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O'Connell, John --- "A Case for Recognition: A Fiduciary Relationship Between the Crown and Indigenous Australians" [2021] CanLawRw 21; (2021) 18(2) Canberra Law Review 233


A Case for Recognition: A Fiduciary Relationship Between the Crown and Indigenous Australians

John O’Connell*

This article provides insights into how Indigenous Australians have unsuccessfully attempted to utilise fiduciary law principles to gain greater recognition of their unique status in Australian society. It contrasts these unsuccessful attempts against the greater success that indigenous Canadians have enjoyed. It goes on to contrast the fiduciary law regimes in Australia and Canada, highlighting the stark differences between the two jurisdictions, particularly in the context of judicial decision-making about the recognition of a fiduciary obligation owed to indigenous peoples. The article contends that the success that indigenous Canadians have enjoyed, with favourable judicial decisions recognising such a fiduciary obligation owed to them by the Crown, is in part due to Canada’s progressive approach to constitutional recognition of indigenous Canadians, in particularly section 35 of the Canadian Constitution. Section 35 recognises the rights and treaties of indigenous Canadians. The article contends that if Australia was to take a similarly progressive approach to indigenous constitutional recognition, courts would have greater flexibility to make decisions recognising a broad fiduciary relationship between the Crown and indigenous Australians. This article also addresses some of the challenges that such a course of action would give rise to and provides an overview of what constitutional and fiduciary recognition of indigenous Australians could look like in the future.

Introduction

‘For the king ought not to be under man but under God, and under the law’

History has remembered Chief Justice Edward Coke’s courageous and controversial disagreement with King James I in a multifarious and eclectic fashion. Some say that during this encounter Coke’s timidity was palpable and that he recanted his ‘treacherous’ words soon after uttering them.[1] Others say that he, in typical English lawyer fashion, boldly appealed to Magna Carta for justification of his comments and for defence against the king’s raised arm.[2] Whether Coke almost lost his head for his verbal challenge to the king’s unfettered power or not is a mystery that will likely remain unknown forever. What is more certain is that this short encounter depicted by contemporary legal historians is used today as justification for the principle that the Crown is ‘under the law’ and therefore bound by it. To assert the opposite is a flagrant disregard for the rule of law and a notion that is entirely unacceptable in the contemporary Australian legal system.

This article takes as an unequivocal starting point that the Crown is under the law and embarks upon its analysis with this as an underlying theme. The question that this article asks and answers is; what is the law by which the Crown is bound? Specifically, what is the state of fiduciary law in Australia (compared with Canada) and can it, with the help of constitutional law reform, be used to bind the Crown to act in a fiduciary capacity with respect to Indigenous Australians?

This article consists of three parts. Part 1 is an analysis of the current state of fiduciary law in Australia. It will argue that fiduciary law in this country is unlikely to be effective as a means of furthering indigenous rights and interests unless indigenous constitutional recognition is successfully implemented in this country. Part 1 will also outline the indefinability of fiduciary relationships whilst pointing to two fundamental principles that assist in recognising when such relationships arise. These fundamental principles are undertaking[3] and reliance.[4] The part will demonstrate that whilst Australian fiduciary law principles are flexible, Australian fiduciary law precedents are rigid and unlikely to shift without a broad systemic change such as the implementation of indigenous constitutional recognition.

Part 2 will consist of a similar analysis to Part 1 except within the Canadian context. It will argue that indigenous constitutional recognition and the recognition of a fiduciary relationship between the Crown and indigenous peoples go hand in hand. It will demonstrate the flexibility that has been employed by Canadian courts at the level of principle when dealing with matters involving indigenous rights and interests. It will also point to specific precedents that have discussed the interrelated nature of indigenous constitutional recognition and the protection of indigenous interests through fiduciary law principles.

Part 3 will highlight the differences between the two jurisdictions discussed and analysed in the two preceding parts. It will outline what Australia can learn from Canada with respect to these issues. The primary lesson being that indigenous constitutional recognition may be a useful and effective means of protecting indigenous rights and interests. However, as will be seen such a course of action is not without its challenges. This part will also provide a focused outline of what such development, both constitutional and fiduciary, might look like in the future.

1 – Fiduciary Law in Australia

In this part, I will argue that the two most fundamental principles of the fiduciary relationship are 1) undertaking and 2) reliance. I will discuss the most relevant precedents in Australian fiduciary law so as to assist with the comparative analysis that will be undertaken in Part 2 of this article. This case law analysis will be confined to the most relevant High Court and State Supreme Court precedents and will demonstrate that the fiduciary law in Australia is largely based on the two fundamental principles; undertaking and reliance.[5] I will demonstrate that the fiduciary law in Australia confines fiduciary obligations to negative, as opposed to positive duties[6] and is largely confined to relationships with an economic element.[7] Having outlined the precedents relevant to fiduciary law generally, I will provide a focused case analysis of fiduciary law cases involving indigenous litigants. Finally, I will answer the question, whether Australian courts can, given the current state of fiduciary law in this country, find a fiduciary relationship between the Crown and Indigenous Australians.

PRINCIPLES OF AUSTRALIAN FIDUCIARY LAW

Fiduciary law is a difficult area of law, so the delineation of firm underlying principles is a challenging endeavour. It has been said that the principles of fiduciary law have been characterised by ‘disagreement, uncertainty and controversy.’[8] Indeed, Paul Miller, professor of law at the University of Notre Dame, contends that the ‘dominant academic view is [that] the fiduciary relationship is indefinable.’[9] The High Court of Australia has made similar comments. Dawson and Toohey JJ stated in Breen v Williams that ‘the law has not, as yet, been able to formulate any precise or comprehensive definition of the circumstances in which a person is constituted a fiduciary in his or her relations with another.’[10] Consequently, it is no easy task to outline such principles with clarity.[11] However, it is possible to provide a cursory outline of some of the fundamental and underpinning notions of fiduciary law. In the analysis that will follow, particular attention will be given to the principles that are most relevant to the current inquiry; that is a potential fiduciary obligation owed by the Crown to indigenous peoples. I contend that the most important principles of the fiduciary relationship in Australia are: 1) the fiduciary undertaking and 2) the reposing of trust and confidence in the fiduciary and consequent power of that fiduciary. This second principle can usefully be termed ‘reliance.’ Other ancillary fiduciary notions like vulnerability and the higher expectations placed on fiduciaries flow from these two fundamental principles.[12]

Importantly, it is not the case that the presence of these two fundamental principles unequivocally necessitates the finding of a fiduciary relationship. Indeed, sometimes one or more of these principles is missing, or other principles are present, and a fiduciary relationship will nonetheless exist.[13] The most that can be said is that the presence of these two principles point to the existence of a fiduciary relationship.

The Fiduciary Undertaking

James Edelman has spilt much ink on positing and defending his contention that the fiduciary undertaking is a fundamental principle of fiduciary law. For Edelman, the fiduciary ‘undertaking to act in a particular manner’ is a necessary condition of the creation of a fiduciary relationship.[14] This is not a novel argument. Mason J’s landmark decision in Hospital Products Ltd v United States Surgical Corporation (Hospital Products)[15] which, despite being a dissenting judgment, has subsequently been applied in several later fiduciary law cases, stated that the ‘critical feature’ of the fiduciary relationship is that the fiduciary ‘undertakes or agrees to act for or on behalf of or in the interests of another person.’[16]

The notion of the fiduciary undertaking is important and relevant to the current inquiry because, if Edelman and Mason J are correct, to find a fiduciary relationship between the Crown and Indigenous Australians, there must first be a finding that the Crown has made an undertaking to act in a fiduciary capacity with respect to Indigenous Australians.

