Fiduciary Obligation, Traditional Lands, and Native Title in Australia

• Author: Richard Bartlett
• Pages: 183-210

A. Responsibility Attaches to Power

It might properly be suggested that the exercise of discretion or power

over property, above and beyond which people are usually subject,

should lead to accountability at law. Responsibility should parallel

power, and pronouncements by the High Court of Australia have

allowed for such accountability. The landmark description of the gen-

eral characterization of fiduciary obligation declared: “The critical

feature of [fiduciary] relationships is that the fiduciary undertakes or

agrees to act for or on behalf of or in the interests of another person

in the exercise of a power or discretion which will affect the interests

of that other person in a legal or practical sense.”1Accordingly, the

fiduciary has a “special opportunity to exercise the power or discre-

tion to the detriment of that other person who is accordingly vulner-

able to abuse by the fiduciary of his position.”2

183

Fiduciary Obligation,

Traditional Lands,

and Aboriginal Title

in Australia

Richard Bartlet

Professor of Law,

The University of Western Australia

1Hospital Products v. United States Surgical Corp. (1984), 55 A.L.J.R. 417, 156

C.L.R. 41 at 96–97 per Mason J., Gibbs C.J. (596–97 A.L.J.R.), Wilson J. at 617,

Dawson J. at 142. Affirmed in Breen v. Williams (1996), 186 C.L.R. 71, per

Dawson and Toohey JJ.

2Hospital Products,ibid. at 96–97 per Mason J.

Generally, the potential development of accountability of the

Crown to Aborigines (the peoples Indigenous to Australia) has been

limited by the reluctance of the Australian courts to find a fiduciary

obligation where:

• non-economic interests are concerned, such as the loss suffered by

Aborigine children removed from their homes, referred to as the

“stolen generation” (Cubillo and Gunner v. Commonwealth3and

Paramasivam v. Flynn4)

• liability may be determined in tort or contract, as in a doctor/patient

relationship (Breen v. Williams5)

Such obstacles do not attend the imposition of liability with respect

to Crown powers in relation to Aboriginal title and traditional lands.

But another difficulty does: namely, the establishment of a statutory

regime which denies or displaces any fiduciary obligation.6In Aus-

tralia, the historic statutory regime providing for the alienation of

Aborigine lands has been considered to have denied any fiduciary

obligation by the Crown with respect to such alienation. More recent-

ly the Native Title Act, 1993, may be considered to have displaced such

liability even were it recognized.

This paper considers the powers which the Crown exercises over

Aboriginal title and traditional lands, the degree if any of fiduciary

accountability which Australian courts will attach, and the significance

of fiduciary obligation in the context of Australia’s Native Title Act.

B. The Power of the Crown

over Aboriginal Title

This part considers, if accountability arises from special powers over

the property of others, what powers are exercised by the Crown over

Aboriginal title and traditional lands.

184 Part two: The Experience of Fiduciary Relationships

3Cubillo and Gunner v. Commonwealth, [2000] F.C.A. 1084 at 1307.

4Paramasivam v. Flynn, [1998] 1711 F.C.A. at 68–79.

5Breen v. Williams, above note 1 at 110 per Gaudron and McHugh JJ., [24] per

Dawson & Toohey JJ.

6Frame v. Smith, [1987] 2 S.C.R. 99.