The Honour of the Crowns: State-Indigenous Fiduciary Relationships and Australian Exceptionalism

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.