Settled fiduciary law concepts, such as the constructive trust, demonstrate that such an undertaking need not be express and may be imposed rather than voluntarily assumed. Nonetheless, for a fiduciary relationship to be recognised between the Crown and Indigenous Australians, a notion of undertaking, implied or express, actual or constructive, must be established. As will be explained later, the notion of undertaking is fundamental in determining the nature and scope of any potential fiduciary obligation owed by the Crown to Indigenous Australians.[17]

Reliance: Trust and Confidence & Power

Another fundamental principle of the fiduciary relationship is the trust and confidence that a beneficiary reposes in the fiduciary. In another landmark fiduciary law case, United Dominion Corporation Ltd v Brian Pty Ltd,[18] the notion of the reposing of trust and confidence in the fiduciary was characterised as ‘necessary.’[19] This necessary element has its origins in broader equitable principles. Equity, as the mother of fiduciary law, has greatly influenced the development of fiduciary law principles. For example, the trustee-beneficiary relationship, a fundamental relationship of equity, was and is the archetypical example of the fiduciary relationship.[20] In such a relationship, the trustee, ‘determines whether, when, how, and how far the beneficial interest of the cestui is to be served.’[21] It is the power of the trustee, with respect to the beneficiary’s interests, that imposes the notion of trust and confidence. The trust and confidence of the beneficiary, on the one hand, and the power of the fiduciary, on the other hand, are two sides of the same coin. The power of the trustee necessitates the trust of the beneficiary, and the trust reposed in the fiduciary is what gives the fiduciary his/her power. Again, this notion of power is contained in Mason J’s oft-quoted dictum. He says the ‘critical feature’ of the fiduciary relationship is that the fiduciary undertakes to exercise ‘power or discretion which will affect the interests of another person in a legal or practical sense.’[22]

Early 20th century American jurist Cardoza CJ remarked, that ‘the level of conduct for fiduciaries’ is to be ‘kept at a higher level than that trodden by the crowd.’[23] This dictum provides an insight into both of the two fundamental principles of the fiduciary relationship, outlined above. Cardoza CJ’s ‘higher standard’ is a consequence of 1) the undertaking that the fiduciary makes and consequent responsibility he/she assumes and 2) the trust and confidence that the beneficiary reposes in the fiduciary, who consequently holds power. In the context of a potential fiduciary relationship between the Crown and Indigenous Australians, these two fundamental principles arguably already exist. Firstly, the Crown, by virtue of its initial possession and retention of land or perhaps by an implied assumption of responsibility in relation to Indigenous Australians more broadly, may be taken to have made an undertaking.[24] Secondly, the power of the Crown in relation to Indigenous Australians and the consequent trust and confidence that Indigenous Australians repose in the Crown, is also arguably justifiable on colonisation grounds. Consequently, contemplating these two principles it appears that there is scope for the finding of a fiduciary relationship between the Crown and Indigenous Australians at the level of principle. Perhaps this is why other common law jurisdictions, such as Canada, have been able to do so. Canada’s approach will be discussed at length in Part 2. Nonetheless, as will be seen in the Australian context, this same development is not as suitable at the level of precedent.

Fiduciary law precedents in Australia confine fiduciary obligations to negative, as opposed to positive, duties and to the protection of economic rights, rather than personal or human rights.[25] The barriers posed by these broad precedents are exacerbated by the specific precedents that have been established in cases where indigenous litigants have unsuccessfully pleaded that a fiduciary obligation was or is owed by the Crown.

EXISTING AUSTRALIAN FIDUCIARY LAW PRECEDENTS

As has been seen, the task of reaching firm conclusions about the nature and extent of fiduciary relationships in Australian law, at the level of principle, is a difficult task. This task is no less arduous at the level of precedent. This is, in part, due to the uncertainty that attends to this complex area of law and the disparate views that Australian jurists have offered.

The following case law analysis is limited in scope. It will largely be confined to the most prominent and pertinent High Court and State Supreme Court authorities. These include some of the several Australian cases that have addressed broad fiduciary law principles as well as a few cases that have dealt explicitly with fiduciary law in relation to Indigenous Australians. A selection of these cases will be used to come to some conclusions about the current state of fiduciary law in this country.

Hospital Products[26] provides a good starting point for the analysis of Australian fiduciary law precedents. Mason J stated that the ‘critical feature’ of the fiduciary relationship is ‘that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense.’[27] As discussed, this statement of principle does not necessarily constitute a barrier to the finding of a fiduciary relationship between the Crown and Indigenous Australians. However, the same cannot be said of other High Court authorities.

Breen v Williams,[28] whilst not a case brought by Indigenous Australians, is an example of a precedent that has, perhaps inadvertently, placed the finding of a fiduciary relationship between the Crown and Indigenous Australians further out of reach. This case was concerned with whether a doctor owed a fiduciary obligation to his patient to provide access to the patient’s medical records. Gaudron and McHugh JJ clearly stated that, ‘the law of this country does not ... impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed.’[29] This precedent, relying on previous cases, expressly excluded from the notion of the fiduciary duty, a positive duty to act in the interests of a beneficiary. Consequently, fiduciary obligations in Australia are confined to negative duties; that is duties to refrain from acting to the beneficiary’s detriment. In the commercial context, an example of such a negative duty is the fiduciary duty not to obtain an improper profit or not to put oneself in a position of conflict. The former is stated in United Dominions Corporation Ltd v Brian Pty Ltd[30] as the ‘duty to refrain from pursuing, obtaining or retaining for itself or himself any collateral advantage in relation to the proposed project without the knowledge and informed consent of the beneficiary.’[31]

In Paramasivam v Flynn[32] the Full Federal Court expressed reluctance to extend fiduciary obligations beyond the protection of economic rights. In that case, one of the legal issues was whether the parental relationship was fiduciary in nature. Whilst the court unsurprisingly found that the parental relationship was protected by law (criminal and family law), it did not go so far as to recognise the relationship as fiduciary in nature.[33] This was, in part, due to the desire of the court to keep fiduciary relationships confined to the economic sphere.

Stephen Gageler makes the interesting point that, in Australia, fiduciary law is rightly confined to the sphere of commercial relationships because whilst there is an expectation of loyalty between fiduciaries in commercial dealings, commercial relationships also demand a measure of self-interest, subject, of course to whatever contractual duties are imposed by the parties. Consequently, in the commercial context fiduciary ‘loyalty’ or good faith can be limited by justifiable consideration of commercial self-interest. However outside of the commercial context bright lines, that can confine the scope of the fiduciary relationship, are more difficult to ascertain. This is because outside the commercial context any amount of self-interest in fiduciary relations would likely be deemed ‘unacceptable’. This fear of the unlimited extension of the fiduciary relationship has acted as one of the rationales for confining fiduciary law to the commercial sphere and is an obvious obstacle to the extension of fiduciary law into non-commercial areas like indigenous rights. This is perhaps why in ‘Anglo-Australian law the interests which the equitable doctrines ... have hitherto protected are economic interests.’[34]

When it comes to Indigenous Australian cases Mabo v The State of Queensland (Mabo)[35] is a useful place to begin. The decision of Toohey J in Mabo expressed the opinion that the Crown owes a fiduciary obligation to Indigenous Australians. In accordance with the latter of the two fundamental fiduciary principles outlined in Part 1, Toohey J said that ‘the fiduciary relationship arises ... out of the power of the Crown to extinguish traditional title by alienating the land.’[36]

The arguments contained in Toohey J’s decision were not echoed by the rest of the bench in Mabo nor in any subsequent cases. In fact, in Wik Peoples v The State of Queensland[37] Brennan J dismissed the notion stating, ‘I am unable to accept that a fiduciary duty can be owed by the Crown to the holders of native title in the exercise of a statutory power to alienate land.’[38] Brennan J came to this conclusion on the basis that the discretionary power granted by the relevant statute to affect native title interests precluded the finding of a fiduciary obligation. The relevant discretion would lose its content if a fiduciary obligation that purported to limit that statutory discretion, was superimposed on it. Consequently, he found that there was ‘no foundation for imputing to the Crown a fiduciary duty.’[39]

