Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Commentary
Cameron Syme[2]
Whether Australian governments owe a fiduciary duty to Aboriginal people is still an unanswered question.[3] The issue has not been accepted or absolutely rejected.[4] There is an abundance of academic,[5] judicial[6] and extrajudicial[7] writing on this issue. Mostly, these consider a fiduciary duty arising from ‘native title’ or specific legislative acts. This article suggests that the duty arises from the manner in which the English colonisation of Australia was effected. This argument has not been judicially considered.
This article suggests that while full Aboriginal sovereignty may no longer exist, its prior existence, that is the sovereign status of Aboriginal peoples prior to colonisation, combined with the method of colonisation, provide the source of a fiduciary duty between the Crown and Aboriginal Australians.
The major principle behind the fiduciary concept is that of trust.[8] Used in this manner the word trust does not signify a ‘trustee and beneficiary’ relationship per se;[9] rather, the word comes from a Latin term and its derivatives which mean ‘to trust’.[10] The term ‘fiduciary’ describes an equitable responsibility imposed on one party to act in the interests of another party.[11]
The emphasis of fiduciary duties is based on notions of ‘good faith and loyalty’.[12] Originating from equity the ‘principle may be expanded, or compressed, to maintain the integrity, credibility and utility of relationships perceived to be of importance to contemporary society’.[13] While initial recourse should be made to the established classes of fiduciary relationships, the recognised categories are inclusive and not exhaustive.[14] The accepted categories include: partners, principal and agent, solicitor and client, and trustee and beneficiary.[15]
In Breen v Williams, McHugh and Gaudron JJ commented that the ‘term fiduciary relationship defies definition’.[16] Nevertheless, Brennan CJ said fiduciary duties could arise from two types of relationship: ‘One ... is agency, the other is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other.’[17] In Hospital Products v United States Surgical Corporation Mason J, in an often quoted statement, defined the critical feature of these relationships as having three elements. A fiduciary:
i) undertakes or agrees to act for or on behalf of or in the interests of another person;
ii) in the exercise of a power or discretion which will effect the interests of the other person in a legal or practical sense; and
iii) which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of the other person who is accordingly vulnerable to be abused by the fiduciary’s position.[18]
Dawson J in the same case suggested that fiduciary duties can attach to both consensual and non-consensual relationships:
One way around the problem is to see the existence of vulnerability or disadvantage as a necessary, but not a sufficient condition for the finding of a fiduciary relationship. Vulnerability arises because one party undertakes to, or is required to, act in the interests of the other and that other relies on or is dependant on the undertaking [19].
Other than Toohey J’s obiter statements in Mabo (No 2),[20] the vulnerability aspect has not received widespread judicial attention in cases involving Crown-indigenous relationships. In later cases Australian courts have preferred to view the essential feature of a fiduciary relationship as trust and loyalty.[21]
Gaudron and McHugh JJ in Breen v Williams stated that:
the categories of fiduciary relationship are not closed, and the courts have identified various circumstances that, if present, point towards, but do not determine, the existence of a fiduciary relationship. These circumstances ... have included: the existence of a relation of confidence; inequality of bargaining power; an undertaking by one party to perform a task or fulfill a duty in the interests of another party; the scope for one party to unilaterally exercise a discretion or power which may affect the rights or interests of another; and a dependency or vulnerability on the part of one party that causes that party to rely on another.[22]
In Brunninghauser, the court stated that some fiduciary relationships ‘are more or less created by the free choice of the parties’,[23] whilst ‘other relationships ... arise by operation of law or from the acts of others’.[24]
The greater the independent authority the fiduciary exercises, the greater the scope of their fiduciary duty.[25] Historically, only restrictive obligations were imposed on fiduciaries.[26] Requiring ‘affirmative’ or ‘positive’ actions by a fiduciary is not considered part of the equitable principles in Australia. In Breen v Williams, Gummow J stated:
It would be to stand established principle on its head to reason that because equity considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interests of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty.[27]
These comments indicate that fiduciary principles should be utilised in a proscriptive and not a prescriptive manner. Gaudron and McHugh JJ said that proscriptive means ‘not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict’,[28] whereas prescriptive is to ‘impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed’.[29] Therefore, on present Australian authority, fiduciary duties will not be used to require the fiduciary to take positive steps in the beneficiary’s interest.[30]
Further, fiduciary principles generally only serve to protect economic interests.[31] The Australian view is that non-economic interests may be protected, as long as any extension is ‘justified in principle with regard to the particular interests protected by equitable doctrines’.[32] The Canadian view is that ‘non-legal interest[s] of vital and substantial “practical importance” [are] at the core of the fiduciary relationship’.[33]
Courts have traditionally adopted a strict approach to the imposition of fiduciary duties; liability may result even where the beneficiary suffers no loss.[34] In Maguire v Makaronis, the High Court succinctly stated that:
Not only must the duties be discharged by the fiduciary. They must be manifestly and undoubtedly discharged. The fact that a fiduciary has acted without fraud, innocently, or has made no improper personal benefit will not, of itself, excuse the fiduciary.[35]
A beneficiary can consent to the fiduciary’s breach of the duty.[36] However, the beneficiary must be fully informed and appraised of all relevant information.[37] The courts do not generally allow statutory limitation provisions to deny a claim for breach of fiduciary duty.[38] A claim for breach of fiduciary duty can be met with the equitable defences of laches, acquiescence or delay.[39]
The Crown introduces some additional issues that influence the application of the general fiduciary principles: in particular, the political trust doctrine. This doctrine argues that in common law systems ‘[t]he Crown is the source of all power’.[40] Fiduciary duties, on the other hand, aim to prevent abuses of power by the fiduciary and require ‘undivided loyalty to the person whom [the fiduciary] serves’.[41] The government’s potential fiduciary duties to a few would conflict with the duty of the government to represent the majority.[42] The political trust argument has been used by the courts to avoid imposing the principles of private fiduciary law to the public law realm of government.
In Guerin v The Queen[43] Dickson J held the political trust doctrine did not apply. The Court held that the source of the duty was the Canadian aborigines’ interest in the land. This was an independent legal interest that arose from the historic occupation of the tribal lands by the aborigines. The aborigines’ interest could not be alienated to anyone other than the Crown, which made this interest different from other forms of property. Additionally, as the interest arose from the historic occupation of the lands, it was neither the creation of a legislative instrument or executive action. Therefore, the nature of the aborigines’ interest was not correctly classified as either public or private. The nature of the aborigines’ interest in the land is of a sui generis or unique nature. Whilst not deciding fiduciary duties, the High Court of Australia in Mabo (No 2) followed Dickson J by declaring native title to be sui generis,[44] and more recently Lee J in Ward v WA accepted the same reasoning.[45]
In Mabo (No 2) Toohey J did not accept the political trust doctrine as binding precedent. Toohey J, like Dickson J in Guerin, held that the Aboriginal peoples’ interest was not an express creation of the Crown. According to Toohey J, this distinguished the earlier cases on which the doctrine is based.[46] The fiduciary duty arose because the indigenous interest was created ‘as a matter of common law, quite independently of any grant or other action on the part of the Crown’.[47]
The relationship between the Crown and Australian Aborigines, commencing with the Crown’s acquisition of land and sovereignty over Australia, was not undertaken on the basis of mutual consent or agreement. However, the consent or agreement of the fiduciary is not required; in Coe v Cth (No 2) Chief Justice Mason stated that ‘a fiduciary relationship may arise out of a representation, just as it may arise out of an undertaking’.[48] This proposition also receives support from Toohey J’s obiter statement in Mabo (No 2) that, ‘the exercise of control over, or regulation of, the Islanders themselves by welfare legislation ... would certainly create such an obligation’.[49]
Welfare legislation was also the basis for the claim in Williams (No 1), where at first instance Issacs J stated, ‘[T]he duty owed by the Government to Aboriginal people ... arises from its “parental character”.’[50] In Williams (No 2), Abadee J distinguished these opinions on the basis that the decisions were made with regard to the specific situations before the courts. On the facts, Abadee J held that there was no fiduciary duty owed by the Minister for Aboriginal Affairs to the plaintiff.[51]
In Cubillo & Gunner v Commonwealth,[52] O’Loughlin J found that the applicants did not establish that they were in a fiduciary relationship with either the Commonwealth or the Directors, and that even if they were, the applicants did not establish that there was a breach of that relationship. O’Loughlin J held that finding a fiduciary relationship would extend fiduciary relationships to encompass non-economic interests. He stated that it would be inappropriate for a judge at first instance to make that decision, and instead should follow precedents set by Paramasivam v Flynn,[53] Williams (No 2),[54] Lovejoy v Carp & Ors[55] and Prince v Attorney-General.[56]
The relationship between the Crown and Australian Aborigines is characterised by one party assuming control over the other, with the latter being subject to, and dependant upon, the former’s exercise of power. In keeping with current judicial authority, in situations where the relationship does not arise consensually, the assumption of control combined with the vulnerability of the beneficiary should be recognised by the Australian judiciary as creating a fiduciary relationship.
North American and New Zealand courts have imposed fiduciary obligations on the Government: the US in the 1830s,[57] Canada in 1984,[58] and New Zealand in 1987.[59] The North American courts are unwilling to impose a general fiduciary obligation on the Government and are most likely to impose fiduciary duties in situations where there are specific rights at stake.[60] The NZ court imposes broader duties on the Government.
In the US, treaties were entered into between the colonising European nations and the Native American tribes. These treaties recognised and acknowledged specific rights in the Native Americans to their tribal land and internal legal systems.[61] These treaties have been accepted as part of the ‘supreme law’ of the land.[62] The Native Americans’ historical occupation of the land and the treaties entered into between the Native Americans and the Crown allowed the courts to conclude that the Native Americans were ‘domestic dependant nations’.[63] The recognition that the Crown owed fiduciary duties soon followed. It is this concept of Native American sovereignty (the ability to make laws and exert rights over one’s own dominion) which underlies ‘domestic dependant nation’, the concept upon which the US fiduciary duty is based. In 1832, Marshall CJ commented in Worcester v State of Georgia:
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.[64]
The recognition of Native American sovereignty first occurred in Marshall CJ’s decision in Cherokee Nation v Georgia. Marshall CJ recognised that the continent of America had ‘over five hundred sovereign Aboriginal nations governing themselves by their own institutions and authoritative traditions’.[65] Marshall CJ considered that the jurisdiction or sovereignty of the indigenous peoples originated in their long use and occupation of the lands. This was reflected in an ability to govern themselves and have other groups recognise their independence.[66] ‘The Indian nations were distinct political communities, having territorial boundaries, within which their authority is exclusive.’[67] These facts gave the tribal groups ‘nationhood’.[68] Marshall CJ rejected the proposition that aboriginal people could be treated merely as individuals.[69]
The definition that Marshall CJ ascribed to the term ‘nation’ was ‘a people distinct from others’. Marshall went on to indicate that the application of this term to indigenous peoples was the same usage as for the relationships between the ‘Crowned heads of Europe’.[70] The criteria of nationhood were the same used throughout Europe from the early 14th century. This analysis supports the proposition that the Court’s recognition of sovereign Aboriginal nations was doing no more than applying to them the same standards European nations applied to each other. This theory of sovereignty was applied even though it was evident that the indigenous people did not have the same style of statehood, institutions, legal systems and executive government.[71]
Once mutual recognition by the sovereigns was identified, ‘... the only just way that the Crown could acquire land and establish its sovereignty in North America was to gain the consent of the Aboriginal Nations’.[72] This was required by the constitutional doctrine of consent. This fundamental concept requires the people or their representatives to consent to any change or amendment in the constitution under which they live. Viewed in this light, the European discovery of new lands does not provide the ‘discovering’ nation with any rights over the existing occupant. The only right the nation gained was ‘an exclusive right against other European nations to settle and acquire land from the Aboriginal Occupants’. This right existed between European nations and ‘could not affect the rights of those who had not agreed to it’.[73]
The first decision that imported fiduciary policy into the relationship was also Cherokee Nation v Georgia. Marshall CJ held that the tribes were ‘domestic dependant nations ... [t]his relation resembles that of a ward to his guardian’.[74] This relationship arose from a combination of the Native Americans entering into treaties with the Crown, and the Native Americans’ prior sovereignty.[75] These factors gave rise to a fiduciary relationship. However, Marshall CJ did not provide case or statute authority in support of the proposition.[76]
The notion of nationhood connotes independence, while the guardian and ward relationship is characterised by dependence and absolute reliance. Independence and dependence ‘are manifestly at odds’.[77] However, the terms can be reconciled if Native American sovereignty is the source of the fiduciary duty. The guardian-ward analogy merely expresses the relationship in fiduciary terms.
