10 - The Fiduciary Crown

Summary

This chapter argues that enforceable fiduciary obligations owed by states to Indigenous peoples are best understood as private duties. The private character of state fiduciary duties is unnecessarily obscured by judicial findings that analogise them to private law ones and characterise the relationship as ‘sui generis’. We argue that there is little to be gained by characterising state-Indigenous fiduciary duties, expressly or by implication, as public duties. The private rights and duties generated within state-Indigenous relationships are structurally and substantively distinct from, and sometimes methodologically and normatively opposed to, the more general relationship between state and subjects that underpins public law and liberal political theory. For Indigenous peoples the crucial utility and promise of the state-Indigenous fiduciary relationship depends on the orthodoxy that the state does not, in general, owe fiduciary duties to its subjects. State-Indigenous fiduciary duties can and should function as a corrective to general public and administrative law, one that preserves space for this unique relationship and enables the enforcement of the distinctive rights and duties that attend it. For these reasons we argue that state Indigenous examples should not be used to model an emergent public fiduciary law or fiduciary political theory.