Several years later in Cubillo and Gunner v Commonwealth (Cubillo)[40] the Full Federal Court declined to find a fiduciary duty owed to Indigenous Australians. Cubillo was brought by Lorna Cubillo and Peter Gunner who alleged that they had been forcibly removed from their families and taken to ‘aboriginal institutions’ to be raised away from their communities, tribes and culture.[41] In this case, the Full Federal Court found that the Crown did not owe a fiduciary duty to Cubillo or Gunner on two separate bases. Firstly, that the actions taken by the Crown in that case were not shown to be outside of the powers granted by the relevant statute. If the conduct was not a breach of the statute, it could not be a breach of any potential fiduciary duty, because ‘any fiduciary obligation must accommodate itself to the terms of the statute.’[42] And again, ‘a fiduciary obligation cannot modify the operation or effect of statute: to hold otherwise, would be to give equity supremacy over the sovereignty of Parliament.’[43] The second basis for declining to make a finding of a fiduciary relationship was consistent with the reasoning in Paramasivam. Sackville, Weinberg and Hely JJ stated that it would be improper to find that a fiduciary duty is owed in circumstances where the common law, for example through the law of tort, already covered the field in terms of the duties owed in the circumstances of any particular relationship.[44]

The closest that the Australian judiciary has come to finding a fiduciary relationship between the Crown and Indigenous Australians has been in Trevorrow v State of South Australia (Trevorrow).[45] This case involved very similar facts to Cubillo, although in Trevorrow the actions of the Crown were found not to comply with the obligations under the statute and therefore the finding of a breach of fiduciary obligation was open to the court, without the court having to overturn Cubillo. Gray J, at trial, awarded Bruce Trevorrow $525,000 in damages for the defendant’s misfeasance in public office, negligence, false imprisonment and breach of fiduciary duty, stating that the fiduciary relationship arose by operation of the relevant statute which imposed duties of guardianship upon the State of South Australia.[46]

South Australia appealed this decision. The appellate court in State of South Australia v Lampard-Trevorrow[47] (Trevorrow Appeal) found that, whilst the State of South Australia had breached its statutory duty and therefore, remained liable for the tortious claims, it was not liable under fiduciary law. The Trevorrow Appeal did not comment on the existence of a fiduciary relationship but stated that South Australia’s actions did not constitute a breach of the duties contained in any potential fiduciary relationship.[48] This decision seems to have marked the end of attempts, to plead the existence of a fiduciary relationship between the Crown and Indigenous Australians. Consequently, the landscape of the precedents governing this area of law are not particularly favourable to indigenous litigants. As mentioned, at the level of principle, there is more flexibility, however at the level of precedent, there is more rigidity and Australian courts have been reluctant to find a fiduciary obligation owed to Indigenous Australians.

Having outlined the principles and precedents that govern Australian fiduciary law and its interactions with Indigenous Australians it is now possible to answer the question posed at the outset of this part: can Australian courts recognise a fiduciary relationship between the Crown and Indigenous Australians?

CAN AUSTRALIAN COURTS RECOGNISE A FIDUCIARY OBLIGATION?

The short answer to this question is that it is unlikely unless there is a systemic or paradigmatic shift such as the implementation of indigenous constitutional recognition. Given the current state of the principles and precedents of Australian fiduciary law it is unlikely that anything will change in the sphere of judicial decision-making.

It should be clear from the above analysis that there is a general reluctance to extend the principles of fiduciary law. Gaudron and McHugh JJ in Breen v Williams exemplified this reluctance when they stated, ‘in our view, there is no basis upon which this Court can hold that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. She seeks to impose fiduciary obligations on a class of relationship which has not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines.’[49] This reluctance is also evident in several of the aforementioned Australian cases.

The two loose principles (undertaking and reliance) outlined above and more importantly, the inherent uncertainty in Australian fiduciary law principles provides a potential avenue for alteration and extension of the fiduciary relationship. As mentioned, the notion of undertaking can be implied through an interpretation of what responsibilities the Crown may have assumed upon colonisation and the notion of trust and confidence, as well as the consequent power of the Crown, arguably flows from such a finding. Thus, at the level of principle, Australian courts may be able to extend the fiduciary relationship into novel areas precisely because of a lack of settled principles.[50] However, there is understandable reluctance to extend a principle that may subsequently be widely and irresponsibly applied.[51] By contrast, at the level of precedent, flexibility in fiduciary law is more difficult to ascertain. As has been demonstrated, the existing precedents in this area of law make extension unlikely, if not impossible.

Following the current Australian legal precedents in this area, courts cannot, in the absence of a substantial systemic change, such as indigenous constitutional recognition, recognise a fiduciary duty between the Crown and Indigenous Australians. The current state of the relevant precedents means that the recognition of a fiduciary relationship between the Crown and Indigenous Australians will not be achieved through novel interpretation of existing precedents but rather will require a more concerted reform project. A comparative analysis with the Canadian jurisdiction, which has recognised indigenous rights and treaties in its constitution, will explain that if the same course is taken in Australia in relation to constitutional recognition, there may be a possibility for the extension of the fiduciary law to include the relationship between the Crown and Indigenous Australians.

2 – Fiduciary Law in Canada

In this part, I will outline the current state of Canadian fiduciary law principles and precedents. I will demonstrate that Canadian principles and precedents in the area of fiduciary law are distinct from those of the Australian legal system. Most relevantly, the confining of fiduciary relationships to the commercial or economic sphere, a hallmark of Australian fiduciary law, has been rejected in Canada. To establish the relevance of certain precedents, I will provide another case law analysis, highlighting the landmark cases in Canada that found that a fiduciary relationship existed between the Crown and Indigenous Canadians. As will be seen in R v Sparrow,[52] the fiduciary relationship found to exist in Canadian law, relies heavily on constitutional justification, in particular s 35(1) of the Canadian constitution.[53] In this part, I will also discuss how Canadian courts have come to interpret s 35(1) of the Canadian constitution, in the years following the Canadian Supreme Court decision in R v Sparrow.

EXISTING FIDUCIARY LAW GENERAL PRINCIPLES AND PRECEDENTS

In the Canadian context, as in Australia, there are several important cases that are relevant to any inquiry into the current state of Canadian fiduciary law and how it deals with Indigenous Canadians. These cases have largely been decided in the Supreme Court of Canada. This part is not intended to be an exhaustive analysis of all the relevant precedents in the area of Canadian fiduciary law but rather a focused survey of the fiduciary law cases in Canada that will assist in comparing Canada’s approach with the approach taken in Australia.

The first important Canadian fiduciary law decision is Frame v Smith.[54] This case was about whether a non-custodial parent was owed a fiduciary obligation by the other parent to have access to their children. The Court rejected the argument that a fiduciary relationship existed, but the dissent of Wilson J was to become influential in later cases in the years that followed. Wilson J, in contrast to the majority, rejected the notion, still the orthodox position in Australia, that fiduciary duties could only protect economic interests. He stated that it ‘would be arbitrary in the extreme’ for fiduciary law to protect material interests but ‘afford no protection to human and personal interests.’[55]

Wilson J pointed to English authorities to justify his dissent.[56] He cited, among others, a House of Lords decision, Reading v Attorney-General.[57] This case involved an English soldier who served in Egypt during the war. The soldier was given favourable treatment by the local Egyptian guards because he wore an English army uniform. The soldier used this favourable treatment to obtain a profit by smuggling items across borders. The court found that the soldier owed the Crown a fiduciary duty and was liable to account for profits. Wilson J said that the interest that had been infringed by the soldier’s actions was not a strictly legally recognised interest but was nonetheless protected by fiduciary law principles. He said, ‘the Crown’s interest was a practical or even a moral one, namely that its uniform should not be used in corrupt ways.’[58]

Wilson J’s dissent is particularly relevant to the comparative inquiry being undertaken in this article because, as has been seen in Part 1, the confining of fiduciary law to the economic or commercial sphere represents a significant barrier to the finding of a fiduciary relationship between the Crown and Indigenous Australians. Wilson J’s dissent in Frame v Smith, as well as his citation of English jurisprudence, was dealt with in detail by McLachlin J in a later case, Norber v Wynrib.[59]