Later in the 19th century the judicial interpretation of the Cherokee principle shifted from the protection of the Native Americans to permitting exercises of Federal power.[78] In Lone Wolf v Hitchcock the fiduciary duty was held to be a source of power and not a restraint on the exercise of power.[79] The effect of the Lone Wolf decision was to amend the Constitution by giving the Federal Government an additional source of power.[80] This allowed the Government to act to the detriment of the Native American beneficiaries.[81] The Government’s actions were ‘held to be an application rather than a breach of the trust obligation’.[82]
From the early 20th century the courts moved away from this line of reasoning. The courts adopted the principle that unless there was an obvious conflicting intention, statutes should be interpreted in favour of the Native Americans.[83] The fiduciary obligations owed by the Federal Government to the Native Americans are the same standards owed by a private trustee.[84]
The Supreme Court’s decision in US v Mitchell [85] was the first time that the Court clearly indicated the origin of the fiduciary duty owed by the Federal Government.[86] In this case the Court held the fiduciary duties arose because of the ‘comprehensive and persuasive’[87] control that the Government exercised over the Native Americans’ property. However, the Court was reluctant to utilise the same principles to protect non-proprietary interests.[88] Generally the cases that find a fiduciary duty is owed by the Government deal with the protection and preservation of Native American property and resources.[89] The US Federal Government has been found liable for breach of fiduciary duties for misappropriation of reserve lands,[90] water rights[91] and management of timber resources.[92]
In Gila River Pima-Maricopa Indian Community v United States the Court refused to find the Government liable for breach of its duties arising from ‘the general obligation as guardian of the Native Americans’.[93] Only in one case, White v Califano, has such a claim been successful.[94] The peculiar facts in this case were that a Native American woman required emergency hospitalisation and neither the State nor federal Governments were willing to assist. The court held the Federal Government was liable. However, it seems that this decision will be restricted to the facts of the case.[95]
In summary, it may be easier to establish that fiduciary principles apply where the Government assumes control of management over Native Americans’ property.[96] This is an important application of the principle, allowing recourse for inappropriate Government action.[97] However, it is a narrow imposition of the fiduciary concept and is a long way from finding the Government owes an overall fiduciary duty to the Native American people.[98] In any event, fiduciary duties may fetter the Executive’s action, but they cannot limit the actions of the Legislature.
The first Canadian decision that found the Crown owed a fiduciary duty to indigenous people was Guerin v The Queen.[99] The case involved the surrender of Canadian aboriginal land, with the Crown leasing that land to a third party. During the negotiations for the lease the Crown acted on behalf of the tribe. The Crown did not provide a copy of the lease to the Canadian aborigines until several years after the lease had been entered into.
Whilst the reasoning of the Court was not unanimous, it was held that inadequate disclosure of the terms of the lease was made to the tribe. Further, the Court found the Crown had sanctioned an agreement the tribe would not have entered into themselves. The majority, Dickson J with Beetz, Chouinard and Lamer JJ concurring, held that the fiduciary obligations arose because of the existence of native title and its restricted alienability.[100] Dickson J stated:
The fiduciary relationship between the Crown and the Indians has its roots in the concept of Aboriginal, native or Indian title. The fact that Indian bands have a certain interest in the land does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown.[101]
Dickson J continued:
The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in land is inalienable except upon surrender to the Crown.[102]
It has been suggested that Dickson J did not make it clear whether a fiduciary relationship arises prior to the surrender of the land or only upon the surrender of the land.[103] However, Dickson J also stated:
the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians.[104]
This statement indicates that Dickson J considered the fiduciary duty to arise ‘upon surrender’, and therefore, Canadian authority suggests that the source of the duty is the pre-existing indigenous title and the duty arises from the surrender itself and does not exist independently of this.[105]
The minority judgment expressed by Wilson J, with Ritchie and MacIntyre JJ concurring, also found that the Government owed a fiduciary duty.[106] Wilson J found that the fiduciary obligation was not created by the specific statutory provisions.[107] Rather, her Honour’s view was that the provision recognised the pre-existing fiduciary obligations that ‘had its roots in Aboriginal title’.[108] Wilson J found that the surrender of the land to the Government created ‘an express trust of specific land for a specific purpose’.[109] The source of the fiduciary obligation was the aboriginal title; the duty arose upon surrender. Notably, vulnerability played almost no part in either judgment.[110]
In R v Sparrow the Court affirmed Guerin, but enlarged the concept of the Crown’s fiduciary obligation.[111] Sparrow extended the application of the Crown’s fiduciary duties beyond interests in land to include other aboriginal rights.[112] Chief Justice Dickson and LaForest J commented that ‘the relationship between the Government and aborigines is trust-like rather than adversarial’.[113] This was a result of the aboriginal rights and the historical relationship between the two parties.[114] The Court held that the Government could validly regulate the Indians’ rights,[115] but that any regulation would have to be the minimum possible and involve a discharge of the Government’s fiduciary obligation to protect those rights.[116]
The Court in Sparrow, on the assumption that neither the Crown nor Aboriginal rights are absolute, held that interference with aboriginal rights was allowed.[117] However, the Crown bears the onus to adequately justify the interference.[118] The Court held that s 35(1) of the Constitution Act 1892 (Canada), which provides ‘the existing Aboriginal and treaty rights ... of the Aboriginal peoples of Canada are hereby recognised and affirmed’ was the source of an independent fiduciary duty.[119] Sparrow extended the concept of the fiduciary duty owed to Canadian aborigines, as it restrained the exercise of sovereign power when dealing with aboriginal interests other than interests in land.[120]
The broadening of the fiduciary principle in Sparrow was reduced in Gladstone,[121] where the Aboriginal non-land interest included a commercial purpose. In such a case, government interference with the commercial use of an aboriginal right could be justified if it was in the public interest. Sparrow had previously removed the ‘public interest’ as a justification for interference with an aboriginal right.[122]
In Delgamuukw v British Columbia the Canadian Supreme Court held that there were four associated principles, relative to aboriginal land based rights, which influenced how the fiduciary duty applied.[123] Significantly, the Court held that aboriginal people hold traditional title to their land even in the absence of a treaty.[124] The Court also held that Crown interference with aboriginal title would be acceptable as long as the interference was justifiable according to fiduciary standards.[125]
Thus, the Delgamuukw decision established ‘specific standards for Crown conduct in its dealings with Aboriginal Nations’.[126] The decision effectively expanded the breadth of the Crown fiduciary duty, as now the Government had a duty to consult about government interference, to accommodate the interests of aboriginal people and to negotiate treaty settlements with aboriginal people in good faith (which means to negotiate on a fair and equal basis).[127] Following Delgamuukw, the constitutional protection in s 35(1) does not, of itself, give rise to fiduciary duties; the aboriginal title rights themselves are the source of the fiduciary duty.[128]
In 1839, the Imperial English Parliament issued letters patent to the Governor of New South Wales to include areas of New Zealand within the geographical limits of the colony.[129] Letters patent were necessary as the acquisition of territory was a prerogative right of the English Crown and could not be exercised by a Governor without express authority.[130] The letters patent conferred power on the Governor to incorporate ‘any territory which is or may be acquired in sovereignty by Her Majesty ... in New Zealand’.[131]
In February 1840, a treaty was signed by 512 Maori people. This treaty became known as the Treaty of Waitangi. The Treaty operates to recognise the Crown’s sovereignty and preserve Maori rights, ‘subject to a power of pre-emption reserved to the Crown, over their lands’.[132] This effectively validated the acquisition of New Zealand from the Maori by cession,[133] operating to pass sovereignty to the English Crown.[134] The Treaty also provided some recognition of Maori land and maritime rights.[135] An important fact in the argument in this paper is that it was the Governor of New South Wales who exercised the power, granted under letters patent, to sign a Treaty on behalf of the Crown in England, for an area that was then within the geographic borders of the Colony of New South Wales.[136] New Zealand attained a separate colonial government from New South Wales on 3 October 1840 nearly eight months after the Treaty of Waitangi had been entered into.[137]
Thus, the colonisation of New Zealand proceeded on the basis that the Maori people held title to their land.[138] This was consistent with colonial policy of the day, which recognised the sovereignty of the indigenous people.[139] The Treaty has been held enforceable against later New Zealand governments.[140]
The fiduciary duty owed by the New Zealand Crown to Maori people is a result of the Treaty of Waitangi.[141] However, the Treaty has not always been a source of Crown duties. Indeed, in Wi Parata v Bishop of Wellington the Court held that the Maori did not have legal capacity to enter into a contract, and the Treaty was therefore a nullity.[142] This decision was effectively overturned in Te Weehi v Regional Fisheries Officer, where the Court applied the principle of continuity of pre-existing private property rights to the English assertion of sovereignty.[143] In making its decision the Court relied upon the Canadian decisions in Calder and Guerin.[144]
In 1987, the New Zealand Court of Appeal held the Treaty occasioned a relationship between the parties which creates duties, analogous to fiduciary duties.[145] The duties required the parties to the Treaty to act towards each other in good faith.[146] The court also held the duty imposed prescriptive obligations on the Crown and thus required the Crown to act in a non-passive manner.[147] The existence of fiduciary duties to the Maori people was affirmed in Te Runanga o Wharekauri Rekohu v Attorney General.[148]
It is well settled in the US that a fiduciary relationship exists between the Government and indigenous peoples.[149] In all of these jurisdictions, it is a combination of the indigenous people’s sovereignty and the Crown-Native American treaties that have led the courts to find the indigenous peoples are domestic dependant nations. The importance of indigenous sovereignty in the courts’ considerations should not be overlooked. In the US this concept has resulted in the courts finding a fiduciary duty analogous to that owed by a guardian to their ward. The Canadian courts have used and applied the US approach that a fiduciary duty arises because of the specific course of dealings between the parties.[150] Canadian courts have also held that a fiduciary relationship may arise out of, or incidental to, the native title of the previous inhabitants.[151] The New Zealand Crown also owes a fiduciary duty to the Maori. However, one source of this fiduciary duty is the Treaty of Waitangi itself — the fiduciary duty does not arise from the traditional title of the Maori alone. The New Zealand fiduciary duty imposes a positive or active requirement on the Crown.
