When the crown has no ‘honour’: Kirsty Gover, ‘The Honour of the Crowns: State–Indigenous Fiduciary Relationships and Australian Exceptionalism’, Sydney Law Review, 38, 2016, pp. 339-368

02Nov16

Abstract: The New Zealand and Canadian Crowns are guided in their dealings with
Indigenous peoples by common law fiduciary duties. In both countries, these
duties have evolved into the constitutional principle of the ‘honour of the
Crown’, which requires governments to consult with Indigenous peoples when
contemplating legislative and executive action affecting their distinctive
interests, and to accommodate those interests where appropriate. To date, no
comparable common law duty has emerged in Australia. This article revisits
Toohey J’s remarkable, but under-analysed, judgment in Mabo v Queensland
(No 2) (‘Mabo (No 2)’), in which His Honour found that Australian Crowns
owe a general fiduciary duty to Indigenous peoples, arising by operation of law
from the ‘circumstances of the relationship’ (rather than from a treaty or
express undertaking). The judgment continues to influence contemporary
Australian courts and, in the absence of a High Court of Australia majority
finding to the contrary, the possibility remains that a general fiduciary duty may
yet emerge as a principle of Australian common law. The article argues that
fiduciary obligations of this kind are sorely needed in Australia, because the
High Court has not accepted that relational or consultative obligations to
Indigenous peoples attend the Crowns’ exercise of the ‘race power’, or that
these obligations are a precondition of the Crowns’ reliance on the ‘special
measures’ exception in the Racial Discrimination Act 1975 (Cth). As it stands,
Australian law permits and enables a degree of governmental unilateralism that
is not compatible with the role of the Crown as a fiduciary. This article explores
the possibility, suggested by Toohey J’s judgment in Mabo (No 2), that the
common law of native title could yet be the wellspring of general fiduciary
principles that could guide the conduct of Australian Crowns in their dealings
with Indigenous peoples.



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