This case was concerned with a doctor-patient relationship. Dr Wynrib induced Ms Norber to engage in sexual activity with him in exchange for prescription drugs. In this case the Supreme Court found that a fiduciary relationship existed between the parties and that Dr Wynrib had breached his fiduciary duty by his unconscionable conduct.[60] In making this finding McLachlin J discussed Wilson J’s dissent in Frame v Smith, stating ‘that fiduciary duties are not confined to the exercise of power which can affect the legal interests of the beneficiary, but extend to the beneficiary’s vital non-legal or practical interests.’[61] McLachlin J went on to state ‘that [the present case] is not concerned with the protection of what has traditionally been regarded as a legal interest. It is, however concerned with the protection of interests, both societal and personal, of the highest importance.’[62] McLachlin J also went on to affirm Wilson’s statement that the protection of economic interests, without protection of ‘human or personal interests would ... be arbitrary in the extreme.’[63] He stated that the ‘principles alluded to by Wilson J in Frame v Smith are principles of general application ... they are capable of protecting not only narrow legal and economic interests but can also serve to defend fundamental human and personal interests.’[64] In relation to the confining of fiduciary law to economic interests McLachlin J stated that, the ‘closed, commercial view of fiduciary obligations is neither defended nor reconciled with the authorities, including those of this court.’[65]

Interestingly, Australian courts have rejected the notion that a fiduciary relationship exists between a doctor and patient. In Breen v Williams the question was whether a patient had the right to access their own medical records on the basis that a fiduciary obligation was owed to a patient by his/her doctor. This argument was rejected; however, the court also took the opportunity to state, in line with existing authority, that fiduciary relationships are confined to the commercial sphere. Dawson and Toohey JJ stated that a fiduciary obligation may arise where a doctor places ‘himself in a position with potential for a conflict of interest - if, for example, the doctor has a financial interest in a hospital or a pathology laboratory.’[66] However, as the facts of the case and the particulars of the purported breach lacked any commercial element, the court decided not to find a fiduciary relationship between doctor and patient. Arguably, the same result would have been found if Norber v Wynrib[67] had come before an Australian court, because that case also lacked any commercial element. It was concerned primarily with a ‘moral’ breach rather than a commercial one. This points to the different ways in which Canadian courts have conceived of fiduciary relationships compared with Australian courts.

Wilson J’s dissent in Frame v Smith was also approved by Sopinka and La Forest JJ in LAC Minerals Ltd v International Corona Resources.[68] This case concerned duties of confidentiality between potential joint venturers. Important commercial information was disclosed during negotiations and the question for the court was whether the parties owed fiduciary obligations, including a duty of confidentiality, to one another. Whilst the question in this case was economic or commercial in character, it nonetheless elucidated some fundamental principles and importantly once again affirmed Wilson J’s dissent. Sopinka and La Forest JJ approved of the enunciation of the principles of fiduciary law found in Wilson J’s dissent in Frame v Smith.[69] After applying these principles to the case before them, they concluded that the categories of fiduciary relationships are not closed but should be ‘reserved for situations that are truly in need of the special protection that equity affords.’[70] As the following analysis will demonstrate, the relationship between the Crown and Indigenous Canadians was decided by the courts to be one such situation.

FIDUCIARY LAW AND INDIGENOUS CANADIANS

Any discussion of the legal and equitable rights of Indigenous Canadians needs begin with a discussion of s 35(1) of the Canadian constitution. This section has been very influential in the furtherance of indigenous rights in Canada.[71] Section 35(1) of the Constitution Act 1982 provides that ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’[72] This simple yet powerful provision of the Canadian constitution has been instrumental in the furtherance of indigenous rights in Canada, including the Canadian judicial system’s recognition of a fiduciary relationship between the Crown and Indigenous Canadians.[73] This constitutional imperative should be borne in mind, throughout the case law analysis that will form the bulk of this section.

The landmark case in this area of fiduciary law is Guerin v The Queen.[74] This case involved the surrender of native land to the Crown by a group of Indigenous Canadians on certain terms that were to be agreed by the parties. However, during the transaction the Crown withheld information relevant to the transaction and in doing so secured more favourable terms.[75] One question for determination was whether the Crown owed a fiduciary duty to native title holders and if so whether the Crown’s conduct was in breach of that duty. The Supreme Court of Canada found that there was a fiduciary obligation owed by the Crown. The decision was based primarily on s 18 of the Indian Act.[76] Section 35(1) of the Canadian constitution, which, as will be seen, played a pivotal role in later cases, did not feature in this landmark case. Rather this decision justified the finding of a fiduciary relationship with reference to statute. Specifically, Wilson J stated,

Section 18(1) of the Indian Act confers upon the Crown a broad discretion in dealing with the surrendered land ... after the Crown's agents had induced the Band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore these terms. Equity will not countenance unconscionable behaviour in a fiduciary whose duty is that of utmost loyalty to his principal. ... the Crown breached the fiduciary obligation it owed to the Band and it must make good the loss suffered in consequence.[77]

Whilst constitutional factors were not considered in this case, subsequent decisions were justified on constitutional grounds. The two most relevant cases of this sort were R v Sparrow[78] and R v Adams.[79]

R v Sparrow was concerned with the constitutional validity of an enactment that purported to infringe on the rights of a group of Indigenous Canadians. The law purported to make it unlawful for persons to fish with a net larger than a prescribed size. The question for the court was whether this provision was inconsistent with s 35(1) of the Canadian constitution and therefore invalid by virtue of the operation of s 52(1) of the Canadian constitution. Section 52(1) states ‘the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’[80]

The court invalidated the impugned law and made a finding that a fiduciary relationship existed between the Crown and Indigenous Canadians. The court stated that s 35(1) of the Canadian constitution requires the government ‘to act in a fiduciary capacity with respect to aboriginal peoples and so import some restraint on the exercise of sovereign power.’[81] This notion echoes the comments of Dawson J in Mabo v The State of Queensland (No 2)[82] when he stated, whilst undertaking a comparative analysis with respect to Canada, that the ‘responsibility [to act in a fiduciary capacity] is said to arise out of the Crown’s historic powers over, and assumption of responsibility for, those aboriginal peoples and out of the recognition and affirmation of existing aboriginal rights contained in s. 35(1) of the Canadian Constitution.’[83]

Relatedly, the court in R v Sparrow also grounded its finding of a fiduciary relationship on the unique status of indigenous peoples and the Crown’s historic assumption of power and responsibility. The Court said the ‘sui generis nature of Indian title and the historic powers and responsibilities assumed by the Crown constitute the source of ... a fiduciary obligation. ’[84] The Court went on to say that,

the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial and the contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship. [85]

R v Sparrow established a fiduciary relationship between the Crown and Indigenous Canadians and subsequent cases adopted and applied the test in R v Sparrow to invalidate other acts of the Crown that purported to infringe upon indigenous rights. In this way, aboriginal rights have taken a place of prominence in the Canadian legal system. As R v Adams found, the protection of aboriginal rights has the capacity even to bind the Parliament.

R v Adams was a very similar case to R v Sparrow. It involved an Indigenous Canadian who was charged with an offence of fishing without a license. This license was ‘only available on application for the exercise of ministerial discretion.’[86] The question for the court was whether this administrative decision-making process was inconsistent with s 35(1) of the Canadian Constitution. The court concluded ‘that the regulations did not provide sufficient direction to those exercising the discretion to fulfil the Crown’s fiduciary duty to the aboriginal peoples.’[87] Lamer CJ stated that ‘in light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights.’[88] He continued that if the Parliament purports to do so, ‘the statute will be found to represent an infringement of aboriginal rights.’[89] R v Sparrow and R v Adams, especially the former, laid the foundation for the constitutional analysis that would become orthodox in constitutional invalidity matters related to indigenous rights.