So far, the Australian courts have not accepted, nor rejected, the assertion that the Crown stands in a fiduciary relationship to the Aboriginal people.[152] Australian courts favour a different approach to some of the developments in Canadian fiduciary law.[153] In Breen v Williams Meagher JA said that the Canadian jurisprudence tends ‘to widen the equitable concept of fiduciary relationship to a point where it is devoid of all reasoning’.[154] On appeal to the High Court several judges reiterated Meagher JA’s concerns.[155] However, the Australian judiciary has not rejected the application of all fiduciary principles adopted in Canada.[156] Some judges have openly relied on Canadian decisions.[157]
There are fundamental differences in the Crown’s historical dealings with indigenous people between the common law countries. The most significant difference is that in the US, Canada and New Zealand, treaties were entered into with the indigenous people, thereby providing explicit recognition of the indigenous peoples’ prior interests.[158] Although not exclusively so, treaties have been significant factors in the decisions in each country.[159] Another difference between Canada and Australia is the lack of explicit protection of Aboriginal rights in the Australian Constitution.[160] The Australian Constitution provides power for the Commonwealth Government to make laws with regard to Aboriginal people, without stating the nature or extent of this power.[161]
Owen J, writing extrajudicially, argues that the race and acquisition powers in the Constitution,[162] together with the prohibition of discriminatory treatment in the Racial Discrimination Act 1975 (Cth), provide some protection of indigenous property rights, although he readily admits this is not as secure as the Canadian position.[163]
Kartinyeri v the Commonwealth was a constitutional law case concerning the power of the Commonwealth Parliament to make laws with respect to the nature and extent of the power provided under s 51(xxvi).[164] The Court held that Parliament’s power under the section was not restricted to only making laws for peoples’ benefit.[165] Therefore, it seems that the Australian Constitution will not provide an independent source of fiduciary obligation.
In 1997 in Thorpe (No 3) Justice Kirby stated:
whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open question. This Court has simply not determined it. Certainly, it has not determined it adversely to the proposition. On the other hand, there is no holding endorsing such a fiduciary duty.[166]
In the Ranger case,[167] the Court stated that a fiduciary duty will not arise if a statute is the origin of the alleged duty.[168] In Mabo (No 2) the High Court referred to the issue of a fiduciary duty in Australia and relied on the ‘experience of other jurisdictions’.[169] However, as the case was decided on other grounds, the Court did not have to determine the issue and consequently its comments on the Crown’s fiduciary duties are only obiter.[170]
In Mabo (No 2) Brennan J, with whom Mason CJ and McHugh J agreed, followed the approach of Dickson J in Guerin that the surrender of native title to the Crown in the expectation of a grant in return may impose a fiduciary duty on the Crown.[171] Deane and Gaudron JJ referred to native title as possibly ‘attract[ing] the protection of equitable remedies’.[172] These Justices preferred ‘the imposition of a remedial constructive trust’.[173] Dawson J concluded that there was no native title and therefore there could be no fiduciary duty.[174] Dawson J’s judgment does not eliminate the possibility of a fiduciary duty, but suggests that one cannot exist independently of native title. Justice Toohey gave the most detailed examination of the issue.[175]
Although Toohey J expressly referred to the comments of Dickson J in Guerin,[176] his Honour’s final position is closer to that of Wilson J.[177] According to Toohey J ‘[t]he fiduciary duty arises ... out of the power of the Crown to extinguish traditional title ... it does not depend upon the exercise of that power’;[178] that is, ‘extinguishment or impairment of native title would be a breach of, rather than the source of, the Crown’s obligation’.[179] In Thorpe (No 3) Kirby J noted that this aspect of Toohey J’s view has not gained the support of the rest of the High Court.[180] However, neither has it been rejected.[181]
In Mabo (No 2) Toohey J rejected the Crown’s submission that it could not be a fiduciary. His Honour said the Crown’s power to extinguish native title may impose a fiduciary duty on the Crown.[182] Toohey J found that this would not restrict the actions of the legislature, but that any actions taken would have to satisfy the fiduciary duties.[183] Toohey J alternatively relied on Mason J’s ‘undertaking’ dicta in Hospital Products[184] and found that the course of dealings between the parties and the control exercised by the Crown would create a fiduciary duty.[185]
In Wik it was submitted that the Crown owed a fiduciary duty to the claimants.[186] The plaintiffs claimed that this duty arose because of the vulnerability of native title, the Crown’s statutory power to extinguish native title and the historical relationship between the Crown and the claimants. Brennan CJ, with whom Dawson J agreed, rejected this submission. Brennan CJ stated:
These factors do not by themselves create some freestanding fiduciary duty. It is necessary to identify some action or function, the doing or performance of which attracts the ... fiduciary duty ... The doing of the action ... must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary ... to the exclusion of the interests of any other person.[187]
In the more recent case of Nulyarimma v Thompson, the Federal Court considered a claim that genocide was a breach of fiduciary duty. Merkel J said it may be possible ‘to frame a claim for breach of fiduciary duty owed by the Crown to Aboriginal people’.[188] Merkel J applied Toohey J’s criteria, but found that the criteria did not assist in that case because ‘the Application is not based upon the extinguishment, directly or indirectly, of a native title right or interest’.[189] Merkel J also tried to apply Professor Finn’s (as he then was) ‘alternative’ suggestion that ‘in some circumstances the Crown ... when exercising public power effecting “Aboriginal rights” may be obliged to act fairly as between the indigenous and non-indigenous communities’.[190] However, Merkel J found that the necessary ‘pre-condition, being the exercise of “public power” in a manner that effects “Aboriginal rights” [was] absent’.[191] The claim for relief for breach of fiduciary duty was struck out. Wilcox J, concurring with Merkel J, said:
I offer no view as to whether such a [fiduciary] claim may effectively be made. I only say that it would be a very different claim from that now before this court.[192]
Based on Australia’s present authority, it would still be relatively controversial to establish a fiduciary duty in situations where the Crown undertakes to act in the interests of Aborigines. However, the argument is not without judicial support. In Williams (No 1) Kirby P declared, ‘[t]he Board was ... obliged to ... act in her interest[s] ... in a manner apt for a fiduciary ...’.[193] More recently, in Wik Brennan CJ, with whom Dawson J agreed, expressed the view that a discretionary statutory power would need to be exercised ‘in the manner expected of a fiduciary’.[194]
As no case has actually held that a fiduciary duty is owed, it seems the imposition of a fiduciary duty is, in situations concerning the performance of a duty required under a statute, at best, a remote possibility.[195]
This part discusses the historical relationship between the Crown and Australian Aboriginal people. The historical relations between the Crown and indigenous people have been an important factor in the analysis and application of fiduciary law in the North American and New Zealand jurisdictions.[196] In the Canadian case of Guerin[197] and in the US case of Cherokee Nation v Georgia,[198] colonial relationships were fundamentally important to the decisions.[199] As finding a fiduciary duty in the Crown-Aboriginal relationship is based upon events of the past, analysis of Australia’s colonial history is necessary to understand the position of the Crown and Aboriginal people.[200]
Aboriginal occupation of Australia covers, at a minimum, somewhere between the last 50,000 and 100,000 years.[201] There was contact with Aborigines by other people prior to the English.[202] The Dutch had arrived well before Cook,[203] with initial contact occurring around 1601.[204] Indeed, the Dutch claimed sovereignty over part of Australia in 1642.[205] Dutch accounts refer to a land of ‘flies and savages’, and ‘a land of barren and dangerous coasts and exceedingly savage, black, barbarian inhabitants’.[206] There are also accounts of Aboriginal people in the Northern Territory and Northern Queensland working for and bartering with Macassan trepang gatherers since around 1700.[207] The French had also visited and recorded violent confrontations with Aboriginal people.[208]
William Dampier provided the ‘first detailed description of the aborigine’ in 1698. This popularised account comprised general ‘disgust with the aborigine’.[209] Decades later, in 1770, James Cook became the first Englishman to visit Australia’s shores.[210] Initially, Cook regarded the people as the most uncivilised in the world; however, Cook’s accounts of the Aboriginal people changed over time.[211]
After sailing up the east coast of Australia, Cook referred to the people as ‘more civilised than the civilised’.[212] The Aboriginal people, Cook felt, wanted for nothing and lived in a perfect state.[213] Joseph Banks, travelling with Cook, considered Australia to be ‘thinly inhabited’.[214] This contrasts with current estimations of the Aboriginal population and its geographic distribution at the time of English settlement in 1788. The Aboriginal population at that time has been estimated, at a minimum, as 450,000[215] to 750,000216 people, though there may have been in excess of a million people.[217]
Evidence indicates that different Aboriginal societies existed. People in some areas ‘lived in relatively permanent villages with stone housing’,[218] while others were essentially nomadic hunter-gatherers. Whilst the Australian and British legal systems initially held that Australia was ‘practically unoccupied, without settled inhabitants or law’,[219] today it is well accepted that the Aboriginal inhabitants did possess complex legal and political systems.[220] Indeed, it appears that it this was known shortly after colonisation and well before the Colonial governments exercised sovereignty across all Australia.[221]
The colonisation of Australia had a severe and dramatic impact on the Aboriginal people. Indeed, in the judgment under appeal in Nulyarimma v Thompson, Crispin J at first instance commented:
It is undeniable that the British colonisation had gravely adverse consequences for the Aboriginal peoples of Australia. They had shared unchallenged dominion over the Australian continent for thousands of years. Then within the space of a few generations the bulk of their land was wrestled from them by invaders from over the seas.[222]
As evidenced in this section the perception of the Aborigine has changed. The Aboriginal people had their own system of law — the Europeans were just ignorant of it.[223]
The English Crown at one time could lay claim to extensive colonisation of the world.[224] Originally the English monarch considered the colonies to be part of their personal estate and not owned or controlled by the political Crown.[225] The territories in North America were referred to ‘as part of our manor of East Greenwich, in Kent’, or ‘as of our Castle of Windsor’.[226] Eventually, largely due to the complexities involved with administering the colonies, the monarchy handed over responsibility to parliament. By the time Australia was colonised, responsibility was vested with England’s political Crown, rather than the Regal Crown.[227]
Under the law at this time there were three ways that a sovereign could acquire additional territory: by the occupation of vacant territory, or by cession or conquest from other powers.[228] In the situation of vacant land the territory was considered terra nullius: the land of no one. Territory fitting this description was available to be settled and the laws of England, so far as they were suitable to the new colony, applied.[229] In the situation where territory was acquired by cession or conquest, ‘the laws imposed by former sovereigns remain[ed] in force until provision [was] made for their Government’.[230]
In the case of a conquered territory, the prerogative of the Crown extended to the imposition of what ever laws it wanted,[231] except for laws ‘contrary to fundamental principle’.[232] In ceded territories the same principle applied, except where ‘the right be restricted by compact with the ceding party’.[233] It was considered ‘an essential element’ that such restriction was ‘sacred and inviolable’.[234]
The annexation of territory by ‘settlement’ came to include land that was inhabited by people ‘who were not subject to the jurisdiction of another European State’,[235] which really meant people perceived to be ‘so low in the scale of social organisation’ that their proprietary interests would only be protected if their interest in land belonged to ‘the category of rights of private property’.[236]
Cooper v Stuart considered the reception of English law into the colony of New South Wales. In this case the Court stated:
There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system or law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter case.[237]
The Court’s decision was based on the assumption that ‘[t]here was no system of land law or tenure existing in the Colony at the time of its annexation to the Crown’.[238] The Court commented that such a conclusion came from ‘that condition of matters’.[239] This last comment indicates the Court recognised this was a question of fact.[240]
The logic of the Privy Council’s decision in Cooper v Stuart was challenged in Milirrpum v Nabalco Pty Ltd where Blackburn J stated that the evidence unequivocally showed there was a recognisable Aboriginal legal system.[241] His Honour said:
The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a Government of laws and not of men’, it is that shown in the evidence before me.[242]
