The caution in commercial joint ventures is that, all too often, when there is no more money in the venture, it is easy for parties to forget their contractual obligations and the vulnerable parties often suffer. As an active sponsor of these schemes, it is all the more pertinent for the government to provide some kind of a guarantee that Native Customary Land will revert to the owners at the end of the venture. Similarly, in the event that a JVC withdraws without completing its job, is there some form of a guarantee the native customary owners will be adequately compensated?

Arguably the government’s fiduciary obligation may be said to go beyond a mere commercial arrangement to become ‘trustees twice over’, based as it is on the customary owners’ trust and confidence in the government. Perhaps there is scope here for application of Lord Browne-Wilkinson’s (1995) caution ‘that equity principles must follow developments in commercial law for commercial expediency, but such application has to be both thoughtful and sensitive’. What has been developed as an instrument to defeat unconscionable conduct should not ironically become the very instrument that defeats the rights of those that it purports to protect.