Now that it was been demonstrated that a fiduciary relationship between the Crown and Indigenous Canadians was found by Canadian courts to exist, it will be useful to look at how this finding was refined in later constitutional cases. Particular attention will be given to how s 35(1) has been interpreted.

How have Canadian courts interpreted s 35(1)?

This section will analyse the relevant case law that has interpreted s 35(1) of the Canadian constitution. It will be seen that, with the exception of Guerin v The Queen,[90] courts deciding indigenous rights cases invariably employed s 35(1) to justify and rationalise their decisions to find a fiduciary relationship between the Crown and Indigenous Canadians. As has been seen, this is most obvious in R v Sparrow and in fact, later cases applied what became known as the Sparrow test, to determine the constitutional validity of laws and regulations that purported to infringe upon indigenous rights. However, courts in later cases also, paradoxically, used the principle that the Crown owed indigenous peoples a fiduciary obligation (which was justified by s 35(1) in R v Sparrow) to inform the content and scope of the interpretation of s 35(1). As will be seen, it is possible to 1) use constitutional justification to find the existence of a fiduciary relationship, as was done in R v Sparrow, and 2) use the fiduciary relationship (justified on constitutional grounds) to inform the constitutional interpretation that follows. The two interpretative actions are not mutually exclusive.

The Sparrow test

The test formulated in R v Sparrow was used to determine the constitutional validity, with reference to s 35(1), of an impugned law. The test has three limbs; 1) whether the practice, custom or tradition, that is purportedly infringed, is an existing aboriginal right, 2) if so, whether the impugned law constitutes a prima facie infringement of that right and 3) if so, whether the prima facie infringement is justified.[91] The third limb of the test, namely the ‘justification limb’ consists of two further limbs. Firstly, whether the government in imposing the infringement, was acting pursuant to a valid legislative objective and secondly, and most relevantly for present purposes, whether the infringement is consistent with the fiduciary duty owed by the Crown to Indigenous Canadians?[92] This test was subsequently applied in three important cases: R v Van der Peet, [93] R v NTC Smokehouse Ltd[94] and R v Gladstone.[95]

R v Van der Peet concerned s 27(5) of the British Columbia Fishery (General) Regulations. These regulations purported to infringe on the right of indigenous peoples to sell fish on a non-commercial basis. The court found that the right to sell fish, was an existing aboriginal right (the first limb) and that the regulation purported to infringe on that right (second limb) and that the regulation was unjustified because it was not consistent with the fiduciary obligations that the Crown owed to Indigenous Canadians (third limb). Consequently, the law was found to be of no force and effect pursuant to s 52(1) of the Canadian Constitution by virtue of its inconsistency with s 35(1) of the Canadian Constitution.

Throughout its reasoning the court stated that; ‘because of [the] fiduciary relationship ... treaties, s. 35(1) and other statutory and constitutional provisions protecting the interests of aboriginal peoples, must be given a generous and liberal interpretation.’[96] This ‘generous and liberal interpretation’ does however, have its limits. The court also stated that s 35(1),

does not oust the federal power to legislate with respect to aboriginals, nor does it confer absolute rights. Federal power is to be reconciled with aboriginal rights by means of the doctrine of justification. The federal government can legislate to limit the exercise of aboriginal rights, but only to the extent that the limitation is justified. [97]

R v NTC Smokehouse Ltd[98] had a very similar factual matrix to the previous case and the court came to a similar conclusion. The first two limbs were made out easily. In relation to the third limb of the test, whether the infringement was justified, the court imported a purposive notion stating that, the law, as well as being consistent with the fiduciary duty of the Crown, must also ‘establish that [it] was enacted for a compelling and substantial purpose.’[99] This served to give greater clarity to the notion of the ‘valid legislative objective’ contained in the Sparrow test.[100]

R v Gladstone applied the same test but found that the impugned law in that case was not inconsistent with s 35(1) and was therefore not constitutionally invalid. This case imported a notion of proportionality asking if there had been ‘as little infringement as possible in order to effect the desired result.’[101] The court found that the infringement was proportionate and therefore constitutionally valid.[102] This notion of proportionality further refined the Sparrow test providing greater certainty in relation to matters of constitutional validity by virtue of inconsistency with section 35(1) of the Canadian Constitution.

These cases from Guerin to Gladstone, and the myriad of cases that I have not mentioned here, serve to outline the orthodox interpretation that Canadian courts have given to constitutional inquiries involving s 35(1). It has been seen that the fiduciary relationship found to exist in R v Sparrow finds justification in s 35(1) but also informs how s 35(1) is to be interpreted when it comes to inquiries about the constitutional validity of enactments. On the one hand s 35(1) of the Canadian Constitution, requires the government ‘to act in a fiduciary capacity with respect to aboriginal peoples and so import some restraint on the exercise of sovereign power.’[103] However, on the other hand, the interpretation that courts have given to s 35(1) involves an inquiry about whether the law is consistent with the fiduciary obligation already found to be owed by virtue of, inter alia, s 35(1).[104]

Canadian courts have successfully found that the Crown owes a broad fiduciary duty to Indigenous Canadians. This has not been accomplished in Australia. This part has demonstrated that Canadian courts have freed themselves from the narrow economic view of the fiduciary obligations and have been able to broaden fiduciary principles to the recognition of indigenous rights. It has also provided some examples of how s 35(1) has been interpreted in light of the finding in Guerin that the Crown owes a fiduciary obligation to Indigenous Canadians.

The private law of fiduciary obligations and the public law of constitutional recognition and interpretation need not be confined to separate and distinct areas of operation. The current state of the law in Canada attests to this fact. By highlighting some of the benefits and limitations of the Canadian approach, a useful model for dealing with these issues in Australia can be ascertained. Part 3 will outline what Australia can learn from Canada when it comes to recognising a fiduciary relationship between the Crown and Indigenous Australians.

3 – Reform Inquiry

WHAT CAN AUSTRALIA LEARN FROM CANADA?

The most relevant lesson that Australian courts can draw from the Canadian experience is that indigenous constitutional recognition may facilitate the protection of indigenous rights. One manifestation of this potential protection may be the effect that indigenous constitutional recognition could have on the extension of fiduciary law principles. This extension might consist of the recognition of a special relationship between the Crown and Indigenous Australians. R v Sparrow is a significant Canadian decision that supports this contention. Dickson CJ and La Forest J state in that case, ‘that the words "recognition and affirmation" incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power.’[105] They go on to say, ‘that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government.’[106] Interestingly, in the same judgment Dickson CJ and La Forest J state that the recognition of a fiduciary relationship, first achieved in Guerin v The Queen ‘grounds a general guiding principle for s 35(1).’[107] Consequently, it appears that although s 35(1) is used as justification for the finding of a fiduciary relationship in R v Sparrow, it is also true that in Guerin v The Queen, the court found that a fiduciary relationship existed between the Crown and Indigenous Canadians independent of any constitutional justification. The fiduciary finding was then subsequently used to inform or ‘ground’ the interpretation of the words ‘recognised and affirmed’ in s 35(1) of the Canadian Constitution. So, whilst it may be inaccurate to assert that constitutional recognition in Canada resulted in the courts finding a fiduciary relationship (because such a relationship had already been found to exist in Guerin v The Queen independent of any constitutional justification) it is nonetheless accurate to state that constitutional recognition in Canada played a part in defining the content and scope of that fiduciary relationship. In fact, in contrast to Guerin v The Queen, constitutional recognition in some cases, namely R v Sparrow, was used as justification for the finding of a fiduciary relationship.[108]

It has been seen that the Canadian approach to the finding of a fiduciary relationship was based, at least as evidenced by R v Sparrow,[109] on indigenous constitutional recognition. The recent argument in the Australian polity over what form such recognition could and should take in Australia, goes to the heart of what consequences would flow from that recognition and how effective it would be in achieving its goals. One thing to keep in mind when dealing with these issues, is that any constitutional recognition would not involve a process of ‘creation’ but rather would involve ‘recognition’ of existing well-established indigenous rights and interests.[110] This is clarified by the use, in s 35(1) of the Canadian Constitution, of the word ‘existing.’ Whatever form indigenous constitutional recognition in Australia may take, the Canadian approach demonstrates that it need not be complicated in order to achieve substantial developments. Indeed, s 35(1) of the Canadian constitution is very simple in its wording. It states, ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’[111] These 17 words have altered the legal landscape in Canada dramatically, especially in the area of fiduciary law. The significant impact that this simple provision has made, supports the argument that indigenous constitutional recognition in this country need not be extravagant. With minimal constitutional intervention, courts in Australia through a natural and organic process of constitutional interpretation, may alter the legal landscape with respect to indigenous rights, including in the fiduciary law space.