However, Cooper v Stuart prevailed as the foundation of Australian law until 1992 and the High Court’s Mabo (No 2) decision.[243] More recently, in Nulyarimma v Thompson, Merkel J stated:
I have no hesitation in recognising the dispossession and alienation of the Aboriginal people from their land in Australia. ... Mabo [No 2] ... was a belated recognition by the common law of Australia of the rights and interests held by Aboriginal people in respect of the land they had occupied and used in accordance with their culture, traditions and laws prior to the acquisition of British sovereignty over Australia.[244]
However, even following that decision, present authority gives no room to question the manner of acquisition, as in Mabo (No 2) the Court accepted that nevertheless, Australia was a ‘settled’ colony.[245] Moreover in Coe v The Commonwealth, Mason CJ held there was no ‘remaining’ Aboriginal sovereignty.[246] However, Mason CJ did not discuss whether Aboriginal sovereignty had, at any time, existed. However, the High Court cannot question the sovereignty under which it acts, as this would question the validity of the Court itself.[247]
It was during the course of investigating and planning Australia’s colonisation that Aborigines were first discussed by England’s political Crown.[248] The British Crown’s knowledge of the Australian Aborigines was based upon Joseph Banks’ account to the Select Committee responsible for the issue of transportation of convicts to New South Wales.[249] When asked by the Committee whether the ‘Natives’ would cede the land, Banks replied:
There was no probability while we were there of obtaining anything either by cession or purchase as there was nothing we could offer that they would take except provisions.[250]
Nevertheless, the House of Commons Committee on Transportation thought it ‘highly probable’ that the Natives would cede all necessary land for ‘a stipulated rent’[251] — though, as illustrated above, cession never occurred. Australia is a ‘settled’ colony.[252]
The earliest instructions to Phillip, then Governor of New South Wales, prohibited the harming of natives and their possessions.[253] Governor Phillip was to communicate with the indigenous people, ‘conciliate their affections’, and ensure that they were not ‘wantonly’ destroyed nor their ‘several occupations unnecessarily interrupted’.[254] The instructions to Phillip do not mention the payment of money or rent, or the negotiation of treaties with the natives. It seems likely that the instructions were based on Banks’ report that the Aborigines had no proprietary ownership interest with which to part. In all jurisdictions, the acquisition of land from the natives was prohibited by anyone other than the Crown;[255] the acquisition of land was a prerogative right of the Crown.[256]
The application of Crown policy towards Australian Aborigines differed somewhat from the application of policy in other common law jurisdictions.[257] The most notable difference is the absence of binding treaties between the Crown and Australian Aboriginal people.[258] Officially there were distinct similarities between the policies of the Crown towards indigenous people after colonisation in all jurisdictions.[259] These policies were aimed at the protection of the indigenous people.[260] Often, there were clear differences between the official policies of the English Crown and their practical application in the Australian colonies.[261] One example of this is the statutory measures the English Crown took in the 1830s to circumvent the colonial practice of Aboriginal dispossession.[262] Dispatches from the Colonial Office make it clear that the Aborigines were to be allowed to share occupation of land.[263]
The official protection policies of the Imperial Crown were similar, but not the same, in all jurisdictions.[264] In Australia, the local representatives of the English Crown were explicitly instructed ‘to protect the natives of the colonies’.[265] However, in the US, New Zealand and Canada the policies included the protection of treaty recognised property rights. Notwithstanding the 1830 example above, policy in Australia was directed more towards the protection of individuals than the protection of either their property rights or sovereignty.[266]
The Treaty of Waitangi was entered into in February of 1840,[267] nearly 40 years after the colonisation of Australia. This treaty was executed under power given to the Governor of New South Wales[268] and raises the question of why the British Crown did not enter into similar treaties with the Australian Aboriginal people. Clearly the practice in Canada and North America had been acquisition by treaty, and the same principle was even being applied in New Zealand, which was at the time part of the geographic area of the colony of New South Wales. Ideas had changed from those held in 1788. In 1807, Governor King commented that Aboriginal people were ‘the real proprietors of the soil’.[269] In 1804, Australian Aborigines had approached Governor King and requested what was, in essence, a treaty.[270] Governor King recorded that Aborigines had asked:
if they could retain some places on the lower part of the river they should be satisfied and not trouble the white men. The observation and request appeared to be so just and so equitable that I assured them no more settlements would be made lower down the river. With that assurance they appeared well satisfied and promised to be quiet.[271]
However, Governor King’s promise was not fulfilled and colonisation continued.[272] By 1826, Tasmanian Aborigines had obtained and used firearms against settlers: ‘they had become as formidable in their descents on the settlers as the Kaffirs at the Cape of Good Hope.’[273] There is also historical reference to a ‘celebrated Black War’.[274] The Government’s official representative in negotiating to relocate Tasmanian Aborigines wrote: ‘We should make some atonement for the misery we have entailed upon the original proprietors of the land.’[275]
Moreover, at an official level, local recognition of the anomalous Crown-Australian Aboriginal treaty issue also occurred.[276] In 1837, Governor Arthur of Tasmania reported to the House of Commons Select Committee on Aborigines that:
On the first occupation of the colony, it was a great oversight that a treaty was not, at that time, made with the natives, and such compensation given the chiefs as would have deemed a fair equivalent for that which they surrendered.[277]
Governor Arthur further emphasised that in any future colonies an understanding should be reached before settlement commenced and that land should be purchased from the indigenous people.[278]
There was one private attempt to enter into a treaty with mainland Aborigines.[279] In 1835, John Batman was the first English settler to arrive in what is now Melbourne, Victoria.[280] Batman had been involved in the ‘conciliations’[281] with Tasmanian Aboriginals that brought the ‘Black War to an end’.[282] On arrival Batman, on behalf of his corporate body, entered into a treaty with a local nation of Aboriginal people.[283] The treaty gave Batman ownership of the land in return for tools, blankets, food and a perpetual annual rent.[284]
The attempt by Batman to acquire title to land without prior permission was repugnant to the prerogative power of the Crown.[285] Batman submitted the treaty, which existed in the form of legal documents based on those used in North America, and asked for the Crown’s consent to the acquisition of the land by treaty.[286] The legal documents that Batman used for the treaty ‘followed precedents of the seventeenth and eighteenth centuries in the purchase of land from the American Indians’.[287] Burke, the Governor of New South Wales, refused to accept the arrangement and forwarded the proposals to England.[288] The Lieutenant Governor undertook to personally present the treaties to the Crown.[289] Batman’s treaty was rejected and Crown sale by auction was decided upon as the appropriate manner to dispose of the land in question.[290]
This part has outlined the legal parameters the Crown functions within when acquiring territory and has examined the English Crown’s colonial attitude to Australian Aboriginal people. The Crown’s original approach seems to be based on an incorrect appreciation of the sophistication of Aboriginal law and culture. By the time the Treaty of Waitangi was entered into in 1840, the Crown was aware that Aborigines did have systems of law and land ownership and were militant in protecting their traditional lands. Also, the English Crown had the power in the relationship to initiate treaties with the Aboriginal people but, despite requests from Aborigines and protestations from at least one colonial governor, refused to do so. Further, the English Crown exercised its discretion and refused to sanction an attempt to enter into a private treaty.
The conclusion that flows from this section is that the Crown did not follow established legal principles when it was acquiring Australian territory. The Crown treated Australian Aboriginals differently than it had the New Zealand or North American indigenous peoples. Even though the Crown used a treaty when acquiring sovereignty over the New South Wales colonial territory of New Zealand, it did not accept treaties in relation to the Australian mainland and did not acquire Australian territory as required by settled law. The Crown acted in this fashion notwithstanding that it had notice of the existence of Aboriginal law and sovereignty.
This discussion applies the Australian law of fiduciary duties to the Crown-Aboriginal relationship, and specifically the event of Australia’s colonisation. It argues that a fiduciary relationship may exist between the Crown and Aboriginal people, and that a duty arises as a result of the position of the parties, colonisation, the existence of Aboriginal sovereignty and the vulnerability of the Aborigines, the extent of control by the Crown, and the objective reliance of the Aborigines on the Crown to discharge its duties. The scope of the duty could be decided either from the historical context of the Crown’s relationship with Aborigines, or from the Crown’s original right of alienation over native title. The purpose of this part is to examine if it is possible that the English Crown’s colonisation of Australia created a fiduciary duty, owed by the Crown to Aboriginal people. This proposition has not been tested at law. It should also be noted that to find a fiduciary duty owed by the colonising power is one thing; it is another to apply this to the present Crown.
Colonisation occurs under the principles of international law. International law does incorporate some customary international law.[291] Under the law on the acquisition of territories, there were three ways for a sovereign power to gain territory: by conquest, cession or settlement.[292] As discussed above, current authority prevents the finding that Australian colonisation is based on anything other than the concept of ‘settlement’.[293] This legal classification applies even though there is judicial acknowledgement of pre-colonial Aboriginal law[294] and acknowledgement that some lands were relinquished by Aborigines only after hostilities or negotiations.[295]
The existence of treaties in Canada, the US and New Zealand supports the proposition that it was customary for the Crown to enter into treaties with indigenous people for the acquisition of territory.[296] Whilst Cooper v Stuart is authority for the proposition that some indigenous people could be excluded from the operation of such a custom, whether a group is excluded is a question of fact.[297] On an informed understanding, indigenous Australian Aborigines should not have been excluded.[298] The rules of international law should have applied in pre-colonial Australia.[299] If the Crown was obliged to enter into treaties, perhaps this illustrates some implicit degree of loyalty, a factor fundamental to the fiduciary principles examined earlier. However, before an international law can be binding in a jurisdiction, the rule or custom must become part of the common law of that jurisdiction.[300] On this issue, there are two schools of thought: the doctrine of transformation and the doctrine of incorporation.[301]
Incorporation theory holds that the ‘rules of international law become part of English law automatically and are considered to be part of English law unless they are in conflict with an Act of Parliament’.[302] Transformation theory directs ‘that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by ... long established custom’.[303] Such custom can be ‘evidenced by ... treaties’.[304]
Incorporation doctrine dates from 1737,[305] and was the predominant theory when Australia was colonised in 1788. Transformation theory did not originate until 1876.[306] Australia uses a combination of both approaches.[307] It is not clear when one approach is preferred over another. International law is not a binding influence on Australian common law, but it is one of the sources of Australian common law.[308]
As discussed above, the English Crown had an established practice of entering into treaties, such as the Treaty of Waitangi, entered into by the Governor of New South Wales on behalf of the English Crown in 1840.[309] The international customary practice of entering into treaties was, under either theory (arguably) a part of the common law of the Colony of New South Wales. Therefore the Crown was obliged to enter into treaties with the Australian Aborigines. However, the Crown did not do this. Despite local recognition of the need for treaties and private attempts to enter into treaties, the Crown did not make any treaties with Australian Aborigines. Further, as treaties helped secure the position of indigenous people elsewhere, the Crown could be similarly expected to act in the Australian Aborigines’ interests, or at least not to their detriment.
Settlement was not an instantaneous event. There was more than 100 years between the first exercise of English sovereignty in Australia and the exercise of English sovereignty over other Aboriginal peoples.310 Surely the Crown was, or at least should have been, fully appraised of the law and facts — and if it wasn’t aware at the time that colonisation commenced, then it definitely was at some stage prior to when it exercised sovereignty over all of Australia.
