has already lost 20% of its original storage capacity and an accelerated capacity loss is expected due to climate and land-use changes in the future.

The dams and reservoirs are one of the largest sources to store surface water. The escalating water crisis in the new millennium has made it very important to preserve available water and in turn to preserve the storage capacity of dams and reservoirs. Dams and reservoirs lose their capacity due to sedimentation. Climate change and land-use changes have the potential to generate more sediment load hence accelerating this depleting process. An example is the Mangla Dam in Pakistan - the second largest dam in the country. Agriculture in the Punjab province, with almost 65% of the country’s population, is dependent on this dam. Due to sedimentation, the Mangla Reservoir has already lost 20% of its original storage capacity and an accelerated capacity loss is expected due to climate and land-use changes in the future time will have compound effects on reservoir life. In addition to mean climate factors, climate change will have a more profound impact on climate variability, which will likely lead to a more intensified and frequent extreme rainfall events than is currently experienced. Rainfall is the main driving factor of river sediment load, especially extreme rainfall events, which can cause exceptionally high sediment load compared to normal rainfall events. Therefore impacts of climate change was investigated by transient climate change scenarios from 1980 to 2098 constructed through bias correction of General Circulation Models (GCM) daily simulation outputs for the observed weather stations in the catchment. Land-use change scenarios were generated for two broad conditions based on socio-economic data and physical factors influencing the land-use: (i) pro-agriculture scenario and (ii) pro-industrialization scenario.

The impact of climate and land-use changes on the reservoir life was then investigated by using various combinations of climate change scenarios and land-use change scenarios. The results show that both climate and land-use changes can have significant impacts on the Mangla basin sediment transported by the river to the dam reservoir; climate change has a large impact on the annual sediment load, monthly variation in the sediment load, and in turn the reservoir life. The superimposed effects of land-use on climate change can exacerbate or reduce such impacts. Land-use change has the potential to effectively reduce climate change impacts. Therefore various land-use management measures were further evaluated based on economic analysis as adaptation options to mitigate the climate change impacts.

year: 2013

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

authors: Dimitrov, Dara

subjects: 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.

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

year: 2024