There is obvious and understandable fear about how significant any changes in this area might be if constitutional recognition were to gain traction and be implemented through a referendum. The notion that nothing would change if indigenous constitutional recognition were successful is inaccurate. The potential changes to many areas of law including property, contract, administrative law and of course fiduciary law could be significant. This is because, if indigenous constitutional recognition was implemented, litigants in legal actions involving indigenous rights would likely seek to justify their legal positions on constitutional grounds citing the newly implemented indigenous constitutional recognition as justification. The consequences of this are unknowable. It is the ‘unknown’ associated with law reform that incites scepticism, reluctance, and fear. This scepticism represents a significant barrier to reform.[112]

BARRIERS TO REFORM

Scholars have called s 35(1) of the Canadian Constitution ‘a force that changes everything.’[113] A similar constitutional amendment in Australia, recognising the rights and interests of Indigenous Australians, could be similarly described. Peter Grose has dryly remarked that constitutional recognition is ‘not something used to maintain the status quo.’[114] The fear of alteration of the status quo is perhaps accentuated by the liberal interpretation that Canadian courts have given to s 35(1). In R v Van der Peet, the court stated that ‘because of [the] fiduciary relationship ... treaties, s. 35(1) and other statutory and constitutional provisions protecting the interests of aboriginal peoples, must be given a generous and liberal interpretation.’[115] The notion of generous and liberal constitutional interpretation is capable of inciting fear. However, Australia, having the benefit of assessing the situation in Canada, can draw on that experience and devise suitably Australian ways of dealing with and interpreting indigenous constitutional recognition. This may serve to limit or extend its application where necessary.

Whist reform in this area will likely effect significant change, the idea that constitutional recognition, however construed, will result in an impermissible and unprincipled extension of existing legal and equitable principles currently governing indigenous rights may also be inaccurate and exaggerated. Canadian courts when recognising the relevance of s 35(1) for the protection of indigenous rights and the finding of a fiduciary relationship, where quick to place limitations on its application. For example, after Dickson CJ and La Forest J in R v Sparrow stated that s 35 ‘imports some restraint on the exercise of sovereign power.’ They went on to say in the very next sentence that the ‘rights that are recognised and affirmed are not absolute. Federal legislative powers continue.’ The mechanism that has been employed in Canada to limit the unprincipled and uncontrolled extension of indigenous rights is the constitutional doctrine of justification. This doctrine states that federal legislative power will only be rendered invalid if its purported exercise represents an unjustified infringement of aboriginal rights. Using this doctrine, Canadian courts have been able to exercise a supervisory role over legislative action with respect to Indigenous Canadians by balancing competing interests. This balancing exercise employs criteria like whether the legislative act is pursuant to a valid legislative objective or whether it is consistent with the fiduciary duty owed by the Crown to indigenous peoples.

In the Australian context a similar doctrine could be employed. Historically, Australian courts have preferred the doctrine of proportionality when determining the constitutional validity of existing laws or regulations.[116] The concept of proportionality is similar to the concept of justification, in that they are both directed towards an analysis of the impugned law to determine its validity from a quasi-normative point of view.[117] Both concepts allow the court to employ their powers to limit or extend interpretation of any potentially unconstitutional law to facilitate development of the law in line with community and societal expectations. [118]

One scholarly opinion that has addressed the fear and reluctance surrounding indigenous constitutional recognition and its implications has suggested that a useful way forward is to characterise any indigenous constitutional recognition in a limited fashion. Kirsty Gover has suggested that indigenous constitutional recognition and any fiduciary relationship that is subsequently found to exist should be construed as nothing more than providing the ‘rules of engagement.’[119] These reforms could then be used simply ‘to urge the parties to deal with one another reasonably and in good faith and to comment on instances of procedural unfairness.’[120] This approach would serve to limit the application of any constitutional or fiduciary law reforms by placing limits on their application at the outset. This approach would also quell fears that have been voiced about the creation in Australia of positive fiduciary obligations, [121] which have not yet been recognised by Australian courts.[122]

Currently, Australian fiduciary law confines the obligations owed by fiduciaries to negative duties. Even if fiduciary law principles were extended to include a special relationship between the Crown and Indigenous Australians, this fundamental principle, of fiduciary obligations being confined to negative obligations, could be safeguarded through clear judicial interpretation. Although Canada has extended fiduciary law to a great extent, recognising a fiduciary relationship in Australia does not mean that the extension of fiduciary principles needs to be as extensive as in Canada. Ensuring that any proposed extension does not purport to impose positive duties on the fiduciary is another way to limit the application of any potential extension of fiduciary law that might arise as a consequence of indigenous constitutional recognition. This may or may not be possible, depending on the specific wording of the proposed constitutional recognition. It is therefore difficult to predict how limiting indigenous fiduciary duties to negative duties would work in practice before any actual indigenous constitutional recognition is implemented. Nonetheless, a broad potential model for what extension of existing fiduciary principles may look like, will be proposed in the third section of this part.

One’s view of the judiciary and one’s faith in the justices of our High Court will inform one’s opinion about whether these suggestions are permissible safeguards or not.[123] A defence or critique of the High Court’s ‘judicial activism’ in the last 50 to 100 years would be able to inform a response to this question but that is most certainly not a task that will be undertaken in this article. What can be said is that feedback in Canada with respect to indigenous constitutional recognition and its implications and consequences has been broadly positive.[124]

PROPOSED SCOPE AND CONTENT OF THE RECOGNITION

If constitutional recognition were to result in the extension of Australian fiduciary law to recognise a fiduciary obligation owed by the Crown to Indigenous Australians, the content and scope of that relationship would need to be clearly defined, so far as it is possible given the indefinable and elusive nature of the fiduciary relationship.[125] Clear demarcations would help to quell fears, previously mentioned, about the unprincipled and uncontrolled extension of fiduciary law principles.

As has been discussed, it would be prudent to confine any fiduciary relationship to include only negative duties, in line with existing Australian fiduciary law principles. This would require the Crown to refrain from acting to the detriment of indigenous peoples in the making of laws and in administrative decision making that affects indigenous peoples but would not impose any positive duty on the Crown to act for the benefit of indigenous individuals or groups. Such a model would be less susceptible to uncontrolled extension and would remedy fears about the potentially detrimental implications that a lack of confinement might have on the fundamental principles and doctrines of the fiduciary law and our legal system, more broadly.

Confining any potential fiduciary relationship to negative duties would be a useful limitation but would nonetheless allow for significant protection of indigenous interests. Scholars have argued that a potential fiduciary relationship between the Crown and Indigenous Australians should recognise and protect indigenous autonomy and self-government.[126] For such a proposal to be successfully initiated and implemented, recognition of the existing organisational systems of indigenous cultures would need to be widespread. A lack of knowledge and respect for indigenous systems and cultural mores would de-legitimise any attempt to protect indigenous self-government.[127] To achieve something of this magnitude concerted efforts from various disciplines would be required. Education would be a useful starting point but more fundamentally mutual respect between Indigenous and non-indigenous Australians would need to ground any efforts. Questions of how to heal the wounds of the past and to begin to seek out a unified future is well and truly a task that goes beyond the academic sphere. Nonetheless, indigenous self-government represents a useful conceptual starting point for beginning to inform the content of any potential fiduciary obligation that might be found to exist. [128] Specifically, the content of the potential fiduciary obligation would include a notion that the Crown would be required to act in a fiduciary capacity with respect to Indigenous Australians when it comes to legislative or administrative infringements on existing aboriginal rights or interests that directly affect indigenous individuals or groups. This could be further refined to apply only to situations where a right of autonomy or self-government is concerned. Even if the content of the potential fiduciary obligation were confined only to these types of situations, there would already be substantial changes in the way indigenous interests are recognised and protected in Australia.