One issue that arises from the now recognised pre-existing Aboriginal system is the concept of Aboriginal sovereignty.[311] On the basis of current judicial authority it is futile to argue that Aboriginal sovereignty still exists, because the assertion ‘is quite impossible in law to maintain’.[312] Moreover, questions as to the validity of the Crown’s claim to sovereignty are ‘not matters of municipal law but of the law of nations and are not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged’.[313]
However, the fact that sovereignty no longer exists should not preclude recognition that it once existed. Aboriginal sovereignty is important to the fiduciary argument, especially in so far as it existed at colonisation. Its existence could give rise to an expectation that the Crown would deal with Aboriginal leaders as sovereign, as it had done in New Zealand, another part of the same colony. Sovereignty viewed in this way does not question the validity of the current sovereign. It should be possible to question the actions involved in acquiring sovereignty without questioning its validity.[314]
The basis of the North American decisions in the 1830s was that once mutual recognition by the sovereigns was identified, the constitutional doctrine of consent required that ‘the only just way that the Crown could acquire land and establish its sovereignty in North America was to gain the consent of the Aboriginal Nations’.[315] This is a fundamental concept that requires the consent of the people, or of their representatives, to change or amend the constitutional system under which they live.[316]
Following the US reasoning, Australian Aboriginal sovereignty prior to colonisation can be said to have existed, even though there was no mutual recognition. Therefore, in substance, the only right the English Crown obtained on the acquisition of sovereignty was ‘an exclusive right ... to settle and acquire land from the Aboriginal Occupants’.[317] This too supports the proposition that the Crown, electing not to conquer, was obliged to enter into treaties (cede).
Alternatively, in Mabo (No 2), a member of the High Court held that the common law principles recognising the Meriam Islanders’ traditional title to land extended to the mainland.[318] This argument could be used to support the proposition that the Crown was similarly obliged to recognise Aboriginal sovereignty and to enter into treaties with Aborigines as it had done with the Maori. In any case, a fiduciary duty could not force the Crown to take positive steps to enter into a treaty with Aborigines. It could, however, proscriptively condemn the Crown’s refusal to do so.
The English Crown’s actions in dealing with Australian Aboriginals may have been the result of the Crown’s misconceived notions of the complexity of Aboriginal society, ownership and sovereignty.[319] Alternatively, there could have been other reasons, including the desire to foster colonisation.[320] However, the bona fides of a fiduciary are irrelevant.[321]
The Australian judiciary distinguishes the North American decisions, largely because of the recognition of sovereignty and the existence of treaties between the parties in those jurisdictions. However, if New Zealand were still part of Australia, then the Treaty of Waitangi would, undoubtedly, be a part of Australian common law.[322] A treaty would exist with some indigenous people but not with others in the same jurisdiction.[323] Similarly, the prior sovereignty of one group of indigenous people would be recognised, but claims of prior sovereignty of other groups would not. It would be easier to establish a fiduciary duty owed to Maori people, by virtue of their recognised claims to prior sovereignty and the existence of a treaty.[324] In the absence of a treaty, it would also be harder to establish a claim for prior sovereignty, and that a fiduciary duty is owed to Aborigines.
It would, therefore be possible for a fiduciary to avoid responsibility simply by ignoring the peoples’ prior sovereignty and avoiding entering into a treaty — that is, a fiduciary could exploit the beneficiaries’ vulnerability in order to avoid fiduciary liability. However, I submit that this is at odds with the general theory of fiduciary law, accepted by Australia’s High Court, that a fiduciary duty can be imposed without the fiduciary’s consent.[325] Therefore, the absence of a treaty and the Crown’s non-acceptance of prior sovereignty, by themselves, should not reduce the possibility that a fiduciary relationship can be established. Moreover, authority directs that a fiduciary duty could be owed to those not covered by a treaty, as it is the power to extinguish traditional title[326] and not the treaty rights themselves[327] that is the source of the fiduciary duty.[328]
Toohey J’s fiduciary criteria, stated in Mabo (No 2), are particularly important in evaluating the colonisation of Australia. The fiduciary duty, according to Toohey J, arises out of the power of the Crown to extinguish native title, and not upon the exercise of that power.[329] The Crown has a prerogative right to acquire territory on colonisation.[330] As a consequence of the exercise of this prerogative right, the Crown is placed in the position where it has the power to extinguish traditional title.[331] The decision to acquire territory is a legislative act, and as such cannot be fettered by a fiduciary duty. However, the method of acquisition is, more likely, an executive act, which can be subject to a fiduciary duty.
The Crown could not exercise the power to extinguish indigenous title prior to colonisation, as it is the act of colonisation that brings into existence the ability to exercise that power. Therefore, as the power to extinguish traditional rights occurs on colonisation, it is at this stage that the relationship between the Crown and Aboriginal people was, according to Toohey J’s reasoning, of a fiduciary character. (It must be remembered that Toohey J’s decision has not received judicial sanction.)
Alternatively, analysed in light of Mason J’s Hospital Products decision,[332] it would have to be established that the Crown undertook to act in the interests of the Aborigines, and that the exercise of the power affects the Aborigines in a legal or practical sense. The second element is easier to establish than the first. A number of propositions support the assertion that the Crown undertook to act in the interests of Aborigines. Most significantly, the English Crown’s policy of ‘protection’ towards Aborigines supports the proposition that the Crown had, from the commencement of colonisation, undertaken to act in the Aborigines’ interests.[333]
In Hospital Products, Dawson J also considered the vulnerability of the beneficiary as one criterion to be assessed. The Aborigines’ vulnerability arose because the Crown was required by international and common law practice to act in the interests of the Aborigines, at least in so far as recognising sovereignty and entering into a treaty is concerned. The Aborigines were dependant on this undertaking.[334] It is arguable that the Crown had a consequential fiduciary duty not to abuse its position. As attractive as this argument is, present authority indicates that the use of such an argument would be provocative.[335] Further, the utility of relying on the persuasiveness of the vulnerability criteria is doubtful, due to the absence of the theory in the High Court’s decision in Breen v Williams.[336]
If a duty was created on colonisation, then the duty was originally owed by the English Crown. However, to obtain relief the duty must be enforceable against the current, or future Australian Crown.[337] This part examines one way that the fiduciary duty can ‘pass’ from one Crown to another.[338] This is achieved via the doctrine of continuity. However, before considering this issue, a more detailed understanding of the ‘Crown’ is necessary.
At the time of Australia’s colonisation there was one, indivisible Crown.[339] That is, the Crown in right of England was the only Crown and the Australian colonies existed under the one Crown. Since colonisation the situation has changed and it is now accepted that there are separate and divisible Crowns.[340] In an Australian context, there is a separate Crown for each of the States, and for the Commonwealth.[341]
The Australian State and Commonwealth Constitutions vest the prerogative powers in the Crown.[342] While the powers are expressed to be exercisable by the monarch, conventions have resulted in these powers being exercised locally.[343] There is difficulty in ascertaining when, in fact, the Crown separated.[344] Australia’s Federation in 1901 provides the appearance that the Crowns were, from then on, separate and distinct.[345] Alternatively, the Statute of Westminster 1931 (Cth) was thought to provide formal independence.[346] However, in 1939 Australia assumed that it was at war with Germany and Italy purely because England was at war with these nations.[347] Moreover, in 1979 the laws of Australian States were held to be invalid if inconsistent with Imperial (English) legislation.[348]
The issue becomes further complicated. While the English and Australian governments’ relationship appeared independent on diplomatic and international levels, the relationship between the Australian States and England ‘retained all the elements of their colonial status’.[349] Up until 1986 the English Government advised the Crown on the appointment of State Governments and other matters affecting the States.[350] The only clear break from the English Crown is the enactment of the Australia Acts in 1986.[351]
These Acts terminate the power of the Parliament of the UK to legislate for Australia and abolish UK responsibility for any State matter, providing what is, in substance, independence.[352] When independence was achieved is largely irrelevant.[353] The important point is that the Australian Crown has achieved independence from the English Crown.[354] Even so, there has ‘been no attempt to bring about any break in legal continuity or to deny the historical root of constitutional title’.[355]
The doctrine of continuity regulates the international law of State succession and the enforcement of treaties.[356] Basically, this convention means that the position of the State parties prior to the change in sovereignty continues after the change until the new sovereign expressly changes the situation.[357] Treaties are essentially contractual obligations entered into between States. Whilst there are no treaties between the Australian Crown and Aborigines, this doctrine still has relevance. The doctrine clearly operates where the relationships and obligations are consensual. However, the underlying fundamental theory is applicable to non-consensual obligations, as it is directed primarily at the enforcement of obligations undertaken by an earlier State on a subsequent State.[358]
The traditional approach to this doctrine is that when a party loses the capacity to perform the existing obligations without the consent of the new body, then State succession has occurred, and the prior treaty obligations will not be enforceable. If the party retains the necessary capacity to discharge its treaty obligations, then the treaty continues under the concept of ‘continuity’.[359]
A federation requires particular consideration, as the constituent members of the federation may retain exclusive or concurrent power over the subject, or alternatively the power of the members may lapse.[360] A federation is a ‘dovetailing rather than a suppression of legal orders.’[361] When a State enters a federation the legal order of the State is not ‘fundamentally and radically affected’.[362] Fundamental and radical effect on a State’s legal order occurs when a State is totally absorbed in another State, such that the identity of the first State is no longer independent of the second.[363]
In the US, the pre-independence treaties entered into by the British Crown were inherited by the post independence government.[364] This was achieved by applying the doctrine of continuity.[365] Similarly, in the Alberta Indian Association Case the English Court of Appeal held that the English Crown was not responsible for ensuring the performance of treaties entered into between the English Crown and Canadian aborigines.[366] The responsibility resided with the Canadian Federal and Provincial Crowns.[367]
In Noltcho & Ors v Attorney General[368] Canadian aborigines sought a declaration that the English Crown was still responsible for the performance of treaties entered with the Indians between 1871 and 1907.[369] The action was dismissed on the same basis as the Alberta Indian Association Case: [370] the responsibility had transferred to the Canadian Government along with the transfer of sovereignty.[371]
The same position has been achieved in New Zealand with the Treaty of Waitangi.[372] As the Privy Council stated in New Zealand Maori Council v Attorney General, ‘the obligations of Her Majesty, the Queen of England, under the Treaty are now those of the Crown in right of New Zealand’.[373]
The Australian Commonwealth came into existence on 1 January 1901.[374] The Crown remained the sovereign in both the Federal and State spheres.[375] At the time of Federation the Australian Colonies were subject to treaties.[376] Following Federation, there was argument about whether these treaties survived.[377] It was decided that the treaties were not terminated by Federation.[378]
The States retained responsibility for the obligations where the treaty was an area within the States’ constitutional powers and responsibility transferred to the Commonwealth where it was legislatively responsible.[379] The Commonwealth had to request the Imperial Government terminate any treaties to which the States of Australia were parties,[380] this was the only way around the doctrine of continuity.[381]
The doctrine of continuity did apply to Australia at the time of Federation.[382] The prior colonies’ obligations have been binding on subsequent governments.[383] The obligations undertaken by the colonial Crown are now enforceable against the current Crowns.[384] The obligations would be enforceable according to each Crown’s area of legislative responsibility.[385] As a fiduciary duty arises from the Colonial Crown’s power to alienate Aboriginal interests, then the responsibility resides with the Crown that currently has that power.[386]
Should Australia become a republic, the doctrine of continuity will apply. So long as the subsequent State political system is readily identifiable as that existing prior to the re-organisation, then the obligations of the former Government will arguably be enforceable against the reorganised Government, as ‘a State may never, by internal reconstruction, disengage itself from its ... commitments’.[387]
There were two arguments examined in this article. The first argument was whether a fiduciary duty was created upon, and as a result of, the English colonisation of Australia. This required the examination of several distinct areas, including the Australian courts’ approach to fiduciary duties and the approach of those jurisdictions where it is accepted that the Government does owe fiduciary duties to the indigenous peoples. The colonial relationship between the English Crown and Australian Aborigines was compared to the fiduciary principles to see if it could be a source of a fiduciary relationship.