The proposed content of any obligation is not very informative unless a definitive scope can be placed on that obligation. As has already been mentioned, confining the scope of any potential fiduciary relationship could be managed effectively by the courts in their process of judicial interpretation of discrete questions of fact and law upon application to the court by an affected party. It is impossible to give any specific answers when it comes to the scope within which courts will confine any potential fiduciary duty. Much will depend on the court hearing the particular matter, the particularities of the judge or judges hearing that matter and the facts of the particular case. However, as has been said, the constitutional principle of justification or a notion of proportionality are useful limiting factors. The doctrine of proportionality could be employed by judicial decision makers with respect to purported infringements upon indigenous rights and interests by virtue of a breach of the fiduciary duty owed by the Crown. This would provide some certainty about the scope of any potential fiduciary obligation. For example, if purported breaches of fiduciary obligation were permissible on public policy grounds or on the grounds that such measures were justified or proportionate to the aim being sought, then courts would have principled justification for dismissing those purported breaches as, for example, reasonable administrative action or on grounds of parliamentary sovereignty. In employing this kind of quasi-constitutional interpretative structure with respect to potential breaches of fiduciary obligation, courts would be able to reconcile any potential fiduciary obligation with notions of parliamentary sovereignty and representative government. [129]

As has been said, the precise content and scope of any potential fiduciary relationship that could arise as a consequence of indigenous constitutional recognition is unknowable. The above analysis merely consists of a few ideas that could usefully be employed when thinking about what a potential fiduciary relationship would look like.

There are some important lessons that can be taken from the Canadian experience when it comes to indigenous constitutional recognition and the content and scope of any potential fiduciary relationship that could be found as a consequence. Indigenous constitutional recognition, if not a direct cause of the finding that Canadian courts have made about the existence of a fiduciary relationship between the Crown and indigenous Canadians, has certainly been useful in determining the content of that fiduciary relationship. If indigenous constitutional recognition can be successfully implemented in Australia, the chances of finding a fiduciary relationship between the Crown and Indigenous Australians are enhanced. What the relationship would look like is a difficult question to answer. In this part, I have sought to provide some general principles about the content and scope of such a relationship. The normative inquiry about whether such constitutional or fiduciary recognition is a ‘good’ or a ‘bad’ development or reform is a question for another time and another author. Opinions about that inquiry will depend on a myriad of interdisciplinary questions. Such questions are outside of the scope of this article. What can be said with a degree of certainty is that the experience in Canada, with respect to indigenous constitutional recognition and fiduciary law extension, provides a case study for Australia to learn from in a real and tangible way.

Conclusion

Jeremy Bentham reportedly once stated that ‘the power of the lawyer is the uncertainty of the law.’ It is common ground that the rule of law relies on the certainty of the law by which people are to be bound. Consequently, uncertainty in the law, whilst providing lawyers with potency, leaves citizens impotent against arbitrary government. For this reason, certainty is a desirable ideal towards which our legal system should strive but something that can be as elusive as it is desirable, and as fragile as it is stabilising.

As has been seen, in this area of law, uncertainty abounds. The future will hopefully bring clarification to many of the issues raised in this article. I have argued and defended the notion that if indigenous constitutional recognition is successful in Australia, the fiduciary law may be one means by which indigenous rights and interests can be protected.

Edward Coke’s words, mentioned at the outset of this article and for which he risked losing his head, were in a certain sense, a push for greater certainty in the 15th Century English legal system. His courageous contribution in that historical moment, has arguably provided significant benefits for future generations, including today’s generation. However, today presents us with other challenges. Arbitrary and tyrannical governance, akin to King James I’s rule, are not immediate and pressing issues in this country, but rather other matters, equally important, require our attention and action. The healing of past wounds that have been inflicted on Indigenous Australians represents one of these pressing issues. The ideas contained in this article about how constitutional recognition and fiduciary law may be used as avenues for redress for Indigenous Australians, can serve to facilitate a continuing process of reconciliation, healing and progress.

Indigenous constitutional recognition is a topical issue today and many proffer opinions, from a moral point of view, about the benefits and detriments of its success. This article represents a short and focused analysis of some of the legal issues that the moral arguments of public figures on all sides of the debate might benefit from keeping in mind. This article, in some sense, is a prediction of the future. Only time will tell if its questions, inquiries, analyses, and conclusions are accurate. Its legitimacy and relevance, as with all academic literature, will be a matter for history to judge.

***


[1] Geoffrey Robertson, The Tyrannicide Brief (Vintage Books, 2005), 26.

[2] Augusto Zimmermann, ‘Sir Edward Coke and the Sovereignty of the Law’ [2017] MqLawJl 7; (2017) 17(1) Macquarie Law Journal 127, 129.

[3] James Edelman, ‘When Do Fiduciary Duties Arise?’ (2010) 126 Law Quarterly Review 302, 311; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42, 96.

[4] United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1, 16.

[5] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42, 96.

[6] Breen v Williams (1996) 186 CLR 71, 113.

[7] Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489, 504.

[8] Lionel Smith, ‘Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on behalf of Another’ (2014) 130 Law Quarterly Review 608, 608.

[9] Paul Miller, ‘The Fiduciary Relationship’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary law (Oxford University Press, 2014), 65.

[10] Breen v Williams (1996) 186 CLR 71, 92.

[11] Stephen Gageler, ‘Expansion of the Fiduciary Paradigm into Commercial Relationships: The Australian Experience’ in Peter Devonshire and Rohan Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing, Oxford, 2018), 165, 168.

[12] James Edelman, ‘When Do Fiduciary Duties Arise?’ (2010) 126 Law Quarterly Review, 302, 310; James Edelman, ‘The Importance of the Fiduciary Undertaking’ (Speech delivered at the Conference on Fiduciary Law, University of New South Wales, 22 March 2012) <https://www.supremecourt.wa.gov.au/_files/UNSW%20Conference%20of%20Fiduciary%20Law%2022%20Mar%202013%20Edelman%20J.pdf>.

[13] James Edelman, ‘The Importance of the Fiduciary Undertaking’ (Speech delivered at the Conference on Fiduciary Law, University of New South Wales, 22 March 2012) <https://www.supremecourt.wa.gov.au/_files/UNSW%20Conference%20of%20Fiduciary%20Law%2022%20Mar%202013%20Edelman%20J.pdf>.

[14] James Edelman, ‘When Do Fiduciary Duties Arise?’ (2010) 126 Law Quarterly Review, 302, 311.

[15] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42.

[16] Ibid 96.

[17] James Edelman, ‘The Role and Status of the Law of Obligations: Common Callings, implied terms and lessons for fiduciary duties’ (Speech delivered at the University of Alberta and DePaul University Conference, Chicago, 18 July 2013).

[18] United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1, 16.

[19] Ibid.

[20] Stephen Gageler, ‘Expansion of the Fiduciary Paradigm into Commercial Relationships: The Australian Experience’ in Peter Devonshire and Rohan Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing, Oxford, 2018), 165, 166.

[21] Paul Miller, ‘The Fiduciary Relationship’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary law (Oxford University Press, 2014), 65, 78.

[22] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42, 96.

[23] Meinhard v Salmon 164 NE 545 (1928) 546.

[24] Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 166 (Dawson J).