The general concepts associated with the creation, scope and breach of fiduciary duties and the application of these principles to the Crown were examined. Australian decisions provide support for the proposition that colonisation can be the source of Crown-Aboriginal fiduciary obligations. However, before a duty will be imposed, there will have to be a change in the approach adopted by the courts.
This is a new and developing category of fiduciary duty and therefore it is not surprising that applications of fiduciary principles will vary, and there may be problems in detailing the specifics of the duty. Fiduciary duty itself is, after more than a century and a half, still evolving.[388] The definition of fiduciary duty allows the principle to be expanded and changed to reflect contemporary standards.[389] Indeed, this is the historically correct path to follow.[390] A pragmatic and prudent judiciary can overcome any problems with the application of the equitable rules of fiduciaries to the realm of government. Activism is an integral and natural part of equitable jurisprudence.[391] Clearly the courts are not always prepared to defer to Parliament regarding adequate protection of indigenous interests. The courts should not be afraid of embracing the issue and further developing the modern state of Australian law. Even if a fiduciary duty is owed, it is unlikely that this will extend beyond the protection of economic interests, or require the Crown to act in a positive manner.
The second argument was directed at the manner of enforcing this duty against subsequent political systems. This argument examined the constitutional and international law elements of Australia’s colonisation and political evolution. The doctrine of continuity applied to Australia’s Federation and the English Crown’s obligations to indigenous peoples transferred, under the same doctrine, to the new Crown. Therefore, the colonial fiduciary duty is, most likely, enforceable against the current Australian governments. It may also be enforceable against future governments.
[1] This paper is an abridged and updated version of a thesis submitted for an LLB (Hons) degree at Murdoch University in 1999.
[2] Cameron Syme is an articled clerk at a law firm in Melbourne Australia.
[3] Sumner v United Kingdom of Great Britain & Ors [2000] SASC 91 (Sumner), per Nyland J at para 70; Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843, (Williams (No 2)); Kruger v Commonwealth of Australia [1997] HCA 27; (1997) 190 CLR 1.
[4] Williams (No 2) above note 3; Kruger above note 3.
[5] See for example; Abrahams M, ‘A Lawyer’s Perspective on the Use of Fiduciary Duty with Regard to The Stolen Children’ (1998) 4(3) University of NSW Law Journal; Blowes R, ‘Governments: Can You Trust Them with Your Traditional Title? Mabo and Fiduciary Obligations of Governments’ [1993] SydLawRw 19; (1993) 15 Sydney Law Review 254; Buti T, ‘Kruger and Bray and the Common Law’ (1998) 4(3) University of NSW Law Journal; Finn P D, ‘The Forgotten “Trust”: The People and the State’ in Cope M (ed) Equity: Issues and Trends, Federation Press Sydney 1995.
[6] See for example; Williams (No 2) above note 3; Kruger above note 3; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, (Williams (No 1)); Sumner, above note 3; Cubillo v Commonwealth [2000] FCA 1084.
[7] See for example ‘Continuing Legal Education, Recent Developments in Fiduciary Obligations’ in Owen J, The Crown as a Fiduciary Law Society of WA 1996; Mason A, ‘The Rights of Indigenous Peoples in Land Once Part of the Old Dominions of The Crown’ (1997) 46 International and Comparative Law Quarterly 812; McPherson B H, ‘Fiduciaries: Who are They?’ (1998) 72 Australian Law Journal 288.
[8] Sealy L S, ‘Fiduciary Relationships’ (1962) The Cambridge Law Journal 69-81 at 69.
[9] As above.
[10] Black H C, Blacks Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern West Publishing Co St Paul 1990, p 625.
[11] Tan D, ‘The Fiduciary as an Accordion Term: Can the Crown Play a Different Tune?’ (1995) 63 Australian Law Journal 440.
[12] Williams (No 2) above note 3, per Abadee J at para 745; Bristol and West Building Society v Mothew [1996] EWCA Civ 533; (1997) 2 WLR 436 per Millett LJ at 439.
[13] Tan D, above note 11 at 440.
[14] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 per Gibbs CJ at 68.
[15] Brunninghauser v Galvanic (NSWCA 23 June, 1999) unreported, at 14; Hospital Products, above note 14, per Gibbs CJ at 68, Mason J at 96-97.
[16] Breen v Williams (1996) 186 CLR 71 at para 22.
[17] As above at para 14.
[18] Hospital Products above note 14 at 96-97.
[19] Hospital Products above note 14 at 141.
[20] Mabo v The State of Queensland [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)), per Toohey J at 203-205.
[21] Breen v Williams above note 16; Williams (No 2) above note 3.
[22] Breen v Williams above note 16 at para 24.
[23] Brunninghauser above note 15 at 14.
[24] See also Breen v Williams above note 16, per Brennan CJ at para 14.
[25] Hospital Products above note 14, per Dawson J at 141; Coe v Commonwealth No 2 [1993] HCA 42; (1993) 118 ALR 193; Williams (No 1) above note 6, per Kirby P.
[26] Batley P, ‘The State’s Fiduciary Duty to the Stolen Children’ (1996) Vol 2 No 2 Australian Journal of Human Rights 177.
[27] Breen v Williams above note 16, per Gummow J at 72.
[28] Breen v Williams above note 16, per Gaudron and McHugh JJ at 41.
[29] Breen v Williams above note 16.
[30] Contrast with Bennet v Minister of Community Welfare [2003] VSC 348; (1993) 176 FLR 408 at 2, where the judge at first instance included positive duties.
[31] Paramasivam v Flynn [1998] FCA 1711; (1998) 160 ALR 203, at 218-219; Williams (No 2) above note 3 at 733; Bennett above note 30, per McHugh J, Williams (No 1) above note 6, per Kirby P.
[32] Williams (No 2) above note 3 at 733.
[33] Nordberg v Wynrib (1992) 92 DLR 449 per McLaughlin J at 501.
[34] Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46.
[35] Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 per Brennan CJ, Gaudron, McHugh and Gummow JJ.
[36] Boardman v Phipps above note 34; Warman International Ltd v Dwyer [1995] HCA 18; (1995) 128 ALR 201.
[37] Boardman v Phipps above note 34.
[38] Makaronis above note 35 at 463; Williams (No 2) above note 3 at 79. This article is a general overview of this area — limitation depends upon the operation of individual limitation statutes. For more detail refer to Buti T, ‘Removal of Indigenous Children from their Families: the Litigation Path’ (1998) 27 Western Australian Law Review 203.
[39] Williams (No 2) above note 3 at 79-80.
[40] Owen above note 7, p 12.
[41] Breen v Williams above note 16, per Gaudron and McHugh JJ at para 27.
[42] Owen above note 7, p 12.
[43] Guerin v The Queen [1983] 2 FC 656.
[44] Mabo (No 2) above note 20, per Deane, Gaudron JJ at 89 and per Brennan J at 62.
[45] Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (Ward). This case was discussing, amongst other things, the content of native title, which Lee J said was sui generis.
[46] Tito v Waddell [1977] Ch 106 and Kinloch v Secretary of State for India (1882) 7 App Cas 619, in Mabo (No 2) above note 20 at 157.
[47] Mabo (No 2) above note 20 at 157.
[48] Coe v The Commonwealth No 2 above note 25.
[49] Mabo (No 2) above note 20 at 203.
[50] Williams (No 1) above note 6 at 511.
[51] Williams (No 2) above note 3, per Abadee J at 700.
[52] Cubillo above note 6.
[53] Paramasavim v Flynn above note 31.
[54] Williams (No 2) above note 3.
[55] Lovejoy v Carp [1999] VSC 223.
[56] Prince v Attorney-General [1996] 3 NZLR 733.
[57] Worcester v Georgia [1832] USSC 39; 31 US 515 (1832); Owen above note 7, p 5.
[58] Guerin v R (1984) 13 DLR (4th) 321; Owen above note 7, p 5; Hughes C, ‘The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States And Canada’ (1993) Vol 16(1) UNSW Law Journal 70 at 87; Rotman L I, Parallel Paths; Fiduciary Doctrine and the Crown-Native Relationship in Canada University of Toronto Press Toronto 1996, p 89.
[59] New Zealand Maori Council v Attorney-General [1987] NZLR 641.
[60] White v Califano [1978] USCA8 443; (1978) 581 F 2d 697; Mason A, above note 7 at 822.
[61] Mason above note 7 at 822.
[62] Worcester v Georgia, above note 57, per Marshall J, as quoted in Tully J, Strange Multiplicity: Constitutionalism in an age of diversity Cambridge University Press Cambridge 1998, p 120.
[63] Cherokee Nation v Georgia [1831] USSC 6; 30 US 1 (1831) per Marshall CJ, as quoted in Tully J, as above at 117.
[64] Worcester v State of Georgia above note 57 at 557, as quoted in Tully J, above note 62 at 120.
[65] Cherokee Nation v Georgia above note 63, as quoted in Tully J, above note 62 at 117.
[66] Cherokee Nation v Georgia above note 63.
[67] Worcester v State of Georgia above note 57, per Marshall CJ at 557, as quoted in Tully J, above note 62 at 120.
[68] Worcester v State of Georgia above note 57.
[69] Worcester v Georgia above note 57 at 122.
[70] Worcester v Georgia above note 57 at 120.
[71] Tully above note 62 at 121.
[72] Tully above note 62 at 122.
[73] Tully above note 62 at 123.
[74] Cherokee Nation v Georgia above note 63 at 16-17.
[75] Hughes above note 58 at 76; Owen above note 7, p 7.
[76] Hughes above note 58 at 77.
[77] Hughes above note 58 at 77.
[78] Hughes above note 58 at 77; United States v Kagama [1886] USSC 194; 118 US 375 (1886); Lone Wolf v Hitchcock 187 US 553 (1903); Owen J, above note 7, p 6.
[79] Lone Wolf v Hitchcock above note 78; Owen above note 7, p 6.
[80] Hughes above note 58 at 77-8.
[81] Hughes above note 58 at 79; Owen above note 7, p 6.
[82] Hughes above note 58 at 79, emphasis in original.
[83] Hughes above note 58 at 80; Lane v Pueblo of Santa Rosa [1919] USSC 57; 249 US 110 (1918).
[84] Hughes above note 58 at 82.
[85] United States v Mitchell 102 S Ct 2961 (1983).
[86] Hughes above note 58 at 83.
[87] United States v Mitchell above note 85 at 297.
[88] Hughes above note 58 at 83.
[89] Hughes above note 58 at 83.
[90] United States v Creek Nation [1935] USSC 86; 295 US 193 (1935).
[91] Pyramid Lake Paiute Tribe of Indians v Morton 354 F Supp 252 (1973).
[92] United States v Mitchell above note 85. Most of these cases refer to specific treaties or legislation.
[93] Gila River Pima-Maricopa Indian Community v United States 427 F 2d 1194 (1970) at 1195.
[94] White v Califano above note 60.
[95] Owen above note 7, p 7; Hughes above note 58 at 87.
[96] Hughes above note 58 at 87.
[97] Hughes above note 58 at 87.
[98] Hughes above note 58 at 87.
[99] Guerin v R above note 58.
[100] Owen above note 7, p 7; Hughes above note 58 at 87.
[101] Guerin v R above note 58 at 408.
[102] Guerin v R above note 58.
[103] Owen above note 7, p 8.
[104] Guerin v R above note 58 at 382.
[105] See also Calder v Attorney General of British Columbia [1973] SCR 313.
[106] Owen above note 7, p 8; Hughes above note 58 at 88.
[107] Guerin v R above note 58 at 357.
[108] Guerin v R above note 58 at 356.
[109] Guerin v R above note 58 at 357.
[110] Dorsett S, ‘Comparing Apples and Oranges: the Fiduciary Principle in Australia and Canada after Breen v Williams’ (1996) Vol 8 No 2 Bond Law Review 158 at 167.
[111] R v Sparrow (1990) 70 DLR (4th) 385; Rush S, Aboriginal Title and the State’s Fiduciary Obligations paper presented to the Conference on Land and Freedom, 9-11 July 1999, Newcastle, p 7.
[112] As above.
[113] R v Sparrow above note 111 at 408.
[114] R v Sparrow above note 111. This is similar to the reasoning of Marshall CJ in Cherokee Nation v Georgia above note 63.
[115] Owen above note 7, p 9.
[116] Rush above note 111, p 6.
[117] Rush above note 111, p 8.
[118] Hughes above note 58 at 92. Following Delgamuukw v British Colombia [1998] 1 CNLR 14 the onus on the Crown is very strong.
[119] Rush above note 111 at 7.
[120] R v Sparrow above note 111 at 408. This is similar to the reasoning of Marshall CJ in Cherokee Nation v Georgia above note 63.
[121] R v Gladstone [1996] 4 CNLR 65.
[122] Rush above note 111, at 10.
[123] Delgamuukw above note 118; Rush above note 111 at 15.
[124] Delgamuukw above note 118 at para 138.
[125] Rush above note 111 at 15.
[126] Rush above note 111 at 16.
[127] Rush above note 111.
[128] Delgamuukw v British Colombia above note 118, per Lammer CJ at para 138.
[129] Letters Patent (1839) 3 & 4 Vict Cap 62.
[130] Mills A, Colonial Constitutions: An Outline of the Constitutional History and Existing Government of The British Dependencies Woodfall and Kinder London 1856, pp 24-30.
[131] Above note 129, as quoted in Mills A, as above, p 332.
[132] As above.
[133] As above; chapters 1 and 2 in Dorsett S G The Crown’s Fiduciary Duties to Indigenous Australians Masters dissertation, University of Calgary 1996, p 70.
[134] McHugh P, The Maori Magna Carta Oxford University Press Auckland 1991, p 78. I leave aside issues involved in the interpretation of the Treaty; see generally McHugh P, The Maori Magna Carta, pp 3-9.
[135] Dorsett above note 133, p 70.
[136] Mills above note 130, p 332.
[137] Mills above note 130.
[138] McHugh above note 134, p 78.
[139] McHugh above note 134 pp 25-30.
[140] New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, at 517.
[141] As above; Owen above note 7, p 9.
[142] Wi Parata v Bishop of Wellington (1878) 3 NZ Jur 72, at 77-78.
[143] Te Weehi v Regional Fisheries Officer [1986] NZLR 682, per Williamson J.
[144] Guerin v R above note 58; Calder above note 105; Dorsett S and Godden L, A Guide to Overseas Precedents of Relevance to Native Title Native Title Research Unit and AIATSIS 1998, p 98.
[145] New Zealand Maori Council v Attorney-General above note 59, per Cooke P at 664.
[146] As above at 667.
[147] As above at 664.
[148] Te Runganga o Wharekauri Rekohu v Attorney General (1993) 2 NZLR 301.
[149] Owen above note 7, p 7; Hughes above note 58 at 76.
[150] Hughes above note 58 at 87.
[151] Guerin v R above note 58; Hughes above note 58 at 87.
[152] Thorpe v Commonwealth of Australia (No 3) (1997) High Court of Australia unreported judgment No 321 (Thorpe (No 3)) per Kirby J; Williams (No 2) above note 3; Mason above note 7 at 819-820.
[153] Williams (No 2) above note 3, per Abadee J.
[154] Breen v Williams (1994) 35 NSWLR 552 at 570.
[155] Breen v Williams above note 16, per Brennan CJ at para 266; Gummow J at para 308; Gaudron and McHugh JJ at para 289.
[156] Williams (No 1) above note 6, per Kirby; Williams (No 2) above note 3.
[157] Mabo (No 2) above note 20, per Toohey J at 204; Williams (No 1) above note 6, per Kirby P.
[158] Mason above note 7 at 819-820; McHugh above note 134, pp 157-166.
[159] New Zealand: New Zealand Maori Council v Attorney General, above note 59; United States: Cherokee Nation v Georgia, above note 63.
[160] For the Canadian situation see s 35(1) Constitution Act 1982 (Canada) and Sparrow v R, above note 111.
[161] Section s 51(xxvi) Commonwealth of Australia Constitution Act 1900.
[162] As above, s 51 (xxxi).
[163] Owen above note 7, p 9.
[164] Kartinyeri v The Commonwealth (1998) HCA 22.
[165] As above, per Gaudron J at para 50; Gummow and Hanye JJ at para 81.
[166] Thorpe (No 3) above note 152, per Kirby J. Cases that have considered the possibility of a fiduciary duty include: Williams (No 1) above note 6, per Kirby J and Nulyarimma v Thompson [1999] FCA 1192 per Wilcox J at para 34 and per Merkel J at para 225.
[167] Northern Territory Land Council v The Commonwealth (1987) 61 ALJR 617 (Ranger’s case).
[168] Brennan F, ‘Mabo and the Racial Discrimination Act’ (1993) Vol [1993] SydLawRw 16; 15 Sydney Law Review 206 at 216.
[169] Owen above note 7, p 10.
[170] Owen above note 7.
[171] Mabo (No 2) above note 20 at 203.
[172] Mabo (No 2) above note 20, at 113.
[173] Mabo (No 2) above note 20 at 113.
[174] Tan above note 11 at 442; Owen above note 7, p 11.
[175] Tan above note 11 at 442; Owen above note 7, p 11; Hughes above note 58 at 73.
[176] Mabo (No 2) above note 20 at 205.
[177] Owen above note 7, p 8.
[178] Mabo (No 2) above note 20 at 203.
[179] Mabo (No 2) above note 20 at 205; Owen above note 7, p 8.
[180] Thorpe (No 3) above note 152, per Kirby J.
[181] See Nulyarimma above note 166, per Merkell J at 227.
[182] Owen above note 7, p 11.
[183] Mabo (No 2) above note 20, per Toohey J at 206.
[184] Hospital Products above note 14.
[185] Mabo (No 2) above note 20 at 203; Owen above note 7, p 11; Hughes above note 58 at 74.
[186] Wik Peoples v State of Queensland & Ors (1996) 141 ALR 129.
[187] Wik as above. The remainder of the Wik court did not reach the issue, thus Brennan’s and Dawson’s judgments are dicta.
[188] Nulyarimma above note 166, per Merkel J.
[189] As above, per Merkel J at para 227.
[190] Finn above note 5, at 138, as quoted in Nulyarimma above note 166, per Merkel J at para 227.
[191] Nulyarimma above note 166, per Merkel J at para 227.
[192] Nulyarimma above note 166 at para 34.
[193] Williams (No 1) above note 6, at 511.
[194] Wik above note 186, as quoted in Kruger above note 3, per Brennan CJ.
[195] Williams (No 2) above note 3, per Abadee J.
[196] Dorsett above note 133, p 65.
[197] Guerin v R above note 58.
[198] Cherokee Nation v Georgia above note 63.
[199] Dorsett above note 133, pp 65-66.
[200] Nulyarimma above note 166, per Wilcox J, at para 11; McGrath A (ed) Contested Ground: Australian Aborigines under the British Crown Allen & Unwin St. Leonards 1995, p 4.
[201] McGrath as above, p 7.
[202] Clark A History of Australia I Melbourne University Press Melbourne 1997, p 7.
[203] Clark as above; McGrath above note 200, p 12.
[204] Clark as above, p 11.
[205] Clark as above, p 31.
[206] Circa 1617. See Heeres J E, The Part Borne by the Dutch in the Discovery of Australia 1606-1765, London 1899, p 22, as quoted in Clark above note 202, p 25.
[207] Clark above note 202, p 25; McGrath above note 200, p 12.
[208] Butler K, Cameron K and Percival B, The myth of terra nullius: Invasion and resistance — the early years, Board of Studies NSW Sydney 1995, p 51.
[209] Clark above note 202, p 41. See also Mason above note 7 at 813.
[210] Clark above note 202, p 50.
[211] Clark above note 202.
[212] Clark above note 202.
[213] Clark above note 202, p 51.
[214] Mason above note 7 at 813.
[215] Butler et al, above note 208, p 41; Jackson R, Population History of Australia Penguin/McPhee Gribble Sydney 1988, p 5.
[216] McGrath above note 200, p 10.
[217] Butler et al, above note 208, p 16; Mabo (No 2) above note 46, per Deane and Gaudron JJ at para 37.
[218] McGrath above note 200, p 10.
[219] Cooper v Stuart (1889) 14 App Cas 286, per Watson LJ at 291.
[220] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 per Blackburn J at 267.
[221] See below.
[222] Nulyarimma above note 166, per Wilcox J at para 14.
[223] McHugh P G, ‘A new role for the Maori Courts in the resolution of Waitangi claims?’ (1993) June New Zealand Law Journal 229, at 27.
[224] Mills above note 130, p xvi; Mason above note 7 at 820.
[225] Mills above note 130, p 2.
[226] Mills above note 130.
[227] Mills above note 130, p 3.
[228] Mabo (No 2) above note 20, per Deane and Gaudron JJ at para 2; Brennan above note 168 at 207; Mills above note 130, p 18.
[229] Campbell v Hall (1774) Cowper’s Reports, per Lord Mansfield at 206; Brennan above note 168 at 207; Mills above note 130, p 18.
[230] Mills above note 130, p 19. This is the doctrine of continuity, discussed by the New Zealand court in Te Weehi v Regional Fisheries Officer, above note 143.
[231] Mills above note 130, p 21.
[232] Mills above note 130, p 22.
[233] Mills above note 130
[234] Mills above note 130.
[235] Mabo (No 2) above note 20 at 12.
[236] In Re Southern Rhodesia [1919] AC 211 at 233.
[237] Cooper v Stuart above note 219 at 291.
[238] Cooper v Stuart above note 219 at 292.
[239] Cooper v Stuart above note 219.
[240] As later recognised by the Australian High Court in Mabo No 2; Blackshield T and Williams G Australian Constitutional Law & Theory; Commentary & Materials Federation Press Sydney 1998, p 179.
[241] Milirrpum above note 220 at 267.
[242] Milirrpum above note 220.
[243] Mason above note 7 at 815.
[244] Nulyarimma above note 166 at 63.
[245] Mabo (No 2) above note 20, per Gaudron and Deane JJ at para 2; Coe v Commonwealth No 2 above note 25, per Mason CJ.