[25] Breen v Williams (1996) 186 CLR 71, 113; Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489, 504.

[26] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 42.

[27] Ibid 96.

[28] Breen v Williams (1996) 186 CLR 71.

[29] Ibid 113.

[30] United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1.

[31] Ibid 13.

[32] Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489.

[33] Ibid 506.

[34] Ibid 504.

[35] Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[36] Ibid 203.

[37] Wik Peoples v The State of Queensland (1996) 187 CLR 1.

[38] Ibid 96.

[39] Ibid 97.

[40] Cubillo and Gunner v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455.

[41] Ibid 493.

[42] Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489.

[43] Cubillo and Gunner v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455, 577; Tito v Waddel (No 2) [1977] CH 106, 139.

[44] Cubillo and Gunner v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455, 577-8.

[45] Trevorrow v State of South Australia (2007) 98 SASR 136.

[46] Ibid 347.

[47] State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331.

[48] Ibid 402.

[49] Breen v Williams (1996) 186 CLR 71, 110.

[50] Stephen Gageler, ‘Expansion of the Fiduciary Paradigm into Commercial Relationships: The Australian Experience’ in Peter Devonshire and Rohan Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing, Oxford, 2018), 165, 181.

[51]Breen v Williams (1996) 186 CLR 71, 110; Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489, [72]; Cubillo and Gunner v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455, [461]; State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, [337].

[52] R v Sparrow [1990] 1 SCR 1075.

[53] Canada Act 1982 (UK) c 11, sch B, s 35(1) (‘Canadian Constitution’).

[54]Frame v Smith [1987] 2 SCR 99.

[55] Ibid [68].

[56] Ibid [62].

[57] Reading v Attorney-General [1951] UKHL 1; [1951] AC 507.

[58] Frame v Smith [1987] 2 SCR 99, [62].

[59] Norber v Wynrib [1992] 2 SCR 226.

[60] Ibid 283-284.

[61] Ibid 276.

[62] Ibid 276.

[63] Ibid 277.

[64] Ibid 289.

[65] Ibid 283.

[66] Breen v Williams (1996) 186 CLR 71, 94.

[67] Norber v Wynrib [1992] 2 SCR 226.

[68] LAC Minerals Ltd v International Corona Resources [1989] 2 SCR 574.

[69] Ibid 598.

[70] Ibid 596.

[71] Kirsty Gover, ‘The Honour of the Crowns: State-Indigenous Fiduciary Relationships and Australian Exceptionalism’ [2016] SydLawRw 16; (2016) 38(1) Sydney Law Review 339, 355.

[72] Canada Act 1982 (UK) c 11, sch B, s 35(1).

[73] R v Sparrow [1990] 1 SCR 1075, 1108; Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 166.

[74] Guerin v The Queen [1984] 2 SCR 335.

[75] Ibid 336.

[76] Indian Act, RSC 1952, s 18(1).

[77] Guerin v The Queen [1984] 2 SCR 335, 337.

[78] R v Sparrow [1990] 1 SCR 1075.

[79] R v Adams [1996] 3 SCR 101.

[80] Canada Act 1982 (UK) c 11, sch B, s 52(1).

[81] R v Sparrow [1990] 1 SCR 1075, 1077.

[82] Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[83] Ibid 166.

[84] R v Sparrow [1990] 1 SCR 1075, 1108.

[85] Ibid.

[86] R v Adams [1996] 3 SCR 101, 101.

[87] Ibid 104-105.

[88] Ibid 132.

[89] Ibid.

[90] Guerin v The Queen [1984] 2 SCR 335.

[91] R v Sparrow [1990] 1 SCR 1075, 1094.

[92] Ibid 1109.

[93] R v Van der Peet [1996] 2 SCR 507.

[94] R v NTC Smokehouse Ltd [1996] 2 SCR 672.

[95] R v Gladstone [1996] 2 SCR 723.

[96] R v Van der Peet [1996] 2 SCR 507, [24].

[97] Ibid [231].

[98] R v NTC Smokehouse Ltd [1996] 2 SCR 672.

[99] Ibid [97].

[100] R v Sparrow [1990] 1 SCR 1075, 1079.

[101] R v Gladstone [1996] 2 SCR 723, [55].

[102] Ibid [55].

[103] R v Sparrow [1990] 1 SCR 1075, 1077.

[104] R v NTC Smokehouse Ltd [1996] 2 SCR 672, [97].

[105] R v Sparrow [1990] 1 SCR 1075, 1109.

[106] Ibid 1119.

[107] Ibid 1108.

[108] Ibid 1109 & 1119.

[109] Ibid.

[110] Benjamen Franklen Gussen, ‘A Comparative Analysis of Constitutional Recognition of Aboriginal Peoples’ (2017) 40(3) Melbourne University law Review 1, 16.

[111] Canada Act 1982 (UK) c 11, sch B, s 35(1).

[112] Breen v Williams (1996) 186 CLR 71, 110; Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489, [72]; State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, [337].

[113] Peter Grose, ‘Developments in Recognition of Indigenous Rights in Canada: Implications for Australia’ (1997) 4(1) James Cook University Law Review 68, 77.

[114] Ibid 75.

[115] R v Van der Peet [1996] 2 SCR 507, [24].

[116] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178, [2]; JT International SA v Commonwealth [2012] HCA 43; 250 CLR 1, [337]-[338]; Maloney v The Queen [2013] HCA 28; 252 CLR 168, [166].

[117] Beverley McLachlin, ‘Proportionality, Justification, Evidence and Deference: Perspectives from Canada’ (Speech delivered to the Hong Kong Court of Final Appeal Judicial Colloquium, 24 September 2015), <https://www.hkcfa.hk/filemanager/speech/en/upload/144/Proportionality,%20Justification,%20Evidence%20and%20Deference%20-%20Perspectives%20from%20Canada.pdf>, 13.

[118] Benjamen Franklen Gussen, ‘A comparative Analysis of Constitutional Recognition of Aboriginal Peoples’ (2017) 40(3) Melbourne University law Review 1, 37; Lisa Di Marco, ‘A Critique and Analysis of the Fiduciary Concept in Mabo v Queensland [1994] MelbULawRw 19; (1994) 19(4) Melbourne University Law Review 868, 885.

[119] Kirsty Gover, ‘The Honour of the Crowns: State-Indigenous Fiduciary Relationships and Australian Exceptionalism’ [2016] SydLawRw 16; (2016) 38(1) Sydney Law Review 339, 367.

[120] Ibid.

[121] Camilla Hughes, ‘The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada’ [1993] UNSWLawJl 6; (1993) 16(1) University of New South Wales Law Journal 70, 95.

[122] Breen v Williams (1996) 186 CLR 71, 113.

[123] Peter Grose, ‘Developments in Recognition of Indigenous Rights in Canada: Implications for Australia’ (1997) 4(1) James Cook University Law Review 68, 74.

[124] Kirsty Gover, ‘The Honour of the Crowns: State-Indigenous Fiduciary Relationships and Australian Exceptionalism’ [2016] SydLawRw 16; (2016) 38(1) Sydney Law Review 339.

[125] Paul Miller, ‘The Fiduciary Relationship’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary law (Oxford University Press, 2014), 65; Breen v Williams (1996) 186 CLR 71, 92.

[126] Camilla Hughes, ‘The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada’ [1993] UNSWLawJl 6; (1993) 16(1) University of New South Wales Law Journal 70, 85-86.

[127] Peter Grose, ‘Developments in Recognition of Indigenous Rights in Canada: Implications for Australia’ (1997) 4 James Cook University Law Review 68, 83.

[128] Lisa Di Marco, ‘A Critique and Analysis of the Fiduciary Concept in Mabo v Queensland[1994] MelbULawRw 19; (1994) 19(4) Melbourne University Law Review 868, 883.

[129] Camilla Hughes, ‘The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada’ [1993] UNSWLawJl 6; (1993) 16(1) University of New South Wales Law Journal 70, 92 and 94.


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