[246] Coe v Commonwealth No 2 above note 25, per Mason CJ. I leave aside a discussion of whether Aboriginal sovereignty itself has been extinguished. See generally Sarre R, Aboriginal Customary Law 50th Anniversary Conference Australasian Law Teachers’ Association Cross Currents: Internationalism, National Identity & Law 1995.
[247] Coe v Commonwealth No 2 above note 25; Thorpe above note 3, per Kirby J.
[248] Dorsett above note 133 at 69.
[249] Dorsett above note 133.
[250] Joseph Banks’ evidence to the British Parliament 1785 in Butler et al above note 208, p 38.
[251] Committee on Transportation, House of Commons Journals 1785 p 1164 in Dorsett above note 133 at 68.
[252] Mabo (No 2) above note 20, per Gaudron and Deane JJ at para 2.
[253] Dorsett above note 133 at 68.
[254] Instructions from George III to Governor Phillip, 23 April 1787, Historical Records of New South Wales, v 1 pt 2, at 52.
[255] Royal Proclamation of 1763; Dorsett above note 133 at 68; McHugh P G, above note 223 at 27.
[256] Mills above note 130, p 32; Coe v Commonwealth No 2 above note 25, per Mason CJ.
[257] Dorsett above note 133 at 65.
[258] Dorsett above note 133 at 65.
[259] Dorsett above note 133 at 65.
[260] Dorsett above note 133 at 65.
[261] See for example ‘Dispatch from Lord John Russell to George Gipps’, 21 December 1838, Historical Records of Australia Series I Vol XX at 440.
[262] For example, the Crown Lands Unauthorised Occupation Act 1839 (UK) quoted in Wik above note 186, per Toohey J at 119.
[263] Dispatch from Sir George Gipps to the Secretary of State (1839), as quoted in Wik above note 186.
[264] See for example Aboriginal Protection Act 1886 (UK), which set up an Aborigines Protection Board.
[265] Dorsett above note 133 at 67; Clark above note 202, p 80 and 118.
[266] Mabo (No 2) above note 20, per Toohey J at 157; Dorsett above note 133 at 67; Clark above note 202, pp 80, 118, 144, 167 and 183; Clark M, A History of Australia II Melbourne University Press Melbourne 1977, pp 113 and 255.
[267] Mills above note 130, p 332.
[268] Mills above note 130. The power of the Governor to enter into treaties only applied to New Zealand.
[269] As quoted in McGrath above note 200, p 13.
[270] Butler et al above note 208, p 155.
[271] Governor P King’s journal (1804), in Butler et al above note 208.
[272] Butler et al above note 208.
[273] Clark above note 266, p 135.
[274] Colwell J The Story of Australia: Past and Present SJ Clarke Publishing Company Ltd Sydney 1925, p 95.
[275] George Robinson’s journal 20 August 1830, as quoted in McGrath above note 200, p 321.
[276] Clark above note 266, p 115.
[277] As quoted in McGrath above note 200, pp 13 and 321.
[278] As quoted in McGrath above note 200.
[279] ‘Grant of the Territory Called Dutigalla, with Livery of Seisen dated 6th June 1835’ quoted in Colwell above note 274, p 103.
[280] Colwell above note 274, p 101.
[281] Colwell above note 274, p 95.
[282] Colwell above note 274, p 94.
[283] Colwell above note 274, p 102.
[284] 1835 report from Gellibrand to Governor Arthur, as quoted in Colwell above note 274, p 95.
[285] Colwell above note 274, p 95.
[286] Colwell above note 274.
[287] Colwell above note 274, p 104.
[288] Colwell above note 274, p 98.
[289] Colwell above note 274, p 104.
[290] Colwell above note 274, p 98.
[291] Nulyarimma above note 166, per Wilcox J at para 23.
[292] Mills above note 130, p 18.
[293] Mabo (No 2) above note 20; Brennan above note 168 at 207.
[294] Millurpum above note 220 at 267.
[295] Mabo (No 2) above note 20, per Deane and Gaudron JJ at para 2; Brennan above note 168 at 208.
[296] Tully above note 62, p 118.
[297] Cooper v Stuart above note 219; Mabo (No 2) above note 20, per Brennan J at 38.
[298] Cooper v Stuart above note 219.
[299] See generally Reynolds H, Aboriginal Sovereignty: Three Nations one Australia? Allen & Unwin St Leonards 1996.
[300] Nulyarimma above note 166, per Merkel J at para 82.
[301] As above, per Merkel J at para 83.
[302] Trendex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529, per Lord Denning MR at 553-554, as quoted in Nulyarimma above note 166.
[303] As above.
[304] Nulyarimma above note 166, per Merkel J at para 133.
[305] Nulyarimma above note 166, per Merkel J at para 83.
[306] Nulyarimma above note 166.
[307] Nulyarimma above note 166, per Merkel J at para 129.
[308] Chow Hung Ching v The King [1948] HCA 37; (1949) 77 CLR 449; Minister for Immigration and Ethnic Affairs v Teo [1995] HCA 20; (1995) 128 ALR 353; Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501.
[309] The power of the Governor to enter into treaties was territorially restricted to New Zealand.
[310] Ward above note 45, per Lee J.
[311] Blackshield and Williams, above note 240, p 201.
[312] Coe v Commonwealth No 2 above note 25, per Mason CJ.
[313] Coe v Commonwealth No 2 above note 25, per Jacobs J at 409.
[314] Implicit in this argument is that the perogative power is the power to acquire territory and to decide the method of acquisition. The manner of acquisition will be influenced by international law, and is not therefore an unlimited perogative power.
[315] Tully above note 62, p 122.
[316] Tully above note 62.
[317] Tully above note 62. Under international law as the country was occupied the Crown had two choices: negotiate cession, or conquer the land. See Mills above note 130, p 18.
[318] Mabo (No 2) above note 20, per Toohey J at para 11.
[319] As evidenced in Cooper v Stuart above note 219 and Millurpum above note 220 at 267.
[320] Clark above note 266, p 115.
[321] Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11; (1987) 162 CLR 285.
[322] Although with territorial restrictions.
[323] As is the situation in Canada, where British Colombia is largely treaty free: Rush above note 111, p 3.
[324] A treaty being consensual, indicating some type of loyalty owed to each party.
[325] Hospital Products above note 14.
[326] Mabo (No 2) above note 20, per Toohey J at 203.
[327] Mabo (No 2) above note 20.
[328] Mabo (No 2) above note 20. Alternatively, a treaty could be considered to give rise to a form of statutory duty.
[329] Mabo (No 2) above note 20 at 203.
[330] Western Australia v The Commonwealth [1975] HCA 46; (1995) 134 CLR 201 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 422: see Mills above note 130 at 18.
[331] Western Australia v The Commonwealth, as above; Blackshield and Williams, above note 240, p 159.
[332] Hospital Products above note 14.
[333] Mabo (No 2) above note 20, per Toohey J at 203.
[334] Applying Dawson J’s vulnerability criteria from Hospital Products above note 14 at 141.
[335] Coe v Commonwealth No 2 above note 25.
[336] Breen v Williams above note 16. As discussed earlier this case concerned the use of fiduciary duty to allow access to a patient’s medical records. It should be remembered that that relationship is distinctly different from the one being considered in this article.
[337] R v Secretary of State for Foreign and Commonwealth Affairs; ex parte Indian Association and others [1982] 2 All ER 118.
[338] The coverage given to these issues in this discussion is not exhaustive, rather, the issues are illustrative of how it may be possible to enforce the duty against subsequent Governments.
[339] Cowan Z, ‘The Legal Implications of Australia’s Becoming a Republic’ (1994) August The Australian Law Journal 587 at 588; Zines L, Constitutional Change in the Commonwealth Cambridge University Press Cambridge 1991, p 3.
[340] R v Secretary of State for Foreign and Commonwealth Affairs above note 336; Stokes M, ‘Are There Separate State Crowns?’ (1998) Vol [1998] SydLawRw 5; 20 Sydney Law Review 127 at 127; Zines above note 339 at 10.
[341] Stokes as above at 142.
[342] Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 per Mason J at 498. I have not considered the distribution of the powers between the States and the Commonwealth. For more information refer to Blackshield and Williams above note 240, pp 301-423.
[343] Zines above note 339 at 4.
[344] Zines above note 339 at 2; Stokes above note 340 at 127.
[345] Zines above note 339 at 6.
[346] Zines above note 339 at 1.
[347] Zines above note 339 at 2.
[348] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172; Zines as above.
[349] Zines above note 339, at 10.
[350] Zines above note 339.
[351] Australia Act 1986 (UK); Australia Act 1986 (Cth); Zines above note 339 at 21. Note that s 2 of the Commonwealth of Australia Constitution Act requires the Queen of England is also the Queen of Australia so there is, arguably, still some link to the Crown in England.
[352] Zines above note 339 at 21.
[353] Leaving aside issues of limitation periods.
[354] Winterton G ‘The Evolution of a Separate Australian Crown’ (1993) Vol 19 No [1974] MonashULawRw 1; 1 Monash University Law Review 1.
[355] Zines above note 339 at 25.
[356] O’Connell D P, ‘State Succession and the Effect Upon Treaties of Entry Into a Composite Relationship’ (1963) Vol 39 The British Year Book of International Law 54 at 55.
[357] Tully above note 62, p 125; O’Connell as above at 129.
[358] O’Connell as above at 54.
[359] As above.
[360] As above at 55.
[361] As above at 58.
[362] As above.
[363] As above.
[364] Tully above note 62 at 123.
[365] Tully above note 62 at 125.
[366] R v Secretary of State for Foreign and Commonwealth Affairs above note 337, per Denning LJ at 127.
[367] Rotman above note 58, p 206.
[368] Noltcho & Ors v Attorney General [1982] 3 All ER 786.
[369] Rotman above note 58, p 207.
[370] Rotman above note 58, p 208.
[371] Rotman above note 58; Canada achieved its independent sovereignty under the Canada Act 1982 (UK). See generally Zines above note 339 at 22.
[372] New Zealand Maori Council v Attorney General above note 59; Mason above note 7 at 821; Brookfield F M, ‘The Monarchy and the Constitution Today: A New Zealand perspective’ (1992) December New Zealand Law Journal 438; McHugh above note 223.
[373] New Zealand Maori Council v Attorney General above note 140 at 517.
[374] Commonwealth of Australia Constitution Act 1900 (Cth); O’Connell above note 356 at 82.
[375] O’Connell above note 356.
[376] O’Connell above note 356.
[377] O’Connell above note 356.
[378] Law Officer’s Opinion, Colonial Office Document, 11 March 1902, in O’Connell above note 356 at 84.
[379] O’Connell above note 356 at 89.
[380] Letter from the Prime Minister of the Commonwealth to the States, 27 May 1909, as quoted in O’Connell above note 356.
[381] O’Connell above note 356.
[382] O’Connell above note 356 at 91.
[383] O’Connell above note 356.
[384] Subject to the Crown’s right to terminate the agreement which gives rise to the obligations. I leave aside issues of whether a fiduciary can unilaterally absolve their responsibility.
[385] O’Connell above note 356 at 88.
[386] Detailed examination of where the responsibility lies is outside of the scope of this article, which only considers whether the obligation may be presently enforceable.
[387] O’Connell above note 356 at 130. However, the subsequent State would have to submit to the enforcement of the provisions of the treaty.
[388] Owen above note 7, p 1; McPherson above note 7 at 288.
[389] Finn above note 5 at 138.
[390] Finn above note 5.
[391] Ryan D K, ‘Commentary’, in Cope above note 5, p 152.
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